In this short take, Mark Movsesian looks at the Supreme Court’s 8-1 decision this week in Chiles v. Salazar, involving a Christian therapist who challenged Colorado’s ban on so-called conversion therapy for minors. Formally, Chiles is not a free exercise case. But religion is clearly in the background—a reminder that law-and-religion controversies are often worked out through the First Amendment’s speech protections. Listen in!
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Here are some important law-and-religion news stories from around the web:
Here are some important law-and-religion news stories from around the web:
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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The Mattone Center has posted a new video on our YouTube channel about Everson v. Board of Education (1947), one of the Supreme Court’s landmark Establishment Clause cases. In Everson, the Court upheld a New Jersey program that reimbursed parents for transportation costs to parochial as well as public schools. Justice Black’s majority opinion famously explores several arguments about the meaning of the Establishment Clause and has influenced the Court’s jurisprudence ever since.
In our new video, we explain the facts of the case, the Court’s reasoning, and why Everson remains such a touchstone in the law of church and state.
We hope you’ll take a look—and please consider subscribing to the Center’s channel for more explainers on law-and-religion cases and issues.
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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Exciting news! I can announce today that Mattone Center alum Dan Vitagliano will clerk for Associate Justice Clarence Thomas of the Supreme Court of the United States in October Term 2027. Dan, who graduated from St. John’s Law summa cum laude in 2020, was a student fellow in the Mattone Center for two years, 2018-2019 and 2019-2020, and is the first graduate of St. John’s ever to be selected for a Supreme Court clerkship.
Following graduation, Dan clerked for Judge Mary Kay Vyskocil ’83 of the Southern District of New York and Judge Kyle Duncan of the Fifth Circuit, and worked as a Constitutional Law Fellow at the Becket Fund for Religious Liberty, where he litigated constitutional cases involving religious liberty and free speech in federal and state courts. He is currently an associate at Consovoy McCarthy in DC.
I’ll have more about Dan in a future post, but for now I just want to say how happy and proud all of us at the Mattone Center are for him. I’m sure my former colleague and co-director of the Center, Marc DeGirolami, joins us. Congratulations, Dan!
At the Volokh site yesterday, I have a post remembering my former boss, Justice David Souter, who passed away last week at the age of 85. He was a remarkable person and a true gentleman, always kind and generous to his clerks, even when we messed up:
One memory from that year stands out for me especially. As a clerk, one of my responsibilities was proofreading final drafts of opinions. It was a routine thing, but on one such occasion, when Justice Souter was writing the opinion for the Court, I accidentally inserted the word “not” into a sentence, reversing its meaning. By the time I discovered my mistake, Justice Souter was already on the bench announcing the ruling, and the clerk’s office had already released the opinion to the press. There was no way to fix it.
I was mortified. I had messed up a Supreme Court opinion, and in my head, I was already becoming a cautionary tale: “Remember the law clerk who did that?” My co-clerks commiserated with me and agreed that the only thing to do was wait for the Justice to return to chambers and tell him what had happened. It was a long couple of hours. I walked around the block a few times and then, when the Court broke for lunch, knocked on the boss’s door. I half expected to be fired.
When I told him what I had done, he shook his head and chuckled. He said to let the clerk’s office know so they could issue a corrected opinion. “Listen,” he said, and he told me the perhaps apocryphal story of the young New York lawyer who had cost his client millions of dollars by accidentally including too many zeros in a bond debenture. “That’s the sort of mistake you worry about, not this,” he consoled. “Just take care of it.” Greatly relieved, I followed his advice, and the clerk’s office quietly issued a revised opinion. As far as I know, no one on the outside has ever been the wiser—until now, that is.
I will cherish the memory of my time working for him. May he rest in peace.
You can read the full post here.
And, continuing the wedding vendor theme from the last post, my draft paper on the wedding vendor cases, “Status, Conduct, Belief, and Message,” is now available for downloading on the SSRN site. The paper will appear in a forthcoming symposium edition of the Chicago-Kent Law Review. Comments welcome! Here’s the abstract:
This essay explores the constitutional and cultural tensions underlying the “wedding vendor cases,” in which small business owners decline from religious conviction to provide services for same-sex weddings. Litigants often invoke conceptual distinctions among status, conduct, belief, and message, but these distinctions are too indeterminate to resolve the cases in a principled way. The ultimate question is whether LGBT rights should override religious and expressive freedoms in the marketplace. In two recent wedding vendor cases, Masterpiece Cakeshop v. Colorado Civil Rights Commission and 303 Creative LLC v. Elenis, the Court has avoided addressing this fundamental question directly. Instead, the Court has issued narrow rulings based on specific facts and party stipulations, thereby limiting the broader implications of its decisions. While this strategy sacrifices doctrinal clarity and leaves lower courts grappling with uncertainty, it also helps avoid exacerbating cultural polarization on an intensely divisive issue. In the current political climate, incremental case-by-case adjudication—a sort of “passive virtues” approach—may represent a prudent judicial strategy, even if it leaves both sides of the cultural divide dissatisfied.
I was delighted to join my friend and former colleague, Marc DeGirolami, and my friend and Marc’s current colleague, Kevin Walsh, as a guest last week on their excellent podcast, Sub Deo. We discussed the Supreme Court’s recent wedding vendor cases, Masterpiece Cakeshop and 303 Creative. I have a draft on the subject on the SSRN site and thought I’d heard everything about the cases, but Marc and Kevin came up with new and profound questions for me to think about. It was great fun and I thank Marc and Kevin for the opportunity to kick around some ideas. The link is here: