Trivial Pursuit

Sun Aug 13 12:01:07 PDT 2006

There are more than twenty important cases.  I don't doubt the importance of anything on Marty's list.  But for the most part, I don't see what to displace to add them.

Probably I thought too much about the Lemon test and neglected the one clear rule that Lemon does still stand for:  no government cash can go directly to a religious school.  Put that way, Lemon probably moves up onto the list and some other case drops out.

The other cases in the long line from Lemon to Mitchell take a long time to teach if you still teach them, but the sheer number of them and their tendency to focus on detail makes it hard to single out any one as especially important.  I suppose Mitchell and Agostini would be the top picks in that line after Lemon.  The capacity to voucherize the money greatly makes the whole line largely a matter of program design with respect to schools, but the litigation over faith-based social shows that they still have some life.  Still, for a mix of these reasons, I'm not inclined to give you any more than Lemon in that sequence.

I teach this line of cases pretty quickly, and tell students from the get to that they are not responsible for the details.

Douglas Laycock
Alice McKean Young Regents Chair in Law
The University of Texas at Austin

Mailing Address:
Prof. Douglas Laycock
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109

________________________________

From: marty.lederman at comcast.net [mailto:marty.lederman at comcast.net]
Sent: Sun 8/13/2006 1:31 PM
To: Law & Religion issues for Law Academics; religionlaw at lists.ucla.edu
Cc: Douglas Laycock
Subject: Re: Trivial Pursuit

A fine list, to be sure, Doug.  But there are a couple of very conspicuous omissions that I'm sure were intentional and as to which I'd love to know your reasoning.

The most important category, of course, is the "direct funding" cases, from Lemon (or even Allen) through Mitchell v. Helms, including, e.g., Tilton, Roemer, Hunt, Levitt, Nyquist, Wolman, Aguilar, Agostini, Kendrick, et al.  These cases dominated discussion (and SCOTUS litigation) in this area for several decades, and they still occupy a large part of most courses on religious liberty, mine included.  Forget the Lemon "test":  The Lemon *holding*, that direct aid may not be used for religious purposes, is hugely important, and still hotly contested (see the various opinions in Mitchell, and the debates over the faith-based initiative).  It's much more important, in my view, than the "access" cases in the Widmar line, several of which you list.

You also omit the permissive accommodation cases -- Zorach, Amos, Thornton, Texas Monthly, etc. -- perhaps thinking that Cutter is sufficient.  But I think this, too, is an incredibly complex and contested area, and the handful of cases thus are of great significance.

Relatedly, there are the cases involving nominally statutory questions of what counts as "religion" for puposes of accommodation -- e.g., Welsh, Gillette and Seeger.  I think Kent Greenawalt is right that these issues, rarely litigated today (but see the fascinating Becker opinion in Malnak v. Yogi), are important foundational issues.  See also Ballard, on the basic question of how the state can or cannot evaluate religious truth.

	-------------- Original message -------------- 
	From: "Douglas Laycock" <DLaycock at law.utexas.edu> 

	Here is a potential source of endless pointless debate.  Two professors are working on a mathematical model to rank the importance of Supreme Court decisions.  They want to test their model against the subjective assessments of con law professors.  So they asked me and I assume many others to rank order the twenty most important cases on a topic I knew well.  My caveats, and my list, are below.  

	Douglas Laycock
	Alice McKean Young Regents Chair in Law
	The University of Texas at Austin

	Mailing Address:
	Prof. Douglas Laycock
	University of Michigan Law School
	625 S. State St.
	Ann Arbor, MI  48109

	[addressee deleted]

	 I am at last responding to your letter of June 26, asking me to
	list the twenty most important cases in my field, in order of
	importance.  I have to emphasize that this is an essentially
	arbitrary exercise, for many reasons.

	 My topic is religious liberty.  It is a tight knit area with a
	manageable number of Supreme Court cases.  But it could be divided
	into three or four more homogenous subcategories, with some overlap;
	if I did that, we would of course get different results.

	How does the most important case in possible subcategory 1 compare
	to the most important case in possible subcategory 2?  That depends
	in part on how I rate the importance of the possible subcategories. 
	It also depends on the clarity of the rules in each category; a
	single case that clearly resolves an important issue is more
	important than a case that introduces equally dramatic change but is
	unclear and leave s much unresolved.  Citation frequency is likely to
	depend on the number of cases the Court reviewed in each possible
	subcategory.

	Some cases are of great symbolic importance but little authority. 
	In this field, Everson v. Board of Education and Lemon v.
	Kurtzman are such cases.  They are famous and much cited but control
	almost nothing; Lemon does not make my top 20.  For this and other
	reasons, citation networks may measure something different from
	authoritativeness.

	A case may  be very often cited but now overruled.  Lemon is not
	there yet, but it's close.  So are Sherbert v. Verner and
	Wisconsin v. Yoder.  These three cases now stand for something very
	different from, and less than, what they originally stood for.

	Cases are important for different reasons, which are often
	incommensurable.  Cantwell v. Connecticut is a confused opinion on
	its not very important facts, but it incorporates the Free Exercise
	Clause into the Fourteenth Amendment.  How does that compare to an
	opinion that clearly resolves a dispute over a much more important
	and recurring fact pattern?

	West Virginia v. Barnette is important at least as much for its
	eloquence as for its rule, and cited mostly for its famous
	quotations.  How does that compare to authority on the merits?

	How does a statutory opinion on important facts compare to a
	constitutional opinion on less important facts?  How does a clear and
	decisive statutory opinion compare to a muddled constitutional
	opinion?

	Some cases are very important to religious liberty but are decided
	on free speech, freedom of association, the scope of Congressional
	power, or some other related ground.

	And so on and on.  You may hope that your mathematical methods will
	cut through all thi s qualitative uncertainty and reveal a true order
	of importance.  Maybe it will.  But it may also cumulate distinct
	reasons for citation that are not additive. 

	Probably you have thought about these problems.  But I had to
	mention them before give you a list that, in my view, took longer to
	produce than it is worth.  With those caveats:

	Topic:  religious liberty

	  1.  Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

	  2.  Employment Division v. Smith, 494 U.S. 872 (1990)

	  3.  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)

	  4.  School District v. Schempp, 374 U.S. 203 (1963)

	  5.  Lee v. Weisman, 505 U.S. 577 (1992)

	  6.  Engel v. Vitale, 370 U.S. 421 (1962)

	  7.  West Virginia Board of Education v. Barnette, 319 U .S. 624 (1943)

	  8.  Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal, 126 S.Ct. 1211 (2006)

	  9.  Locke v. Davey, 540 U.S. 712 (2004

	  10. Boy Scouts v. Dale, 530 U.S. 640 (2000)

	  11. Board of Education v. Mergens, 496 U.S. 226 (1990)

	  12. Cantwell v. Connecticut, 310 U.S. 246 (1940)

	  13. Good News Club v. Milford Central School, 533 U.S. 98 (2001)

	  14. City of Boerne v. Flores, 521 U.S. 507 (1997)

	  15. Van Orden v. Perry, 125 S.Ct 2854 (2005)

	  16. Cutter v. Wilkinson, 544 U.S. 709 (2005)

	  17. Jones v. Wolf, 443 U.S. 595 (1979)

	  18. Everson v. Board of Education, 330 U.S. 1 (1947)

	  19. Wisconsin v. Yoder, 406 U.S. 205 (1972)

	  20. Sherbert v. Verner, 374 U.S. 398 (1963)

	----- End forwarded message -----

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