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Legal Spirits 071: Jefferson, Wine, and the Wall of Separation

Thomas Jefferson’s 1802 letter to the Danbury Baptists—better known for its reference to a “wall of separation” between church and state—was little remembered until Chief Justice Morrison Waite revived it in Reynolds v. United States (1879). With the help of historian George Bancroft, Waite transformed Jefferson’s passing metaphor into a constitutional principle, despite Jefferson’s limited role in drafting the First Amendment. In this episode of Legal Spirits, historians Don and Lisa Drakeman join Center Director Mark Movsesian to explore how Jefferson’s words, and even his passion for French wine, helped shape the Court’s Religion Clause jurisprudence—and to consider what lessons today’s Justices should draw about the risks of using history in constitutional interpretation. Listen in!

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Legal Spirits 068: Religion at the Court: October Term 2024 Recap

In this episode of Legal Spirits, we review the Supreme Court’s major religion cases from the October 2024 Term. From religious charter schools to religious exemptions to parental rights in public education, the Court addressed long-standing issues—and, in one case, made a dramatic move. Join Center Director Mark Movsesian and guest John McGinnis as they unpack the implications of Drummond, Catholic Charities Bureau, and Mahmoud v. Taylor.

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A New History of the Religion Clauses

From Oxford University Press, here is a new history of the religion clauses, Free Exercise: Religion, the First Amendment, and the Making of America, focusing especially on the social and cultural context at the time of the Framing, and foregrounding the experience of marginalized religious communities like Jews and Catholics, among others. The author is historian Chris Beneke of Bentley University. Oxford’s description follows:

CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR PROHIBITING THE FREE EXERCISE THEREOF. Those words, scratched on parchment in 1789, open the U.S. Constitution’s First Amendment. From them, countless interpretations have been drawn. As a consequence, an astonishing variety of activities in modern America-prayer after football games, Bible reading in classrooms, company healthcare policies, the baking of wedding cakes, and Ten Commandment displays around courthouses-have been alternately authorized, prohibited, or modified.

In this compelling historical account, Chris Beneke explains how the religion clauses came into existence and how they were woven into American culture. He brings prominent early national figures to life, including George Washington, James Madison, and Thomas Paine, while chronicling the First Amendment’s relationship to defining social conditions like slavery, civility, family life, and the free market. Beneke probes what kind of nation America was when the religion clauses were framed and what kind of nation it was becoming.

Going beyond traditional church-state scholarship, Beneke also demonstrates how white women, African Americans, Roman Catholics, Jews, and nonbelievers widened religious liberty’s application and illuminated its boundaries. In doing so he makes a groundbreaking contribution to both constitutional history and the history of American pluralism.

Posted on by Mark Movsesian

On the Oklahoma Charter School Decision

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.

Posted on by Mark Movsesian

Movsesian on Munoz on Original Meaning

Happy to report that my review of Phillip Munoz’s excellent new book on the original meaning of the religion clauses, Religious Liberty and the American Founding, is up on the website of the Journal of Law & Religion (Cambridge). Munoz persuasively argues that the Framers disagreed on precisely what the Religion Clauses of the First Amendment protect, apart from the freedom to worship. And, I argue, that’s why original meaning can’t provide closure on many of our debates about religious liberty today.

Here’s an excerpt:

Religious Liberty and the American Founding is a pleasure to read. Muñoz writes well and exceptionally clearly, and his book will appeal both to the educated public and to constitutional lawyers and scholars who spend their time immersed in doctrinal debates. He offers a wealth of detail on the drafting and ratification of the religion clauses. And the story he tells is a persuasive one. History is argument without end, but Muñoz’s basic point that the framers disagreed on the precise meaning of establishment and free exercise in the First Amendment but understood those terms in light of their background conception of religious liberty seems entirely plausible. Precisely because the framers could not agree on what the natural right of religious liberty itself entailed with respect to specific government policies, though, it is not clear how helpful a natural-rights construction of original meaning can be in resolving specific constitutional disputes.

Posted on by Mark Movsesian

A Video of This Month’s Panel on Kennedy v. Bremerton School District

For those who are interested, here’s a writeup of this month’s panel discussion on SCOTUS’s recent school-prayer case, Kennedy v. Bremerton School District, with panelists Stephanie Barclay (Notre Dame), Marc DiGirolami (CUA), and Mattone Center Director Mark Movsesian. Among the topics discussed: the end of the endorsement test, the meaning of the Court’s new history-and-tradition test, and the lingering problem of coercion. A video of the panel is below. Listen in!

Posted on by Mark Movsesian

Movsesian on Munoz

In the latest edition of the Journal of Law and Religion, I review Phillip Munoz’s excellent new book on the Religion Clauses, Religious Liberty and the American Founding. In the book, Phillip undertakes to show, to the extent one can, the original meaning of the First Amendment’s Free Exercise and Establishment Clauses. That showing is elusive, he says, since “free exercise” and “establishment” didn’t have a clear meaning at the time of the Framing. Nonetheless, he argues that one can construct plausible meanings for these terms by focusing on the Framers’ understanding of religious liberty as a natural right.

For my take on Phillip’s argument, please read my review essay, linked below. Here’s a sample:

Religious Liberty and the American Founding is a pleasure to read. Muñoz writes well and exceptionally clearly, and his book will appeal both to the educated public and to constitutional lawyers and scholars who spend their time immersed in doctrinal debates. He offers a wealth of detail on the drafting and ratification of the religion clauses. And the story he tells is a persuasive one. History is argument without end, but Muñoz’s basic point that the framers disagreed on the precise meaning of establishment and free exercise in the First Amendment but understood those terms in light of their background conception of religious liberty seems entirely plausible. Precisely because the framers could not agree on what the natural right of religious liberty itself entailed with respect to specific government policies, though, it is not clear how helpful a natural-rights construction of original meaning can be in resolving specific constitutional disputes.

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Legal Spirits 048: The Rise of the Nones and American Law

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!

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Posted on by Mark Movsesian

Writeup of Last Week’s Symposium on the Nones

For all who are interested, here’s a writeup of our symposium last week on the rise of the Nones and its potential impact on the Religion Clauses. I participated in the symposium, which was co-sponsored by the St. John’s Law Review, along with Steve Collis of the Bech-Loughlin First Amendment Center at UT-Austin and Greg Sisk of the St. Thomas Law (Minnesota). We’re planning a podcast soon, so keep your ears open for that!

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Symposium on the Rise of the Nones and American Law

The Center for Law and Religion at St. John’s Law School invites you to attend:  The Rise of the Nones and American Law. Millions of Americans—perhaps as high as 30% of the adult population—now tell surveyors that they have no religious affiliation. Most of these Americans, the “Nones,” do not reject belief, but traditional religious organizations. They have their own, personal spiritual commitments that draw on many sources. The Nones, who are beginning to show up in the case law, have the potential to transform establishment and free exercise jurisprudence.  

Join us for a panel discussion about these issues with Professors Steven Collis (University of Texas Law School), Mark Movsesian (St. John’s), Gregory Sisk (University of St. Thomas School of Law), and Judge Mary Kay Vyskocil (U.S. District Court for the Southern District of New York).  This event is co-sponsored by the ST. JOHN’S JOURNAL OF CATHOLIC LEGAL STUDIES.  

Date
Thursday, March 23, 2023 

Time
5:30 – 8:30 p.m. 

Location
New York Athletic Club
180 Central Park South
New York, NY 10019 

Register to Attend
The event is free, but space is limited, so please register in advance (When registering, use password SPRING). 

Please see the following link for invitation details:Invitation