The Volokh Conspiracy

Ilya Shapiro (Cato) has the scoop. An excerpt:

On April 29, Sir Jay Merchant was knighted by Ambassador Rudolf Bekink on behalf of Queen Beatrix of the Netherlands. Merchant is the “international relations adviser” in the Office of the Administrator of CMS, which is the agency’s highest executive office.

While this may seem like just a neat factoid for inside-the-Beltway water-cooler amusement, there’s actually a constitutional problem that precludes this gallant story from having a fairytale ending. Article I, Section 9, Clause 8 (the “Emoluments” or “Titles of Nobility” Clause) states:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

In other words, it’s illegal for someone holding a federal “office of profit or trust” to accept a knighthood or other noble title. And this isn’t some archaic provision that hasn’t been dusted off since knights wore suits of armor. Believe it or not — and nothing is unbelievable when it comes to Obamacare implementation — this isn’t the first time this issue has arisen. It’s not even the first time in the last decade!

A Justice Department memorandum by our own John Elwood, related to the “Emolument[s]” part of the clause, makes an appearance. Ilya’s view is that the acceptance of the knighthood is indeed a constitutional violation, unless Congress consents. “[D]espite the word ‘adviser’ in his title, Merchant is not just a member on a government advisory board .... [H]e was not given approval by Congress to be knighted, as required by Section 9, and there is no public mention of his having requested such approval.”

“Tap It: NSA Slow Jam,” from ReasonTV, Remy, and Meredith Bragg. Very funny, and nicely executed.

I blogged about Souratgar v. Fair when the district court decision came down, but now there’s a Second Circuit opinion. Here are the key facts:

The boy at the center of this case, now four-year-old Shayan, was born in Singapore in January 2009 to [Lee Jen Fair] and [Abdollah Naghash] Souratgar, who are both residents of that country. Souratgar is an Iranian national who has owned a business in Singapore since 1989. Lee is a Malaysian national who worked as an airline attendant, saleswoman, and retail manager in Singapore. She converted to Islam, Souratgar’s faith, just prior to their marriage in Singapore in 2007. Shayan is a citizen of Malaysia with Malaysian and Iranian passports....

In April 2011, when Shayan was two, Lee filed an ex parte application in the Singapore High Court for sole custody. She cited concern that Souratgar would take Shayan from the country and cut her off from the boy. On May 16, the Subordinate Court of Singapore issued an ex parte order directing Souratgar to hand over Shayan’s passports and personal documents to Lee and barring Souratgar from removing the child from Singapore without court approval and Lee’s knowledge or consent. Souratgar complied with the order, denied Lee’s charges, and cross-applied for sole custody.

While the custody proceedings were pending in Singapore, Lee moved out of the marital home with Shayan and refused to disclose their whereabouts to Souratgar. He eventually found them in Malaysia, where Lee denied him access to the boy. Souratgar then filed a custody application in the Syariah Court of Malaysia, which granted joint custody to the couple in early July. Thereafter, Lee succeeded in obtaining a dismissal of that order from the Malaysian Syariah Court for lack of jurisdiction.

After Lee and Shayan returned to Singapore, the custody proceedings in Singapore’s Subordinate Court resumed. Following a mediation session on July 14, 2011, the Subordinate Court barred either parent from removing Shayan from Singapore without the other’s consent and ordered interim supervised visitation for Souratgar of two hours per week at Singapore’s Centre for Family Harmony. Following another mediation session on February 16, 2012, both parties agreed to a consent order by the Subordinate Court to have custody decided by the Syariah Court of Singapore. [Foontote: In late 2011, Lee had filed for divorce in Singapore’s Syariah Court and used that proceeding to dismiss the temporary joint custody order of the Malaysian Syariah Court.] In the meantime, Shayan remained in Lee’s care, while Souratgar’s visitation time was doubled.

On May 20, 2012, Lee removed Shayan from Singapore, in violation of the Singapore Subordinate Court’s order. Souratgar, through a private investigator, eventually located Lee and Shayan in [New York], and on October 18, filed an ex parte application in the district court under the Convention for Shayan’s return to Singapore.

The case is now in American court under the Hague Convention on the Civil Aspects of International Child Abduction, a treaty that the U.S. and Singapore has signed, and that U.S. courts generally follow (and that U.S. citizens reciprocally benefit from). Under the Hague Convention, “when a parent wrongfully removes a child from one contracting state which is the child’s country of habitual residence to another contracting state, the other parent may initiate a proceeding to repatriate the child to the first state.” Such removal is required unless the other parent can establish one of the defenses, and the two relevant ones are under Article 13(b) (where “there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”) and under Article 20 (where return to the country of habitual residence “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms”).

Continue reading ‘Foreign Child Custody Disputes Involving People Coming from Countries That Apply Islamic Family Law’ »

I purchased a Dell laptop a few years ago and it has been serviceable.  Except for one thing–the horrible integrated webcam.  The first was defective and had to be replaced.  Now my computer is telling me that it doesn’t detect any webcam.  As far as I can tell, the only thing worse than a Dell webcam is the quality of its customer support in answering this question, because many other people seem to have had this same problem and no one seems to know how to fix it (I’ve tried several different fixes that are supposed to work).  It is amazing how many people have complaints about that particular product.

Are there any smart VC readers who have had this problem and actually have a fix for it?  I wouldn’t be the only one who would see this as a great service.

The Supreme Court today issued its much-awaited decision in the Myriad Technologies case.  At issue in the case were Myriad’s patents on  the BRCA1 and BRCA2 genes — genes which are important genetic markers for determining susceptibility to breast cancer.  Myriad discovered “the precise location” of the two genes (on chromosomes 17 and 13), and sequenced the two genes to determine the precise nucleotide pattern in each.  That information, in turn, enabled Myriad to develop medical tests that are useful for detecting mutations in a patient’s BRCA1 and BRCA2 genes and thereby assessing whether the patient has an increased risk of cancer.  Because of the patents, Myriad claimed the “exclusive right to isolate an individual’s BRCA1 and BRCA2 genes” — that is, the exclusive right to perform these diagnostic tests, because isolating the gene in any individual constituted an  infringement of their patent.

Myriad also had patents covering the so-called “cDNA” — composite DNA.  These are nucleotide strands derived from the genes, but not identical to them; the cDNA for the BRCA1 gene consists of only those portions of the gene  (the “exons”) that are used during the process of protein production, and it omits the non-coding portions of the original gene (“introns”).

The Court (9-0, opinion by Thomas) invalidated Myriad’s patents on the genes themselves, because Myriad had not “created” anything but had rather  ”discovered” the naturally-occurring characteristics (location and sequence) of the genes in question:

It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and BRCA2 genes. The location and order of the nucleotides existed in nature before Myriad found them. Nor did Myriad create or alter the genetic structure of DNA. Instead, Myriad’s principal contribution was uncovering the precise location and genetic sequence of the BRCA1 and BRCA2 genes within chromosomes 17 and 13. . . . To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention. Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry.

The cDNA, however, is patentable, because it does not exist as such in nature, and is therefore the product of human invention:

cDNA does not present the same obstacles to patentability as naturally occurring, isolated DNA segments. As already explained, creation of a cDNA sequence from mRNA results in an exons-only molecule that is not naturally occurring. Petitioners concede that cDNA differs from natural DNA in that “the non-coding regions have been removed.” They nevertheless argue that cDNA is not patent eligible because “[t]he nucleotide sequence of cDNA is dictated by nature, not by the lab technician.” That may be so, but the lab technician unquestionably creates something new when cDNA is made. cDNA retains the naturally occurring exons of DNA, but it is distinct from the DNA from which it was derived. As a result, cDNA is not a “product of nature” and is patent eligible under §101 [of the Patent Act].

All well and good.  I think the Court got it right on this one — I have never understood the contortions that were required to allow naturally-occurring genetic material, without alteration in its composition, to be patented, and I’m glad the Court shares that view.

There was only one Justice writing separately — Justice Scalia, whose opinion concurring in part and concurring in the judgment reads in its entirety as follows:

I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.

I don’t mean to pick on Justice Scalia, but I’m genuinely confused by this.  On the one hand, this case is all about  ”fine details of molecular biology,” like it or not; the differences between cDNA and ordinary DNA are details of molecular biology and are at the heart of the case.  Why is this case different from one where, say, the Court has to understand the intricacies of inter-bank money transfer practices and processes in order to render its decision – I’ve never seen Justice Scalia distance himself from the “details” of those (very complicated) matters.

And more troubling:  does this mean that in all of the other opinions to which Justice Scalia lent his name he was “affirm[ing] the details on my own knowledge or even my own belief”??  Here’s some language from an earlier patent case this term, Bowman v. Monsanto, from Justice Kagan’s opinion for the Court (which Scalia joined without additional comment):

Respondent Monsanto invented a genetic modification that enables soybean plants to survive exposure to glyphosate, the active ingredient in many herbicides (including Monsanto’s own Roundup). Monsanto markets soybean seed containing this altered genetic material as Roundup Ready seed. Farmers planting that seed can use a glyphosatebased herbicide to kill weeds without damaging their crops. Two patents issued to Monsanto cover various aspects of its Roundup Ready technology, including a seed incorporating the genetic alteration. . . . Because glyphosate resistance comes from the seed’s genetic material, that trait is passed on from the planted seed to the harvested soybeans: Indeed, a single Roundup Ready seed can grow a plant containing dozens of genetically identical beans, each of which, if replanted, can grow another such plant—and so on and so on.

Inamsuch as Scalia didn’t qualify his position in that case, is he “affirming” all of those details?  On what basis?  And if so, what makes molecular biology different from seed biology?  I don’t get it.

Salimbene di Adam, in the late 13th century, quoted an anonymous source in his Cronica, commenting on the corruption in the Roman Curia:

Accusative ad curiam si ceperis ire,
Proficis in nichilo, si pergis absque dativo.

The “nichilo” is a medieval spelling of “nihilo”, which shows us that they pronounced that “h” in late-13th-century Italy. (Or wherever and whenever that guy he was quoting lived, but I figure Salimbene would have changed the spelling to something he was comfortable with; they weren’t so punctilious about that stuff then.)

This means, basically:

If you get the idea to go to court accusatively,
You won’t succeed in anything if you proceed without the dative.

In other medieval Latin humor, around the same time, Pope Boniface VIII was talking to one of his cardinals, Jean Lemoine, who was advising that he should cancel some grants made by his predecessor because they were made without consultation by the cardinals. Of course Popes didn’t like it when cardinals suggested that Popes had to consult with them to act legitimately. Boniface VIII ended up canceling the grants, but first he blew up at Jean Lemoine, who was from Picardy:

Picharde Picharde tu habes caput Pichardicum, sed per Deum ego piccabo te, & faciam in omnibus velle meum, & non dimittam pro te neque pro omnibus qui estis hic, sicut pro asinis.

This basically means:

Picard, Picard, you Picard-head, by God, I’m going to pike you, and I’ll do what I want in all things, and I won’t cancel [those grants], for you nor for all the other[ cardinals] here, as I wouldn’t for asses.

Russia Beyond the Headlines has the details; the Russian-language text of the bill is here. The bill covers “the dissemination of information, aimed at forming among minors [1] nontraditional sexual orientations, [2] an attraction to nontraditional sexual relationships, [3] a distorted perception about the social equal value of traditional and nontraditional sexual relationships, or [4] the imposition of information about nontraditional sexual relationships, creating an interest in such relationships” (translation mine). Russia Beyond the Headlines quotes “the State Duma’s committee on family, women’s and children’s affairs, Yelena Mizulina” as saying that “The term homosexuality [used in the first reading of the relevant bill] will not be used, we will use the term non-traditional sexual relations.”

The bill “was supported by 436 members of the 450-seat lower house” and “needs presidential endorsement to become law.” Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

From Slocum v. Devezin (E.D. La. June 3, 2013):

Here, Defendants do not challenge the sincerity of Plaintiff’s religious convictions or that part of her religion — her Sabbath [which runs from 10 am Tuesday to 10 am Wednesday each week] — conflicts with her employer’s requirement that she work on Tuesdays.... Assuming for the purposes of the pending motion to dismiss that a prima facie case is established, the burden shifts to Defendants to show that it was unable to reasonably accommodate Plaintiff’s religious needs without undue hardship....

Here, Plaintiff teaches special education at an elementary school. Class is held from Monday through Friday. Accommodating Plaintiff’s request to take off every Tuesday would require Defendants to hire a substitute teacher every week, or a part-time employee to cover every Tuesday, in addition to paying Plaintiff’s salary, or perhaps would require her students to sit with another teacher’s class — overloading the student-teacher ratio. Such accommodations appear even more burdensome than those contemplated in Hardison or Eversley. Therefore, this Court finds that obliging Plaintiff’s request and accommodating her religious practices in this regard would require Defendants to bear more than a de minimus cost, and as such would be an “undue hardship.” Accordingly, on the face of Plaintiff’s complaint, and accepting all of her allegations as true, Plaintiff cannot establish that Defendants were in violation of Title VII of the Civil Rights Act of 1964 by denying Plaintiff her request for time off every Tuesday for her Sabbath, and Plaintiff’s claims for religious discrimination will be dismissed with prejudice.

Sounds correct to me; Title VII requires reasonable accommodation, which courts have interpreted as accommodation that doesn’t impose much of a burden on the employer. In some situations and job categories, requests for time off for religious observance can be accommodated with minimal burden, for instance through shift swaps or rearranging the employee’s schedule. But in other situations, including for Saturday (i.e., Friday sundown to Saturday sundown) or Sunday Sabbatarians, the employee must be on the job for all the hours normally required of the job. That’s especially likely for schoolteachers, where continuity of the teacher-student relationship is important, and doubly so when the time off would come in the middle of the work week.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

The Supreme Court released opinions in four argued cases this morning: American Trucking Assn. v. Los Angeles, Tarrant Regional Water District v. Hermann, United States v. Davila, and Association for Molecular Pathology v. Myriad Genetics. All four were unanimous in the judgment. (Justice Scalia authored opinions concurring-in-part and concurring in the judgment in Davila and AMP v. Myriad.) SCOTUSBlog has details, as always.

The Double Jeopardy clause of the Fifth Amendment provides that no person can “be subject for the same offense to be twice put in jeopardy of life or limb.” Despite its text, the Double Jeopardy clause has been interpreted by the Supreme Court to allow both the federal government and a state government to bring charges for the same conduct because they are separate sovereigns.

In a very interesting cert petition that was recently filed, Roach v. Missouri, the petitioner asks the Supreme Court to overturn this doctrine on originalist grounds. Here’s the question presented:

Under the original meaning of the Double Jeopardy Clause, a prosecution by one sovereign barred subsequent prosecutions by all sovereigns. But the Court strayed from this original meaning when it adopted the doctrine of “dual sovereignty,” which permits prosecutions by multiple sovereigns. Criminal defendants thus now have less Double Jeopardy protection than they had at the Founding. This petition presents unequivocal historical evidence that dual sovereignty is inconsistent with the original meaning of the Double Jeopardy Clause.

The question presented is whether the Double Jeopardy Clause bars a state prosecution for a criminal offense when the defendant has previously been convicted of the same offense in federal court.

The petition is certainly unusual: It asks the Court to overturn its longstanding precedent based on a historical argument without identifying a split or lower court confusion. But the historical argument is a very interesting one. At least on a first read, it seemed pretty persuasive to me. For some similar thoughts from co-blogger Paul Cassell, see Paul G. Cassell, The Rodney King Trials and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU’s Schizophrenic Views of the Dual Sovereign Doctrine, 41 UCLA L.Rev. 693, 709-15 (1994).

State v. Willan (Ohio June 12, 2013) involves statutory construction; the court rules, 4-3, that the statute under which defendant was convicted unambiguously applies to defendant, but the dissent argues that the statute is ambiguous and that defendant should prevail because of the Rule of Lenity. The statute reads as follows:

Except when an offender commits a violation of section 2903.01 or 2907.02 of the Revised Code and the penalty imposed for the violation is life imprisonment or commits a violation of section 2903.02 of the Revised Code, if the offender commits a violation of section 2925.03 or 2925.11 of the Revised Code and that section classifies the offender as a major drug offender and requires the imposition of a ten-year prison term on the offender, if the offender commits a felony violation of section 2925.02, 2925.04, 2925.05, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, or 4729.61, division (C) or (D) of section 3719.172, division (C) of section 4729.51, or division (J) of section 4729.54 of the Revised Code that includes the sale, offer to sell, or possession of a schedule I or II controlled substance, with the exception of marihuana, and the court imposing sentence upon the offender finds that the offender is guilty of a specification of the type described in section 2941.1410 of the Revised Code charging that the offender is a major drug offender, if the court imposing sentence upon an offender for a felony finds that the offender is guilty of corrupt activity with the most serious offense in the pattern of corrupt activity being a felony of the first degree, or if the offender is guilty of an attempted violation of section 2907.02 of the Revised Code and, had the offender completed the violation of section 2907.02 of the Revised Code that was attempted, the offender would have been subject to a sentence of life imprisonment or life imprisonment without parole for the violation of section 2907.02 of the Revised Code, the court shall impose upon the offender for the felony violation a ten-year prison term that cannot be reduced pursuant to section 2929.20 or Chapter 2967. or 5120. of the Revised Code.

Acting Chief Justice Pfeifer’s dissent reads, in its entirety:

I join Justice Lanzinger’s well-reasoned dissent, but write separately to highlight the General Assembly’s failure in legislative drafting exemplified by former R.C. 2929.14(D)(3), which the majority opinion relegates to a footnote to fully accommodate its 24 lines of unrelenting abstruseness consisting, remarkably, of the sum total of 307 words and a mere one period, a punctuation mark set out as a lone sentinel facing odds similar to that of the Spartans at the Battle of Thermopylae, a battle that occurred over the course of three days during the second Persian invasion of Greece, and is estimated by historians to have occurred in either August or September, or perhaps both, in 480 B.C., pitting an alliance of Greek city-states, led by King Leonidas of Sparta, against the Persian Empire of Xerxes I, bravely standing before the onslaught of invaders but ultimately unable to stanch the unrelenting tide of the overpowering hordes of words and statutory numbers including R.C. 2903.01, 2907.02, 2903.02, 2925.04, 2925.11, 2925.02, 2925.06, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, 4729.61, 3719.172, 4729.51, 4729.54, 2941.1410, 2929.20, without so much as a helping hand from a single, solitary semicolon, colon, or parenthesis, other than the parentheses surrounding the capital letters denoting the divisions of statutory sections that are sprinkled throughout the statute, a statute that purports to inform the citizenry of the potential penalty for certain enumerated criminal acts, but by cramming so many words about sentencing into one sentence, sentences itself to uselessness, especially in the case of an offender involved in a pattern of corrupt activity, regarding which R.C. 2929.14(D)(3) surprisingly is completely without specificity, in that it fails to cite a statutory section outlining what constitutes corrupt activity when it otherwise lists specific statutory sections relating to all the other offenses to which it applies, a statutory circumstance up with which we should not put.

I recently participated in a Tulsa Law Review symposium in honor of Yale Law School Professor Heather Gerken, one of the nation’s leading federalism scholars. Much of Gerken’s work urges her fellow political liberals to rethink their traditional distaste for federalism. My contribution to the symposium is now available on SSRN. Here is the abstract:

Professor Heather Gerken has made important contributions to our understanding of democracy and federalism. Part I of this article summarizes two of her most significant ideas. The first is “taking federalism all the way down,” the theory that many of the benefits of federalism can be enhanced by empowering local governments as well as states. The second is her insistence that federalism can be used to empower political dissenters, including racial and ethnic minorities. Subnational jurisdictions where nationwide minorities are in the majority enable these minorities to exercise power in their own right instead of relying on the good will of the national majority. In Gerken’s trademark phrase, they can “dissent by deciding.”

Part II proposes three extensions of Gerken’s ideas. First, both “federalism all the way down” and the empowerment of minorities might be enhanced by greater attention to the benefits of “voting with your feet” as well as voting at the ballot box. Foot voting has some important advantages over ballot box voting as a tool for actualizing political freedom and expressing dissent. Second, for minorities to be able to “dissent by deciding” effectively, Gerken may wish to rethink her opposition to judicial enforcement of constitutional limits on federal power. Finally, while Gerken argues that federalism may be beneficial for minority groups today, she accepts the conventional wisdom that it was largely detrimental to them throughout most of American history. In reality, however, the situation was far more nuanced. Although state and local governments often oppressed minority groups, so too did the federal government. During much of the last 200 years, African Americans and other minorities would have been even worse off with a unitary state than they were under federalism.

I previously commented on Gerken’s writings on federalism here. In this forthcoming article, I develop in more detail some of the extensions of Gerken’s ideas that I proposed in the symposium piece.

If you are going to accuse a critic of being “astonishingly ignorant of history,” your response to said critic should not include this:

State and local licensing rules and trade laws governed economic life in detail, down to the size of spigots in wine casks, in some cases.

It was precisely these state and local regulations that the Supreme Court struck down, in Lochner v. New York (1905) and other cases, to promote the goal of creating a single national market.

I’ve seen lots of different interpretations of Lochner over the years, but I’ve never seen anyone claim that underlying Lochner was a desire to create a single national market, and for good reason, because that’s a ridiculous interpretation of Lochner.

Surely someone with even a tenuous grasp of 20th century American constitutional history at least knows that the Justices most sympathetic to Lochnerian reasoning were also generally the most hostile to federal laws that attempted to create a uniform national market. “Astonishingly ignorant of history,” indeed.

(And if this post seems a bit snide, please consider that I’m responding to someone who writes gems such as, “if they were not paid so well to churn out anti-government propaganda by plutocrats like the Koch brothers and various self-interested corporations, libertarians would play no greater role in public debate than do the followers of Lyndon LaRouche or L. Ron Hubbard.”)

UPDATE: Not that it’s worth taking Lind’s “point” reprinted above seriously, but let’s review:

It seems undisputed that the Kochs total spending on political and ideological causes is somewhere around 10-15 million dollars per year. How big a role does this money play in the American political system?

Let’s start with ideological/intellectual causes. The liberal Ford Foundation spends over $400 million a year. The liberal MacArthur Foundation spends about $140 million a year. Liberal billionaire George Soros spends about $150 million a year. Liberals control the vast majority of academic positions in almost every humanities and social science department in every major university in the country, with total budgets in the tens of billions.

If libertarianism is winning, or at least successfully competing, in the war of ideas, it ain’t because the big money is on its side.

So reads the title of a column by political writers Matier & Ross at SFGate.com:

Muslim cabbies now have their very own place at San Francisco International Airport to wash their hands and feet before they pray.

Under Islamic law, Muslims are required to pray five times a day — a ritual that also calls for a ceremonial cleansing.

For many cab drivers, that’s meant either lugging bottled water around or using one of the bathrooms inside the terminal to wash — a practice not always welcomed by airport passengers.

So Royal Cab driver Hasan Khan, 52, a Pakistani immigrant, collected some 300 signatures from fellow cabbies, urging the airport to give them their own cleansing station.

Airport brass obliged — and the wash equipment was installed on the ground floor of the main garage, right next to where the drivers congregate for their breaks.

“The way we look at it ... this was in the interest of maintaining a good relationship with ground transportation providers,” says airport spokesman Doug Yakel.

Various commenters are upset at this; consider, for instance, this American Thinker post:

Right: ‘maintaining a good relationship” means not getting your head cut off. One can’t imagine that evangelicals, Jews, Catholics, Mormons or any other religious group would receive this kind of exclusive use of city-owned property. But then again, where are the beheadings undertaken by fanatical evangelicals, Jews, Catholics, or Mormons?

Sharia creeps in on cat’s feet, out of the San Francisco fog.

This sort of criticism, it seems to me, misses just how commonly lots of religious groups — and usually Christian ones — are accommodated by the government. One can debate the wisdom of any particular accommodation (though this one seems quite sensible), or the wisdom of the general practice of religious accommodation. But to suggest that this is somehow special kowtowing to Muslims, alone of other groups, strikes me as quite mistaken.

Let me offer just a few examples; not all involve use of government property, but all involve practices that are designed to benefit religious observers, often those of particular groups.

1. Jewish law, as interpreted by many Orthodox Jews, bars them from carrying things in their pockets outdoors on the Sabbath. But if a set of wires called an “eruv” — often attached to utility poles — is set up in the neighborhood, then such carrying within the eruv boundary is allowed. Orthodox Jewish communities therefore often erect eruvs, which requires the permission of the entities that own the property to which the eruv is attached. That will often include government entities, which in many (but not all) places are happy to provide this accommodation to their citizens.

2. State-run liquor stores, in those states in which the state has a monopoly on selling liquor, often stock kosher wines.

3. Cafeterias in government buildings sometimes still serve fish on Fridays, which I take it stems from an accommodation of the traditional (though now no longer mandated) Catholic practice of not eating meat on Fridays.

4. Places where many Jews live have schools closed on Jewish holidays.

5. Though we take it for granted, the calendar is understandably optimized for the convenience of the Christian majority. Jewish and Muslim students might seek special accommodations when classes or tests fall on the Sabbath or religious holiday (whether taking a makeup test or just having a class recorded and the recording posted on the class Web site), but Christians don’t need such accommodation, because school is already off on Sundays and on Christmas. Related, Sunday closing laws, which used to be much more prevalent (and which have generally been upheld against constitutional challenge), have long benefited people who as a result haven’t had a conflict between their employment duties and their felt obligation to go to church Sundays.

6. Many states bar the sale of alcohol within some distance of a place of worship. (Larkin v. Grendel’s Den (1982) held that the government couldn’t give religious institutions a discretionary veto over the issuance of such licenses, but it said that categorically prohibiting licenses near places of worship is permissible.) That applies to all places of worship, regardless of religiosity, but to the extent that it’s seen as a benefit to places of worship and to worshippers — and that is the stated intent of the law — it overwhelmingly benefits Christian institutions.

The list could go on for many pages; religious accommodations are commonplace in American life, including in government-run facilities and on government-owned property. Some of these accommodations may be unsound; for instance, I think Sunday closing laws and bans on sale of alcohol near places of worship unfairly impose substantial burdens on nonobservers (in a way that the foot-washing station doesn’t). But here I’m simply trying to respond to the factual claim that there’s somehow something shockingly unusual in the accommodation for Muslims in this instance — and it turns out there isn’t.

Nor can one distinguish these, I think, on the grounds that the foot-washing station is only available to Muslims. I doubt, given the SFGate story, that there’s any law barring non-Muslims from washing their feet there. (They might get glares from others, but I know of no legal prohibition on non-Muslims using this, and indeed a denomination-specific prohibition would be unconstitutional.) I even doubt that there’s a requirement that the foot-washing station be used only by those who sincerely believe that they have a religious obligation to wash their feet; such limitations might be permissible — many accommodations are open only to those who sincerely feel a religious need for the accommodation, but I don’t see any evidence that this is one such.

Likewise, I don’t think that one can distinguish the examples on the grounds that the foot-washing station is a “Muslim house of worship.” It is a means that Muslims can use to facilitate their religious practices (here, worship), but so is letting people attach an eruv to city-owned utility poles, giving a student a chance to make up a test that was administered on Yom Kippur, closing a school on Yom Kippur, closing all government buildings on Sundays.

And one can’t distinguish the examples on the grounds that some of them are in the government’s interest as well as in the religious observers’ (for instance, when a school in an area with a large Jewish minority closes for the Jewish holy days rather than having to deal with many absences by teachers and students, or when a liquor store makes money from selling kosher wine). As the SFGate story points out, having the station keeps people from washing their feet in airport restrooms, a practice that many non-Muslim passengers might find offputting, and having happy and promptly available cab drivers is good for the airport and its passengers.

More broadly, religious accommodations will often differ for different practices. Sometimes there’s a very close analogy between a requested accommodation and other accommodations for other groups (for instance, between Muslims’ requests for exemptions from no-headgear rules and Orthodox Jews’ requests for such exemptions, or Muslims’ requests for time off to worship and Seventh-Day Adventists’ or Orthodox Jews’ requests). Sometimes the analogy is less close, for instance because no other religious groups require special washing of a sort that isn’t comfortably done in a normal public restroom, and that at the same time is relatively simple to accommodate. I think the important point, though, is to look at the broad pattern of religious accommodations, and ask whether the accommodation generally falls within the broad range of practices that government entities accommodate (usually because they can do that quite cheaply, and with little burden on third parties).

So, again, one can debate the merits of any particular accommodation, whether offered to Muslims or to others. But one should recognize that the accommodations that have recently been offered to Muslims are generally part of a much longer tradition of offering accommodations to many other groups, predominantly Christians (followed in frequency by Jews). For more on this, see my 2007 National Review Online column on this general subject, or this chain of posts.

Famed Harvard law professor and former Obama Administration official Cass Sunstein is no enemy of regulation in general. But in this recent column, he argues that big cities need to deregulate the taxi market:

People can run into two problems when they need to find a taxi. The first is that they don’t know whether a taxi will be available. The second is that they don’t know when a taxi will be available.

Uber Technologies Inc. (0084207D), a San Francisco-based company, was set up to solve both problems. You can download its application, and it will find out where you are and come pick you up. It will also tell you when it is coming....

Uber is now available in numerous cities, including Atlanta, Boston, Chicago, Dallas, Detroit, Los Angeles, New York, Philadelphia, San Diego, San Francisco and Washington. The good news is that it is serving tens of thousands of customers (and creating jobs in the process).

The less good news is that it is having to fight a series of absurd regulatory battles, which provide a revealing case study in interest-group efforts to block new entrants and innovative approaches.

The basic problem is that the taxi industry is intensely regulated. One goal of regulation isn’t to protect consumers. It is to entrench current providers and to limit competition.

With respect to taxis, some states have a system that isn’t altogether different from socialist-style planning. Some longstanding regulations have the purpose and effect of squelching new entrants. And in the face of fresh competition, the industry has been creative and occasionally shameless....

True, there is an important place for rules designed to promote safety and to prevent fraud or deception. But regulation of the taxi industry goes far beyond those goals. That regulation is a dinosaur; it should become extinct.

Taxi cab regulation was stifling competition and harming consumers long before Uber came along. But, as Sunstein explains, Uber makes its flaws even more intolerable than before.