Religion and the Constitution

AB 305, Mondays and Wednesdays, 10:30 - 11:52 am

Fall 2024 (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. I have also compiled them here (pdf version here).

If you wish to print the compilation of the readings, past students have found The Ink Spot to be an affordable option to print a bound copy. I recommend printing two pages per sheet. You might also consider printing two different volumes to split up the total pages. (One of the principal goals of my approach to the readings is to save you money. I recognize this extra printing step can be a bit of a hassle but I hope you find it preferable to a less current casebook that would cost over $200.)

You can choose to view the readings on a computer or other electronic device, but please be aware that you will not be able to access the readings electronically for the exam.

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.

I will record (audio only) and make available class sessions to students who notify me in advance of an absence.

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 (printed materials only) final examination that will include multiple choice questions and an essay component. You will need to use the law school’s examination software and may not consult electronic materials during the exam. The use of prohibited materials not specifically permitted will constitute a violation of the Law School’s Honor Code and may result in your not receiving credit for the course.

You may use a computer, iPad, or similar device to view the readings and take notes, but please be aware that as mentioned above you will not be able to access your notes or class readings electronically for the exam. You should not use electronic devices for other reasons during class. If you have an urgent matter that requires you to 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.

You may use artificial intelligence however you want during the course of the semester, but please be aware that you will not have access to electronic information during the exam. Relying on artificial intelligence to summarize assigned readings is unlikely to prepare you adequately for the exam.

I may make slight adjustments upward or downward for class participation. Distraction or inattentiveness due to online engagement may lower your course grade.

Finally, keep in mind that the classroom is a learning environment. We are tackling some intellectually and emotionally difficult material, and people in this class are going to make mistakes. Listen well, speak kindly, and be patient with one another other. Unless otherwise specified, our class discussions are intended for students enrolled in the course not for sharing publicly with attribution.

Communication

I will hold office hours by appointment (in my law school office or over zoom) on Tuesdays 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.

Unit 1 – Introduction (Aug 26)

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

Unit 2 – Influences on Religious Liberty (Part 1) (Aug 28)

  • 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)

Labor Day - NO CLASS (Sep 2)

Unit 3 – Influences on Religious Liberty (Part 2) (Sep 4)

  • 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 (Sep 9)

  • 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 (Sep 11)

  • 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 (Sep 16)

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

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

  • Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977)

  • Groff v. DeJoy, 600 U.S. 447 (2023)

Unit 7 – Fragmenting Free Exercise (Sep 18)

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

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

Unit 8 – Exemptions After Smith (Sep 23)

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

  • Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. 617 (2018)

  • Fulton v. City of Philadelphia, 593 U.S. 522 (2021)

Unit 9 – Sincerity and Burden (Sep 25)

  • 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 (Sep 30)

  • 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 (Oct 2)

  • Burwell v. Hobby Lobby, 573 U.S. 682 (2014)

  • Holt v. Hobbs, 574 U.S. 352 (2015)

  • Ramirez v. Collier, 595 U. S. 411 (2022)

Fall Break - NO CLASS (Oct 7)

Unit 12 – Defining “Religion” (Oct 9)

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

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

Unit 13 – The “Wall of Separation” (Oct 14)

  • 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 (Oct 16)

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

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

Unit 15 – School Prayer (Oct 21)

  • 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. 507 (2022)

Unit 16 – Legislative Prayer (Oct 23)

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

  • Town of Greece v. Galloway, 572 US 565 (2014)

Unit 17 – Public Displays (Oct 28)

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

Unit 18 – Local Government (Oct 30)

  • 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 (Nov 4)

  • 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) (Nov 6)

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

  • Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 US 449 (2017)

Unit 21 – Requirement of Aid (Part II) (Nov 11)

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

  • Carson v. Makin, 596 U.S. 767 (2022)

Unit 22 – Subsidy or Equal Treatment? (Nov 13)

  • 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 (Nov 18)

  • 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 (Nov 20)

  • 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 (Nov 25)

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

  • Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 1043 (July 24, 2020)

  • Roman Catholic Diocese of Brooklyn v. Cuomo, 140 S. Ct. 63 (November 25, 2020)

  • Tandon v. Newsom, 140 S. Ct. 1294 (April 9, 2021)

Optional Review Session from 2-4pm in AB 305 (Dec 1)

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 and the review session.