Stanley Fish has an interesting column about teaching law with specific reference to learning about constitutional law and the religion clauses. He says much that I agree with and that picks up on at least some of the themes in his entertaining, Save the World on Your Own Time.
A small but, I think, important feature of the column is the emphasis on (his variety of) intentionalism or purposivism to understand legal doctrine. He writes: 
The Journal of Law and Religion (Vol. XXVII, Hamline University School of Law, St. Paul, MN.) will soon publish The Siren Song of History: Originalism and the Religion Clauses, by Jeffrey Shulman of the Georgetown Law Center. The article surveys three recent historical studies of the constitutional framers and their religious convictions; based on the studies, Shulman argues that historical research fails to discern in the spirituality of the founders enough coherent, unitary content to formulate an adequate originalist interpretation of constitutional religious freedom.
At the outset, Shulman asserts, “[W]e are all originalists now”—meaning, in his view, that originalism has become a keystone to litigating freedom of religion questions. Through his reviews, Shulman seeks to call into question this perceived judicial susceptibility to originalist-historical interpretation of the First Amendment. He does so by arguing that history does not disclose a thorough, consistent enough picture of the founders’ religiosity to endow the Religion Clauses with “something determinate enough to serve a heuristic purpose in legal controversy.”
To illustrate his argument, Shulman reviews The Forgotten Founders on Religion and Public Life (Daniel L. Dreisbach et al. eds., Notre Dame 2009) (see Professor DeGirolami’s discussion here), a collection of biographical outlines of under-acknowledged “founders” and their views on the relationships between religion, law, and society. Among those outlines, the collection sketches Thomas Paine’s deism; the “quirky individual religion” of Benjamin Rush, a Philadelphia physician; and the moderate Anglicanism of first attorney-general, Edmund Randolph.
For further discussion of The Forgotten Founders and the other two books Shulman surveys in The Siren Song, please follow the jump. Read more
Linda C. McClain and James E. Fleming, both of Boston University School of Law, have published Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights. The paper draws on the works of Dworkin (and other giants in liberal political theory such as Rawls) to critique the “communitarian” or “civic-republican” perspective of Michael J. Sandel’s bestseller, Justice: What’s the Right Thing to do? (2009). Professor Sandel rejects values-neutral conceptions of legal justice in socio-moral debates like that concerning the validity of gay marriage—arguments that emphasize individual freedom to act; rather, he argues that only arguments with a full-fledged consciousness of the actual, moral virtues—or lack of them—that such social institutions embody will satisfactorily resolve these cultural conflicts.
In contrast, McClain and Fleming argue that both values-neutral and values-based arguments—arguments for individual freedom of action as well as arguments about the virtue embodied in social institutions like marriage—have and will be instrumental to resolving such questions. Please see the authors’ abstract after the jump:
My sister-in-law (and St. John’s Law School alum!!) kindly sent me Justice
John Paul Stevens’s new book, Five Chiefs: A Supreme Court Memoir (Little, Brown, and Co. 2011), and this morning I read through it (we wake up early in my parts). For Supreme Court memoirs by former Justices, it’s not bad at all, containing several interesting historical details. The mechanics of the way the Court operates, and the changes that Justice Stevens witnessed over the years — from his days as a clerk for Justice Rutledge to his appointment beginning in 1975, with a tenure of more than thirty years — are fun to read about. I also learned that Chief Justice Roberts was a high school wrestler, which elevates him even further in my estimation (his weight class was 126 — light!).
Along the way, Justice Stevens discusses all manner of cases: race, equal protection, affirmative action, antitrust, environmental, speech (it seems as though Justice Stevens would have voted with Justice Alito’s dissent in Snyder v. Phelps), capital punishment (like Justice Stevens, I admire C.J. Roberts’s concurrence in Graham v. Florida), abortion, Second, Fourth, Fifth, and Eleventh Amendments, separation of powers (Morrison v. Olson in particular), Commerce Clause, minimum wage cases, and Bush v. Gore.
The only comment directly about the religion clauses really isn’t about them at all, but is part of and couched within a larger criticism of originalism. Justice Stevens writes: Read more
I was pleased to take part last night in an event at St. John’s Law School dealing with the ministerial exemption and the Hosanna-Tabor case. The case and the doctrine have been discussed a good deal already, but for those who can’t get enough, here are some additional scattered thoughts.
1. A perhaps somewhat pedantic point about names first. I prefer “ministerial exemption” to “ministerial exception.” From what I have seen in the briefing of the case, I am in the great minority. My reasons are historical and linguistic. The historical reason is that the doctrine of the ministerial exemption first arose in American law in the McClure case out of the Fifth Circuit in 1972, and was in some measure a reaction to the 1964 Civil Rights Act. At that point, the free exercise approach in operation was the substantial burden/compelling interest test announced in the 1963 case, Sherbert v. Verner. The idea was that “exemptions” from generally applicable laws are constitutionally required in certain circumstances, and the ministerial “exemption” was part of the general doctrinal geist. Read more
SCOTUS Blog reports (Lyle Denniston) that the Justices denied certiorari on a new Ten Commandments case as well as a RLUIPA case but did nothing yet with respect to the fairly well-known Utah highway cross case out of the 10th Circuit. Here’s the relevant bit. (And see my colleague Mark’s post below on the Court’s Ten Commandments display doctrine.) — MOD
Among the hundreds of cases denied review was one involving a plea for the Court to reopen the question of the constitutionality of posting the Ten Commandments on the wall of a courtroom — an issue brought to it by a state judge in Ohio (DeWeese v. ACLU, 10-1512). The Court, however, took no immediate action on the constitutionality of placing a Christian cross at the roadside sites of the deaths of on duty of state highway patrolmen (Utah Highway Patrol Association v. American Atheists, 10-1276, and Davenport v. American Atheists, 10-1297). In another case involving church-state issues, the Court declined to sort out how far local governments must go, under the federal Religious Land Use [and Institutionalized Persons] Act, to allow churches to build new structures in areas of the city not zoned for such uses (San Leandro v. International Church of the Foursquare Gospel, 11-106).
Professor Steven D. Smith of the University of San Diego School of Law has posted, Freedom of Religion or Freedom of the Church?. In it, he argues that the modern jurisprudence of the religion clauses is so untidy because it focuses on an amorphous concept of “religion” when instead it should focus on the more discrete concept of “the church.” See the abstract below:
This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church – a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church – both the institutional church and the inner church – came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.
—DRS, CLR Fellow
Political scientist Ellis West (University of Richmond – Emeritus) has published 
The Religion Clauses of the First Amendment: Guarantees of States’ Rights? (Lexington). West argues for an individualist, as opposed to states’ rights, interpretation. A description follows. — MLM
The First Amendment of the U. S. Constitution begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Supreme Court has consistently held that these words, usually called the “religion clauses,” were meant to prohibit laws that violate religious freedom or equality. In recent years, however, a growing number of constitutional law and history scholars have contended that the religion clauses were not intended to protect religious freedom, but to reserve the states’ rights to legislate on. If the states’ rights interpretation of the religion clauses were correct and came to be accepted by the Supreme Court, it could profoundly affect the way the Court decides church-state cases involving state laws. It would allow the states to legislate on religion-even to violate religious freedom, discriminate on the basis of religion, or to establish a particular religion. This book carefully, thoroughly, and critically examines all the arguments for such an interpretation and, more importantly, all the available historical evidence. It concludes that the clauses were meant to protect religious freedom and equality of the individuals not the states’ rights.