We’ve just posted the annual Mattone Center Year-End Review for 2024-2025. Among the highlights: a new YouTube channel and animated video series on landmark cases in religious freedom; more Legal Spirits podcasts, the first ever Center Directors Summit, and many more. You can read all about them at the link. Thanks to all our supporters!
And, continuing the wedding vendor theme from the last post, my draft paper on the wedding vendor cases, “Status, Conduct, Belief, and Message,” is now available for downloading on the SSRN site. The paper will appear in a forthcoming symposium edition of the Chicago-Kent Law Review. Comments welcome! Here’s the abstract:
This essay explores the constitutional and cultural tensions underlying the “wedding vendor cases,” in which small business owners decline from religious conviction to provide services for same-sex weddings. Litigants often invoke conceptual distinctions among status, conduct, belief, and message, but these distinctions are too indeterminate to resolve the cases in a principled way. The ultimate question is whether LGBT rights should override religious and expressive freedoms in the marketplace. In two recent wedding vendor cases, Masterpiece Cakeshop v. Colorado Civil Rights Commission and 303 Creative LLC v. Elenis, the Court has avoided addressing this fundamental question directly. Instead, the Court has issued narrow rulings based on specific facts and party stipulations, thereby limiting the broader implications of its decisions. While this strategy sacrifices doctrinal clarity and leaves lower courts grappling with uncertainty, it also helps avoid exacerbating cultural polarization on an intensely divisive issue. In the current political climate, incremental case-by-case adjudication—a sort of “passive virtues” approach—may represent a prudent judicial strategy, even if it leaves both sides of the cultural divide dissatisfied.
I was delighted to join my friend and former colleague, Marc DeGirolami, and my friend and Marc’s current colleague, Kevin Walsh, as a guest last week on their excellent podcast, Sub Deo. We discussed the Supreme Court’s recent wedding vendor cases, Masterpiece Cakeshop and 303 Creative. I have a draft on the subject on the SSRN site and thought I’d heard everything about the cases, but Marc and Kevin came up with new and profound questions for me to think about. It was great fun and I thank Marc and Kevin for the opportunity to kick around some ideas. The link is here:
A video of our panel this month in the Catholic Charter School case, Oklahoma Statewide Charter School Board v. Drummond, set for argument at SCOTUS in a couple of weeks, is now available on the Mattone Center’s YouTube channel. Thanks again for Professors Michael Helfand (Pepperdine) and Michael Moreland (Villanova) for participating. Link is below:
The panel on religious exemptions from the Chicago-Kent Law Review symposium in which I participated with Stephanie Barclay and Laura Underkuffler is now available on YouTube. Thanks again to the organizers for inviting me. The symposium will appear in print later this year. Meanwhile, keep an eye out for the appearance of the Justice Souter bobblehead at 29:05!
Happy to announce that the latest episode in our animated video series, “Landmark Cases in Religious Freedom,” is now available on our YouTube channel. This episode covers Cantwell v. Connecticut (1940), in which a Jehovah’s Witness was convicted of inciting a breach of the peace after playing an anti-Catholic phonograph record in a Catholic neighborhood. The Supreme Court unanimously ruled that Cantwell’s conviction was unconstitutional, establishing for the first time that the First Amendment’s Free Exercise Clause applies to state laws through the Fourteenth Amendment. The case demonstrates how the Constitution protects offensive religious speech absent physical threats or an imminent danger to public order. This precedent remains crucial in today’s debates about religious “hate speech” and the balance between free expression and public safety. Take a look!
Last night, the Center co-hosted its annual symposium with the St. John’s Journal of Catholic Legal Studies, with guests Professors Michael Helfand of Pepperdine and Michael Moreland of Villanova. A great discussion about the Oklahoma Catholic Charter School case, which SCOTUS will hear later this month. I’ll post the video when it becomes available.
Last week, the Mattone Center’s student fellows–Noa Cadet, Riki Markowitz, Karina Mesrobian, and Panayiotis Xenakis, participated in the 8th International Law and Religion Moot Court Competition in Rome. The competition gathers law students from Europe and the US to argue a mock case before panels representing the US Supreme Court and the European Court of Human Rights. This was the first time the Mattone Center fielded a team in the competition. Congrats to our team, especially oralists Noa Cadet and Riki Markowitz, and many thanks to Jim Herschlein ’85 for helping to coach!
Happy to announce the release of a new video in our YouTube series, “Landmark Cases in Religious Freedom.” The new video examines the landmark 1878 case, Reynolds v. United States, the Supreme Court’s first decision on the meaning of the Free Exercise Clause.
Through the story of George Reynolds, a devout Mormon charged with bigamy, the Court established that although the Free Exercise Clause protects religious belief absolutely, it allows the state to regulate religious conduct–at least if the state has a good reason for doing so. Learn how Chief Justice Waite’s opinion introduced Jefferson’s “wall of separation” metaphor to the Court’s caselaw and why the Court rejected religious belief as a defense to criminal charges, setting a precedent that still influences religious freedom cases today:
I look forward to participating, along with many friends and colleagues, in what promises to be a fascinating symposium on religion, secularism, and liberalism organized by Steven Heyman and Kathleen Brady and hosted by the Chicago-Kent Law Review: “In Search of Common Ground: Religion and Secularism in a Liberal Democratic Society.” The online symposium, scheduled for February 21, will be open to the public; the link is below. It’s a fabulous lineup of scholars and I’m very grateful to be among them:
Over the past several decades, America’s religious diversity has continued to grow rapidly, as have the percentages of Americans who either are not religious or are not affiliated with a specific religious group or denomination. At the same time, America’s deepening cultural and political divisions have often followed these expanding religious fault lines. These developments have raised new challenges for defining the relationship between law, religion, and secularism under the Religion Clauses of the First Amendment and beyond. At the Chicago-Kent Law Review’s Symposium, leading law-and-religion scholars who represent a broad spectrum of views will explore a range of doctrinal issues – such as free exercise exemptions, government expression and funding, and the meaning of religion under the First Amendment – and will discuss how people who hold very different worldviews can live together in contemporary society.
For more information, check the link above. Thanks!