Your discussion of how Mahmoud plays out in future cases was very thought provoking, especially the issue of how a school might be required to provide opt outs for unusual religious beliefs about seemingly non controversial subjects like math (taking up your hypo of the person with idiosyncratic views about addition).
In the Court's prior gay rights cases (Romer, Lawrence, etc.) the issue of animus has been cited in finding the various statutes unconstitutional. But it also figured into the Court's decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. There the animus against Jack Phillips' beliefs-evidenced by the commission members' toxic rhetoric-was key to the Court's resolution of the case.
Mahmoud does not use the term animus, but the majority discusses the school board members' negative reactions to the objecting parents. See pages 8-9 of the slip opinion. The opinion also cites the language in Obergefell acknowledging honorable disagreement with same sex marriage. The clear implication is that whatever promise the Obergefell majority made about acknowledging the legitimacy of differing views on same sex marriage is not being honored by the Montgomery Co School Board.
Do you think Mahmoud is likely going to be limited to cases where there is evidence of a nontraditional subject being taught because of an underlying animus for religiously motivated beliefs? If true, that would limit the possibility of Mahmoud to be used to require public schools to create individualized courses of instruction. It would, for example, be very hard to see how teaching a traditional subject like math could ever be evidence of animus.
Thanks for your work on the podcast. It is a real public service.
Wait ... Chicago is enforcing Kalven to prohibit the display of a "Black Lives Matter" banner?!
The school has to remain agnostic on whether Black lives do or do not matter? Isn't this the sort of reductio ad absurdum that Dan was wondering about?
The meaning of a "Black Lives Matter" banner is more than just the preposition that black lives matter. It is also a endorsement of a particular and conservative movement.
Likewise, putting up a Make America Great Again banner conveys more meaning than a general support for America doing well.
In re "General": I can't remember if you guys touched on the whole "General" thing in this episode, but thought I'd throw out here an interesting nuance on the topic. I spoke yesterday to a former state SG I know. They said that they thought it's fine for the AG or SG of the United States to be called "General" but at the state level it's "silly." So perhaps that's a norm that will emerge. (Though I doubt the staff of state AG/SG offices will be able to resist, given their incentives.)
Fascinating! Is it "silly" because states can't, without congressional consent, "keep Troops, or Ships of War in time of Peace" and so we aren't used to the idea of a state military general?
I didn't ask. I think maybe it was just because the idea of 100 "Generals" who are actually lawyers, running around out there, 2 in every state, is silly. It all reminds me of this Mark Twain essay about former officeholders clinging to their titles, "Does the Race of Man Love a Lord," https://www.online-literature.com/twain/3263/. A pertinent passage: "I have been personally acquainted with over eighty-four thousand persons who, at one time or another in their lives, have served for a year or two on the staffs of our multitudinous governors, and through that fatality have been generals temporarily, and colonels temporarily, and judge-advocates temporarily; but I have known only nine among them who could be hired to let the title go when it ceased to be legitimate."
While I understand their disparaging comments about ERISA may be attempts at some humor, I wish the hosts would take ERISA law and lawyers more seriously. ERISA is an incredibly important and complicated part of law, affecting almost anyone that receives health or retirement benefits from a private employer. ERISA was also a great standardization of law, allowing multi-state employers to provide consistent benefits to their workface, regardless of which state the employees are based in. I spent most of my career in employee benefit related businesses. Having competent ERISA counsel was critical to a lot of the work we did and making sure we were serving our clients and their plan participants well. It's hard for companies to find ERISA attorneys. I would encourage law students to consider specializing in ERISA law as a good career path.
While our comments may be tongue-in-cheek, I don't mean to disparage ERISA. I think it's genuinely an underrated area of legal study, and I've heard from several other readers who agree.
Your discussion of how Mahmoud plays out in future cases was very thought provoking, especially the issue of how a school might be required to provide opt outs for unusual religious beliefs about seemingly non controversial subjects like math (taking up your hypo of the person with idiosyncratic views about addition).
In the Court's prior gay rights cases (Romer, Lawrence, etc.) the issue of animus has been cited in finding the various statutes unconstitutional. But it also figured into the Court's decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. There the animus against Jack Phillips' beliefs-evidenced by the commission members' toxic rhetoric-was key to the Court's resolution of the case.
Mahmoud does not use the term animus, but the majority discusses the school board members' negative reactions to the objecting parents. See pages 8-9 of the slip opinion. The opinion also cites the language in Obergefell acknowledging honorable disagreement with same sex marriage. The clear implication is that whatever promise the Obergefell majority made about acknowledging the legitimacy of differing views on same sex marriage is not being honored by the Montgomery Co School Board.
Do you think Mahmoud is likely going to be limited to cases where there is evidence of a nontraditional subject being taught because of an underlying animus for religiously motivated beliefs? If true, that would limit the possibility of Mahmoud to be used to require public schools to create individualized courses of instruction. It would, for example, be very hard to see how teaching a traditional subject like math could ever be evidence of animus.
Thanks for your work on the podcast. It is a real public service.
Wait ... Chicago is enforcing Kalven to prohibit the display of a "Black Lives Matter" banner?!
The school has to remain agnostic on whether Black lives do or do not matter? Isn't this the sort of reductio ad absurdum that Dan was wondering about?
The meaning of a "Black Lives Matter" banner is more than just the preposition that black lives matter. It is also a endorsement of a particular and conservative movement.
Likewise, putting up a Make America Great Again banner conveys more meaning than a general support for America doing well.
In re "General": I can't remember if you guys touched on the whole "General" thing in this episode, but thought I'd throw out here an interesting nuance on the topic. I spoke yesterday to a former state SG I know. They said that they thought it's fine for the AG or SG of the United States to be called "General" but at the state level it's "silly." So perhaps that's a norm that will emerge. (Though I doubt the staff of state AG/SG offices will be able to resist, given their incentives.)
Fascinating! Is it "silly" because states can't, without congressional consent, "keep Troops, or Ships of War in time of Peace" and so we aren't used to the idea of a state military general?
I didn't ask. I think maybe it was just because the idea of 100 "Generals" who are actually lawyers, running around out there, 2 in every state, is silly. It all reminds me of this Mark Twain essay about former officeholders clinging to their titles, "Does the Race of Man Love a Lord," https://www.online-literature.com/twain/3263/. A pertinent passage: "I have been personally acquainted with over eighty-four thousand persons who, at one time or another in their lives, have served for a year or two on the staffs of our multitudinous governors, and through that fatality have been generals temporarily, and colonels temporarily, and judge-advocates temporarily; but I have known only nine among them who could be hired to let the title go when it ceased to be legitimate."
While I understand their disparaging comments about ERISA may be attempts at some humor, I wish the hosts would take ERISA law and lawyers more seriously. ERISA is an incredibly important and complicated part of law, affecting almost anyone that receives health or retirement benefits from a private employer. ERISA was also a great standardization of law, allowing multi-state employers to provide consistent benefits to their workface, regardless of which state the employees are based in. I spent most of my career in employee benefit related businesses. Having competent ERISA counsel was critical to a lot of the work we did and making sure we were serving our clients and their plan participants well. It's hard for companies to find ERISA attorneys. I would encourage law students to consider specializing in ERISA law as a good career path.
While our comments may be tongue-in-cheek, I don't mean to disparage ERISA. I think it's genuinely an underrated area of legal study, and I've heard from several other readers who agree.