The Little Sisters of the Poor are litigants before the Supreme Court once more, this time as intervening defendants in an action by Pennsylvania and New Jersey against the federal government. The factual issue is a set of regulations adopted by the federal government that fully exempt organizations like the Little Sisters from the “contraception mandate”–an extremely controversial feature of the Patient Protection Affordable Care Act that has been litigated for what will shortly be a decade. The case is Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, and it implicates complicated questions about religious freedom.
In this podcast, we are absolutely delighted to be joined by our first guest on Legal Spirits, Professor Kevin Walsh of the University of Richmond Law School, who has represented the Little Sisters before and has a keen understanding of the many intricacies of this important case. We recapitulate the history of this case, discuss the decisions below, and talk about the claims before the Supreme Court. We focus on the question of standing and the broader issue of the scope of the Religious Freedom Restoration Act and how this case might affect it. Listen in!
The Supreme Court has granted cert. on a potentially major case for the scope of the Free Exercise Clause and the relationship between rights of religious liberty and rights of LGBT persons. The case is Fulton v. City of Philadelphia, and it concerns Catholic Social Services, a foster agency and part of the Archdiocese of Philadelphia, which was prevented by the City from making new foster care placements because CSS objected on religious grounds to placing children in homes with unmarried heterosexual couples as well as same-sex couples.
In this episode, Mark and Marc present the facts of the case, discuss the legal claims in the petition for cert., and explore some of the larger and possibly very significant implications of this case for the future of constitutional free exercise. Listen in!
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!
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.
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!
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!
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!
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!
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!
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!