POSC 311
TOPICS IN CONSTITUTIONAL LAW
RELIGION AND THE CONSTITUTION
Spring 2005
Prof. Kimberly Smith
Office: Willis 418
Office Hours: MW 9-11, F 1-2
Phone: 4123
E-mail: ksmith@carleton.edu
This seminar will investigate the philosophical, historical and doctrinal dimensions of the
constitutional values of religious freedom and the separation of church and state. We will
explore the conventional justifications for religious freedom and disestablishment, as well
as the argument for an established church. We will spend some time on the historical
evolution of the religion clauses and the debate over their incorporation into the
Fourteenth Amendment, and spend a good deal of time with contemporary doctrinal
debates. Finally, we will consider the larger aspects of the question of the role of religion
in a constitutional democracy.
This is a seminar, which demands active participation from the students. I will expect
everyone to come to class every day (I will accept valid excuses, but no more than two
for the term). I expect you to contribute your insights, thoughts and questions even if you
haven’t quite finished the readings for that day.
Your grade will be calculated as follows:
Research paper: 60%
Participation: 40%
Participation may include presentation of cases, class discussion, reading and responding
to e-mails concerning class, and occasional exercises and small writing assignments.
The readings are in the coursepack or on electronic reserve [R].
OUTLINE
Class 1: Introduction
I.
Case study: Religion at Carleton College
Class 2: Documents on the 1985 controversy over the chaplaincy at Carleton
II.
Historical and philosophical foundations
Class 3: The case for religious freedom
Locke, Letter Concerning Toleration (selection)
Herzog, selection from Happy Slaves (selection)
Class 4: Religion as a political institution
Tocqueville, Democracy in America (selection)
*Topic of research paper: a short written explanation of your research question due in
class.
Class 5: Historical foundations
McConnell, The Origins and Historical Understanding of Free Exercise of
Religion, 103 Harv. L.R. 1410, pp. 1421-1446 [reserve]
Class 6: Historical foundations cont.
Jefferson, A Bill for Establishing Religious Freedom
Madison, Memorial and Remonstrance
Class 7: The First Amendment
McConnell, The Origins and Historical Understanding of Free Exercise of
Religion, 103 Harv. L.R. 1410, pp. 1473-85 [reserve]
Debate in N. Carolina Ratifying Convention
House Debate on First Amendment
Class 8: The Evolution of the Religion Clauses
Lash, “The Second Adoption of the Establishment Clause,” 27 Ariz. L.J. 1085
[parts I & II] [on reserve]
People v Ruggles
Class 9: The Religion Clauses and the Fourteenth Amendment
Lash, “The Second Adoption of the Establishment Clause,” 27 Ariz. L.J. 1085
[part III]
III.
Development of constitutional doctrine
A. Establishment clause
Class 10: High Wall doctrine?
Everson v Bd of Ed of Ewing Township (1947)
Zorach v Clauson, 343 US 306 (1952)
Class 11: Toward Accommodation
Walz v Tax Commission, 397 US 664 (1971)
Lemon v Kurtzman (1971)
Class 12: The Contemporary Confusion
Lynch v Donnelly, 465 US 668 (1984)
County of Allegheny v ACLU (1989)
Class 13: Confusion cont.
Wallace v Jaffree (1985)
Edwards v Aguillard (1987)
Class 14: cont.
Kiryas Joel v Grumet, 512 US 687 (1994)
Agostini v Felton (1997)
*Prewriting assignment should be posted on collab today
Class 15: Still confused….
Zelman v Simmons-Harris (2002)
Chemerinsky, “Why the Rehnquist Court is Wrong About the Establishment
Clause,” 33 Loy. U. Chi. L.J. 221 (2001) [on reserve]
Class 16: New directions in church/state relations?
Freedom from Religion v Faith Works, 2002 US Dist Lexis 280 (2002)
Articles on Bush’s faith-based charities initiative
B. Religious freedom
Class 17: Action vs Belief
Reynolds v US, 98 US 145 (1879)
Cantwell v Conn, 310 US 296 (1940)
West Va v Barnette, 319 US 624 (1943)
Class 18: Accommodation
Sherbert v Verner (1963)
Wisconsin v Yoder (1972)
Goldman v Weinberger, 475 US 503 (1986)
Class 19: Retreat from Accommodation?
Oregon v Smith (1990)
Lukumi Babalu Aye v Hialeah, 508 US 520 (1993)
Class 20: Reaction to Smith
City of Boerne v Flores (1996)
IV. Case study: School prayer
Class 21: Chandler v James (1997)
News stories
Class 22: Newdow v US (9th cir opinion) (2002)
News stories
*First draft of research paper should be posted on collab today
V. When doctrines collide
Class 23: Free speech, freedom of religion and disestablishment
Lamb’s Chapel v Center Moriches Union, 508 US 384 (1993)
Rosenberger v Univ of Virginia, 515 US 819 (1995)
Class 24: cont.
Capitol Square v Pinette, 515 US 753 (1995)
Good news v Milford (2001)
VI.
Church and state in America
Class 25: Religion and politics
Greenawalt, “Has Religion Any Place in the Politics and Law of Liberal
Democracy?” Proceedings of the American Philosophical Soc., 142 (Sept 1998):
378-87 [reserve]
Class 26: cont.
David Conkle, “Religion, Politics, and the 2000 Presidential Election,” 77 Ind. L.
J. 247 (2002) [reserve]
Class 27: Religion and citizenship, post-9/11: One nation under God?
Collected articles on the National Day of Prayer (9/15/01)
Class 28: cont.
Collected articles on religion in the 2004 election
*Final draft of research paper due Saturday, June 4, at noon
RESEARCH PAPER
You will research and write on a topic related to the major themes of the course. The topic is
fairly wide open, but the paper should include some discussion of doctrine.
I expect this paper to be 20-30 pages long.
You should include a bibliography, which will typically include cases, scholarly articles
and books. Your bibliography should demonstrate that you’ve explored the best scholarship
(which will typically mean that you should not rely on Internet sources, unless you can make the
case that it’s reliable and respected.) You should cite your sources; the conventions of legal
scholarship demand that you carefully document your assertions and give credit to the authors
whose works you’re drawing on. You may use Chicago Manual of Style or MLA format, as long
as you’re consistent. If you have any questions about how to document legal sources, please
come see me.
Some suggested topics (you may develop your own topic; these are just some possibilities):
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You may research a line of constitutional doctrine, such as the doctrine concerning school
prayer, religious displays on government property, or public funding of religious schools.
Your goal would be to explain what the leading cases hold and other relevant issues, such as:
where the main areas of dispute are, where the doctrine is likely to go in the future, what are
the underlying philosophical or political dynamics influencing this line of doctrine, what is
the larger political or social context of these decisions. Of course, you won’t be able to cover
all of these issues, and you shouldn’t try. Decide what questions are most important and
discuss those in depth.
You may do an in-depth study of one major case. This study should go beyond a standard
case note that explains the facts and holding of the case; you should explore the social,
political, cultural, historical, religious or philosophical dimensions of the case (depending on
what your main interest is).
You may do a case study that demonstrates how the legal and philosophical issues we’ve
discussed work in practice. This could be a study of how a particular institution—like
Carleton College or a private religious school–deals with religious diversity and religious
liberty. Or you might examine the legal strategy of a group such as the ACLU or a
politically-oriented religious group (such as the Moral Majority), considering how they select
cases, what their goals are, and how they understand the relationship between church and
state.
You may do a study of the church/state philosophy of a political or legal figure, such as
Sandra Day O’Connor, Antonin Scalia, George Bush, Abraham Lincoln or John Bingham.
You may do a historical study of church/state relations in America, focusing on a particular
controversy (such as the use of Bibles in schools, Sunday mail delivery or polygamy).
You may do a comparative study, comparing and contrasting church/state relations in another
country with the U.S.
For more ideas, you can do a search on Lexis/Nexis using “church and state”—you’ll find
many intriguing news stories. Also, skimming the Conkle article (on reserve) may give
you some ideas.
The process: you will meet with me early in the term to discuss your topic and research strategies.
About half way through the term, you’ll complete the prewriting assignment (below) and post it
in the class folder in collab. You’ll read your classmates’ papers and give feedback. Toward the
end of the term, you’ll post a first draft of your paper in collab, and give feedback to your peers
on their first drafts. The final paper will be due Saturday, June 4, at noon.
Prewriting assignment
This is an informal (ungraded) short paper, about 3-4 paragraphs. It is designed to help
you formulate your research paper. It has two parts:
 First, explain what is interesting about your research topic. Often researchers
choose topics that are interesting to them personally, but you will want to focus
why this topic is interesting to other people as well. In the process of explaining
why it is interesting, of course, you will have to define your audience—the group
of people you think will be interested in your paper.
 Second, tell us what sources are available for researching this topic, which ones
are most useful, and why.
This assignment will be due as indicated on the syllabus.
Feedback on Prewriting and First Drafts
You will give feedback to each of your fellow students, within 4 days of their posting
their papers. When you give feedback on their prewriting, you should answer the
following questions. (You may also make other comments that you think will be helpful
to the writer.)
 How might this paper be relevant to your topic?
 What sources has the author found that might be useful to you?
When you give feedback on first drafts, you should answer the following questions.
(You may also make other helpful, critical, or encouraging comments.)
 What is useful in this paper to your own research? What ideas, arguments,
information and/or sources might you use? (Note: If you do use anything from a
fellow student’s paper in your final paper, be sure to acknowledge that in a
footnote!)
 What do you disagree with in this paper? Why? Should you address this issue in
your own paper? (Note: you might disagree with factual claims, arguments, the
theoretical approach, the focus, the examples used to illustrate points, or other
aspects of the paper. Your goal is to let the author know where the reader might
need more convincing, and to think about where the reader of your paper might
disagree with you.)