Tag Archives: Supreme Court

Regan, “The American Constitution and Religion

51oQdDf7byL__SY346_This November, The Catholic University of America Press will publish The American Constitution and Religion by Richard J. Regan. The publisher’s description follows.

The Supreme Court’s decisions concerning the first amendment are hotly debated, and the controversy shows no signs of abating as additional cases come before the court. Adding much-needed historical and philosophical background to the discussion, Richard J. Regan reconsiders some of the most important Supreme Court cases regarding the establishment clause and the free exercise of religion. Governmental aid to church-affiliated elementary schools and colleges; state-sponsored prayer and Bible reading; curriculum that includes creationism; tax exemption of church property; publicly sponsored Christmas displays—these and other notable cases are discussed in Regan’s chapters on the religious establishment clause. On the topic of the free-exercise clause, Regan considers such subjects as the value of religious freedom, as well as the place of religious beliefs in public schooling and government affairs. Important cases concerning conscientious objection to war, regulation of religious organizations and personnel, and western traditions of conscience are also examined. This book, written for students of law, political science, and religion, presents the relevant case law in chronological order. The addition of the historical context and Regan’s philosophical discussion enhances our understanding of these influential cases.

The Nationalist Providentialism of Justice John Marshall Harlan

In a richly detailed new article, Professors Josh Blackman (South Texas) and Justice JM HarlanBrian Frye (Kentucky), together with Michael McCloskey of the Harlan Institute for Constitutional Studies, discuss the constitutional jurisprudence of Justice John Marshall Harlan by exploring his turn-of-the-century lectures at what was then the Columbian College of Law (now GW). My old students will remember Justice Harlan for, among other opinions, his famous dissent in Plessy v. Ferguson. The paper is very interesting on many fronts, but the authors’ reconstruction of Harlan’s nationalist providentialism (Harlan himself, the authors write, was a “devout Presbyterian”) really caught my eye (particularly in light of a paper I am now working on involving a contemporary judge with not entirely dissimilar views):

In his lectures, Justice Harlan expressed a strong belief in American exceptionalism and in the role of providence in America’s success. He saw a tight connection between the rule of law and religion, and considered them both essential to America’s prosperity. For Harlan, constitutional liberty consisted of the common law rights of Englishmen, secured by the Constitution and realized by the Court. The primary merit of a written Constitution was to render immutable traditional common law rights. And those common law rights were secured and realized only by special providences, indelibly marked by blood and fire. Harlan argued that the Fourteenth Amendment incorporated the Bill of Rights against the states. He believed that the Constitution expressed the “providential” purpose of the United States. Discussing the clause that requires that officers must swear to uphold the Constitution, Harlan asks, “Is there any country on the Earth that has in its statutes or laws a provision like that? Not one.” ….

Harlan’s republicanism committed him to popular sovereignty, civic virtue, and self-governance. Other Justices saw the rights guaranteed by the Constitution as abstract, derived from reason and practicality. For some, like Holmes and Brandeis, it meant legal realism. By contrast, Harlan saw constitutional rights as elements of a shared culture, and the extension of them to the states through the Constitution as a means of promoting and preserving national unity. By affirming a common American heritage, rooted in “Anglo-Saxon” liberties, the Court, through the Bill of Rights and the constitutional privileges and immunities it protected, could help create a unified nation, one with the ideological strength to overcome sectional and racial differences. Harlan’s lectures were one tool for accomplishing this goal.

Wilson, “The Street Politics of Abortion: Speech, Violence, and America’s Culture Wars”

This August, Stanford University Press will publish The Street Politics of Abortion: Speech, Violence, and America’s Culture Wars, written by Joshua C. the street politics of abortionWilson (University of Denver).  The publisher’s description follows.

The U.S. Supreme Court decision in Roe v. Wade stands as a historic victory for abortion-rights activists. But rather than serving as the coda to what had been a comparatively low-profile social conflict, the decision mobilized a wave of anti-abortion protests and ignited a heated struggle that continues to this day.  Picking up the story in the contentious decades that followed Roe, The Street Politics of Abortion is the first book to consider the rise and fall of clinic-front protests through the 1980s and 1990s, the most visible and contentious period in U.S. reproductive politics. Joshua Wilson considers how street level protests lead to three seminal Court decisions—Planned Parenthood v. Williams, Schenck v. Pro-Choice Network of Western N.Y., and Hill v. Colorado. The eventual demise of street protests via these cases taught anti-abortion activists the value of incremental institutional strategies that could produce concrete policy gains without drawing the public’s attention. Activists on both sides ultimately moved—often literally—from the streets to fight in state legislative halls and courtrooms.

At its core, the story of clinic-front protests is the story of the Christian Right’s mercurial assent as a force in American politics. As the conflict moved from the street, to the courts, and eventually to legislative halls, the competing sides came to rely on a network of lawyers and professionals to champion their causes. New Christian Right institutions—including Pat Robertson’s American Center for Law and Justice and the Regent University Law School, and Jerry Falwell’s Liberty University School of Law—trained elite activists for their “front line” battles in government. Wilson demonstrates how the abortion-rights movement, despite its initial success with Roe, has since faced continuous challenges and difficulties, while the anti-abortion movement continues to gain strength in spite of its losses.

Perry, “Human Rights in the Constitutional Law of the United States”

9781107666085This July, Cambridge University Press will publish Human Rights in the Constitutional Law of the United States, by Emory’s Michael Perry The publisher’s description follows.

In the period since the end of the Second World War, there has emerged what never before existed: a truly global morality. Some of that morality – the morality of human rights – has become entrenched in the constitutional law of the United States. This book explicates the morality of human rights and elaborates three internationally recognized human rights that are embedded in U.S. constitutional law: the right not to be subjected to cruel, inhuman, or degrading punishment; the right to moral equality; and the right to religious and moral freedom. The implications of one or more of these rights for three great constitutional controversies – capital punishment, same-sex marriage, and abortion – are discussed in-depth. Along the way, Michael J. Perry addresses the question of the proper role of the Supreme Court of the United States in adjudicating these controversies.

Law and Religion in Justice Thomas’s Fisher Concurrence

As Supreme Court followers will already know, the Court issued decisions in several cases today, including an employment discrimination case, a case about the reach of the Necessary and Proper Clause (take note, my old students!), and, of course, a case dealing with affirmative action in public universities.

There isn’t much involving law and religion in any of these cases. But not nothing either. I am still digesting Fisher v. University of Texas, but the upshot seems to be a clarification of sorts by the Court that, in applying a strict scrutiny standard in this context, while deference is due to a university’s belief in the importance of “the educational benefits flowing from student body diversity,” deference is not due to the manner in which the university attempts to achieve the asserted interest in diversity (where narrow tailoring of the means to the end is necessary). Good faith efforts by the university to achieve narrow tailoring are not sufficient to satisfy the narrow tailoring element of strict scrutiny. Justice Kennedy, writing for the Court, offered this: “Strict scrutiny must not be ‘strict in theory but fatal in fact.’….But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.” The case was vacated and remanded to the Fifth Circuit for reconsideration in light of the Court’s clarification of the applicable standard.

In a sizable and strongly worded concurrence, Justice Thomas agreed that the Fifth Circuit did not apply strict scrutiny but also argued that the Court should have overruled Grutter v. Bollinger, where the Court offered its fullest statement about educational diversity. Justice Thomas’s concurrence is framed in large part as a series of comparisons between arguments made by segregationists and arguments made by proponents of what he calls “race discrimination” in admissions, among which is the following:

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U. S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58–59 (2003) (“Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually. . . . [T]he relation now existing in the slaveholding States between the two [races], is, instead of an evil, a good—a positive good”); Harper, Memoir on Slavery, in The Ideology of Slavery 78, 115–116 (D. Faust ed. 1981) (“Slavery, as it is said in an eloquent article published in a Southern periodical work . . . ‘has done more to elevate a degraded race in the scale of humanity; to tame the savage; to civilize the barbarous; to soften the ferocious; to enlighten the ignorant, and to spread the blessings of [C]hristianity among the heathen, than all the missionaries that philanthropy and religion have ever sent forth’”); Hammond, The Mudsill Speech, 1858, in Defending Slavery, supra, at 80, 87 (“They are elevated from the condition in which God first created them, by being made our slaves”) . . . .

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign. “‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” See Metro Broadcasting, 497 U. S., at 610 (O’Connor, J., dissenting). It is for this reason that the Court has repeatedly held that strict scrutiny applies to all racial classifications, regardless of whether the government has benevolent motives. See, e.g., Johnson, 543 U. S., at 505 (“We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”); Adarand, 515 U. S., at 227 (“[A]ll racial classifications, imposed by whatever federal, state,or local governmental actor, must be analyzed by a reviewing court under strict scrutiny”); J. A. Croson, 488 U. S., at 500 (“Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice”). The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.

Movsesian on Alito

For CLR Forum readers who would be interested, my chapter on Justice Samuel Alito appears in the just released, revised edition of Justices of the Supreme Court: Their Lives and Major Opinions (2013), edited by Leon Friedman and Fred Israel. Among other cases, I discuss Alito’s famous opinion for the Third Circuit in the Newark Police Department beard case, Fraternal Order of Police v. City of Newark (3d Cir. 1999), as well his opinion for the Supreme Court in the “Seven Aphorisms” case, Pleasant Grove City. Utah v. Summum (2009), and his dissent in Christian Legal Society v. Martinez (2010).

Annicchino on Religious Autonomy

For our followers who read Italian, CLR Forum guest poster Pasquale Annicchino (European University Institute) has posted a comparative essay on religious autonomy in the US and Europe, The Conflict between the Autonomy of Religious Groups and Other Fundamental Rights: Recent Decisions of the U.S. Supreme Court and the European Court of Human Rights. Here’s the abstract:

The principle of autonomy of religious groups has acquired new importance in the recent decisions of the United States Supreme Court and the European Court of Human Rights. This article will analyze and compare the decisions by these two courts, with a particular focus on the circulation of legal arguments between the two different legal orders.

Certiorari Granted in Legislative Prayer Case

The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of New York in which the Second Circuit held in an opinion by Judge Guido Calabresi that the town’s practice of allowing volunteer private citizens to open town board meetings with a prayer violated the Establishment Clause. The last Supreme Court decision to address this precise issue was Marsh v. Chambers (1983), where the Court in a majority decision by Chief Justice Burger upheld the particular practice at issue in Nebraska. Courts of appeals have taken different approaches to the issue post-Marsh, even within the same circuit (see, e.g., the Fourth Circuit’s very different approaches in Joyner v. Forsyth CountyWynne v. Town of Great Falls, and Simpson v. Chesterfield County) so I suppose it was on the Court’s radar. But one never knows exactly why the Court decides to take up an issue.

For some discussion of the Second Circuit decision, see this post.

UPDATE: Interesting early posts on the case by Eugene Volokh and Paul Horwitz.

Waltman, “Congress, the Supreme Court, and Religious Liberty”

This June, Palgrave MacMillan will publish Congress, the Supreme Court, and Religious Liberty: The Case of City of Boerne v. Flores by Jerold Waltman (Baylor University).  The publisher’s description follows.Waltman

In the landmark case City of Boerne v. Flores, the Supreme Court struck down a major federal statute – the Religious Freedom Restoration Act of 1993. This decision raised questions not only about religious freedom in America, but also about federalism and separation of powers. Using the narrative framework of a tense dispute that divided a small Texas town, Waltman offers the first book-length analysis of the constitutional jurisprudence involved in the passage of the act. Congress, the Supreme Court, and Religious Liberty shows how this case and others like it stimulated and advanced an intense legal debate still ongoing today: Can and should the Supreme Court be the exclusive interpreter of the Constitution?

Rogers, “Aquinas and the Supreme Court”

This May, Wiley will publish Aquinas and the Supreme Court: Biblical Narratives of Jews, Gentiles and Gender by Eugene F. Rogers, Jr. (University of North Carolina).  The publisher’s description follows.ebook_k

This new work clarifies Aquinas’ concept of natural law through his biblical commentaries, and explores its applications to U.S. constitutional law.

  • The first time the use of Aquinas on the U.S. Supreme Court has been explored in depth, and its applications tested through a rigorous reading of the biblical commentaries
  • Shows how key judgments in the Supreme Court have rested on medieval natural law, and applies critical gender theory to discuss problems with these applications
  • Offers new research data to give a different picture of Aquinas and natural law, and a fresh take on Aquinas’ biblical commentaries
  • New research based on passages in the biblical commentaries never before available in English