Saturday, October 09, 2021

Frank S. Ravitch and Larry Catá Backer Discuss the Student Initiated Prayer and Moment of Silence Cases (Santa Fe Independent School Dist. v. Doe, 530 US 290 (2000); Wallace v. Jaffree, 472 US 38 (1985)); The Challenges of Interpretation and the Dangers of Reading Religion Out of Constitutional Context


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Frank S. Ravitch and I have just published 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).

4.  Lee v. Weisman, 505 U.S. 577 (1992).

For our next conversation we consider the germinal cases on student initiated prayer (Santa Fe Independent School Dist. v. Doe, 530 US 290 (2000)) and the moment of silence case (Wallace v. Jaffree, 472 US 38 (1985)). These are rich opinions on several levels, each of which we explore. On one level the cases suggest the popular response and resistance to the Supreme Court's jurisprudential effort to better detach religion from its entanglement with school officials and institutions. The questions considered revolved around the place where the lines are drawn between private conduct (free speech protected) and public entanglement (Establishment Clause constraints). At another level the cases suggest the conceptual and applied challenges of interpretation--of text, of intention, and of original understanding. These suggest the application of the core issues central to hermeneutics and semiotics (each bringing a different though related conceptual toolkit) to understanding the underlying struggles of the judiciary to find a means of detaching their decisions from their personal preferences. These lenses then help rationalize the ambiguity and "margins of plausibility" that define the parameters of Establish Clause jurisprudence. At the same time the cases expose the consequences of that ambiguity--and the way it opens the door to the construction of ranges of plausible determinations from contextually specific situations. These notions are nicely exposed in the inconsistencies in the way that the Supreme Court reads intent into the actions of the government after their initial projects are challenged. To that end we contrast the way that amendment in the face of challenge was read to show negative intent in Wallace, against the way that such modification was read as evidence of good intent in Town of Greece v. Galloway (572 US 565 (2014) (legislative prayer), and the way such modification was read as evidence of "bad" intent in McCreary Cty v. ACLU of Kentucky (545 US 844 (2005)(Ten Commandments display). Lastly the cases suggest the difficulty of reading the Religion Clauses in a constitutional vacuum. To that end we debate the importance of the way the majority approached the importance of elections and their character, as well as their validity as an expression of popular will in the context of the application to free exercise and Establishment.

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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