Monday, September 13, 2021

Frank S. Ravitch and Larry Catá Backer on Lee v. Weisman, 505 U.S. 577 (1992) and Supermarkets of Standards in an Age of Religion Clause Oxymora

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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. We hope students and faculty may find the discussions of some use as they consider the casebook materials or as a springboard to deeper discussion of themes and complications raised in the cases.   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.  

We discuss the pedagogy of the casebook here: Frank S. Ravitch and Larry Catá Backer Talk Pedagogy and Approach as they Introduce the 4th Edition to their Casebook, Law and Religion: Cases and Materials (West Academic, 2021)

 To date we have videos discussing the following cases: 

1.  Fulton v. City of Philadelphia, 593 U.S. -- (2021)

2. Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947)

3. Engle v. Vitale, 370 US 421 (1962), and Sch Dist Abington Twnshp v. Schempp, 374 US 203 (1963).

 For our next conversation we consider an important nexus point case, Lee v. Weisman, 505 U.S. 577 (1992).  It is a nexus case int he sense  of further developing the application of the wall of separation principle and ts various openings in the context of state oversight of education.  But it is also a case where  the long search for standards produced a number of standards that supplemented, contradicted or competed with each other as the framework through which judicial application of the Establishment Clause principle could be rationalized. The core holding of the case is still good law--that governmental involvement in the facilitation or guidance of religiously based exercises at an 8th grade graduation ceremony exceeds governmental power under the Establishment Clause.  Beyond that everything today is fair game: (1) the fundamental principles of the Establishment Clause (the wall of separation) is now contested by a competing principle (neutrality among religions and accommodation over secular interests); (2) the standards and test used to apply principles (Lemon, endorsement, coercion, traditions-accommodation-neutrality); (3) the primary approach (formalist approaches (now in favor) versus functionalist approaches (the methodological analogue to the normative "effects" and "purpose" tests); and (4) the focus of application (the locus of volition, for example in Everson was the focus of analysis  the volitional act of the student or the ultimate beneficiary of the choices the student made). The opinions are rich with sources that drive current debate--all of which remain unresolved but all point to the state of interpretation of the Religion Clauses in a Time of Oxymora.

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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