Friday, July 16, 2021

Frank Ravitch and Larry Catá Backer on Engle v. Vitale, 370 US 421 (1962), and Sch Dist Abington Twnshp v. Schempp, 374 US 203 (1963)-- Of School Prayer; Neutrality; the Triumph of Secular Purpose and Effects Tests; and the Temptations of Interpretation


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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).  Our second discussion considered  Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947), the germinal case of the modern era of federal constitutional jurisprudence of the Religion Clauses and the source of many of the concepts and principles at the heart of jurisprudential battles today. 

For our next conversation we consider the "big bang" school prayer cases: Engle v. Vitale, 370 US 421 (1962), and Sch Dist Abington Twnshp v. Schempp, 374 US 203 (1963). The cases produced the first efforts at a test or standard for applying the Establishment Clause.  It began carving out education as a special case for the application of Establishment Clause principles, and it began developing the discourse of neutrality that would eventually become a very large part of the jurisprudence. Here one encounters the touchstones of secular purpose and effects in a more developed form; here also one is introduced to the challenges of disciplining interpretation of these standards in a context n which there was substantial differences among groups that cared very much about the issues.

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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