Masterpiece Cakeshop: Crafting a Minimalist Decision

The Masterpiece Cakeshop case presents issues of free speech and free exercise of religion which are important, controversial, and divisive. Almost any decision on these issues will result in a public and academic outcry by whichever side fails to prevail. The court should therefore consider crafting a narrow opinion which will garner the greatest number of justices who will join it.

The Roberts Court has a significant history of avoiding these problems by delivering carefully limited decisions. To take just one example, in Northwest Austin Municipal Utility District v. Holder (2009), a decision on the constitutionality of one part of the Voting Rights Act of 1965, the court interpreted the preclearance provision at issue not to apply to the entity challenging the constitutionality of the Act, thereby inviting Congress to legislate a new coverage formula. More recently, in Trump v. International Refugee Assistance Project (2017), the court granted a stay of injunctions issued by lower courts against the Trump Administration’s Executive Order on immigration without addressing the anti-Muslim bias claims which lay at the heart of the lower court decisions, and without deciding whether the Trump Administration had made a showing of likelihood of success on the merits. Given the fact that the Executive Order at issue may expire before the court hears the case on the merits, this approach avoided deciding a controversial issue regarding executive power in the context of a claim of religious discrimination.

A final recent example is the court’s decision in Trinity Lutheran  Church v. Comer (2017), where it ruled that Missouri could not discriminate against a church, because of its status as a religious institution, by disqualifying it from participating in a scrap tire program to resurface playgrounds. The court majority carefully avoided deciding, or even discussing, claims that the authority relied upon to disqualify the church was a so-called “Blaine Amendment,” which four members of the court had previously held was the product of religious bias against Roman Catholics.

The court should adopt a similar approach in Masterpiece Cakeshop. Here are some steps to do so.

  1. Limit any decision to the compelled speech issue. The briefs in the case raise First Amendment issues under both the free speech and free exercise of religion clauses. Free exercise claims have often resulted in sharply divided courts, with strongly worded dissents. In these cases, it has often been difficult to get a fifth vote in support of an opinion of a court. By contrast, the free speech decisions of the Roberts Court have been nearly unanimous.
  2. Find that the “cake artist” is engaged in speech.  Jack Phillips, the owner of Masterpiece Cakeshop, has a good case here. His appellate attorneys rely upon the following facts, among others: Mr. Phillips’ shop has a logo displaying an artistic palate with a paintbrush and whisk; it displays a drawing of the owner sketching himself inside the shop; Phillips uses artistic skills in creating cakes; he designs each wedding cake individually with meetings with the couples; and he markets himself as a “cake artist.” In addition, he utilizes artistic talents such as sketching; he designs ornamental features; and he decorates his cakes using painting, airbrushing, and sculpting techniques. Since courts have previously recognized such persons as tattooists as artists, characterizing Phillips as such should command a majority of the court.
  3. Limit the artist holding. The court should rely heavily upon the facts just enumerated regarding Mr. Phillips. It should not, for example, attempt to define just exactly who would qualify as an artist under the Free Speech Clause, nor volunteer any opinion on off-the-shelf merchandise. This was the approach followed in the Hobby Lobby case (Burwell v. Hobby Lobby (2014), where the court limited its holding to closely held corporate entities, and did not express any opinion regarding publicly held corporations.
  4. Do not contest Phillips’ beliefs.  In ruling against Philips, the Colorado courts rejected his contention that designing a cake for a same-sex wedding would suggest his support of such unions. Those courts adopted a “reasonable observer” approach, contending that such a hypothetical observer (in Colorado? in other states?) would not see making a cake as endorsing the marriage, and that Phillips therefore was not being compelled to speak in favor of same-sex marriage. This runs contrary to the approach taken by the court in its RFRA decisions. In both Burwell v. Hobby Lobby, and Holt v. Hobbs (2015), the court emphasized the need to look at the particular claimant before the court, and held that the protections of the statute were “not limited to beliefs which are shared by all of the members of a religious sect.” While RFRA cases are not constitutional decisions, there is no compelling basis to use a different standard in free speech cases.
  5. Compare the harms to those presented in free speech cases.  To the extent that Masterpiece Cakeshop is decided on free speech grounds, a strong case can be made that the dignitary and psychic harms caused to the same-sex couple by Phillip’s refusal to design a cake for their wedding are no greater than those found not to be protected against governmental action in other cases. To take just one example, the recent decision in Matal v. Tam (2017) found it unconstitutional to deny trademark registration to the name, “The Slants,” even though the Patent and Trademark Office had explicitly found that “there is…a substantial composite of persons who find the term in the applied-for mark offensive.” This was because it was associated with a negative view of Asian-Americans, as other terms are used to disparage those of African, Italian, and Irish ancestry.
  6. Let the free exercise claims develop further in the lower courts.  The issues raised by the free exercise claims in Masterpiece Cakeshop and several other cases involving such art forms as photography, as well as those involving non-artistic claims, are controversial and divisive. As such, the court should steer away from making a premature adjudication before the issues are developed further in the lower courts. Failure to do so would expose the court to the criticism that it foreclosed and froze additional consideration of these important issues which might work to reach an acceptable compromise. This is the same criticism often leveled at the court for its decisions finding a constitutional right to abortion (Roe v. Wade (1973)), and to same-sex marriage (Obergefell v. Hodges (2015).)

The Masterpiece Cakeshop case will be an important first step in resolving the contentious and divisive issues posed by a conflict between constitutional protections accorded by the First Amendment and statutory prohibitions against same-sex discrimination. In taking that first step, the court should tread lightly.


Yet another path to a minimalist decision, and one which might possibly secure a fifth vote for the cake designer, would be to rely upon an equal protection argument. The case record indicates that the Colorado Civil Rights Commission in three other cases found no discrimination where other cake makers refused to create custom cakes for Christians who wished to use the cakes to criticize same-sex marriage and relationships. Such an equal protection approach mirrors that taken by Justice O’Connor in her concurring opinion in Lawrence v. Texas (2003). There, Justice O’Connor voted to strike down criminal penalties for engaging in sodomy because the Texas law at issue only criminalized sodomy between same-sex partners.

See also Attorney General Sessions, Federal Law Protections for Religious Liberty, page 3, item 7 (October 6, 2017) (“Government may not target religious individuals or entities through discriminatory enforcement of neutral, general applicable laws.”)

SECOND UPDATE (12/5/17):

At the oral argument held today, there were some hints that, if the cake designer wins, he will do so somewhat on the minimalist lines suggested above.

First, Justice Alito specifically raised the disparate treatment issue pointed out in the Update above, where the Colorado Commission found it not to be discrimination where customers who requested cakes that expressed opposition to same-sex marriage were declined service. (Oral Argument Transcript at 58-59)

Second, Justice Kennedy, who is clearly the swing vote, employed some very strong language to accuse the Colorado Commission of hostility to religion. He stated that “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs. And — because accommodation is, quite possible, we assume there were other shops that — other good bakery shops that were available.” ( Tr. at 62) He also focused on a remark by one of the commission members, who stated that “freedom of religion used to justify discrimination is a despicable piece of rhetoric.” (Tr. at 51) Justice Gorsuch additionally pointed out that a second commissioner,  on a commission of seven individuals, stated that “if someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system.” (Tr. at 55)

Edward Mannino is a lawyer and historian. He is the author of Shaping America: The Supreme Court and American Society (University of South Carolina Press, 2009) and The Roberts Court and Terrorism; A Citizen’s Guide (Kindle Ebook, 2016).

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“Men Without Chests”: A Tragic Consequence of Opioid Addiction

Opioid addiction has become a major health epidemic in the United States, and the issue has emerged as an important political one. It surfaced quite early in the 2016 presidential campaign, when Donald Trump made some strong comments on the devastating impact opioid addiction had on New Hampshire, the state which conducted the earliest presidential primary.

In the lead article in the Autumn 2017 issue of The American Scholar, David Brown, who is both a physician and a journalist, supplies alarming statistics on just how serious a societal problem opioid addiction has become. He concludes that this epidemic has created a “new underclass, mostly white,” which “is stymied by economic obsolescence, a sense of victimhood, and an exaggerated view of its own physical damage.” This new underclass is particularly represented in white males aged 25 to 54.

In support of his argument, Brown cites a presentation made to the Federal Reserve Bank of Boston by Alan Krueger, a Princeton economist, in 2016. Krueger concluded that of the males in this age group, “about 12 percent… are not even looking for work: 43 percent of those in prime age describe their health as fair or poor, 44 percent take painkilling drugs on any given day, and 40 percent say that pain prevents them from taking a job for which they qualify.” This age group is the nucleus of our workforce but, in Brown’s words, “Today, millions of these men are living passive, depressed, bored, and isolated lives. For many, chronic pain is how they announce their status to the world.” They have become, in G.K. Chesterton’s memorable phrase, “men without chests.” They spend 30 percent of their time alone, and many of these men are on long term disability. Brown reports that “only one in 25 disabled workers receives benefits because of an actual injury, while three times as many attribute their disability to a mood disorder, such as depression.”

In Brown’s analysis, much of the opioid epidemic can be traced to physicians too easily satisfying a patient’s insistence upon receiving opioid medications, and renewing them regularly when any need for them has long since passed. This permits chronic pain to become “an identity as much as…a sensation.” In what will undoubtedly become a politically unpopular conclusion, Brown states that “depression and anxiety about unpleasant sensations (‘catastrophizing’) make pain worse. Acceptance of pain, on the other hand, makes it more tolerable.” In addition, “The road from prescription narcotics to heroin addiction is now wide and well-traveled. Doctors need to do everything they can to keep their patients off it. The first step is to say no.”

These statistics validate Chesterton’s observation that “We make men without chests and expect from them virtue and enterprise.” The Abolition of Man (1943).


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Supreme Court Protects Free Speech in Two New Decisions

Speaking to a graduating class of Catholic seminarians in Philadelphia in May of this year, Justice Samuel Alito warned against growing incursions on the right of free speech, observing that “The idea that speech can be banned if it expresses an idea that is offensive is spreading around  the country.” Fortunately, the Supreme Court under Chief Justice Roberts has consistently been a voice vigorously protecting the right of free speech. Two decisions announced today continue that trend, validating Professor Richard Garnett’s previous statement that “it is crystal-clear that this is a free-speech court.”

In the first decision, Matal v. Tam, No. 15-1293 (June 19, 2017), Justice Alito wrote the opinion of the court which ruled that the Patent and Trademark Office impermissibly denied registration to the trademark “Slants” filed by a dance rock band of Asian-Americans who sought to reclaim the term and drain its denigrating force for Asian persons. In its ruling, the court found that a provision of the Lanham Act which prohibited the registration of any trademark that may “disparage… or bring… into contemp[t] or disrepute” any “persons, living or dead” was unconstitutional because it “violates the Free Speech Clause of the First Amendment.”

The majority of the court rejected several arguments seeking to uphold the disparagement provision of the Lanham Act. Writing for a majority of the court, Justice Alito concluded that granting a trademark does not represent government speech. This was an extremely significant ruling since the court had previously held that the Free Speech Clause does not apply to such speech. See,e.g., Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015) (the wording on state-issued speciality license plates constitutes government speech). Significant to the Matal ruling were clear statements by the Patent and Trademark Office that registration does not constitute approval of a trademark.

After declined to decide whether a trademark represents commercial speech, a majority of the court ruled that the disparagement provision was not ” ‘narrowly drawn’ to drive out trademarks that support invidious discrimination.” Characterizing the provision as a “happy-talk clause,” Justice Alito noted that it would prohibit registration of innumerable  marks which “disparage.. any person, group, or institution,” including trademarks such as “Down with racists.”

The court concluded that the disparagement provision represented impermissible discrimination on the basis of viewpoint. As Justice Alito put it, “It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.”

The court’s decision was unanimous, although there were multiple opinions on the various issues raised by the case, particularly as they related to the controlling standard of review.

(One happy result of the ruling, at least for long-term supporters of the Washington National Football League team, is that it likely would permit continued registration of the Washington Redskins trademark.)

In the second case decided today, Packingham v. North Carolina, No. 15-1194 (June 19, 2017), the Supreme Court considered whether the Free Speech Clause prohibited a state from barring registered sex offenders from accessing social media sites. The court found that a statute which broadly prohibited access to any social media site impermissibly restricted lawful speech, and thus violated the First Amendment.

In the case before the court, a registered sex offender was prosecuted after posting a statement on his personal Facebook profile about a positive experience he had in traffic court. While the justices divided by a five-to-three split on just how far free speech protections of internet sites might extend, they agreed that the North Carolina statute at issue was far too restrictive, essentially barring any registered sex offender, for example, from ordering books from Amazon, reading the Washington Post online, or consulting WebMD on personal medical issues. In the opinion of the Court, Justice Kennedy concluded that “Even convicted criminals– and in some instances especially convicted criminals– might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.”

At a time when universities, media corporations, special-interest groups, and other powerful entities are seeking to censor viewpoints with which they disagree, the Supreme Court functions as an emergency brake against attempted censorship. This is an important vindication of the First Amendment and underscores the importance of the Supreme Court in American life today.




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Some Thoughts on Warnings in Product Liability Cases

It is impossible today to purchase a product which is not heavily laden with warnings about what might happen if the purchaser is not careful with the product. Many experts have concluded that the proliferation of warnings is counterproductive, and that people have become too accustomed to them, and therefore pass by, and fail to be attentive to, them. In this post, based upon having tried to jury verdicts and conducted discovery in numerous product liability cases, I discuss how warnings are best crafted to protect a manufacturer or seller when they are sued on a supposedly “defective” product. Indeed, a poorly crafted warning will have little or no usefulness in loss prevention.

Here are four examples of how plaintiffs seek to evade their client’s failure to heed a product warning:

  1. Warning Failed to Warn About a Particular Hazard
  2. Warning Was Only in English
  3. Warning Was Not Conspicuous
  4. Warning Lacked Pictures

What Then to Do?

  1. This is where you do need experts; they should do a first draft of a proposed warning to be reviewed by the company’s outside counsel with products liability trial experience. But don’t stop there. Instead, hold a focus group with a representative group of national consumers to review the draft and suggest clarifications which may be needed.
  2. This is tougher. In another case not involving products liability, I discovered that over 50 languages were spoken by students in the Philadelphia School District. It is obviously impractical to include warnings in every possible language read by potential consumers. One possibility: follow the bank ATM practice by using both Spanish and English, which seems to be an accepted practice in both banks and large retail stores such as Lowe’s Home Improvement. If there are overseas sales, use English and the native language in your warning. And (see 4 below) use pictures where feasible, and have the focus group evaluate them as well.
  3. Use larger print and place the warning where the average consumer will see it. Add these issues to your focus group review.
  4. Use pictures. Lack of a pictorial warning is a common excuse utilized by plaintiffs’ counsel. Using an accurate pictorial warning is most helpful in all cases, and particularly so to address points raised by those who are illiterate or can’t read English or Spanish. The pictures must be clear and conspicuous and, once again, evaluated by your focus group for clarity and force of warning.

Properly composed warnings are a necessary, but not sufficient, tool for defendants to win a products liability trial. There are many other points for the defense counsel’s trial toolbox, but the warnings point is important to properly evaluate before a product is sold.


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Wedding Cake Wars: Anti-Discrimination Laws and Religious Liberty

Cake makers who have refused to design cakes for same sex weddings have been sued under public accommodations or other anti-discrimination laws and held financially liable to the couples who sued them in several jurisdictions, most notably in Colorado and Oregon. Their defenses based on religious beliefs have been rejected as inapplicable when raised against a public accommodations or other state or local law that prohibits declining to serve same sex couples. One such case is now pending before the Supreme Court of the United States, which has listed the case for conference consideration multiple times, but has not yet acted on the cake maker’s petition for certiorari. Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, No. 16-111. That Petition raises the issue “whether  applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.”

This post suggests several general points that courts should evaluate when ruling on whether sincerely held religious beliefs are legally sufficient to justify a refusal to serve same sex couples.

1. The right to exercise religious beliefs is constitutionally protected across the entire nation under the First and Fourteenth Amendments. By contrast, public accommodations laws are statutory, and (according to the ACLU),  a majority of states do not prohibit discriminating against same sex couples in their public accommodations laws, although many local  governmental entities do so. This raises the question as to what circumstances may justify subordinating a constitutionally protected right to a statutory right.

2. In many of the wedding cake cases, the same-sex couples had ready access without additional cost to other cake makers who were willing to custom design a wedding cake for them, in at least two cases at no cost to the couples. Is it therefore legally justifiable to subordinate sincerely held and constitutionally protected religious beliefs to a same sex couple’s statutory rights when the discrimination undoubtedly creates at least psychic or dignitary harm to the couple, but is devoid of any economic impact on them, and leaves them with easy access to the product elsewhere?

3. The Masterpiece Cakeshop petition raises an additional point, contending that forcing an “artist” to create a custom piece for a prospective customer constitutes compelled speech and thus violates the artist’s First Amendment rights of free speech and freedom of expression, in addition to his right to free exercise of his religious beliefs. (It is worth noting that the Masterpiece Cakeshop owner has consistently described himself as “a cake artist,” and has written that he is “cheerfully willing” to sell one of his “ready-made” cakes to anyone.) On this point, consider the case of a commercial portrait artist who is asked to paint a portrait of either Donald Trump or Hillary Clinton, and who feels that the subject in question is either a fascist or socialist that he sincerely and violently despises. Would he or she be required to paint that portrait?

These wedding cake cases present significant issues involving the conflicting rights of both the same-sex couples and the cake makers who declined to serve them. The same or similar issues are likewise presented in other contexts, such as those involving photographers, graphic designers, florists, and even pharmacists. (See, for example, my June 28, 2016 post on the Supreme Court’s decision, over a powerful dissent, not to grant review in a pharmacist case, Stormans, Inc. v. Wiesman.)

Given the importance of the rights of both parties, the complexity of the issues presented, and the likelihood that the issues will recur in multiple contexts, the Supreme Court should accept the Masterpiece Cakeshop case for review, and resolve each of the issues outlined in this post.


ACLU, “Non-Discrimination Laws: State by State Information – Map,”, accessed on March 26, 2017.

Jack Phillips, “Why I’m asking the U.S. Supreme Court to protect artistic freedom,”, published on July 22, 2016.










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The Conversion of Saint Augustine: A Case Study in Evangelization

Today all Christian churches face the necessity of evangelizing not only non-Christians, but also nominal or cultural Christians. In facing this challenge, the churches struggle to determine how to be effective in their efforts.

As St. Augustine records in his Confessions, effective evangelization requires three elements in order to be successful. Those elements are the necessity of prayer, the requirement of kindness, and the critical importance of intelligent exposition and explanation of the Christian Faith.

Prayer. St. Augustine records that the persistent prayers of his mother, St. Monica, were instrumental in opening his heart to the possibility of conversion to the Catholic Faith. (Confessions, Book 5, Chapter 9, and Book 9, Chapter 8). This is a familiar story, repeated perennially in many conversions. To select just one example, Clotilda, the wife of Clovis, King of the Franks, prayed for the conversion of her husband, and was ultimately successful when he invoked her God to win an important battle

Kindness. While most people who study the history of Christianity are familiar with the fact that it was St. Ambrose, Bishop of Milan, who ultimately converted Augustine to the Catholic Faith, many are not aware that his kindness to Augustine was an important factor in securing that conversion. Augustine reports in his Confessions that Ambrose was first and foremost “a man who was kind to me.” (Book 5, Chapter 13).

Exposition of the Faith. This third element was particularly important in the case of Augustine, who had found many parts of the Old Testament simply incredible and impossible for him to believe. Ambrose overcame Augustine’s inability to accept such passages (those which Augustine referred to as “the obscure places of the Old Testament”)  by explaining the “spiritual” or allegorical sense of the literal passages. By doing so, Ambrose, in Augustine’s account, drew “aside the mystical veil [and opened] the spiritual sense of many things that taken literally seemed to teach something that was wrong,” or simply absurd. (Book 6, Chapters 4 and 5). Ambrose’s explanations led Augustine to realize that he had “been barking not at that which was indeed the Catholic Faith, but at fictions of carnal concepts.” (Book 6, Chapter 3).

Prayer and kindness are spiritual tools which are available to all who seek to evangelize their friends and acquaintances. The ability to explain the Faith to others is a rarer talent. This talent is dependent upon each individual deepening his or her own faith formation, frequently reading the Scriptures and commentaries, as well as a plethora of other Christian resources. One particularly valuable resource to assist in explaining the Catholic Faith is Bishop Robert Barron’s Word on Fire website, books, and videos.

St. Augustine’s conversion experience provides a valuable template for those seeking to evangelize even today.




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The Catholic Church on Immigration

Much of the debate regarding immigration has centered on the religious and moral obligation to welcome immigrants. Some take the position that it is immoral to restrict immigration on the grounds that the Bible teaches the imperative duty to respect the alien. Others demur, contending that the regulation of immigration raises prudential issues on which reasonable members of a religion may legitimately differ.

On this point, it is instructive to note the discussion on “The duties of citizens” in the authoritative Catechism of the Catholic Church. The Catechism was published in 1994 under the imprimatur of  Cardinal Joseph Ratzinger, who later became Pope Benedict XVI.

Initially, section 2241 of the Catechism states that “The more prosperous nations are obliged, to the extent they are able, to welcome the foreigner in search of the security and the means of livelihood which he cannot find in his country of origin. Public authorities should see to it that the natural right is respected that places a guest under the protection of those who receive him.”

While this paragraph supports a welcoming approach to immigration, “to the extent that [a country is] able,” the paragraph that follows places limitations upon the duty to welcome. It says that “Political authorities, for the sake of the common good for which they are responsible, may make the exercise of the right to immigrate subject to various juridical conditions, especially with regard to the immigrants’ duties toward their country of adoption. Immigrants are obliged to respect with gratitude the material and spiritual heritage of the country that receives them, to obey its laws and to assist in carrying civic burdens.”

This same language that appears in the second paragraph of section 2241 of the Catechism also appears in the August 2013 document, “Catholic Church’s Position On Immigration Reform,” which was published by the United States Conference of Catholic Bishops’ Migration and Refugee Services/Office of Migration Policy and Public Affairs. Under the heading, “Catholic Social Teaching,” that document adds the following language to that of section 2241: “The second duty [of government] is to secure one’s border and enforce the law for the sake of the common good. Sovereign nations have the right to enforce their laws and all persons must respect the legitimate exercise of this right: [quoting section 2241’s second paragraph].” The document goes on to state, under the heading, “Enforcement,” that “The U.S. Catholic bishops accept the legitimate role of the U.S. government in intercepting unauthorized migrants who attempt to travel to the United States. The Bishops also believe that by increasing lawful means for migrants to enter, live, and work in the United States, law enforcement will be better able to focus upon those who truly threaten public safety: drug and human traffickers, smugglers, and would-be terrorists. Any enforcement measures must be targeted, proportional, and humane.”

In contrast to the overheated rhetoric on both sides of the current immigration debate, particularly as it implicates President Trump’s Executive Order on Immigration, the position set forth in these documents as representing the position of the Catholic Church strikes a sensible balance between recognizing the legitimate expectations of immigrants, on the one hand, and acknowledging, on the other hand, the government’s duty to protect its borders and enforce its laws.


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Three Proposals to Address the Admission of New Refugees

As new refugees are admitted to the United States, here are three suggestions for assisting them to fully function as members of the American society:

1. Assimilation

The European experience teaches that a major issue with the admission of refugees has been their isolation into ghettos and their inability to assimilate to the culture of their new homes, leading to marginalization and often to violence. As one observer has warned, “immigration without assimilation is simply invasion.” To ameliorate this problem, attending regular classes in English and American Government should be mandatory for all refugees, and a condition for receiving any government assistance, whether federal, state, or local.

2. Sponsorship

To further assist in the assimilation of refugees, sponsor families should volunteer to either house or counsel new refugees. Churchs, synagogues, and mosques could greatly assist in aiding these new immigrants, as many have done before. Moreover, given the large number of protesters against President Trump’s Executive Order on Immigration, many of those protesters should be willing to volunteer their time and assistance to new refugees. Both the Old and New Testaments teach the importance of assisting the resident alien. For example, in the Book of Deuteronomy, 24:17, it is written that “You shall not deprive a resident alien…of justice….Remember that you were a slave in Egypt and the LORD your God redeemed you from there; therefore I command you to do this.”

3. Job Creation

Both the European and United States experiences with new immigrants demonstrate the need to create jobs for them. Lack of employment is a documented source of marginalization and of potential radicalization. To address this issue, new refugees not otherwise employed should be required to participate in a program like the New Deal’s Civilian Conservation Corps to work on maintaining public parks, roads, and forests, and on planting trees and constructing service buildings and trails. This would both provide jobs to unemployed refugees and assist in conservation efforts. Government at both the federal and state level should also consider creating tax credits or other incentives for private businesses to employ refugees who have attended the mandatory English and American Government classes mentioned above.

While these three proposals are not a panacea, they represent a modest start toward successful integration of new refugees into the fabric of our great Nation.






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Improving Our Infrastructure: The Trump Plans

Improvements to the nation’s infrastructure have been a major contributor to the success of American businesses throughout the course of United States history. In my new book, Politics and American Business: The Growth of Industrial America, 1860-1960, I document how three major infrastructure initiatives benefited American business. These three were the building of railroads and canals in the 19th-century, the construction of bridges, public buildings, highways, public parks, and airports under Franklin Roosevelt’s New Deals in the 1930s and 1940s, and the construction of the interstate highway system starting in the 1950s.

Given the deteriorating infrastructure in the United States today, the Trump Administration has proposed a major infrastructure initiative with potential expenditures of up to $1 trillion. While the specific parameters of the Trump Administration infrastructure plan are presently unclear, Donald Trump, while campaigning for the presidency, proposed implementing “a bold, visionary plan for a cost-effective system of roads, bridges, tunnels, airports, railroads, ports and waterways, and pipelines in the proud tradition of President Dwight D. Eisenhower, who championed the interstate highway system.” President Trump expanded on this in his inaugural address, pledging to “build new roads, and highways, bridges, and airports, and tunnels, and railways all across our wonderful nation.”

Elaine Chao, the new Secretary of Transportation, has announced plans to set up an infrastructure task force as one of her top priorities to flesh out a specific infrastructure plan. The model which is ultimately proposed is critically important. Will it be jobs-oriented, as the New Deal programs were? There is some suggestion of this in the Trump infrastructure proposal published during the election. That proposal referred to a purpose to “create thousands of new jobs in construction, steel manufacturing, and other sectors.”

Alternatively, or perhaps in combination with jobs creation, the ultimate proposal may attempt to expand business markets, as with the historical railroad and highway construction initiatives of prior centuries. Once again, there is some suggestion that any Trump Administration proposal will be sensitive to such a goal. Thus, during the campaign, candidate Trump indicated that there is a need “to build the transportation, water, telecommunications and energy infrastructure [which is] needed to enable new economic development in the U.S.”

Specifics thus become extremely important. As Rich Karlgaard of Forbes has aptly observed, there is “good infrastructure spending [and] bad spending. (Example: Road maintenance is good; bullet trains to the boonies are just dumb.”)

For another example, consider new highway construction. Constructing new highways must take into account what effect they will have on the economy. Will a new highway make it easier for businesses to transport goods to markets now difficult to reach by road? If so, such highway construction can expand business opportunities. Indeed, even the repair of older roads can assist businesses in ways which may not be immediately apparent. One good example of this comes from the testimony before the House of Representatives’ Transportation and Infrastructure Committee on February 1, 2017, by Fred Smith, the Chief Executive Officer of Federal Express. Smith testified that the present highway system is so substandard and in need of updating that drivers are paying some “$67 billion, or $324 per motorist, annually in vehicle repairs and operating costs.” Smith also testified that Federal Express is now replacing tires twice as often as it did 20 years ago because “the road infrastructure has so many potholes in it it’s tearing up tires faster than was the case before.”

These few examples are meant to underline the necessity for careful planning in any infrastructure proposal. Such planning should carefully study the successful experiences in the past with railroad construction, the New Deals’ public works programs, and the construction of the interstate highway system. Details on each of these previous successful infrastructure initiatives are documented in my Politics and American Business.



Edward F. ManninoPolitics and American Business: The Growth of American Industry, 1860-1960 (WingSpan Press, 2016), available at f. mannino

“Infrastructure,” at, accessed January 22, 2017.

Rich Karlsgaard, “Trump Infrastructure Smart?,” Forbes, December 20, 2016, at 39.

Andrew Liptak, “Poor US roads mean FedEx is going through tires twice as fast,” The Verge, February 5, 2017, at www.the

Melanie Zanona, “Trump’s infrastructure plan: What we know,” The Hill, January 13, 2017, at





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Significant Dates in New Mexico History

Many Americans are unaware of the rich and long history of New Mexico, which predates the English settlements at Jamestown and in the Massachusetts Bay Colony. Here are some of the key dates in New Mexico’s history under Spanish and Mexican rule, culminating in United States statehood:

1510 – Vasquez de Coronado Expedition

1598 – Juan de Onate takes possession of New Mexico for Spain: “La Toma”

1607 – Santa Fe established

1610 – Santa Fe becomes capital of New Mexico

1610 – Pedro de Peralta becomes Governor

1630 – Fray Alonzo de Benavides’ History of the New Mexican Missions

1680 – Pueblo Revolt; Spanish driven out of New Mexico

1688 – Diego de Vargas named Governor

1693 – de Vargas restores New Mexico to Spanish rule

1706 – Albuquerque established

1821 – Mexico receives independence from Spain; New Mexico now ruled by Mexico

1821 – Santa Fe Trail opened to American trade

1846 – United States defeats Mexico; New Mexico becomes a United States Territory; Brigadier General Stephen Kearny arrives in Territory and establishes United States territorial government

1912 – New Mexico becomes the 47th State

1939-1945 – Atomic Bomb developed at Los Alamos under the Manhattan Project

Dates taken from Thomas E. Chavez, New Mexico Past and Future (University of New Mexico Press, 2006)










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