Religion and the Constitution
This is a tentative syllabus for my Spring 2020 law school course, which meets Tuesdays and Thursdays from 9:00 - 10:22 am. This is a 3-credit course.
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.
1. Gain a basic understanding of the theory and history that form the background to current religion clause jurisprudence.
2. Learn the basic law that comprises religion clause doctrine.
3. Recognize the policy and value choices that inform the development of law and doctrine.
Your readings for each class are listed on the course schedule below and will be available in a coursepack. You will need to print the coursepack since I do not permit laptops or other electronic devices in class. I know this approach is initially inconvenient, but it saves a significant amount of money and allows us to focus only on the relevant materials (the casebook that I previously used now runs close to $200). This course does not have any required textbooks.
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 (and copy my assistant, Rachel) 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 the preceding.) In most cases, exceeding four absences will adversely affect your final grade.
If you are a parent or caregiver and you experience a childcare disruption, you are welcome to bring your child to class.
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.
Your course grade will be based upon an eight-hour take-home final examination, with slight adjustments for class participation. 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).
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.
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. 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.
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 on the day listed):
February 7: Email me your topic
February 21: Rough draft due to two classmates for peer review (I will assign your peer reviews)
February 28: Peer reviews completed
March 6: Final drafts submitted to me
After spring break, I may provide commentary on some of your submissions during our class times, including suggestions for improving or clarifying arguments that I think will be beneficial to the class as a whole.
Please be sure to adhere to my writing guidelines for this assignment.
Computer and Phone Use
Laptop computers are not permitted in class (unless you qualify for a recognized exception). You may not use your phones or other electronic gadgets during our class. Students who violate the computer or phone use policy may have their semester grades lowered.
I will hold office hours by appointment through this site. 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.
Unit 1 – Introduction (Jan 14)
United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968)
Unit 2 – Influences on Religious Liberty (Part 1) (Jan 16)
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 21)
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 - SPECIAL CLASS (Jan 24)
Readings TBD. For this class, you should attend at least one session of the law and religion conference cosponsored by the law school, the Washington University Law Review, and the John C. Danforth Center on Religion and Politics. The conference will take place on Friday, January 24, in the Bryan Cave Courtroom.
Unit 5 – The Mormon Cases (Jan 28)
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)
Christopher Lund, Religious Freedom After Martyrdom (draft)
Unit 6 – The Jehovah’s Witness Cases (Jan 30)
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 7 – Free Exercise Exemptions (Feb 4)
People v. Philips, 1 Western L. J. (1843)
Sherbert v. Verner, 374 U.S. 398 (1963)
Wisconsin v. Yoder, 406 U.S. 205 (1972)
Unit 8 – Employment Division v. Smith (Feb 6)
Employment Division v. Smith, 494 U.S. 872 (1990)
City of Boerne v. Flores, 521 U.S. 507 (1997)
Unit 9 – Exemptions After Smith (Feb 11)
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993)
Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996)
Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999)
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018)
Unit 10 – Sincerity and Burden (Feb 13)
United States v. Ballard, 322 U.S. 78 (1944)
Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988)
Unit 11 – Government Interests (Feb 18)
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 12 – Statutory Free Exercise (Feb 20)
Burwell v. Hobby Lobby, 573 U.S. -__ (2014)
Holt v. Hobbs, 574 U.S. __ (2015)
Unit 13 – Defining “Religion” (Feb 25)
United States v. Seeger
United States v. Welsh
J.P. Kuhn, The Religious Difference: Equal Protection and the Accommodation of (Non)-Religion, 94 Wash. U. L. Rev. 195 (2016)
Unit 14 – Establishment Overview (Feb 27)
Everson v. Board of Education, 330 U.S. 1 (1947)
Board of Education v. Allen, 392 U.S. 236 (1968)
Unit 15 – The Lemon Approach (Mar 3)
Lemon v. Kurtzman, 403 U.S. 602 (1971)
Committee for Public Education v. Nyquist, 413 U.S. 756 (1973)
Edwards v. Aguillard, 482 U.S. 578 (1987)
Unit 16 – School Prayer (Mar 5)
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)
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)
SPRING BREAK (Mar 9-13)
Unit 17 – Legislative Prayer (Mar 17)
Marsh v. Chambers, 463 U.S. 783 (1983)
Town of Greece v. Galloway, 572 US __ (2014)
Unit 18 – Public Displays (Mar 19)
Lynch v. Donnelly, 465 U.S. 668 (1984)
County of Allegheny v. ACLU, 492 U.S. 573 (1989)
Van Orden v. Perry, 545 U.S. 677 (2005)
McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005)
American Legion v. American Humanist Assn. (2018)
Unit 19 – Local Government (Mar 24)
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 20 – Internal Church Disputes (Mar 26)
Hosanna-Tabor v. EEOC, 132 S.Ct. 694 (2012)
Richard W. Garnett, “Freedom of Religion and Freedom of the Church,” Liberty Law Blog (August 4, 2014)
John Inazu, “Freedom of the Church, Not Freedom of Religion,” Liberty Law Blog (August 7, 2014)
Unit 21 – Permissibility of Aid (Mar 31)
Witters v. Svcs. for the Blind, 474 U.S. 481 (1986)
Mitchell v. Helms, 530 U.S. 793 (2000)
Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
Unit 22 – Requirement of Aid (Apr 2)
Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)
Locke v. Davey, 540 U.S. 712 (2004)
Unit 23 – Restriction of Aid (Apr 7)
Philip Hamburger, “Prejudice and the Blaine Amendments,” First Things (June 20, 2017)
Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 US __ (2017)
Unit 24 – Subsidy or Equal Treatment (Apr 9)
Widmar v. Vincent, 454 U.S. 263 (1981)
Christian Legal Society v. Martinez, 561 U.S. 661 (2010)
John Inazu, Confident Pluralism: Surviving and Thriving Through Deep Difference (2016) (Chapter 4)
Unit 25 – School Curricula (Apr 14)
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 26 – Religion and Politics (Apr 16)
People v. Harlan, 109 P.3d 616 (Colo. 2005)
Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000)
Executive Order of Donald J. Trump (May 4, 2017)