Religion and the American Constitution
PSC 3063
Instructor:
Allen Hertzke, Professor of Political Science and Faculty Fellow in Religious
Freedom, Institute for the American Constitutional Heritage
Office: 231 Cate Center 4 (building just south of Cate Food Court) 325-4713
Department of Political Science mailbox: 205 Dale Hall Tower
ahertzke@ou.edu
Office Hours:
Wednesday 2:30-3:30
Friday 10:00-11:30
I am around at other times, so do not hesitate to call for drop in or to schedule an appointment.
Undergraduate Teaching Assistant: J.C. Fischer: Email: jcfischer@ou.edu
Please include an appropriate Subject Line in all email communications
Accommodation Policy: The University of Oklahoma is committed to providing reasonable
accommodation for all students with disabilities. Students with disabilities who require
accommodations in this course are requested to speak with the professor as early in the semester
as possible. Students with disabilities must be registered with the Office of Disability Services
prior to receiving accommodations in this course. The Office of Disability Services is located in
Goddard Health Center, Suite 166, 325-3852.
Now, beyond this university policy statement, if anything is impeding your ability to
participate fully in this course, please see me.
Academic Integrity:
Academic integrity means honesty and responsibility in scholarship. Professors have to obey
rules of honest scholarship, and so do students. For more information about academic integrity,
including a statement of what constitutes academic misconduct and plagiarism, see OU’s “A
Student’s Guide to Academic Integrity” at http://www.ou.edu/provost/integrity/
Class format:
We will employ a variety of teaching modalities. There will be thematic lectures, written
reactions to the readings, extensive discussions and team exercises, video and audio
presentations, and moot court exercises. Attendance and participation are a must and will not
only constitute a percentage of the grade but will be the deciding factor in borderline cases.
Students should come to class prepared with questions about the reading material. Nothing can
better stimulate discussion and deeper understanding than a penetrating question.
Religion touches the core of human commitments, and in light of that I urge students to help me
maintain an environment of civility and respect for people of different faiths, even as we
critically analyze issues, engage vigorous discussion and debate, and mutually challenge each
other’s assertions and assumptions.
Textbooks:
Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern
America
Vincent Philip Munoz, Religious Liberty and the Constitution, free and available on D2L
In addition to the required books, there will be postings on D2L which include full Supreme
Court cases, articles, and book chapters.
We will also post a master summary of Court cases by category
Please check your OU e-mail and D2L for announcements.
Assignments:
Midterm:
20%
Final Paper:
20%
Final Exam:
35%
Written Reactions
15%
Class Participation
10%
(Attendance, in-class exercises, discussion board, moot court)
Weekly Written Reactions or Discussion Board: A short (one page or so) reaction to select
readings will be due most weeks (with the exception of discussion board exercises and before the
Midterm, before the final paper is due, and before the moot court exercise. These postings should
be thoughtful and crisply written and posted on the D2L course site by 8:00 Sunday night and
will be given automatic points if adequately completed by then. Early in the semester I will
designate one of these for fuller treatment and more points, to enable me to provide feedback on
your writing. Occasionally we will substitute a discussion board exercise for the weekly written
reaction.
Final Paper Guidelines:
Length: 10-12 pages or more
Due: April 23, late papers will be docked, the later the more significant
Special Instructions: Turn in hard copy and post on D2L
The paper assignment is to write a “law-review” type of article in which you pick a key
constitutional issue on religion, chart its history or evolution, analyze the legal principles
involved, critique how the courts have resolved the issue, and offer your own argument about the
proper grounds for adjudicating such cases in the future. As we see in reading court cases, the
courts rely on a variety sources in making their judgments and justifying them, as do law review
articles. Thus, where relevant, it makes sense in making your case to draw upon formative
thinkers, historical record, and the intent of the framers of the First Amendment, as well as prior
court precedents, majority and dissenting opinions, and scholarly critiques. More guidance will
be provided.
Resources for papers, moot court, and course generally
1) “Oyez U.S. Supreme Court and Media” http://www.oyez.org/
Includes a summary of every case decided by the Supreme Court, the facts, the issue, the
decision, and the grounds for the decision, and the formal citation: i.e., West Virginia Board of
Education v. Barnette: Opinion: 319 U.S. 624 (1943)
In addition, in every important case since 1955 the Oyez site has recordings on-line for the oral
arguments.
To read summary or listen to oral arguments:
Click on cases in upper left corner. You can then type in the case on the search box on the upper
right corner, or you can click on decade, then in drop down click on year.
2) For full Supreme Court decisions, majority opinion, dissents, etc.
http://supreme.justia.com/
Enter the case name in the upper right box “search cases” and you may get the full text or may
need to click on full text of case, or you may get a menu that begins with the syllabus but you
need to click progressively to opinion, concurrences, dissents, etc.
Course Description:
The American Constitution introduced an innovation in church-state relations by guaranteeing
the free exercise of religion and ending the practice of forming an established state church. A
number of early Americans involved in this experiment viewed religious liberty as the “first
freedom.” This course examines the vital role of religion in the American Constitution, its
antecedents and contemporary interpretations. The course begins by examining the colonial
precursors of the federal constitution and introduces some critical early thinkers – such as Roger
Williams and John Locke – who developed the theological and political case for religious
toleration and limits on government infringement of freedom of conscience. We then probe the
founding period to discern the underpinnings and development of the First Amendment, reading
crucial works by James Madison and Thomas Jefferson among others. The course will then
explore the evolution of church-state law in the 19th Century before the religion clauses were
nationalized by the 14th Amendment. We will pay then pay particular attention to the role of
religious minorities in pressing cases that defined jurisprudence. The bulk of the course will
critically examine Supreme Court cases that applied First Amendment religious principles,
noting how interpretations are deeply contested and evolve. The dynamic nature of religion-state
law will be illustrated by our examination of emerging clashes over such issues as gay marriage,
abortion, and most recently the HHS contraceptive mandate, which exploded into public debate
just last year. Finally, the course will move to the global arena and examine the influence of the
American constitutional experience in shaping international law on religion.
Week 1 January 15, 17: Introduction
Thursday: Surveying the landscape of religious jurisprudence
Munoz, Introduction, on D2L
Gordon, Chapter 1
Sunday posting on Locke’s “A Letter Concerning Toleration”
Week 2 January 22, 24: The American Constitutional Innovation on Religious Freedom:
Roots and Stirrings
Tuesday: Discuss John Locke, “A Letter Concerning Toleration” translated by William Popple,
widely available on the web, in the library. D2L will have an annotated version
Thursday: Discuss Roger Williams, Selections of The Bloody Tenet, of Persecution, for the
Cause of Conscience
Sunday Posting on Hasson chapters 4,6,7 and Madison’s Memorial and Remonstrance
Week 3 January 29, 31: Colonial Dissent and Forming the Constitutional Provisions on
Religion
Tuesday:
Kevin Seamus Hasson, Chapters 4,6,7 of The Right to be Wrong, on D2L (35 pages)
James Madison, “Memorial and Remonstrance Against Religious Assessments” Munoz
Massachusetts Constitution of 1780, excerpts, Munoz
Thursday:
Thomas Kidd, “Jefferson, Madison, Henry, and the Contest for Religious Liberty in
Revolutionary America,” from OU symposium, on D2L
From Munoz:
Thomas Jefferson, Virginia Statute for Religious Liberty”
Records of the First Congress Pertaining to the Drafting of the Religion Clauses of the First
Amendment 1789
George Washington, Letter to the Quakers 1789
George Washington, Letter to Hebrew congregation of Newport 1790
Thomas Jefferson, Letter to the Danbury Baptist Association 1803
Sunday Posting on Reynolds
Week 4 February 5, 7: Legacy and Evolution of First Amendment
Tuesday:
Barnes v. Falmouth, 1810
Reynolds v. US 1879
Bradfield v. Roberts 1899
Steven Green, “The First School Debate and its Impact on Modern Church-State Doctrine,” OU
symposium book
Thursday: Gordon Chapter 2 on Flag Salute and Witnesses
Sunday Posting on Gordon and the Witnesses Cases
Week 5 February 12, 14: The Judicial Revolution of Incorporation: Religious Liberty
Nationalized
Tuesday: The Witnesses cases
Cantwell v. Connecticut, 1940
Minersville v. Gobitis, 1940
West Virginia v. Barnette, 1943
Thursday:
William Galston, “Expressive Liberty and Constitutional Democracy: The Case of Freedom of
Conscience”
Week 6 February 19, 21: Development of Free Exercise Law
Tuesday:
Church of Holy Trinity v. United States 1892
Walz v. Tax Commission (1970)
McDaniel v Paty 1978, Ministers can run for political office
U.S. v. Lee (1982)
Corporation of the Presiding Bishop v. Amos (1987) – Autonomy in Hiring
Church of Lukumi Babalu v. City of Hialeah 1993
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2010)
For Further Reference or digest reading
Jacobson v. Massachusettes 1905 – Inoculation issue -- Digest
United States v. Ballard (1944) Religious Doctrines – digest
Torcaso v. Watkins 1961
United States v. Seeger (1965) – Conscientious Objection
McClure v. Salvation Army (1972) – Exemption from Gender Discrimination Law
Serbian Eastern Orthodox Diocese v. Milivojecich (1976) – Internal Church Governance
Missouri Church of Scientology v. State Tax Commission of Missouri (1978) Taxes
Larsen v. Valente 1982
Bob Jones University v. United States (1983)
Thursday:
Gordon, Chapter 4: Prisoners Rights
Week 7 February 26, 28: Free Exercise Development and Religious Accommodation
Cruz v Beto 1972
O’Lone v. Estate of Shabazz (1987) Religion in Prisons
Sherbert v. Verner (1963)
Wisconsin v. Yoder (1972)
Thomas v. Review Board (1981)
Goldman v. Weinberger (1986)
Lyng v. North West Indian Cemetery Protective Association (1987)
Week 8 March 5, 7: Strict Scrutiny and Legislative Engagement
Tuesday:
Employment Division of Oregon v. Smith (1990) – Full Case
Religious Freedom Restoration Act (1993)
Thursday:
Boerne v. Flores (1997), plus O’Connor full dissent
Religious Land Use and Institutionalized Persons Act (2000) – D2L
Hertzke, “The U.S. Congress: Protecting and Accommodating Religion,” Oxford Handbook on
Church and State in the United States – D2L
Week 9 March 12, 14: Empirical Evidence of Compelling Interest Standard/Midterm
Tuesday, Robert Martin and Roger Finke, “Defining and Redefining Religious Freedom”
Leon v. Texas (2010) digest
Thursday: Midterm
SPRING BREAK is March 16-24
Week 10: March 26, 28: Establishment Law: Public Support for Parochial Schools
Gordon, Chapter 3
Key Cases: We will divvy up some of these cases
Everson v. Board of Education (1947)
Zorach v. Clausen (1952)
Board of Education v. Allen (1968)
Lemon v. Kurtzman (1971)
Mueller v. Allen (1983)
Aguilar v. Felton (1985)
Witters v. Washington Department of Services for the Blind (1986)
Agostini v. Felton (1997)
Mitchell v. Helms (2000)
Zelman v. Harris (2002)
Locke v. Davey (2004)
For further reference:
Wolman v. Walter (1977) digest
Zobrest v. Catalina Foothills School Dist. (1993)
Kiryas Joel v. Grument (1994)
Week 11: April 2, 4: Religion in Public Schools
Tuesday: School Prayer
Engel v. Vitale (1962)
Abington v. Schempp (1965)
Wallace v. Jaffree (1985)
Lee v. Weisman (1992)
Evolution, Creationism, and Intelligent Design
Epperson v. Arkansas (1968)
Edwards v. Aguillard (1987)
Kitzmiller v. Dover Area Public Schools (2005) Digest
April 4, Guest Lecture: Thomas Farr, Director of the Religious Freedom Project, Georgetown
University.
Week 12 April 9,11: Free Exercise and Establishment Tensions
Widmar v. Vincent (1981)
Board of Education v. Mergens (1990)
Lambs Chapel v. Center Moriches Union Free School District (1993) – Read Scalia Dissent
Rosenburger v. Rector (1995)
Bronx Household of Faith v. Board of Education of the City of New York (2011) Digest
Public Displays of Religion
Stone v. Graham (1980)
Marsh v. Chambers (1983)
Lynch v. Donnelly (1984)
McCreary County v. Kentucky ACLU (2005)
Van Orden v. Perry (2005)
For further reference:
O’Hair v. Cooke (1977) (CC) -- digest
O’Hair v. Blumenthal (1978) (DC) -- digest
O’ Hair v. Clements (1980) – digest
Allegheny v. Greater Pittsburg ACLU (1989) Salazar v. Buono (2010)
Joyner v. Forsyth County (2011) CC
Week 14: April 16, 18: Emerging Challenges on Abortion, Gay Rights, and Contraception
Gordon, Chapters 5,6
Christian Legal Society v. Martinez (2010)
Hertzke, “The Supreme Court and Religious Liberty” – D2L
Gerard Bradley, “Emerging Challenges to Religious Freedom in American and other English
Speaking Countries,”
Robin Fretwell Wilson, “The Emerging Clash Between Religion and the State over
Contraception, Sterilization, and Abortion”
Week 15 April 23, 25: Papers and Moot Court Preparation
Tuesday: Papers Due
Wrap up emerging clashes
Thursday: Gordon, Epilogue
Prepare Moot Courts
Week 15 April 30, May 2: Going Global
Tuesday: Moot Courts
Thursday: Going Global
Article 18 of the Universal Declaration of Human Rights
Pew Forum Study on Global Restrictions on Religion
Hertzke, “The Global Implications of the Domestic Conscience Battle”
Final Exam: 4:30-6:30 PM, Wednesday, May 8th in Adams Hall 101