As my colleague, Andrew Hamilton notes below, Christopher C. Lund of Wayne State University School of Law will soon publish The New Victims of the Old Anti-Catholicism in the Connecticut Law Review.  Having read Prof. Lund’s paper, I would like to complement Andrew’s post by detailing Lund’s claims.

Lund links the attitude underlying 21st-century, religious-freedom jurisprudence with the both popular and legal anti-Catholic prejudice that pervaded the United States in the 19th-century—yet he does so without examining any recent case brought by a Catholic.

Nevertheless, in the four cases Lund examines, the plaintiffs’ status as members of a religious minority—or an a-religious one—and their struggle for legal recognition bridge this apparent divide.  In other words, like 19th-century Catholics, all of the cases involve plaintiffs in a religious minority seeking recognition of their beliefs and practices as legal rights under the Free Exercise and Establishment clauses.  Thus, Lund connects a present-day American Wiccan, Muslim, Evangelical Protestant, and Atheist to Catholics in America one-hundred-fifty-years ago.  More poignantly, in each contemporary case the plaintiff lost—outcomes that erode the idealistic notion that American legal and popular tolerance of minority religions expands with time.

For a description of each of the four cases Lund examines—and their significance—please follow the jump.

Lund reviews Locke v. Davey, 540 U.S. 712 (2004) (balancing Free-Exercise and Establishment considerations to hold that retracting a state scholarship because of a student’s decision to use the funds to pursue ministry in an evangelical denomination does not violate the First Amendment); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (rejecting an atheist father’s claim that public-school recitation of “under God” in the Pledge of Allegiance violated his daughter’s First Amendment rights on an obscure federal standing basis—non-interference with states’ domestic-relations laws); Simpson v. Chesterfield County Bd. of Superv’s, 404 F.3d 276 (4th Cir. 2005) (holding that a municipality can decline a Wiccan’s request to be among those opening its governing meetings with prayers because the city was sufficiently non-sectarian in its criteria for choosing who would make such a prayer and undue interference with such decisions would violate principles of federalism); and Webb v. Philadelphia, 562 F.3d 256 (3d Cir. 2009) (denying, as unpreserved, a Muslim, female police officer’s claim that a prohibition against wearing a discrete head scarf at work violated her Free Exercise rights).

Ultimately, Lund demonstrates that these present-day decisions—unfavorable as they are  toward believers not adhering to dominant religious modes—put such persons in a more vulnerable, less legally insulated position than their more conventionally religious counterparts.

Please Enjoy.

DRS—CLR Fellow

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