At the Liberty Law site today, I have a post discussing the UK Supreme Court’s ruling this month in Lee v. Ashers Bakery, a wedding-vendor case from Belfast. The British case deals with several substantive issues that our own Supreme Court dodged earlier this year in Masterpiece Cakeshop. The British court’s president, Barbara Hale (left), wrote for a unanimous court:
Even though the issues do not line up exactly, Lady Hale’s opinion addresses many of the difficult questions that arise in the American context as well: whether denying services in connection with gay weddings is equivalent to denying services to gay persons; whether one should attribute certain kinds of commercial speech to the vendor or the customer; and whether the state’s interest in ending discrimination in public places overrides the religious convictions of persons who operate small businesses. The fight over these issues is still in its early stages, in Britain and America. This decision may provide guidance for the way forward.
Readers can find my post here.
Thomas Jefferson and his home state of Virginia have had a disproportionate influence on church-state law in America. Ever since Chief Justice Morrison Waite quoted Jefferson’s letter to the Danbury Baptists in Reynolds v. United States (1878)–a quotation that was more or less an accident, as our friend Don Drakeman has written–American judges have invoked Jefferson’s “wall of separation” whenever they have wished to endorse a strict segregation of church and state. Jefferson’s neighbor, James Madison, also appears regularly in judicial discussions. In Everson v. Board of Education (1947), the Court’s first major Establishment Clause case, Justice Hugo Black cited “Madison’s Great Memorial and Remonstrance” in the Virginia Assessment controversy of 1784-86 as a true statement of First Amendment values. No matter that other Founders, and states, had rather different views on the subject. The Virginian experience has become the the Court’s most important historical point of reference.
This month, LSU Press releases Jefferson and the Virginians: Democracy, Constitutions, and Empire, by historian Peter Onuf of the University of Virginia (emeritus). Looks like interesting background reading for people interested in church-state issues. Here’s the description from the LSU website:
In Jefferson and the Virginians, renowned scholar Peter S. Onuf examines the ways in which Thomas Jefferson and his fellow Virginians—George Washington, James Madison, and Patrick Henry—both conceptualized their home state from a political and cultural perspective, and understood its position in the new American union. The conversations Onuf reconstructs offer glimpses into the struggle to define Virginia—and America—within the context of the upheaval of the Revolutionary War. Onuf also demonstrates why Jefferson’s identity as a Virginian obscures more than it illuminates about his ideology and career.
Onuf contends that Jefferson and his interlocutors sought to define Virginia’s character as a self-constituted commonwealth and to determine the state’s place in the American union during an era of constitutional change and political polarization. Thus, the outcome of the American Revolution led to ongoing controversies over the identity of Virginians and Americans as a “people” or “peoples”; over Virginia’s boundaries and jurisdiction within the union; and over the system of government in Virginia and for the states collectively. Each debate required a balanced consideration of corporate identity and collective interests, which inevitably raised broader questions about the character of the Articles of Confederation and the newly formed federal union. Onuf’s well-researched study reveals how this indeterminacy demanded definition and, likewise, how the need for definition prompted further controversy.