Thursday, July 28, 2022

Frank Ravitch and Larry Catá Backer Discuss Kennedy v. Bremerton School District, 597 U.S. ___ ( No. 21-418, 27 June 2022): Murder in the Cathedral--The Lemon Test is Dead, Establishment Reduced to Spectre; Long Live Free Exercise as a Jurisprudence of History


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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).

7.  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).

8.  Free Exercise, Establishment and the Mandatory Funding of Religious Education, Carson v. Makin, --- U.S.  (No. 20–1088; June 21, 2022)

9.  Kennedy v. Bremerton School District, 597 U.S. ___ ( No. 21-41827 June 2022): Murder in the Cathedral--The Lemon Test is Dead, Establishment Reduced to Spectre; Long Live Free Exercise as a Jurisprudence of History (27 June 20229.

The 2021-2022 Term of the Supreme Court produced three important Religion Clause decisions. For this conversation we focus on what may be one of the most interesting, and perhaps important,  cases of the last several years: Kennedy v. Bremerton School District, 597 U.S. ___ (No. 21-41827 June 2022).
(Slip op p. 9 Sotomayor dissenting)

The case concerned the challenge by a high school football coach  of his termination after repeatedly kneeling at midfield after games to offer a prayer in accordance to his personal belief system. This asserted individual devotion soon attracted followers in the form of some of his players, and then sometimes members of the opposing team as well.   Eventually this personal devotional with followers morphed into a program incorporating short motivational speeches (slip op. at 2). Team members were also engaged in their own prayer rituals--something described by the majority opinion as something of a tradition at the school by whatever standard the notion of  tradition is measured in that place. No one complained for a number of years until the practice was damned by the strong praise  by praise from the employee of another school to the superintendent of Mr. Kennedy's school district. Eventually Mr,. Kennedy was told to stop the practice out of concern that such practice appeared as a governmental endorsement of religion (a practice and standard long applied under traditional Establishment Clause jurisprudence). Mr. Kennedy at first complied, and then driven by remorse over breaching his personal contract with his ruling divinity (slip op. at 4) he resumed his on field devotions and after some back and forth, including failed efforts at accommodation, he was terminated (slip op. pp. 6-8). He challenged the termination.

That termination provided the majority with the opportunity to undertake a jurisprudential transformation (revolution?; too early to tell) of sorts.  First the majority appeared to substantially rewrote the law of Free Exercise, effectively creating from out of the Lukumi Babaluaye case a presumption that statutes with secular exceptions are nether of general application nor neutral.   It continued the process of changing the  approach to the Religion Clauses from one driven by the Establishment Clause (from 1947) to one driven by the Free Exercise Clause. In the process the court appeared to constitutionalize the idea that the concept of French style laïcité must be rejected (in which it is expected that individuals enter the public space without their religion) in favor of a religiously infused but neutral public space, one in which individuals are expected to bring their religion bit in which all religions must be given neutral space. One now brings history and tradition into the mix.  But what history and what tradition? At its best the test would seek to generalize the accommodations Protestants made among themselves in the 17th century--now applied to all religions and non-religious moral systems. But the focus on Christian prayer as the exemplar of Free Exercise friendly performance suggests the challenge and the corrupting element.

Second, such a vision makes both Establishment Clause supremacy (Everson 1947) inconvenient and untenable. To kill any unhealthy tendency toward a state of laïcité it was necessary to find a way of killing Lemon v. Kurstzman and its progeny--the coercion test, the endorsement test, and its variations.  This had been on the radar of the majority for some time--and this was a good a space as any to kill that case and its universe of more or less settled jurisprudence. In the process they made a mess--one that was meant to be swept under the jurisprudential rug of a constitutionalized history (perhaps along the lines of cruel and unusual punishment jurisprudence).  Ironically there was no discussion of the sophisticated standard the Court had just days earlier adopted in the connected of overturning precedent (Dobbs).  In its place the majority conjured an exception to Lemon into the test in chief--elevating the Galloway history and tradition standard into what appears (although the opinion was murky here; but see the discussion in Carson v. Makin, --- U.S.  (No. 20–1088; June 21, 2022)) the "go to" standard in Establishment Clause analysis and perhaps as well in Free Exercise balancing. In the process the old special protections applied to primary schools (through high school)and children  appear to have been weakened or made less relevant.

Third, the case appeared to have created an interesting marriage between Free Exercise and Free Speech rights under the Federal Constitution.  A broad reading might suggest that neutrality principles now seep into Free Speech analysis where the speech at issue (whether spoken or performed) is religious. In this case if one can walk onto midfield and shout Yippeee(!), then one ought to be allowed to kneel and shout aloud "Que viva Shangó!"--an invocation reflecting fidelity to Western African and Caribbean religious traditions. At the same time the opinion appears to do the opposite--this neutrality principle appears to apply only where the form of the performance is something that the justices understand (or engage in themselves)--thus the emphasis on private individual devotion.  In a sense the opinion appears to suggest that as long as one is engaging in mainstream, religious devotion then balancing will be in favor of religion--but minority religious expression may be balanced out of the constitution--with a loud ululation to the neutrality principles which now produce a hierarchy of protected religions and practices. The possibilities for murder in the cathedral grow as justices bring their own quite focused perspective to their administrative decision making in the form of constitutional balancing.

There is much more.  The case is quite rich. And the conversation is a little longer than our usual.  Among other issues we discuss are the ethics of fact spinning, and of ghosting key cases--something that might be reputation risking were counsel to engage in that practice in brief or argument. The opinion provides challenges to both traditionalists and to those who seek to defend the prior jurisprudence.  Frank and I agree that while it might have been possible to arrive at the result through an application of the traditional endorsement test, or to use the case to more carefully and openly consider the relationship between Free Exercise, Establishment, neutrality, and the protection of minority religions, those are issues that will have to be revisited in the coming years.  

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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