Religion and the American Constitution
PSC 3020 Section 2
Instructor:
Allen Hertzke, Presidential Professor of Political Science
Fellow in Religious Freedom, Institute for the American Constitutional Heritage
Office: 231 Cate Center 4, 325-4713
Department of Political Science Mailbox: 555 E. Constitution #237
ahertzke@ou.edu
Undergraduate Teaching Assistant: Ashley Edwards, aedwards@ou.edu
Office Hours:
3:15-4:30 Monday and 9:00-10:00 Wednesday
I am around at other times, so do not hesitate to call for drop in or to schedule an appointment
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.
Books For Purchase:
John Wilson and Donald Drakeman, Church and State in American History, Third Edition,
Westview Press, 2003. Selections are listed in the outline but these may be adapted a bit.
Kevin Seamus Hasson, The Right to Be Wrong (San Francisco: Encounter Books, 2005)
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 summary of Supreme Court cases by category
Please check your OU e-mail and D2L for announcements.
Assignments:
Midterm:
20%
Final Paper:
25%
Final Exam:
35%
Written Reactions
10%
Class Participation
10%
(Attendance, in-class exercises, discussion board, moot court)
Weekly Written Reactions: A short (one page or less) reaction to select readings will be due
most weeks (with the exception of Midterm week, the week before Thanksgiving, the week the
final paper is due, moot court week, the final week of the semester). These should be posted on
the D2L course site by 8:00 Sunday night and will be given automatic points if completed by
then.
Final Paper Guidelines:
Length: 10-12 pages or more
Due: November 21, 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.
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 of the First Amendment, reading crucial works by
James Madison and Thomas Jefferson among others. The course will then examine critical
Supreme Court cases that applied First Amendment religious principles, noting how
interpretations are deeply contested and evolve. Finally, the course will move to the global arena
and examine the influence of the American constitutional experience in shaping international law
on religion.
Resources for class readings, papers, and moot court:
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.
Week 1 August 22-24: The American Constitutional Innovation on Religion: Roots and
Stirrings
Wilson and Drakeman, 1-35, for Wednesday
Roger Williams, Selections of The Bloody Tenet, of Persecution, for the Cause of Conscience
Begin John Locke, “A Letter Concerning Toleration,” translated by William Popple, widely
available on the web, in the library. D2L will have an annotated version
D2L Posting on Locke, Sunday
Week 2 August 29-31: Colonial Establishments and Dissent
Monday: Discuss John Locke, “A Letter Concerning Toleration”
Wednesday:
Wilson and Drakeman, pp 37-63
Hasson, chapters 1-4
Sunday Posting on Memorial and Remonstrance
Week 3 September 7: Forming the Constitutional Provisions on Religion
Labor Day Off
Wednesday:
Wilson and Drakeman, 63-82, which includes:
Madison, “Memorial and Remonstrance”
Thomas Jefferson, Virginia Statute for Religious Liberty”
George Washington letter to Hebrew congregation, web
Hasson, Chapter 5-8
Special Event for extra credit: Wednesday September 7, 4:30, Memorial Union, Inauguration
of the Religious Freedom Project, Institute for the American Constitutional Heritage:
Speech by Allen Hertzke, “Religious Freedom in the American Constitutional Heritage: Global
Impact and Emerging Challenges”
Sunday Posting on the Mormon Cases
Week 4 September 12-14: The legacy of the First Amendment before the Judicial
Revolution
Bible and schools: Wilson p. 121-128
The Mormon Cases: Reynolds v. US 1879; Davis v Bacon 1890 – Wilson pp 156-163
Anti-Catholicism: Wilson pp. 129-147; 165-176; 183-191
Jewish integration: Wilson pp. 180-183
Hasson Chapters 9-10
Sunday Posting on Flag Salute cases of Gobitis and Barnette
Week 5 September 19-21: The Judicial Revolution of Incorporation: Religious Liberty
Nationalized
Pierce v. Society of Sisters 1925 – Digest
Cantwell v. Connecticut, 1940
Minersville v. Gobitis, 1940
West Virginia v. Barnette, 1943
Wilson: 191-201
Then Read full Text of Gobitis and Barnette
William Galston, “Expressive Liberty and Constitutional Democracy: The Case of Freedom of
Conscience”
Week 6 September 26-28: Development of Free Exercise Law
This week covers a multitude of topics but in many cases we will review short digests of the
relevant cases
Jacobson v. Massachusettes 1905 – Inoculation issue -- Digest
United States v. Ballard (1944) Religious Doctrines -- digest
Torcaso v. Watkins 1961, Wilson 384
United States v. Seeger (1965) – Conscientious Objection – Digest
Walz v. Tax Commission (1970), p. 301
Cruz v Beto 1972 – Digest
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
McDaniel v Paty 1978, Ministers can run for political office, p 388
Larsen v. Valente 1982, p. 315
U.S. v. Lee (1982)
Bob Jones University v. United States (1983)
Corporation of the Presiding Bishop v. Amos (1987) – Autonomy in Hiring
Lyng v. North West Indian Cemetery Protective Association (1987)
Wilson pp. 317-338
O’Lone v. Estate of Shabazz (1987) Religion in Prisons -- Digest
Church of Lukumi Babalu v. City of Hialeah 1993, p 338
Week 7 October 3-5: Free Exercise and Religious Accommodation
Sherbert v. Verner (1963), p 385
Wisconsin v. Yoder (1972), p 305
Thomas v. Review Board (1981), p 391
Goldman v. Weinberger (1986), 322
Employment Division of Oregon v. Smith (1990) – Full Case
Week 8 October 10-12: Midterm and Introduction to Legislative Struggles
Monday Midterm
Wednesday: Religious Freedom Restoration Act (1993) Wilson p. 397-8
Hertzke, “The U.S. Congress: Protecting and Accommodating Religion,” Oxford Handbook on
Church and State in the United States – D2L
Week 9 October 17-19: The Politics of Religious Freedom
Boerne v. Flores (1997) p. 398 plus full O’Connor Dissent
Religious Land Use and Institutionalized Persons Act (2000) – D2L
Leon v. Texas (2010) -- Digest
Wybraniec and Finke, “Religious Regulation and the Courts” – D2L
Hertzke, “The Supreme Court and Religious Liberty” – D2L
Durham and Smith, “Religion and the State in the United States at the Turn of the Twenty-First
Century” – D2L
Week 10 October 24-26: Establishment Law: Public Support for Parochial Schools
Everson v. Board of Education (1947)
Zorach v. Clausen (1952)
Board of Education v. Allen (1968)
Wilson, pp 201-213
Lemon v. Kurtzman (1971), p 351
Meek v. Pittenger (1975)
Wolman v. Walter (1977)
Wilson, 347-351
Mueller v. Allen (1983)
Aguilar v. Felton (1985)
Witters v. Washington Department of Services for the Blind (1986)
Zobrest v. Catalina Foothills School Dist. (1993)
Kiryas Joel v. Grument (1994)
Agostini v. Felton (1997)
Mitchell v. Helms (2000)
Zelman v. Harris (2002)
Wilson 357-383
Locke v. Davey (2004) -- Digest.
Week 11 October 31-Nov 2: Religion in Public Schools
School Prayer and Bible Reading
Engel v. Vitale (1962)
Abington v. Schempp (1965)
219-230
Wallace v. Jaffree (1985) 237
Lee v. Weisman (1992) 245
Evolution, Creationism, and Intelligent Design
Epperson v. Arkansas (1968) 230
Edwards v. Aguillard (1987) 243
Kitzmiller v. Dover Area Public Schools (2005) Digest
Week 12 Nov 7-9: Free Exercise and Establishment Tensions
Widmar v. Vincent (1981) 234
Board of Education v. Mergens (1990) -- Digest
Lambs Chapel v. Center Moriches Union Free School District (1993) – Read Scalia Dissent
Rosenburger v. Rector (1995) 256
Christian Legal Society v. Martinez (2010) – Full Case
Bronx Household of Faith v. Board of Education of the City of New York (2011) Digest
Hasson Part III
Week 13 Nov 14-16: Public Displays of Religion
O’Hair v. Cooke (1977) (CC) -- digest
O’Hair v. Blumenthal (1978) (DC) -- digest
O’ Hair v. Clements (1980) -- digest
Stone v. Graham (1980)
Marsh v. Chambers (1983)
Joyner v. Forsyth County (2011) CC
Lynch v. Donnelly (1984)
Allegheny v. Greater Pittsburg ACLU (1989)
McCreary County v. Kentucky ACLU (2005)
Van Orden v. Perry (2005) -- digest
Salazar v. Buono (2010)-- digest
Week 14 Nov 21 Thanksgiving Week
Paper Due Monday
Introduce New Challenges
No class on Wednesday
Week 15 Nov 28-30: New Challenges/ Moot Courts
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2010) Digest
Hertzke, “Religious Liberty and the Confusion over Separation,” Short Essay in Oklahoma
Humanities
Other readings to be announced.
Prepare Moot Courts
Week 16 Dec 5-7: Going Global
Monday: Complete Moot Court
Article 18 of the Universal Declaration of Human Rights
Pew Forum Study on Global Restrictions on Religion
Ahmet Kuru, “Assertive and Passive Secularism: State Neutrality, Religious Demography, and
the Muslim Minority in the United States” – D2L
Final Exam: Tuesday December 13, 8:00-10:00