Saturday, August 06, 2022

Frank Ravitch and Larry Catá Backer discuss Dobbs v. Jackson Women's Health Organization, 597 US -- (No. 19–1392, June 24, 2022); the Implications for Religion Clause Jurisprudence.


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 Frank S. Ravitch and I  published the 4th Edition to our casebook, Law and Religion: Cases and Materials (West Academic, 2021; ISBN 978-1-64708-764-7) in the summer of 2021. 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, 597 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 2022).

10.  Dobbs v. Jackson Women's Health Organization, 597 US  -- (No. 19–1392, . June 24, 2022): The Religion Clause Implications.

The 2021-2022 Term of the Supreme Court produced three important Religion Clause decisions. We have discussed two of them:   Carson v. Makin, 597 U.S. --- (No. 20–1088; June 21, 2022); and Kennedy v. Bremerton School District, 597 U.S. ___ (No. 21-41827 June 2022). For this conversation we focus on Dobbs v. Jackson Women's Health Organization, 597 US  -- (No. 19–1392,  June 24, 2022).  

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At first blush, the decision might appear to be an odd choice for discussion. The case was argued primarily on the basis of the transformation of federalism principles, on the new approaches to the constitutionalization of so called unenumerated rights in the federal constitution, and on the role and mechanics of stare decisis.  

Nonetheless the Dobbs decision carries with it consequences that are already connecting it, its jurisprudence, and the principles that may be derived form both, into the heart of emerging Religion Clause jurisprudence. Within weeks of the decision, "Seven clergy members have filed five lawsuits in Florida contending that the state’s abortion restrictions burden their religious beliefs, speech and conduct." (Clergy members contend Florida abortion law violates their religious freedom; 5 suits are filed).  That implicates the emerging jurisprudence of Free Exercise ion two levels.  One touches on the constitutional transformation of Free Exercise (in cases like Kennedy v. Bremerton Sch. Dist 2022) and its reinterpretation of Lukumi Babaluaye and its progeny.  The second touches on the application of the sometimes stricter Free Exercise protections in state religious freedom restoration acts. For example, Florida's Religious Freedom Restoration Act  provides that the state “shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability,” absent a showing by the state that the challenged application of the law law furthers a compelling government interest and is the least restrictive means of furthering that interest. Here the jurisprudence will be complicated by the intersections of interest.  But what Kennedy teaches us is that the jurisprudence will no longer be centered on science but on religion. 

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Related to this intimate connection between Dobbs and emerging Free Exercise jurisprudence is its connection to the Establishment Clause and its limitations.  While Dobbs delegates authority over the development of termination rights to states, that delegation must be undertaken in the shadow of the limits of the Establishment Clause--both with respect to the limits of accommodation and the floor of toleration built into the Clause.  That may become a critical consideration  where state legislative measures are unavoidably tied to the furthering of one particular religious perspective.  One is not arguing the science here but its religious interpretation. Here Carson v. Makin may suggest the possibility of challenge to legislation that is clearly based on the interpretive ideologies of a specific group of sects in the face of the expanding application of principles of neutrality in the construction of state burdens and privileges.  Further development of neutrality principles are therefore also unavoidable, At its base will be the tug of war between principles of personhood (for example in the Georgia statute) and individual autonomy.  

The implications, of course, run much deeper.  Consider this an invitation to delve more deeply into the possibilities.  Whatever direction the jurisprudence takes, it is clear that it will be undertaken to a large extent  with the language of religion and in the shadow of the Religion Clauses.

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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