Thursday, July 08, 2021

Frank Ravitch and Larry Catá Backer on Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947); Of Incorporation, (Permeable?) Walls of Separation, and the Foundations of Contemporary Religion Clause Orthodoxy?


Pix Credit: HERE (Church and state - No Union upon any terms / Th. Nast.” Courtesy of the Library of Congress LC-USZC4-13015)


Frank S. Ravitch and I have been finishing up the 4th Edition to our casebook, Law and Religion: Cases and Materials (West Academic, 2021; ISBN 978-1-64708-764-7). The Preface nicely describes our aims for the book:

This book focuses on Law and Religion. The book covers three general topics: 1) Church/State Law (issues arising under the First Amendment to the United States Constitution and statutes such as the Religious Freedom Restoration Act); 2) Religious Law (the role and substance of law in various religious traditions); and 3) Comparative Law and Religion (the law relating to religious freedom in other countries). Most books in this field have little or no material on the latter two topics. The bulk of this book is devoted to First Amendment Law, but the book also provides an overview of Jewish Law (Halakha), Islamic Law (Shari’ah), Buddhist conceptions of law, Catholic Canon Law, Protestant conceptions of law, and Hindu law as well as significant background on comparative Law and Religion. The discussion of First Amendment law integrates cases, questions and narrative to provide an in-depth understanding of the Religion Clauses of the United States Constitution.

Each topic in this book begins with a brief narrative discussion of the topic, followed by relevant cases and articles, and finally notes and questions. The goal of the narrative is to provide students with context (the forest) so that they can grapple with the many complex issues that are raised in the cases and articles (the trees). The sections on religious law and comparative law will follow a similar format.

We have tried to add a comparative law element to the study of the jurisprudence of religious liberties in the United States by tying that study to the broader global conversations and currents in the development of legal frameworks for the protection of religious liberty. We hope all of this can be accomplished in ways that are useful for law students not just in the US (though US students are our principal audience) but elsewhere as well. 

To enrich the casebook materials Frank and I have started producing a series of video discussions of key cases from the jurisprudence.  These may be used by faculty and students to enrich their consideration of the casebook materials or as a springboard to deeper discussion of themes and complications raised in the cases.  

For our first conversation we focused on Fulton v. City of Philadelphia, 593 U.S. -- (2021), which  was decided on 17 June 2021. The case was particularly interesting because at least in some quarters it was viewed as the opportunity to repudiate what is left of the still controversial decision of Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).  

For our next conversation we go back to the germinal case of contemporary U.S. Establishment Clause jurisprudence-- Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947). "The appellant, in his capacity as a district taxpayer, filed suit in a State court challenging the right of the Board to reimburse parents of parochial school students. He contended that the statute and the resolution passed pursuant to it violated both the State and the Federal Constitutions." (Majority Opinion ¶ 2). The township resolution at issue authorized reimbursement only for parents of public and Catholic school. In an opinion, the rhetorical flourishes of which are still quoted in the maintenance of the narrative of religious liberty in the United States, a majority of the court concluded that the religious liberties provision of the federal constitution applies to states through incorporation by the 14th Amendment, that the Religion Clauses built a wall of separation between the state and religion, and that this wall remained intact even where the state  reimbursed the transport costs of Catholic school students. The dissenting justices agreed generally with the normative position of the majority but insisted that as a consequence  transport reimbursement was forbidden. Hovering around these high level abstractions were the germinating doctrines of neutrality, secular purpose and entanglement that would ensnare court jurisprudence for a generation.

The Video recording of  this conversation may be accessed HERE.

It is also available on the Coalition for Peace & Ethics YouTube Channel HERE.


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