PSC 3063: Religion and the American Constitution
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:
Tuesday 1:15-2:15
Wednesday 2-4
Informal office hours at Cate Food Court -- TBA
I am around at other times, so do not hesitate to call for drop in or to schedule an appointment.
Undergraduate Teaching Assistant: Erin Byrne, e-mail: erinbyrne@ou.edu
Office Hours: Thursday 1:30-2:30 at the Union Schooner Room booth
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 case discussions, small group exercises, video and audio
presentations, and a moot court exercise at the end of the semester. 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. In addition, students will help prep Supreme Course cases for class discussion.
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:
Vincent Phillip Munoz, Religious Liberty and the American Supreme Court: The Essential
Cases and Documents
Select chapters (in press) of Religious Freedom in America: Constitutional Roots and
Contemporary Challenges, edited by Allen Hertzke, on D2L
In addition we will post John Locke’s Letter Concerning Toleration and a few other documents
on D2L
Assignments:
Midterm:
20%
Final Paper:
20%
Final Exam:
35%
Weekly Written Reactions
15%
Class Participation
10%
(Attendance, in-class exercises, moot court)
Weekly Written Reactions or Discussion Board: A short (one page or so) reaction to select
readings will be due most weeks (except 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 11 P.M. Monday 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 so
Due: 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. But the cases in the
text will serve as a major resource for the papers. 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 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 of the First Amendment, reading crucial works by
James Madison, Thomas Jefferson, and George Washington. The course will then examine the
impact of the First Amendment on American society and government from the 19th Century
onward by reading all of the critical Supreme Court cases that applied First Amendment religious
principles. We will see how interpretations of free exercise and establishment are deeply
contested and evolve over time. The dynamic character of religion-state relations will emerge as
we explore contemporary controversies over government mandates and religious liberty claims.
Finally, by looking at how the American model shapes the experience of religious minorities,
such as Sikhs and Moslems, and how United States leadership has promoted religious freedom as
a universal right recognized in international law, we will come to appreciate the benefits, and
challenges, of applying that ideal on the global stage.
Note on Course Outline and Assignments: We will use a variety of means to make the reading
manageable but also to cover the rich terrain of this fascinating and important subject. In some
cases we will divvy up readings for presentation to class; in other cases we will omit certain
dissents or concurrences; in other cases I will provide further guidance on where you can skim or
skip. Coming to class, therefore, is essential. We will also post refinements or instructions on
D2L.
Week 1 August 18-22: The Role of Religion in the American Constitutional Heritage
Monday: Introduction
Wednesday: Overview of religious persecution and conscience rights
Friday: Visit by Roger Williams: Selections from The Bloody Tenet, of Persecution, for the
Cause of Conscience
Monday posting on Locke’s “A Letter Concerning Toleration,” translated by William Popple,
annotated version on D2L, but also on line and in library.
Week 2 August 25-29: The American Constitutional Innovation on Religious Freedom:
Roots and Stirrings
Monday: Introduce John Locke
Wednesday: Finish discussion of Letter Concerning Toleration
Friday: The Emergence of Religious Liberty in the Founding Era:
 Thomas S. Kidd, “Jefferson, Madison, Henry, and the Context for Religious Liberty in
Revolutionary America,” from OU reader
Monday posting on “Memorial and Remonstrance” (For more points, so about 2 pages or so)
Week 3 September 1-5: The Founding Era and Constitutional Provisions on Religion
Monday: Labor Day Holiday
Wednesday: Foundational Documents:
 James Madison, “Memorial and Remonstrance Against Religious Assessments”
 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
Friday: Vincent Phillip Munoz, “The Founding Fathers’ Competing Visions for the
Proper Separation of Church and State”
Next Monday posting on Reynolds
Week 4 September 8-12: Legacy and Evolution of First Amendment
Monday: Introduction to the Federalist Era of Church-State Law
Massachusetts Constitution of 1780, excerpts from Munoz
 Barnes v. Falmouth 1810
 Steven Green, “The First School Debate and its Impact on Modern Church-State
Doctrine,” OU Book
 Church of Holy Trinity v. United States (1892)
 Reynolds v. US (1879)
 Bradfield v. Roberts (1899)
Monday posting on Gobitis and Barnette
Week 5 September 15-19: The Judicial Revolution of Incorporation: Religious Liberty
Nationalized
Monday: Incorporation, the 14th Amendment, popular constitutionalism
Wed-Friday: The Witnesses cases
 Cantwell v. Connecticut, 1940
 Minersville v. Gobitis, 1940
 West Virginia v. Barnette, 1943
 Murdock v. Pennsylvania, 1943 (vacated Jones v. Opelika)
 Follett v. McCormick (1944)
Monday posting comparing Bob Jones University and Church of Lukumi Babalu
Week 6 September 22-26: Development of Free Exercise Law
Monday: Introduction to the Evolution of Free Exercise Law
 Torcaso v. Watkins 1961
 United States v. Seeger (1965)
 McDaniel v Paty 1978
Wednesday:
 Bob Jones University v. United States, 1983
 Church of Lukumi Babalu v. City of Hialeah 1993
 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2010)
Friday: Team-based exercises
Monday posting on Sherbert v. Verner and Wisconsin v. Yoder. Questions: What principle is
developed? What are the implications? Is the compelling interest standard a logical outgrowth,
or a departure, from prior jurisprudence?
Week 7 September 29- October 3 Religious Accommodation
Monday: Introduction to development of Religious Accommodation and Exemptions
Wednesday:
 Sherbert v. Verner (1963)
 Wisconsin v. Yoder (1972)
 Thomas v. Review Board (1981)
 U.S. v. Lee (1982)
 Goldman v. Weinberger (1986)
Friday: Lyng v. North West Indian Cemetery Protective Association (1987)
Next Monday Night Posting on Employment Division of Oregon v. Smith
Week 8 October 6-8 (No class Friday): Strict Scrutiny and Legislative Engagement
Monday: The debate over Strict Scrutiny and Compelling Interest
Wednesday:
 Employment Division of Oregon v. Smith (1990)
 Religious Freedom Restoration Act (1993)
 Boerne v. Flores (1997), plus O’Connor full dissent
Next Monday posting on Martin and Finke
Week 9 October 13-17: Empirical Evidence of Compelling Interest Standard/Midterm
Monday: Wrap up of contested ground on accommodation
Wednesday: Discuss Robert R. Martin and Roger Finke, “Defining and Redefining Religious
Freedom: A Quantitative Assessment of Free Exercise Cases in the U.S. State Courts, 1981–
2011”
Midterm: Friday 17
Next Monday posting: Lemon v. Kurtzman
Week 10 October 20-24: Establishment Law: Public Support for Religious Schools
Key Cases: We will divvy up
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Everson v. Board of Education (1947)
McCullum v. Board of Education (1948)
Zorach v. Clausen (1952)
Board of Education v. Allen (1968)
Lemon v. Kurtzman (1971)
Committee for Public Education and Religious Liberty v. Nyquist 1973
Mueller v. Allen (1983)
Witters v. Washington Department of Services for the Blind (1986)
Agostini v. Felton (1997)
Zobrest v. Catalina Foothills School Dist. (1993)
Mitchell v. Helms (2000)
Zelman v. Harris (2002)
Locke v. Davey (2004)
Further Reference:
Kiryas Joel v. Grument (1994)
Aguilar v. Felton (1985)
Monday posting on your views of school prayer issues
Week 11 October 27-31: Religion in Public Schools
Monday: Introduction to controversies involving religion in public schools
Wednesday: School Prayer – We will divvy up
 Engel v. Vitale (1962)
 Abington v. Schempp (1965)
 Wallace v. Jaffree (1985)
 Lee v. Weisman (1992)
 Santa Fe v. Doe (2000)
Friday: Evolution, Creationism, and Intelligent Design:
 Epperson v. Arkansas (1968)
 Edwards v. Aguillard (1987)
Next Monday posting: On Mergens and Lambs Chapel
Week 12 November 3-7: Free Exercise and Establishment Tensions
Monday: Tax Exemption and Equal Treatment
 Walz v. Tax Commission, 1970
 Widmar v. Vincent (1981)
Wednesday: Equal Access Principle Applied
 Board of Education v. Mergens (1990)
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Lambs Chapel v. Center Moriches Union Free School District (1993) – Read Scalia
Dissent
Rosenburger v. Rector (1995)
Friday: Public Displays of Religion: We will divvy up
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Stone v. Graham (1980)
Marsh v. Chambers (1983)
Lynch v. Donnelly (1984)
Allegheny v. Greater Pittsburg ACLU (1989)
McCreary County v. Kentucky ACLU (2005) and Van Orden v. Perry (2005)
For further reference (we are not reading these):
 O’Hair v. Cooke (1977) (CC)
 O’Hair v. Blumenthal (1978) (DC)
 O’ Hair v. Clements (1980)
Next Monday posting: Wilson chapter
Week 13 November 10-13: Emerging Challenges
Monday: Introduction to Emerging Challenges
 Hertzke, “A Madisonian Framework for Applying Constitutional Provisions on Religion”
Wednesday:
 Robin Fretwell Wilson, “The Emerging Clash Between Religion and the State over
Contraception, Sterilization, and Abortion”
 Discuss Burwell v. Hobby Lobby (2014) and its aftermath
Friday: Gay Rights and Religious Freedom
 Christian Legal Society v. Martinez (2010)

Harry F. Tepker, Jr, “In This Enlightened Age and Land of Equal Liberty: Implications
of Equality for Religion and Marriage”
Week 14 November 17-21: Papers and Moot Court
Papers Due
Moot Courts
Week 15 November 24 (Thanksgiving): Moot Court Decisions
Monday Moot Court Decisions presented and discussed
Week 16 December 1-5: Going Global
Monday: Legacy of Religious Freedom for Religious Minorities

Rajdeep Singh, “Sikh Americans, Popular Constitutionalism, and Religious Liberty”

Asma Uddin, “American Muslims, American Islam, and the American Constitutional
Heritage”
Wednesday: U.S. Experience and the global crisis in of religious freedom
Friday: Summary and review for exam
Final Exam: 8:00-10:00 a.m., Monday, December 8th in Price Hall 2040