Introduction

This course explores the historical, theoretical, and constitutional dimensions of religious liberty in the United States.  It takes as its starting point the First Amendment to the Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Look carefully at the text.  Notice in particular the relationship between the “establishment” of religion and the “free exercise” of religion.  These clauses will set up two major themes that we will revisit throughout the course:

1) The Establishment Clause asks whether and when the government may give special consideration to religion.

2) The Free Exercise Clause asks whether and when the government must give special consideration to religion.

We will also consider a number of other complicated questions:

• Is religion special?  What do we mean by “religion”?

• Can the government be neutral between religions?

• Can the government be neutral between religion and non-religion?

• What kinds of government interests should prevail over claims to religious freedom?

• How do courts assess questions like the sincerity of religious belief or the harm experienced by religious believers?

We will see that courts have addressed these questions with varying degrees of coherence.  Along the way, we will also focus on skills important to law, including: (1) the role of description and narrative; (2) the use of history in legal argument; and (3) what to do when the law runs out.

We will also want to keep in mind the relationship between law and culture.  Does law follow culture, does culture follow law, or do the effects flow in both directions?  What is the relationship between the First Amendment, ratified in 1791, and our approach to questions of religion today?  In this regard, consider three arguments for protecting religious liberty originally proposed by legal scholar Douglas Laycock: (1) Attempts to impose or suppress religion have led to a great deal of suffering because people care so deeply about religion, and it is better to avoid this suffering; (2) some religious adherents will fight, kill, or die for the sake of their beliefs, and that, too, is best avoided; and (3) religious beliefs are of relatively little importance to the government.  In his 2014 book, The Rise and Decline of American Religious Freedom, legal scholar Steven Smith suggests that while support for these arguments might waver, “many Americans surely still find those rationales persuasive and admissible.”  Is Smith right?   If someone rejects religious premises from the outset, are these rationales still persuasive? Are they even admissible in our pluralist society, where people fundamentally disagree about religious matters?

Reading Assignment:

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