In this episode of Legal Spirits, Center Director Mark Movsesian and Associate Director Marc DeGirolami recap last week’s oral argument in the Peace Cross case, The American Legion v. American Humanist Association. The Justices signaled that they’re likely to uphold the constitutionality of the cross, but it’s not clear what their reasoning will be. Mark and Marc discuss the various possibilities and predict how the votes may eventually line up.
In this episode of Legal Spirits, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss the Court’s recent denial of cert in Kennedy v. Bremerton School District, a case in which the Ninth Circuit ruled that a public high school football coach could be fired for praying on the 50-yard line after each game. Movsesian and DeGirolami explain why a seemingly offhand comment by Justice Alito might signal a change in the Court’s free exercise jurisprudence, and whether, even under current doctrine, the coach might have had a legal right to pray.
I’ve posted a new article on SSRN, “Masterpiece Cakeshop and the Future of Religious Freedom.” The article, which will appear in the current volume of the Harvard Journal of Law and Public Policy, uses last term’s decision in Masterpiece Cakeshop as a vehicle for exploring deep trends in American culture, politics, and religion. Here’s the abstract:
Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that treats social distinctions—especially religious distinctions—as illegitimate; and a growing administrative state that enforces that conception of equality in all aspects of our common life. This article explores those trends and offers three predictions for the future: conflicts like Masterpiece Cakeshop will grow more frequent and harder to resolve; the law of religious freedom will remain unsettled and deeply contested; and the judicial confirmation wars will grow even more bitter and partisan than they already have.
You can download the paper here.
In this “Legal Spirits” podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami talk about the Supreme Court’s grant earlier this month in The American Legion v. American Humanist Association, the Peace Cross case. The Court will decide whether a 90-year old war memorial in Maryland, pictured above, violates the Establishment Clause. Mark and Marc discuss the ins-and-outs of the case and speculate whether the Court will finally clear up some of the confusion surrounding religious displays on public property.
At the Law and Liberty Blog today, I have an essay on how a Justice Kavanaugh would likely rule in church-state cases. I argue he is likely to look a lot like Justice Kennedy, the person he would replace:
It’s always difficult to predict how a nominee would rule in cases once on the Court. The best evidence is the way he has ruled as a lower court judge—and even that evidence is imperfect, since lower court judges have a greater duty than Supreme Court Justices to follow the Court’s precedents. Although he has been on the DC Circuit for a dozen years, Kavanaugh has written only two opinions on the merits in church-state cases, one on establishment and the other on free exercise. (He has written one opinion dismissing an Establishment Clause challenge on standing grounds and joined a few church-state opinions other judges have written, but those opinions are less probative). On the basis of those two opinions, I think Justice Kavanaugh would likely be a centrist conservative in the middle of the Court—a Justice remarkably like the one he would replace.
You can read the whole essay here.
Last week, I sat down with First Things‘s senior editor Mark Bauerlein to discuss Judge Brett Kavanaugh’s record on church-state issues and what it might suggest about his future as a Justice. (Bottom line: he’s likely to look a lot like the person he’s replacing). You can listen to the podcast on the First Things site, here.
For those who are interested, I’ve done a short video for the Federalist Society explaining the arguments in Masterpiece Cakeshop, the gay wedding cake case, which will be argued tomorrow at the Supreme Court. The link to the video is below:
Here are some important law-and-religion news stories from around the web:
- Roy Moore, a former Alabama Supreme Court justice who was removed from the bench for refusing to remove a Ten Commandments monument he had had installed in front of the courthouse, has won the Republican primary for Attorney General Jeff Session’s former Senate seat.
- A woman in Colorado has sued her former high school alleging that teachers and administers conspired to lower her grades and damage her chances for college admission as a result of her atheistic views and advocacy.
- The EEOC has filed a lawsuit on behalf of a Christian woman who claims she was fired from her job at a Mississippi restaurant chain after the chain declined to provide her a religious accommodation to the restaurant’s uniform.
- The Supreme Court has cancelled oral argument on the travel ban case and requested briefing on the issue of mootness after the Trump Administration enacted a revised ban that includes non-Muslim majority countries.
- The motive of a man who shot eight people, killing one, at a church in Tennessee is still unclear days after the attack.
- A Pew Research poll has revealed wide differences of opinion between U.S.-born Muslims and Muslim immigrants on the level of hostility Muslims face in U.S. society.
Kevin Walsh and I have the annual Supreme Court Roundup at First Things, A Less Corrupt Term. In it we look back at some of the cases from last term and forward too. The range of cases looking back span the Obergefell-inflected genre, free speech (Packingham and Matal), law and religion (the church plan case and Trinity Lutheran), and Trump v. IRAP. We also discuss the political gerrymandering case on the upcoming docket (Gill v. Whitford) as well as Masterpiece Cakeshop. Here is a bit from the beginning:
In these unusually turbulent times for the presidency and Congress, the Supreme Court’s latest term stands out for its lack of drama. There were no 5–4 end-of-the-term cases that mesmerized the nation. There were no blockbuster decisions.
Even so, the Court was hardly immune to the steady transformation of our governing institutions into reality TV shows. Over the weekend leading into the final day of the term, speculation ignited from who-knows-where about the possible departure of its main character, Justice Anthony Kennedy. To us, the chatter seemed forced—as if the viewing public needed something to fill the vacuum left by a season of episodes with fewer sex scenes and less louche intrigue than usual.
But the scriptwriters did not disappoint entirely. In the season finale, the justices delivered split opinions in two cases that had not even been fully briefed and argued on the merits—one about President Trump’s limits on immigration from six majority-Muslim nations, the other about the right of a female same-sex spouse to be listed as a parent on a birth certificate alongside the birth mother. These opinions hint at some of the stories that will shape next year’s plotline—the first full term for the new character, Justice Neil Gorsuch.
And the producers promise a thrilling new season. For readers of this journal, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is likely to be the most prominent case, one about the freedom of a Christian baker to decline to design a custom cake for a same-sex wedding celebration. Other potential showstoppers include a case about partisan gerrymandering and another round on President Trump’s executive order on immigration. We may also see more shake-ups in the cast. Before peering ahead to what may be coming, though, we look back at some of the signal events of the past term.
At the First Things site today, I reflect on this week’s nomination of Judge Neil Gorsuch to serve on the Supreme Court. In my opinion, he’s likely to be a solid conservative–the sort of judge that any Republican administration in the last generation could have nominated. Here’s an excerpt:
He holds to originalism in constitutional interpretation and textualism in statutory interpretation—two positions that have been the foundation for judicial conservatism since the 1980s. His record in religion cases is reassuring. On the free exercise side, he has shown sensitivity to the right of believers to claim exemptions from laws that substantially burden their religious exercise. And he has done so not only in the famous Hobby Lobby case, in which the claimants were conservative Christians, but in a case involving a Native American prisoner. In fact, his opinion in the latter case, Youngbear v. Lambert, is a sophisticated, engaging essay on the law of religious exemptions generally. Gorsuch is a clear and accessible writer—something one cannot say for many judges.
His opinions on the Establishment Clause side, less well known, are also encouraging. Judge Gorsuch has signaled his opposition to the thirty-year-old “endorsement test,” which forbids state-sponsored displays that a reasonable observer would understand as an endorsement of religion. The test is famously malleable, and Judge Gorsuch has criticized the way his own circuit, in particular, has misinterpreted it to forbid some traditional public displays—including, notably, a Ten Commandments monument. His apparent dissatisfaction with the endorsement test bodes well for restoring a more sane Establishment Clause jurisprudence that honors American traditions.
You can read the whole post here.