September 3, 2019 - LAW AND RELIGION FORUM

Section 6. AID PROHIBITED TO SECTARIAN SCHOOLS. (1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination

In this podcast, we discuss a new case that the Supreme Court has agreed to hear, Espinoza v. Montana Department of Revenue, concerning a Montana law that created a tax credit scholarship program whose proceeds were directed, in part, to religious schools. The Montana Supreme Court held that the law violated Montana’s Constitution, which has a provision barring any aid to “sectarian” educational institutions. We discuss the historical background to the controversy, the Montana opinion, and the cert. petition. We consider some of the operative metaphors the Supreme Court has used to discuss these kinds of cases (“play in the joints”) and underlying federal constitutional issues and tensions involving neutrality and equality. Listen in!

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I’m delighted to announce the publication of this new volume of collected essays on the history, political theory, and law of religious freedom, co-edited by my friend Michael Breidenbach and Owen Anderson: The Cambridge Companion to the First Amendment and Religious Liberty (Cambridge University Press). It won’t be out for a few more months, and I’ll mention it again closer to the date of release. But it’s loaded with interesting pieces by the likes of John Finnis, Steve Smith, Don Drakeman, Zoë Robinson, Phillip Muñoz, Jonathan Den Hartog, and many others. I’ve got a piece in there as well.

“This book is an interdisciplinary guide to the religion clauses of the First Amendment with a focus on its philosophical foundations, historical developments, and legal and political implications. The volume begins with fundamental questions about God, the nature of belief and worship, conscience, freedom, and their intersections with law. It then traces the history of religious liberty and church-state relations in America through a diverse set of religious and non-religious voices from the seventeenth century to the most recent Supreme Court decisions. The Companion will conclude by addressing legal and political questions concerning the First Amendment and the court cases and controversies surrounding religious liberty today, including the separation of church and state, corporate religious liberty, and constitutional interpretation. This scholarly yet accessible book will introduce students and scholars alike to the main issues concerning the First Amendment and religious liberty, along with offering incisive new insights into one of the most important topics in American culture.”