Law Commons^™

Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise

St. John's Law Review

In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life.

Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic …

Marianist Law Schools: Demonstrating The Courage To Be Catholic, David A. Grenardo

Journal of Catholic Legal Studies

(Excerpt)

Only two Marianist law schools exist in the United States. Both University of Dayton School of Law (UDSL) and St. Mary’s University School of Law (St. Mary’s Law School) proudly embrace their Catholic and Marianist traditions in promoting their schools. For instance, St. Mary’s Law School, the only Catholic law school in Texas, openly advertises its commitment to welcome and serve “students of all faiths and uphold the Marianist tradition of hospitality, openness and the family spirit.” Similarly, UDSL’s online published materials state unequivocally: “In the Catholic, Marianist spirit, many of our students participate in pro bono activities and …

Funding Faith: The Paycheck Protection Program's Establishment Clause Violation, Brenna Jean O'Connor

St. John's Law Review

(Excerpt)

In the early months of 2020, COVID-19 had a swift and profound impact on public health, the economy, state and local governments, and businesses across the United States. In response, on March 27, 2020, the United States Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) to protect the American people from the worsening public health crisis and mitigate the resulting economic downturn. Additionally, within the CARES Act, Congress established the Paycheck Protection Program (“PPP”), which expanded the Small Business Administration’s (“SBA”) authority to guarantee forgivable loans to eligible small businesses. Among other prerequisites, the PPP …

A Light Unseen: The History Of Catholic Legal Education In The United States: A Response To Our Colleagues And Critics, John M. Breen, Lee J. Strang

Journal of Catholic Legal Studies

(Excerpt)

We are enormously grateful to the Journal of Catholic Legal Studies for hosting the conference on February 14, 2020, dedicated to a review of our book manuscript, A Light Unseen: The History of Catholic Legal Education in the United States, and for publishing the papers of the conference participants. We are also grateful for the opportunity to offer some reply in the pages of the Journal. A Light Unseen sets forth a comprehensive history of the book’s subject matter. The book describes the purposes for which Catholic law schools were founded, the schools maturation and success in …

The Distinctive Questions Of Catholics In History, Amelia J. Uelmen

Journal of Catholic Legal Studies

(Excerpt)

Let me start by saying how much I enjoyed working through the manuscript that Professors Breen and Strang shared with us, and how much I look forward to the development of this project on the history of Catholic legal education. My comments focus on the architecture of Chapter Three and the conceptual driver for Chapter Five. The frame for my suggestions is the challenge that emerges clearly in the 1960s when, as James Burtchaell noted, students were “drop[ping] their faith like baby teeth.” As Professors Breen and Strang summarize: “University administrators were well aware that even Catholic students were …

Reflections On A Light Unseen, Vincent Rougeau

Journal of Catholic Legal Studies

(Excerpt)

I am very pleased to have an opportunity to offer some reflections on the manuscript for A Light Unseen by Professors John Breen and Lee Strang. It is an extraordinarily comprehensive look at the history of Catholic law schools in the United States. That aspect of the work alone makes it an important contribution to the scholarship on Catholic higher education in this country, and I am sure it will become an essential resource for scholars and educators across a wide range of fields. Nevertheless, A Light Unseen is much more than a history. It also raises a critical …

Comments On Steven Smith, Pagans And Christians In The City, Michael P. Moreland

Journal of Catholic Legal Studies

(Excerpt)

One of the most interesting aspects of this generally very interesting book was the discussion of sexual morality in paganism and Christianity. I have thought for a while that much of the contemporary debate about religious freedom is not about religious freedom in a generic sense but instead about religious freedom in a very particular context—sex. But that is a descriptive point—much more challenging is trying to give an account of why sex should have come to be (or as Smith’s argument implies, has long been) the battlefield on which much of the fight over religious freedom takes place. …

Dialoguing With Paganism, Helen M. Alvare

Journal of Catholic Legal Studies

(Excerpt)

Professor Smith’s comparison of ancient and contemporary beliefs in the “immanent sacred” works well. By this I mean that it’s quite plausible, and accounts for quite a few contemporary claims, disputes, and movements in both law and culture.

The book’s implications for law are likely too complicated to allow for anything like its straightforward application in today’s religion clause contests. Still, it might indirectly assist traditional believers to lower the temperature of, or even avoid, such contests. I develop each of these points below.

Augustine's "Two Cities" And Steven Smith's Pagans And Christians, Brian Dunkle, S.J.

Journal of Catholic Legal Studies

(Excerpt)

Although there are many modern voices juxtaposing pagans and Christians, I want to focus on an ancient source, Augustine of Hippo’s City of God (against the Pagans), which is one of the inspirations for Smith’s title. While the bishop of Hippo shows up occasionally in Smith’s account—indeed, his conversion is central to Chapter Five, Looking beyond the World: The Christian Revolution—Augustine’s description of the “two cities,” Babylon and Jerusalem, makes only a brief appearance. So as a scholar of both historical theology and Augustine (and as someone innocent of constitutional legal theory), I suggest that the City …

A Tale Of Two Cities: Religious Freedom In A Secular Age, Anna Su

Journal of Catholic Legal Studies

(Excerpt)

Understanding the terms under which Christianity and paganism could coexist in antiquity thus gives us a semblance of an answer to the question posed early on in the book. In ancient Rome, Pliny asks why Christians were being subjected to legal sanctions, while in our present time, Douglas Laycock asks why people—referring to same-sex couples suing wedding photographers, florists, and bakers who object on religious grounds to their union—would insist on these services they neither need nor want? The paganism of ancient Rome welcomed a plurality of cults and religions but only up to a certain point. When Christians …

Many Cities, One Nation: A Response To Steven Smith's Pagans And Christians In The City, Bruce P. Frohnen

Journal of Catholic Legal Studies

(Excerpt)

In his treatment of contemporary legal issues and, more deeply, his analysis of the manner in which changing religious assumptions and goals shape the culture from which law naturally grows, Smith has provided both a strong critique of contemporary “secular” pieties and an explanation for the culture wars so often derided or minimized by those most determined to deconstruct traditional culture. Still, I would argue that Smith’s wide-ranging, radical rethinking of contemporary social disorder does not go far enough. As Smith’s discussion of contemporary judicial treatment of social structure makes clear, today’s legal elites are at heart totalitarian in …

Christians And Pagans, Abner S. Greene

Journal of Catholic Legal Studies

(Excerpt)

In this response paper, I will offer four thoughts. First, I’m not sure the contemporary picture is best described as pagans vs. Christians. Second, I question the subtle move throughout the book from a generative/creative understanding of God to seeing God as normative, as supervening in human affairs regarding right and wrong conduct. Third, I push back on the notion that theistic belief (or, perhaps, the very existence of God) is necessary to ground meaning and value. Fourth, I discuss some modern-day U.S. constitutional issues that Smith discusses as examples of pagans persecuting Christians: (a) state-sponsored religious symbols, (b) …

Ironies In The City: Reflections On Steven Smith's Pagans And Christians In The City, Perry Dane

Journal of Catholic Legal Studies

(Excerpt)

Nevertheless, some deep ironies and puzzles run through the text of Pagans and Christians. Smith is too careful and subtle to ignore these undercurrents entirely. But it will be worth bringing them to the surface, not only for their own sake but because they might help suggest an alternative to Smith’s most rough-edged claims. My aim in this essay is not merely to nitpick. Any work as magisterial as Smith’s book will generalize and elide along the way. But I do hope by the accumulation of details to suggest a fundamental worry that goes to the most charged …

A Perfect Storm: Religion, Sex, And Administrative Law, Helen M. Alvare

St. John's Law Review

(Excerpt)

In order to propose a way forward toward better sexual and reproductive health regulation, which also avoids undercutting or crossing swords with religion, this Article will proceed as follows: Part I will paint with a broad brush the current state of sexual and reproductive health problems in the United States, focusing a bit upon younger Americans to whom SRA programs are addressed. It will highlight disparities according to race and socioeconomic conditions when these obtain. These are troubling on their face, but particularly troubling today at a time of perceived heightened racial and socioeconomic class tension in the United …

Christian Legal Thought Comes Of Age, David A. Skeel, Jr.

Journal of Catholic Legal Studies

(Excerpt)

CLT is a deeply satisfying book. It raises more questions than it answers, just as a casebook should. Perhaps most surprising, CLT looks and feels like a true casebook, a book one could actually use for a class that students might wish to take. As I worked my way through its pages, three features stuck out. I will briefly consider each, then conclude by putting the casebook in larger perspective.