In this episode, Marc and Mark offer some thoughts about the Biden Administration Department of Education’s guidance issued earlier this month (the first since 2020) on prayer and religious expression in public schools. The new guidance largely avoids much discussion of the newest Supreme Court decision on the matter, Kennedy v. Bremerton School District, and does not mention the Court’s new text and tradition test at all. Marc and Mark offer some explanations (and entertain a few gentlemanly disagreements!) about just why that might be. Listen in!
In this episode, Marc and Mark discuss the background and recent oral argument before the Supreme Court in Groff v. DeJoy, a case about religious accommodation in the workplace under Title VII. The case involves a postal worker who observes Sunday sabbath and who was disciplined by the United States Postal Service after a dispute between the parties arose concerning his accommodation from working on Sunday. We discuss the interpretation of the statutory language “undue hardship,” an old 1970s-era Supreme Court decision offering an unusual reading of that language, and the general and growing problem of religious accommodation in a pluralistic society that makes this case so controversial. Listen in!
In this podcast, Marc and Mark discuss some of the common themes in two books that we recently read and reflected on with our students in the Center’s Reading Society: Walter M. Miller, Jr.’s A Canticle for Leibowitz and Alasdair MacIntyre’s After Virtue: A Study in Moral Theory. The themes include the nature and value of knowledge, the fragmentary quality of moral discourse today, and the question whether (law) teachers are, or should be, (more like) monks (than anything else). Listen in!
I was happy to chat again last week with Al Kresta of Ave Maria Radio about the recent Wall Street Journal poll showing a decline in interest in community, country, and tolerance–and how the poll shows that Tocqueville was basically correct. A link to the interview is here.
Last month, the Center co-sponsored a panel, “The Rise of the Nones and American Law,” featuring Professors Steven Collis (University of Texas), Mark Movsesian (St. John’s) and Gregory Sisk (University of St. Thomas–Minnesota). The panel explored how the explosion in the numbers of the religiously unaffiliated in contemporary America might affect jurisprudence under the Religion Clauses. In this episode of Legal Spirits, the panelists recap their arguments and offer some new ones. What impact will the Nones have on Establishment and Free Exercise in 21st century America? Listen in!
For our first podcast of 2023, we are delighted to welcome Professor Nicholas Aroney of the University of Queensland Law School, a distinguished constitutional law scholar who has co-edited (with Professor Ian Leigh) a new book just published by Oxford University Press: Christianity and Constitutionalism. Marc and Mark interview him about the book’s themes, scope, and arguments, including questions about the overarching relationship of Christianity and law, and about growing scholarly interest in the connection between law and theology (in Australia and elsewhere!). Listen in!
Last month, a federal court ruled that New York could constitutionally restrict the sale of alcohol when New Year’s falls on a Sunday, as it will this year. In our final podcast of 2022, we discuss this ruling and the Supreme Court’s longstanding view that Sunday alcohol restrictions and closing laws do not violate the Establishment Clause. How has the Court’s jurisprudence shaped the way Americans view Sundays? And what are the implications for religious freedom? Listen in–and Happy New Year!
Next week, the Supreme Court will hear argument in 303 Creative LLC v. Elenis, an important case that pits free speech rights against anti-discrimination laws. A Christian web designer has challenged Colorado’s public accommodations law, arguing that the law will require her to design sites for same-sex weddings and convey messages with which she disagrees. In this episode, Marc and Mark explore several of the issues in the case, from concerns about ripeness and standing to matters of substance: free speech and compelled speech, same-sex marriage, antidiscrimination law, what distinguishes “messages” from “messengers,” and others. Listen in!
In this episode, Mark interviews Marc about his new article, “Traditionalism Rising,” on an important, emerging method of constitutional interpretation embraced by the Supreme Court across the domains of constitutional law, including in law and religion, and especially so in the most recent term. Marc explains some of the basics of the method, which emphasizes the endurance of political and cultural practices over time as presumptive determinants of constitutional meaning. The two discuss some of the reasons to adopt this approach to understanding the Constitution and several objections that might be made to it, considering a few responses. Constitutional law and interpretation is, and has always been, fraught with political controversy, and Marc and Mark think through some of the political valences of traditionalism to conclude the discussion. Listen in!
In this episode, Marc interviews Mark about his new article, “The New Thoreaus,” on the rise of the Nones and its impact on free-exercise law. Fifty years ago, in Wisconsin v. Yoder, the Supreme Court famously dismissed the idea that a solitary seeker–the Court gave the 19th Century Transcendentalist Henry David Thoreau as an example–could qualify as a “religion” for constitutional purposes. “Religion,” the Court explained, means a communal activity, not a purely personal quest. Mark argues that recent demographic changes in America have made this question an urgent one. Perhaps 66 million Americans today are unaffiliated believers–people who, like Thoreau, reject organized religion and follow their own, idiosyncratic spiritual paths–and more and more of them seek “religious” exemptions, including in the context of recent vaccine mandates. Mark examines some of these cases and argues that Yoder‘s dicta was basically correct: although religion cannot be an exclusively collective activity, the existence of a religious community is a crucial factor in the definition of religion for legal purposes. Listen in!