Course 5397: Law and Religion in the United States
Section 28999
Fall 2016
COURSE DESCRIPTION
The First Amendment reflects a particular concern for “religion,” but the meaning of
religion, its legal treatment, and the limits of religious expression have been fiercely
debated. This course explores those debates through the doctrinal, historical, and
theoretical dimensions of the First Amendment, paying particular attention to the case
law that has developed around these clauses. Finally, we will review the protections for
religion in the workplace provided by Title VII of the Civil Rights Act of 1964.
In addition to reviewing the major decisions by the United States Supreme Court on the
free exercise and establishment clause, this course provides the historical background for
the development of the separation of church and state. Law and religion is designed to
teach students to think in sophisticated ways about religious liberty and the interaction of
religion and politics.
INSTRUCTOR INFORMATION
Instructor:
Harvey Brown, Justice, First Court of Appeals
E-mail:
jharveybrown@gmail.com
Office phone: 713-274-2708
Office hours: Th 10-10:30 and by appointment. Another excellent time to get your
questions answered is directly before class. I typically arrive by 8:00.
Office:
To be determined
CLASS HOURS
TTH 8:30-9:55 (by going a little later, we will be able to skip class on Sept. 15 when
I will be out of town).
LEARNING RESOURCES
The two assigned texts for this course are:
1. McConnell, Berg, and Lund Religion and the Constitution (4th ed. Aspen 2016).
2. Witte, John, Jr. and J. A. Nichols, Religion and the American Constitutional
Experiment, 4th ed. (Boulder/New York/London: Westview Press, 2016)
Be sure to get the fourth editions of both books. They are brand new so no used copies will be
available. If you order quickly you may be able to take advantage of a special online price that
Professor Witte has arranged for our class. Order online at
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https://global.oup.com/academic/product/religion-and-the-american-constitutionalexperiment-9780190459420 with promotion code AAFLYG6 to save 30%!
In addition, we will read some selected First Amendment Supreme Court cases cited in
the course outline as well as supplementary materials.
I highly recommend State and Religion in a Nutshell (2016) by Thomas Berg.
COURSE OBJECTIVES
By the conclusion of this course the student will have:
1. examined the major issues of church-state relationships in the United States;
2. briefly surveyed the history of the development of the “separation of church and
state” in the United States; and
3. examined some of the primary literature of church-state relationships, specifically,
decisions of the United States Supreme Court.
As a result, students will develop an understanding of the history of U.S. church-state
relationships by examining a series of major issues and a framework for examining future churchstate issues.
CLASS ATTENDANCE
Students missing more than 25% of the class will be given a failing grade.
You are also expected to attend and be prepared for each class. If you have a scheduling
conflict or emergency that prevents your attendance, please send me an email prior to the
class. I shall reward faithful attendance and class participation by raising your final
grade.
ACADEMIC ACCOMMODATIONS
Students needing learning accommodations should inform the professor immediately.
COURSE REQUIREMENTS & GRADE SCALE
First Two Quizzes. Each quiz will count toward 10% of your final grade. The exam will
be one hour and of consist of an essay question, multiple-choice, true/false, and shortanswer questions. They will be closed book.
Final Examination. The final exam is cumulative of all the materials we reviewed
during the semester. The final exam will count 65% toward your final grade.
The final examination will consist of essay, multiple-choice, and short-answer questions.
The first part of the exam consisting of multiple-choice and short-answer questions will
be closed book.
The essay portion of the exam will be open book. You may bring with you to the
examination for the essay portion of the exam only the McConnell book, photocopied
handouts, and your own classroom notes. You may also bring a course outline if it is
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entirely your own work product and does not exceed 50 pages. No other materials are
permitted. Contact me early if you have questions about permitted materials.
Trinity Lutheran v. Pauley Problem. During the first class, we will draw names for
each of the current justices. When we get to Trinity Lutheran v. Pauley (an establishment
clause case set for argument this fall concerning whether a church should be entitled to
receive government funding for playground equipment on an equal basis with secular
institutions), you will be expected to hand in a two-page paper on how you expect your
assigned justice to vote in the case and participate in a discussion of the case. To prepare
you will need to (1) keep track of opinions by your justice during the semester, (2) watch
the oral arguments if they are in advance of our discussion of the case, (3) read the Eighth
Circuit opinion, and (4) read the briefs on the merits of the petitioner and respondent and
one amicus brief supporting the petitioner and one supporting the respondent. The web
site with the briefs is identified below.
Class participation. Your class participation will count 5% of your final grade.
“Participation” means a substantive contribution to the class. It obviously means being
able to explain a case when called upon to do so. It also means making a comment in the
discussion that advances the discussion or turns it in a new, productive, direction. It
means asking a question that is on the topic that causes me or a classmate to answer in a
way that adds new information or gives a different or at least a differently-nuanced
understanding of the issue at hand. Questions or comments that are irrelevant to the topic,
or “what if” questions about hypothetical situations, particularly those that are obviously
flights of fancy, are not “participation” in the sense used in the syllabus.
Remember that class attendance and participation is 5% of your grade. I do not just plan
to give everyone 5%. That means you must both keep up with the readings and be
prepared to discuss the readings.
Everyone can sign up before class for a “pass” for that class twice. Thus, you
must declare in advance of the class that you do not want to be called on that day.
You can pass for any reason. Just put a P (for pass) next to your name on the
attendance roster when you sign in.
After you have used your two passes, if you answer, “I don’t know” for questions
you should have anticipated, you will not get the full 5% credit.
FINAL EXAM
MID-TERM QUIZZES
TRINITY LUTHERAN PAPER & CL. DISCUSSION
CLASS ATTENDANCE AND PARTICIPATION
65%
20%
10%
5%
LATE WORK & TEST POLICY
Late Work
No late work (including missed exams) will be accepted unless arrangements have been
made with me prior to the due date. Assignments that are a part of our in-class learning
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cannot be made up if you miss them. If you are not in class when we complete these
assignments then you will not be able to make it up.
I am not able to assume the responsibility to explain to you our course itinerary or to
provide you with missed documents when you are absent from class. It is your
responsibility to get any and all information that you miss.
Missed Quizzes/Tests
You should not miss any exams. If you are sick, you need to notify the professor in
advance. The professor reserves the right to administer a different exam, deduct points
for taking the exam late, and/or schedule the makeup for a later date. Missing an exam
without giving prior notice will result in a zero for that test, with no makeup
Computer and Phone Use
Laptop computers are permitted in class but may not be used for any purpose except taking notes
and reviewing assigned reading. You may not use your phones or other electronic gadgets during
our class for any reason. You may not surf the net or read emails or text messages. Students who
violate this policy may have their semester grades lowered without any additional warning.
TOPICAL OUTLINE
Our primary text is McConnell, Berg, & Lund Religion and the Constitution (4th ed. Aspen 2016) (MBL).
There are a few cases that are not covered in the book and that I have added or will add. They are located
in one of three handouts: a religious accommodation handout, a free exercise handout, and an
establishment clause handout. Additionally, there are some historical works, law review articles, and
articles from the popular media that will be posted on Blackboard.
I have rearranged the book’s organization, principally with the goal of putting the history where
it is most relevant. MBL’s organization starts out slow, and students get restless; my reorganization starts
out more quickly. We will plunge directly into one of the most contested issues in the field.
Some of MBL’s cross-references will not work so well when we read the book in a different order
than they intended. Where necessary, I will just explain in class.
For the daily assignments, you do not need to read the notes and questions unless you are instructed
otherwise. These are often several pages in length and therefore the reading assignments are less
than they might otherwise appear to be. When I want you to read the notes and questions, I will
use the abbreviations N&Q.
Please bear in mind that we will only be meeting twice a week and we will not meet during the last
regularly scheduled class so the assignments include so the assignments include a little extra than
normal.
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The book Religion and the American Constitutional Experiment is written for undergraduates so
the readings, while occasionally somewhat long, are fairly easy. The book is very good at reviewing
themes and big picture issues.
Read all the Supreme Court edited cases covered in the assigned pages. The style of most of the
cases are in bold, capitalized and underlined but some are only in bold and caps. You should read
both if they are in the assigned pages. (For example, you should read both Lynch v. Donnelly on p.
503 and County of Allegheny v. ACLU on p. 512).
The syllabus is subject to change, at the instructor’s sole discretion, depending on the interests
and needs of the students and new cases from the courts.
1.
a.
b.
c.
d.
2.
a.
3.
a.
Introduction
Introduction to Religious Liberty
i.
Reading assignments
(1) MBL, 7-10, 17-18 (Mass. 1780 Constitution)
(2)
Witte, 41-63
(3)
Witte, Table of Cases (just skim)
The Importance of Religion and Religious Liberty
Article VI, Clause 3
Religious Accommodation in the Workplace
i.
Reading Religious Accommodation Handout
Cl. 1 (8/23)
Cl. 2 (8/25)
Definition of Religion
Reading
i.
MBL 670-684 including summaries of cases listed in this section and N&Q 5
on p. 681
ii.
MBL, 691-699 including N&Q 2 on p. 696-698
Religion in the Regulatory State- When Government May Not Hinder Religion.
Early concerns with Free Exercise
Cl. 3 (8/30)
i.
Reading: MBL 101-109 including all N&Q
b.
Rise of the Free Exercise Clause
Cl. 3 (8/30)
i.
Reading: MBL 109-129 including N&Q 1, 2, and 5 on p. 115-118 and N&Q from
p. 127-28
c.
Limits of Exemptions
i.
Reading: MBL 123-130 including N&Q
d.
Fall of Free Exercise
i.
Reading: MBL 129-154
ii.
U.S. v. Lee (1982)
(1)
Reading: FE handout
Cl. 4 (9/1)
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iii.
iv.
William P. Marshall, In Defense of Smith
(1)
Reading: Handout
Michael W. McConnell, A Response to Professor Marshall
(1)
Reading: Handout
e.
Free exercise after Smith
Cl. 4 & 5 (9/1 & 9/6)
i.
Reading: MBL 150-172, 201-221
ii.
Stormans Inc. v. Wiesman (9th Cir. 2015)
(1)
Reading: FE handout
iii.
Religious Freedom Restoration Act (RFRA)
iv.
Religious Land Use and Institutionalized Persons Act. (RLUIPA)
(1)
Harbor Missionary Church Corp. v. City of San Buenaventure (9th Cir.
2016)
(a)
Reading assignment: FE Handout
v.
State RFRA
(1)
Tex. Civ. Prac. & Rem. Code §110.003 (2014) (“a government agency
may not substantially burden a person's free exercise of religion [unless it]
demonstrates that the application of the burden to the person ... is in
furtherance of a compelling governmental interest [and] is the least
restrictive means of furthering that interest.”)
vi.
Targeted Legislative Accommodations
(1) Spencer v. World Vision (9th Cir. 2011)
f.
Current Status of Free Exercise
i.
Reading MBL 172-201
ii.
Zubik v. Burwell
(1)
Reading: FE Handout
g.
Is Accommodation Permitted?
i.
Reading MBL 221-254
ii.
Clash between the Clauses
iii.
Accommodation Permitted
(1)
Corporation of the Presiding Bishop v. Amos (1987)
(a)
Reading assignment: Handout
iv.
Accommodation Not Permitted?
H.
The Clauses Working Together- Religious Disputes & Autonomy of Religious
Organizations
1.
Church Employment Disputes
Class 8 (9/20)
a)
Reading MBL 279-290
b)
Conlon v. Intervarsity Christian Fellowship, (6th Cir. 2014)
(1)
Reading assignments: FE Handout
2.
Cl. 5 & 6 (9/6 & 9/8)
Church Property Disputes
(1)
Reading MBL 263-279 including N&Q
6
Cl. 7 (9/13)
Cl. 9 (9/22)
3.
Tort Claims against Churches
a)
Reading MBL 279-290
Cl. 9 (9/22)
i.
History of Religious Freedom
Cl. 10 (9/27)
i.
Readings
(1)
MBL 78-94 including N&Q
(2)
MBL 24-39 including N&Q except skip n. 3 on p. 34-35
(3)
MBL 66-73
(4)
Witte and Nichols, p. 69-97
ii.
Significant Historical Events
(1)
William Penn
(a)
The Great Case of Liberty of Conscience (1670) - Handout
iii. Drafting and Ratification
iv.
Incorporation
j.
The Theology, Politics and Themes of the Religion Clauses
(1)
Reading Witte, 24-40
Cl. 10 (9/27)
Catch-up
Cl 11 (9/29)
Quiz (40 minutes) (Cumulative)
Cl 12 (10/4)
IV.
A.
THE POWER OF THE PURSE - WHEN GOVERNMENT MAY NOT HELP RELIGION.
Historical Introduction to Establishment Clause
Cl. 12 & 13 (10/4 & 10/6)
1.
Reading
a)
MBL13-20 including N&Q, 23-24, 39-50, 61-65
b)
MBL 323-326
c)
Witte, 20-23
d)
Handout: Toleration is a Concession: Religious Freedom is a Right
2.
After the Civil War & the Blaine Amendment
a)
Read MBL 323-326 and MBL 327-28 n. 3 and 4
Do establishments injure religion?
a)
Read MBL 34-35 n. 3
3.
B.
Legal Introduction to Establishment Clause
1.
Standing
a)
MBL 431-450
2.
a)
Theories or Approaches to EC
Reading Assignment: Witte, 158-171
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Cl. 13 (10/6)
Cl. 14 (10/11
Cl. 14 (10/11)
C.
The Basic Conflict for Government Aid Cases- Tax funds primarily for religious
education
1.
Accommodationist Cases (1947-1986)
Cl. 14 & 15 (10/11 & 13)
a)
Reading assignment: MBL 303-15 including N&Q 1 & 3 and Notes on
the Uses of History (MBL 315-316)
b)
Introduction – Education, Democracy, and Pluralism MBL, 331-332
including N&Q 1
c)
Green, Bad History, p. 1-9, 11-12
(1)
Handout
d)
Board of Education v. Allen (1968)
Cl. 15 (10/13)
(1)
Reading Assignment: MBL 316-318 including N&Q 2 and 3 from
317-18 and 351-52 (“Universities”)
2.
Separationist Cases: Little or No Aid (1971-1985)
Cl 16 (10/18)
a)
Reading assignment: MBL 334-345 including N&Q 1 & 4 and Comm. for
Public Educ. v. Nuyquist
b)
Reading assignment: MBL 348-3350 (entire section entitled “Forms of
Aid to Nonpublic Schools)
3.
The neutral-aid approach (indirect aid/equal treatment) Cl. 16 & 17 (10/18 & 20)
a)
Indirect Aid Through Genuine Private Choice
(1)
Readings Assignment: MBL 354-373 including N&Q 2 on p.
358-59
b)
Direct Aid to Religious Institutions
(1)
Reading assignment MBL 373-377 including N&Q 1 on p. 377
4.
Mandatory neutrality: A Right to Equal Funding?
a)
Reading assignment: MBL 386-397
b)
5.
V.
A.
B.
Cl. 17 (10/20)
Trinity Lutheran v. Pauley, 788 F.3d 779 (9th Cir. 2015)
Cl. 18 (10/25)
(1)
Reading: Handout
(2)
For briefs, see http://www.scotusblog.com/casefiles/cases/trinity-lutheran-church-of-columbia-inc-v-pauley/.
For MBL comments, see MBL 377 n. 2
The Problem of Tax Exemptions
Cl. 19 (10/27)
a)
Reading assignment: MBL: 401-414, including N&Q 2& 3 on p. 407-408
and N&Qs 1-4 on 406-410 and N&Q 1-3 on 411-414
Religion and Government’s Influence on Culture
Gov’t Speech: Prayers & Religious Exercise in Schools
Cl.19 & 20 (10/27 & 11/1)
1.
Reading Assignment: MBL 451-52, 463-483 including notes and questions 2 on
p. 470, n. 6 on p. 474 and all N&Q on p. 483-486
Chaplains, City Council Prayer
Class 21 (11/3)
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1.
2.
C.
Public Religious Displays
Class 21 (11/3)
1.
Christmas Symbols
a)
Reading: MBL 503-517 including N&Q 4 and 5 on p. 515-517
b)
Lynch v. Donnelly (1984)
(1)
Reading assignment: Review Bad History by Green, p. 3-4 for
discussion of Lynch)
2.
D.
VI.
A.
Reading: MBL 490-503
Marsh v. Chambers (1983)
a)
Reading assignment: Bad History by Green, p. 3-4 for discussion of Marsh
(Handout)
Ten Commandments
a)
Reading: MBL 517-520
Cl. 21 (11/3)
Public School Curriculum
1.
Reading: MBL 545-554 including 2&3 N&Q
Regulation of Private Religious Speech
Introduction to Free Speech Principles
Class 22 (11/8)
1.
Reading: MDL 558-560, 562-563 (“Content Discrimination”), 569
2.
McCullen v. Coakley (2014): Handout
3.
Reed v. Town of Gilbert (2015): Handout
B.
Religious Free Speech in Public Forum
Class 22 (11/8)
1.
Reading: MBL 570 (beginning with N&Q 2 “The Modern Approach”)- 581
including N&Q 1 & 2 on p. 575-576, N&Q 1 on p. 580
C.
Private Religious Speech in Public Schools
Class 23 (11/10)
1.
Reading: MBL 581- 596 including N&Q 2 on p. 581 and N&Q 1-2 on p. 588-590
2.
Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011)
a)
Reading Assignment: Handout
D.
Religious Speech: Does the Free Exercise Clause add more protection?
1.
Reading MBL 591-596
QUIZ (covering material from Oct. 12-Nov. 9)
Cl. 23 (11/10)
E.
Freedom of Association
1.
Reading: MBL596-603 including all N&Q
2.
Reading: Witte, p. 185-88
F.
Drawing Lines Between Gov’t Speech and Private Speech
1.
Reading: MDL 603-615
9
Cl. 23 & 24 (11/10 & 15)
Class 24 (11/15)
VII.
A.
Religion and Democracy
Religious Voices In Politics: Case Law
1.
Reading: MBL 619-628 including N&Q 1 on p. 628
B.
1.
Cl. 24 & 25 (11/15 & 17)
Religious Voices In Politics: Commentary
Reading: MBL 632-641
C.
Institutional Participation in Politics and Policymaking
1.
Reading: MBL 648-657 including N&Q 1 and 2
2.
Reading: MBL 658-660
D.
Is Religious Liberty in Danger
Cl. 26 (11/22)
1.
Reading assignments
a)
Sex, Atheism, and the Free Exercise Clause by Douglas Laycock
Handout
b)
Witte, p. 276-293
Final
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Cl. 25 (11/17)