Legal Spirits Episode 019: Oral Argument in the Blaine Amendments Case

Late last month, the Supreme Court heard oral argument in Espinoza v. Montana Dep’t of Revenue, a case on the constitutionality of a Montana school-choice program that allows parents to direct state-funded scholarships to religiously affiliated schools. The Montana Supreme Court ruled that the program violated the state constitution’s “Blaine Amendment,” which prohibits the appropriation of public money for “sectarian” institutions, including private, religiously affiliated schools. Petitioners argue that barring them from scholarships, simply because they plan to use the money at religiously affiliated schools, violates the Free Exercise Clause of the federal constitution.

In this episode, we review the facts of Espinoza and analyze last month’s oral argument. What concerns did the Justices raise and how did counsel respond? We also speculate what the Justices’ questions suggest about the ultimate outcome of the case. Listen in!

Legal Spirits Episode 018: SCOTUS Takes a Pair of Cases on the Ministerial Exception

In this episode, we discuss the Court’s cert grant in two consolidated cases on the ministerial exception: St. James Church v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru. The cases will require the Court to clarify the definition of “minister,” a question the Court left open six years ago in Hosanna-Tabor. Center Co-Directors Marc DeGirolami and Mark Movsesian ask whether the Court will adopt a narrow or broad definition of “minister”; what practical consequences would follow from either approach; and how the Court’s decision will reflect deeper disagreements about the value of religious institutions in American life.

Legal Spirits Episode 017: Tanzin v. Tanvir and Individual Liability Under RFRA

In this podcast, we discuss the Second Circuit opinion in Tanzin v. Tanvir, the Supreme Court’s second law-and-religion case this term, about whether the Religious Freedom Restoration Act contemplates liability for individual federal officers. Along the way, we consider some of the divided cultural backdrop against which this somewhat technical question will be decided. Listen in on our final podcast of 2019!

Legal Spirits Episode 016: The New Wedding Vendor Cases

In this episode, we discuss recent court rulings in favor of wedding vendors who decline, from religious conviction, to provide services for same-sex weddings. After years of losing such cases, vendors like Joanna Duka and Breanna Koski of Phoenix’s Brush & Nib Studio (above) have won notable victories in the lower courts. We ask whether these victories reflect the changing membership of the judiciary–especially given the new Trump appointees to the federal appeals courts–and how the Supreme Court is likely to respond to them. Listen in!

Legal Spirits Episode 015: SCOTUS Grants Cert in the Louisiana Abortion Case

Photo: CNN

In this podcast, we discuss the Supreme Court’s decision to grant cert in June Medical Services v. Gee, a constitutional challenge to a Louisiana law regulating abortion. We explore what the decision to hear the case suggests about the Court’s changing dynamics and ask whether the standing issue the case presents offers the Court’s conservatives, especially Chief Justice Roberts, a way to cut back on the right to abortion without actually overruling Roe and Casey. Listen in!

Legal Spirits Episode 014: Requiring Clergy to Report Child Sex Abuse to State Authorities

Pope Francis Hears Confessions in Rome

In this episode, Center Co-Directors Mark Movsesian & Marc DeGirolami address state efforts to require clergy to report suspected child sex they learn about through confidential spiritual counseling–in traditional Christian terms, through Confession. Focusing on a recent California bill, SB 360, we explore what these efforts reveal about changes in American religion and predict whether such bills would violate the Free Exercise Clause. Listen in!

Legal Spirits Episode 013: A New Supreme Court Case From Montana Concerning the “Blaine Amendment”

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!

Legal Spirits Episode 012: Is Satanism a Religion?

Satan, Paradise Lost (illustrated by Gustave Dore)

In this podcast, we discuss several recent law and religion controversies concerning the “Satanic Temple.” We discuss what the Satanic Temple is and what its adherents say they believe, whether the Temple should count as a religion or a religious institution for legal purposes, and how the Temple has cleverly put pressure–legally and otherwise–on the principles of sincerity, neutrality, and equality that are said to animate the constitutional doctrine of religious freedom. Listen in!

Legal Spirits Episode 011: The Court Decides the Peace Cross Case

The Peace Cross in Bladensburg, Maryland

In this episode, the third in a series, we talk about the Court’s decision in American Legion v. American Humanist Association, the Peace Cross case. We analyze the Court’s opinion, the plurality opinion, and several of the other opinions in the case. We also consider the implications of American Legion for future cases involving state-sponsored religious displays. And we talk together about some disagreements we have about exactly how to interpret the reach of the case. Listen in!

Legal Spirits Episode 010: The New Abortion Laws

In this podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss a raft of new laws passed by several states regulating abortion. They explore the constitutionality of these laws under the regime established by Roe v. Wade and Planned Parenthood v. Casey, and they think through what the laws might suggest about the growing cultural divisions in America. Mark and Marc survey some of the most restrictive and most permissive of these new laws, talk about the Supreme Court’s recent per curiam opinion in Box v. Planned Parenthood and some of the internal dynamics on the present Court suggested by the opinion as respects abortion, and offer some perspective on the Court’s historic ambitions with respect to this deeply controversial subject. Listen in!

ADDENDUM: Our friend, Professor Carter Snead, points out two small errors in the podcast. First, recent studies have shown that with treatment, viability can begin as early as 22 weeks. Second, the Alabama law has exceptions for situations posing a serious health risk to the mother and where there is a possibility that the woman poses a serious physical health risk to herself because of a serious mental illness.

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