Update on Jewish parents not testifying

[Gaffney, Edward]

The college dorm case is not a reliable indicator that the State judiciary
will ignore its own charter.  It is very likely that the lawyers litigating
the case in 1975 did not even mention the Del constitution.  For a good
beginning point, you might look at Hans Linde, First Things First, an
article on the use of state constitutional law.  I don't have the cite, but
it is either  Md L. Rev. or Balt. L. Rev., around 1980 or so.
It won't do to cite the Del Const and then treat it as though it were
irrelevant by assuming that it shld be construed in the way the US S Ct
construes the 1st Am.  The absence of recent Del precedents shld not deter
you from making a fresh start on *Delaware* law, using the history of the
colony and the early republican period of the "Constitution State" to argue
for the conclusion that the founders of Delaware intended to limit the
powers of its state government when it imposed a burden on the free exercise
of religion.  There are some good leads in Michael McConnell's article, "The
Origins & Hist Understanding of Free Exercise of Religion," 103 Harv. L.
Rev. 1410 (1990).  Cheers, Ed Gaffney
 ----------
From: Joan Del Fattore
To: Multiple recipients of list RELIGIONLAW
Subject: Update on Jewish parents not testifying
Date: Thursday, December 04, 1997 6:23PM

On Thu, 4 Dec 1997, Eugene Volokh wrote:

>     Any reason the Delaware Constitution isn't mentioned here?  Have
> the Delaware courts held that the state free exercise provision has
> the same scope as the federal one?  (I'm assuming this is in Delaware
> state court -- if it were in federal court, then of course they
> should plead RFRA.)
>
     The case is in Delaware Superior Court.

     The DE State Constitution has a religion clause, but its language
doesn't appear to go beyond present-day interpretations of the federal
Constitution.  I don't know all the DE case law on the subject, but
certainly the Grossbergs' omission of the state constitution from their
motion is not unique.  For example, a 1975 case in which students
successfully sued the University of Delaware for refusing to allow Mass in
the
dorms was decided by the Delaware Supreme Court solely on the federal
Constitution.