Monday, November 29, 2021

Frank S. Ravitch and Larry Catá Backer Discuss Ceremonial Deism, the Role of Custom and Tradition, Marsh v. Chambers, 463 U.S. 783 (1983), and Town of Greece v. Galloway, 572 U.S. 565 (2014)

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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).

5.  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)

6.  Creationism, Intelligent Design, and Evolution; Reading Edwards v. Aguillard 482 US 578 (1987) and Kitzmiller v. Dover Area Sch. Dist, 400 F.Supp.2d 707 (2005)

For this conversation we focus on ceremonials deism, its challenges and the rise of the principle of "custom and tradition" as a means of rationalizing the protection of references to and invocations of religious symbols and practices in public life. Here one encounters the drive toward the erection of the wall of separation--at the limits of which might be the notion of the state as a religion free zone, with the realities that religion and religious practices have been enmeshed in the everyday practices of public life from the time of the establishment of the Republic. These include every from from the invocation of "In God We Trust", to references to God in the Pledge of Allegiance, to the invocation of God at the commencement of judicial proceedings and the start of legislative sessions. The term ceremonial denim came late and from efforts by academics to rationalize the role of religious "relics" in the life of a republic moving, it appeared at the time, toward a vigorous separation of public from religious life. The entanglement that results is considered.
The effort to provide a small space for these expression began with what appeared to be an exception the the rule of separation, articulated in Marsh v. Chambers, 463 U.S. 783 (1983), to its transformation into an important standard for applying the Establishment Clause in Town of Greece v. Galloway, 572 U.S. 565 (2014). We discuss these cases, the notion of ceremonial denim and its relation to religion clause jurisprudence, and the importance of the role of intention in the application of this principle. To that end, the generalization of the methodological and inferential problemmatique nicely evidenced in Wynne v. Town of Great Falls, 376 F3d 292 (4th Cir 2004) and Wallace v. Jaffree 472 US 38 (1985). Among the interesting wrinkles are the role of narrative and the art of drawing inferences from facts.  The Galloway case is particularly useful in that regard offering the plausible reading of the actions of the town board as either suggesting the intention to discriminate in favor of some religions or suggesting a willingness to comply with constitutional standards once apprised of deficiencies in local practice. We encounter this often in Establishment Clause cases, though it is quite usefully apparent here.   Of significant interest, as well is the viability of the Galloway court's history and tradition standard--("accepted by the Framers and has withstood the critical scrutiny of time and political change").
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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