The Illusion of Religious Neutrality
“The Establishment Clause cannot be reduced to a single principle,” Christopher Lund observes in a recent article. “But if it could–if there is a single premise that has animated the Supreme Court’s...
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Berman’s Revolution, Part IV: Understanding the Protestant Revolution of Liberty
So far, I have considered Harold Berman’s overall project, explained the basic ideas in Law and Revolution, Volumes I and II, and examined Berman’s investigations of polycentric liberty. This last...
View ArticleA Leiter Case for the Superfluousness of Religious Liberty
In Why Tolerate Religion? Brian Leiter, author of the Leiter Reports blog and a law professor at the University of Chicago who has an interest in philosophy, asks why Western democracies have sought to...
View ArticleA Bridge Too Far: Reverse Incorporation
Over at Prawfsblog, Kurt Lash has a post on Incorporation of the Establishment Clause. Kurt did pioneering work on this issue back in the day, work which is rightly esteemed. In the first part of his...
View ArticleOriginalism and Religious LIberty
The first day of teaching undergraduate constitutional law, I (not a lawyer) would take a well-regarded law school casebook, and I would ask a student to find the Dred Scott case in it. It was only...
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Setting the Establishment Clause Against Religious Liberty
Frederick Gedicks, who holds the Guy Anderson Chair at Brigham Young University Law School, recently argued in the Washington Post that to permit Hobby Lobby and Conestoga Wood, the two companies...
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In Hobby Lobby Case, Progressives Reincarnate an Old Southernism
In Sebelius vs. Hobby Lobby Stores, Inc. we are asked whether a private corporation has the right to buy health insurance that does not pay for abortion. Progressives like Erwin Chemerinsky argue that...
View ArticleEveryone expects the Inquisition
There’s been another naughty pastor. No, not the usual, but instead a minister who mentioned Christ’s name when asked to pray at a town council meeting. (They will do that!) Happily, the offending...
View ArticlePaying the Debt of Civility
I’m often asked whether it’s challenging to be a Jewish professor at a Catholic college that takes its religious identity seriously, to which my answer is, first, no, and, second, I certainly prefer it...
View ArticleGreece the Establishment Clause: Thomas’s Church-State Originalism
“As an initial matter, the Clause probably prohibits Congress from establishing a national religion.” –Justice Clarence Thomas, in his concurring opinion in Greece v. Galloway “Probably”? As if the May...
View ArticleThe Revised Version of American Religious Freedom: A Conversation with Steven...
This next episode of Liberty Law Talk is with Steven Smith on his new book The Rise and Decline of American Religious Freedom. Our conversation explores Smith’s challenge to the dominant academic...
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Pantagruel Comes for the Establishment Clause
In the second book of the 16th century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious...
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Victory in Spite of Ourselves
David Cortman showed remarkable poise and command last January when he made his first appearance before the Supreme Court. The case was Reed v. Gilbert, and he represented the cause of a small,...
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The Illusion of Religious Neutrality
“The Establishment Clause cannot be reduced to a single principle,” Christopher Lund observes in a recent article. “But if it could--if there is a single premise that has animated the Supreme Court's...
View ArticleClik here to view.
A Leiter Case for the Superfluousness of Religious Liberty
In Why Tolerate Religion? Brian Leiter, author of the Leiter Reports blog and a law professor at the University of Chicago who has an interest in philosophy, asks why Western democracies have sought to...
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Restoring Religious Liberty, Reviving Political Liberty
A few weeks ago, a friend of mine in Religious Studies returned from a conference at a major law school with this report: “Not all, but the majority of presenters agreed that Christians should be...
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Reimagining Religion’s Distinctiveness in American Law
Historically we have understood our tradition of religious liberty to entail distinctive treatment for religion. We have interpreted the Free Exercise and Establishment Clauses of the First Amendment...
View ArticleThe Christmas Holiday of 1870 and the Establishment Clause
Protesters rally against President Trump's travel ban on February 4, 2017 in Washington DC (Rena Schild / Shutterstock.com),It does not take a sophisticated legal realist to recognize the hopelessness...
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Everson‘s Syllogism
Almost every constitutional law scholar—Left, Right, and center—agrees that the U.S. Supreme Court’s Establishment Clause jurisprudence is, to put it kindly, confused. Much of the blame for this mess...
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Roger Sherman: An Old Puritan in the New Republic
Connecticut’s Roger Sherman was the only Founder to help draft and sign the Declaration and Resolves (1774), the Articles of Association (1774), the Declaration of American Independence (1776), the...
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