Tuesday, September 21, 2021

Anthony LoCoco 'Constitutional cases in the U.S. and Wisconsin Supreme Courts' October 1st 2021

After the long pandemic, First Friday Masses will resume Friday October 1st. The Mass will again be held at Marquette University Law School in the Chapel of St. Edmund Campion on the 4th floor of Eckstein Hall at 7:30 A.M. Our celebrant will be Fr. Paul Hartmann. You are also invited to a light breakfast and fellowship following Mass ($5/person donation).

After a long time off, the gathering following the Mass will be part social and part presentation. The presenter will be Anthony LoCoco, Deputy Counsel at the Wisconsin Institute for Law & Liberty, who will discuss some interesting cases from both the Wisconsin Supreme Court and the U.S. Supreme Court. We understand there are a number of interesting constitutional cases that have not yet received much coverage, so the presentation should be interesting.

The Law School arrangements will be largely the same as before with a few differences noted below.

For contact tracing to be possible, the Law School will have a sign-in sheet for attendees of the Mass to complete when they arrive at the reception desk to receive their parking validation and to be let through the turnstiles. Also, while the building is normally locked and only accessible to those with an MUID card (with signs on exterior doors indicating this), for the First Friday Mass, the exterior doors will be unlocked from 7 a.m. to 7:45 a.m., so attendees can enter without an MUID card. This will include the entrance from the parking structure. Anyone arriving after 7:45 A.M. will not be able to get into the building. Masks are required when in the building. If someone arrives without a mask, the Law School will provide a paper one for them to wear.

We hope to see as many of you as possible on October 1st and subsequent First Fridays.

Our annual Red Mass will take place on the evening of Wednesday October 6, 2021. Details can be found on the posted invitation.

We are also planning the next First Friday Mass at the Law School for Friday November 5, where following the Mass, the speaker is scheduled to be Al McCauley from Pius XI Catholic High School and Saint Anthony on the Lake in Pewaukee. More details to come.

Friday, August 6, 2021

Level-up Remedies for Religious Discrimination

Note by Mark C. Gillespie at the Harvard Journal of Law & Public Policy.

"This Note argues that where substantive, explicit constitutional rights guaranteed by the Free Exercise Clause have been violated alongside the Equal Protection Clause, the Constitution may require courts to favor a level-up approach. In other words, courts should presumptively apply level-up remedies in religious discrimination cases involving free exercise violations." [p. 963]

Friday, July 2, 2021

The "Essential" Free Exercise Clause

Article by Josh Blackman, Professor, South Texas College of Law Houston, at the Harvard Journal of Law & Public Policy.

"In the span of a year, COVID-19 would affect every corner of the globe. During this period, governments were confronted with difficult choices about how to respond to the evolving pandemic. In rapid succession, states imposed lockdown measures that ran headlong into the Constitution. Several states deemed houses of worship as non-essential, and subjected them to stringent attendance requirements. In short order, states restricted the exercise of a constitutional right, but allowed the exercise of preferred economic privileges. And this disparate treatment was premised on a simple line: whether the activity was “essential” or “non-essential.” If the activity fell into the former category, the activity could continue. If the activity fell into the latter category, it could be strictly regulated, or even halted immediately. Houses of worship challenged these measures as violations of the Free Exercise Clause of the First Amendment.

"This Article provides an early look at how the courts have interpreted the “essential” Free Exercise Clause during the pandemic."

Tuesday, June 15, 2021

Mass and gathering for Feast of St. Thomas More June 22nd 2021

This year continues to be an "unusual" year and we continue to hold our First Friday Masses at Marquette University Law School in abeyance until further notice. However, we wish to recognize that the feast day of St. Thomas More is June 22, 2021 and offer an opportunity to attend the 7:00 A.M. Mass at Old St. Mary Church, at Broadway and Kilbourn in downtown Milwaukee.

The Mass is open to the public. Through Matt Fricker, we have arranged with the church for Society members to have access after Mass to the adjoining parish center for a brief gathering (with pastries, juice and coffee) for the first time in over a year.

Friday, June 4, 2021

The Essential Works of Thomas More

Steve Donoghue reviewed The Essential Works of Thomas More, edited by Gerard B. Wegemer and Stephen W. Smith*, at Open Letters Review.

"There’s no denying this enormous volume is worth that price tag, even though it can be neither bought nor read casually. It’s beautifully designed, with the frontispiece showing Pablo Eduardo’s gorgeous sculpture portrait of More from the Boston College Law School (and a close-up of Holbein’s famous portrait of an unshaven, worried-looking man), a barrage of textual footnotes on every page, and a binding strong enough for [the] thing’s immense weight."
*Yale University Press, 2020, $100.

Revisiting 'Smith':

'Stare Decisis and Free Exercise Doctrine', by Branton J. Nestor, at the Harvard Journal of Law & Public Policy.

"'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ... .
—U.S. Const. amend. I'
The Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not generally protect religiously motivated conduct from neutral laws of general applicability. That holding, although good law, remains controversial, with many scholars and judges now asking whether, if Smith was wrong, it should be overturned. Wading into this debate, this Article suggests that one common stare decisis consideration—a precedent’s consistency with related decisions—likely cuts against retaining Smith, at least to the extent that Smith’s holding and rationale are compared to the Supreme Court’s broader approach to the Religion Clauses. This Article first argues that Smith broke from prior Free Exercise Clause precedent and that, although Smith remains good law, it is in tension with many strains of Free Exercise Clause precedent today. This Article next argues that Smith is in tension with the ascendant focus on text, history, and tradition that has become increasingly central to contemporary Establishment Clause doctrine. While this Article does not fully resolve Smith’s stare decisis fate, it suggests one important weakness confronting any attempt to defend Smith on stare decisis grounds—with that weakness, and the doctrinal tensions it reveals, pointing the way toward how to reform contemporary Free Exercise Clause doctrine to better account for the text, history, and tradition of the Religion Clauses."

Friday, May 7, 2021

What is Caesar’s, What is God’s:

'Fundamental Public Policy for Churches'

Lloyd Hitoshi Mayer and Zachary B. Pohlman at the Harvard Journal of Law & Public Policy.

"Bob Jones University v. United States is a highly debated Supreme Court decision, both regarding whether it was correct and what exactly it stands for, and a rarely applied one. Its recognition of a “fundamental public policy doctrine” that could cause an otherwise tax-exempt organization to lose its favorable federal tax status remains highly controversial, although the Court has shown no inclination to revisit the case, and Congress has shown no desire to change the underlying statutes to alter the case’s result. That lack of action may be in part because the IRS applies the decision in relatively rare and narrow circumstances. The mention of the decision during oral argument in Obergefell v. Hodges raised the specter of more vigorous and broader application of the doctrine, however. It renewed debate about what public policies other than avoiding racial discrimination in education might qualify as fundamental and also whether and to what extent the doctrine should apply to churches, as opposed to the religious schools involved in the original case. The IRS has taken the position that churches are no different than any other taxexempt organizations in this context, although it has only denied or revoked the tax-exempt status of a handful of churches based on this doctrine."