Religion and the Constitution

AB 306, Tuesdays and Thursdays, 9:00 - 10:22 am

Spring 2023 (3 credits)

Description 

The First Amendment reflects a particular concern for “religion,” but the meaning of religion, its legal treatment, and the limits of religious expression are deeply contested. This course explores these debates through the doctrinal, historical, and theoretical dimensions of the religion clauses of the First Amendment, paying particular attention to the case law that has developed around these clauses.

Objectives 

  • Gain a basic understanding of the theory and history that form the background to current religion clause jurisprudence.

  • Learn the basic law that comprises religion clause doctrine.

  • Recognize the policy and value choices that inform the development of law and doctrine.

Text 

This course does not have any required textbooks. Your readings for each class are listed on the course schedule below. During the semester, you will interact with these readings online through Hypothesis. I have also compiled them in this pdf. If you wish to print the pdf, past students have found The Ink Spot to be an affordable option to print a bound copy.

Although not required texts, students wishing to familiarize themselves with the background history and context for this course might consult the following resources:

  • Edwin Gaustad and Leigh Schmidt, The Religious History of America (HarperCollins)

  • John Witte, Jr. and Joel A. Nichols, Religion and the American Constitutional Experiment (Oxford University Press)

Attendance and Class Participation 

The class participation component will be based on my evaluation of your interactions, preparedness, and thoughtfulness. That includes attendance, promptness, and active participation. I recognize that many of you will have foreseen and unforeseen conflicts, and I will accommodate those at the margins. But you should not take this course if you think you will miss a significant number of classes.

If you are unable to attend class on a given day (or you are unprepared but would still like to attend class), you will need to email me in advance of class. Emailing me in advance of class will result in being marked for one absence (and if you are in attendance, I won’t call on you). Absent extenuating circumstances, failing to email me in advance of a class for which you are absent or in which you demonstrate a clear lack of preparedness will result in being marked for two absences. You may have up to four absences for any reason. (This means four absences with advance notice to me, two unexcused absences, or some combination of these.) In most cases, exceeding four absences will adversely affect your final grade.

We will engage in a short but ongoing writing exercise (described below) over the course of the semester.  Your objective will be to produce an 800-1000 word opinion piece on a topic of your choice related to the class. Timely completion of all assignments related to this writing exercise will factor into your course participation grade.

Excellent class participation may improve your overall course grade. Poor participation (including excessive absences, failure to submit questions, or missing deadlines for the writing exercise) may lower your overall course grade.

If you are a parent or caregiver and you experience a childcare disruption, you are welcome to bring your child to class.

Course Requirements and grading

Your course grade will be based upon a four-hour, open book final examination that will include multiple choice questions and an essay component. I may make slight adjustments for class participation, including your engagement on Hypothesis. The writing assignment described below will factor minimally into your class participation grade (unless you fail to complete it, in which case it will adversely affect your overall course grade).

You may use a computer, iPad, or similar device to view the readings and take notes. You should not use these devices for other reasons, and you should not use your phones in class. If you have an urgent matter that requires you to send or check a text, catch up on social media, or shop online, please step outside of the classroom to do so. Even if you think you are checking your phone discretely, you usually are not. Distraction or inattentiveness due to online engagement may lower your course grade.

Writing exercise

During the course of the semester, you will craft a short opinion piece that addresses a topic of your choice from this course. You can focus on a case, a debate, or some other issue. You are welcome to choose a current issue or controversy, but you need not do so.  Feel free to focus on a historical case or event that is of interest to you.

The purpose of this assignment is to help you develop the skill of translating and advocating complex issues effectively. That means good writing, clear thinking, and appropriate tone. 

Another challenge of this assignment will be to convey legal concepts and ideas in a clear and accessible manner in a short amount of space. This is a more difficult task than you might imagine, and you will benefit from practicing this skill.

This assignment will not be graded. Completing the task (including meeting all deadlines) will factor into the relatively minor class participation component of your course grade. You are welcome to schedule a time to meet with me if you would like individualized feedback.

Some of you might be skeptical of the relevance of this exercise to legal practice. This kind of thinking and writing will help you hone your lawyering skills. It is a relatively small writing project with potentially large upsides to the ways that you think and write. Some of you might also end up using this exercise as a springboard to publish your own pieces down the road.

Your piece should be between 800 – 1000 words. You have the following deadlines (all by 10pm CT on the day listed):

  • Feb 24: Email your topic to me

  • Mar 24: Rough draft due to two classmates for peer review (I will assign your peer reviews)

  • Mar 31: Peer reviews completed

  • Apr 14: Final drafts submitted to me

Please be sure to adhere to my writing guidelines for this assignment.

You do not need to follow typical law school citation conventions for this assignment. Use your judgment and follow the norms you see in op-eds you read online that embed links to key sources in the text. You can find some examples of mine here.

Communication

I will hold office hours by appointment (in my law school office or over zoom) on Mondays, Wednesdays, and Thursdays. You can schedule an appointment here. You can also email me to schedule a different time. You should feel free to come individually or as a group.

You can also email me with questions or concerns. I will make every effort to respond to your emails within one day of your having sent them, with the exception of emails sent over the weekend or holidays, which I will answer by the following business day. You should feel free to use office hours not only to discuss our substantive readings but also to obtain help on your writing, to ask questions about law school or graduate school, or to talk about other academic or career interests.

Schedule

Click on each title to see class summaries.

In addition to spring break, we will not have class on Tuesday, Feb 28 or Thursday, Mar 9. We will have a makeup class in AB 306 from 1:00-2:22pm on Friday, Feb 3.

Unit 1 – Introduction (Jan 17)

  • United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968)

Unit 2 – Influences on Religious Liberty (Part 1) (Jan 19)

  • John Witte, Jr., The Essential Rights and Liberties of Religion in the American Constitutional Experiment, 71 Notre Dame L. Rev. 371 (1996)

  • John Locke, Letter Concerning Toleration (1689)

Unit 3 – Influences on Religious Liberty (Part 2) (Jan 24)

  • Thomas Jefferson, A Bill for Establishing Religious Freedom (1779)

  • James Madison, Memorial and Remonstrance against Religious Assessments (1785)

  • McGowan v. Maryland, 366 U.S. 420 (1961)

  • Braunfeld v. Brown, 366 U.S. 599 (1961)

Unit 4 – The Mormon Cases (Jan 26)

  • Reynolds v. United States, 98 U.S. 145 (1878)

  • Davis v. Beason, 133 U.S. 333 (1890)

  • Late Corporation of the Church of Latter-Day Saints v. United States, 136 U.S. 1 (1890)

  • Frederick Gedicks, The Integrity of Survival, 42 DePaul L. Rev. 167 (1992)

Unit 5 – The Jehovah’s Witness Cases (Jan 31)

  • Cantwell v. State of Connecticut, 310 U.S. 296 (1940)

  • Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

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

  • Prince v. Massachusetts, 321 U.S. 158 (1944)

Unit 6 – Free Exercise Exemptions (Feb 2)

  • People v. Phillips, 1 Western L. J. (1843)

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

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

Unit 7 – Fragmenting Free Exercise (Feb 3) (makeup class)

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

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

Unit 8 – Exemptions After Smith (Feb 7)

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

  • Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)

  • Fulton v. City of Philadelphia (2021)

Unit 9 – Sincerity and Burden (Feb 9)

  • United States v. Ballard, 322 U.S. 78 (1944)

  • Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)

Unit 10 – Government Interests (Feb 14)

  • United States v. Lee, 455 U.S. 252 (1982)

  • Baumgartner v. First Church of Christ, Scientist, 490 N.E.2d 1319 (Ill. App. 1986)

  • Swann v. Pack, 527 S.W.2d 99 (1975)

  • Bob Jones Univ. v. United States, 461 U.S. 574 (1983)

Unit 11 – Statutory Free Exercise (Feb 16)

  • Burwell v. Hobby Lobby, 573 U.S. -__ (2014)

  • Holt v. Hobbs, 574 U.S. __ (2015)

  • Ramirez v. Collier, 595 U. S. ___ (2022)

Unit 12 – Defining “Religion” (Feb 21)

  • United States v. Seeger, 380 U.S. 163 (1965)

  • Welsh v. United States, 398 U.S. 333 (1970)

Unit 13 – The “Wall of Separation” (Feb 23)

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

  • Board of Education v. Allen, 392 U.S. 236 (1968)

Unit 14 – The Lemon Approach (Mar 2)

  • Lemon v. Kurtzman, 403 U.S. 602 (1971)

  • Committee for Public Education v. Nyquist, 413 U.S. 756 (1973)

Unit 15 – School Prayer (Mar 7)

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

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

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

  • Kennedy v. Bremerton School District, 597 U. S. ____ (2022)

Unit 16 – Legislative Prayer (Mar 21)

  • Marsh v. Chambers, 463 U.S. 783 (1983)

  • Town of Greece v. Galloway, 572 US __ (2014)

Unit 17 – Public Displays (Mar 23)

  • American Legion v. American Humanist Assn. (2019)

Unit 18 – Local Government (Mar 28)

  • Larkin v. Grendel’s Den, 459 U.S. 116 (1982)

  • State of Or. v. City of Rajneeshpuram, 598 F. Supp. 1208 (D. Or. 1984)

  • Board of Ed. of Kiryas Joel Village School Dist. v. Grumet 512 U.S. 687 (1994)

Unit 19 – Permissibility of Aid (Mar 30)

  • Witters v. Svcs. for the Blind, 474 U.S. 481 (1986)

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

Unit 20 – Requirement of Aid (Part I) (Apr 4)

  • Locke v. Davey, 540 U.S. 712 (2004)

  • Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 US __ (2017)

Unit 21 – Requirement of Aid (Part II) (Apr 6)

  • Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020)

  • Carson v. Makin, 596 U.S. ___ (2022)

Unit 22 – Subsidy or Equal Treatment? (Apr 11)

  • Widmar v. Vincent, 454 U.S. 263 (1981)

  • Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)

  • Christian Legal Society v. Martinez, 561 U.S. 661 (2010)

Unit 23 – Internal Church Disputes (Apr 13)

  • Hosanna-Tabor v. EEOC, 132 S.Ct. 694 (2012)

  • Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020)

Unit 24 – Religion in Public Education (Apr 18)

  • Epperson v. Arkansas, 393 U.S. 97 (1968)

  • Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987)

  • Russell Shorto, “How Christian were the Founders?” New York York Times Magazine (Feb. 11, 2010)

Unit 25 - Free Exercise and Shutdown Orders in a Pandemic (Apr 20)

  • John Inazu, “Close the Churches,” The Atlantic (March 18, 2020)

  • South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (May 29, 2020)

  • Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. __ (July 24, 2020)

  • Roman Catholic Diocese of Brooklyn v. Cuomo, 140 S. Ct. __ (November 25, 2020)

  • Tandon v. Newsom, 140 S. Ct. __ (April 9, 2021)

Review Session

Other Information

ABA Standard 310 requires at least 42.5 hours of in-class and out-of-class work for each credit hour awarded.  The 42.5 hours must consist of at least 12.5 hours of classroom or direct faculty instruction (which can include time taking an exam) and at least 30 hours of out-of-class student work for each credit awarded (which can include time spent studying for an exam).  This course is designed to slightly exceed this requirement, and each student is expected to spend on average 2.5 hours of out-of-class time for each one hour of in-class time, per credit hour.

If I need to reschedule a class, I will let you know as soon as possible and will do so at a time that is most convenient for the majority of students in the class. I will also make an audio recording of any makeup classes, including Feb 3.