June 27, 2024 - LAW AND RELIGION FORUM

Earlier this week, in a much-watched case, the Oklahoma Supreme Court ruled that a charter school, St. Isidore of Seville, is unconstitutional under state and federal law. In a post at the Volokh site today, I argue that this ruling was probably correct. As a charter school, St. Isidore is a hybrid, a cross between a public and a private school, and that makes its legal position complicated. Here’s an excerpt:

It’s not quite as clear as the Oklahoma court makes it seem, but the decision is probably correct, at least respecting the federal constitutional claims. Legally speaking, St. Isidore is caught in a dilemma—a dilemma that its hybrid nature as a charter school creates. If St. Isidore qualifies as a public school, there’s an obvious Establishment Clause problem. St. Isidore argued that it shouldn’t be seen as a public school, but as an independent contractor. But the Oklahoma statute specifically provides that charter schools are “public.” And that’s not just a matter of form, but also substance. As a charter school, St. Isidore is funded entirely by the state, must take all students who apply, and must comply with curricular and other requirements that don’t apply to private schools.

On the other hand, if St. Isidore is a private actor, the US Supreme Court’s recent free exercise cases may not help it too much. In Carson and Espinoza, the Court ruled that the state cannot exclude private religious schools from tuition assistance programs simply because they are religious—that would violate the schools’ right to practice their religion. That seems correct to me. But in those cases, the Court stressed that public funds went to private schools through the filter of parental choice. Parents who received tuition assistance designated which schools would receive the money.

St. Isidore would be entirely free, by contrast, and Oklahoma would be funding the school directly. True, the amount of money St. Isidore would receive would depend, presumably, on the number of students it enrolled—and that would depend on parental choice. But the state is more in the foreground (and the parents more in the background) in this case than in either Carson or Espinoza, and it feels different, somehow.

You can read the whole post here.

This one is a little outside my wheelhouse, but it looks quite interesting. Hasidic Judaism is known for its ecstatic approach. And yet, ironically, it is also one of Judaism’s most traditional expressions, with a serious focus on religious law. What explains this paradox? A new book from Stanford University Press, Laws of the Spirit: Ritual, Mysticism, and the Commandments in Early Hasidism, argues (if I understand it right) that Hasidism sees law as a matter of ritual rather than rules for worshippers to work out and follow. Of course, ritual is important in most religions, and in secular law as well, and I wonder if these insights could in some way apply in other contexts, too. The author is religious studies scholar Ariel Mayse (Stanford). Here’s the publisher’s description:

The compelling vision of religious life and practice found in Hasidic sources has made it the most enduring and successful Jewish movement of spiritual renewal of all time. In this book, Ariel Evan Mayse grapples with one of Hasidism’s most vexing questions: how did a religious movement known for its radical views about immanence, revelation, and the imperative to serve God with joy simultaneously produce strict adherence to the structures and obligations of Jewish law? Exploring the movement from its emergence in the mid-1700s until 1815, Mayse argues that the exceptionality of Hasidism lies not in whether its leaders broke or upheld rabbinic norms, but in the movement’s vivid attempt to rethink the purpose of Jewish ritual and practice. Rather than focusing on the commandments as law, he turns to the methods and vocabulary of ritual studies as a more productive way to reckon with the contradictions and tensions of this religious movement as well as its remarkable intellectual vitality.

Mayse examines the full range of Hasidic texts from the eighteenth and early nineteenth centuries, from homilies and theological treatises to hagiography, letters, and legal writings, reading them together with contemporary theories of ritual. Arguing against the notion that spiritual integrity requires unshackling oneself from tradition, Laws of the Spirit is a sweeping attempt to rethink the meaning and significance of religious practice in early Hasidism.