Saturday, August 04, 2018

Teaching Law and Religion in the United States: The Inter-Regulation of Beliefs and Institutions

(Pix credit: ©Larry Catá Backer 2018)

It is virtually impossible to understand the construction and cultures of law and governance without cultivating a deep appreciation for religion--both as a belief system and as the structures of great institutions whose relationship with the state and other communities is quite complex.  In the West, many have come to understand the relationship between religious and political communities as essentially vertically arranged with the state at the apex.  One wonders whether this is always or invariably the case, and more importantly, whether it is ever as simple a relationship as (constitutional) law might have it (at least in the popular mind and within the rhetoric of influential policymakers). 

This coming year I will have the opportunity again to work closely with students on these issues.  I am lucky enough to be able to offer a course entitled The Constitutional Law of Religion.  The course considers the issue of religion as systems of beliefs and as institutional governance orders  through the lens of the political settlement crafted in the United States in the form of its federal constitution's Religion Clauses. The class will then consider this approach--rich and complex--with those emerging in other states (France, the U.K., Turkey, India, and China) as well as the jurisprudence of the great regional human rights organizations (those of the European Union, the African Union, and the Organization of American States. The implications for human rights, for the economic and political organization of governance communities, and for the organization of interactive legal systems is profound, especially when one liberates oneself from a parochial approach its study (as law applied to religion) and considers the issue from the perspective of inter-regulation.

For those interested I have included some course information below.  I will be writing about the class from time to time. The syllabus may be accessed HERE.  The coursebook we use (one that reflects this viewpoint) may be accessed HERE.


This course examines current constitutional doctrine concerning religion under the First Amendment to the Constitution. The focus will be on the essential cases and principles of the Free Exercise and Establishment Clauses of the First Amendment. The course considers the definition of "religion" for purposes of federal constitutional law. It then engages in a deep examination first of the Establishment Clause, and then of the Free Exercise Clause of the Federal Constitution. The cases and principles that interpret and apply the Religion Clauses are organized along three thematic lines: (1) the regulation of religious activity (free exercise and neutrality, governmental interests, legislative accommodation), (2) the funding of religious activity (establishment and neutrality, governmental support of religious institutions), and (3) the treatment of religion in government's culture shaping activities (public schools, school curriculum, religious speech). The Course also considers the constitutional limits of state involvement in disputes within religious organizations.  The course ends with a consideration of the framework of religious liberty in selected foreign states and within the emerging jurisprudence of regional human rights organizations.

Learning Outcomes:

Students are expected to acquire a working knowledge of the following. 

1. Understand the core framework within which the Religion Clauses of the U.S. Constitution in the context of the Bill of Rights.

2. Examine the history, original understanding and the jurisprudential techniques used to interpret the Religion Clauses and the interplay between the Establishment and Free Exercise Clause.

3. Identify the basis for determining what is religion for purposes of the Religion Clauses.

4. Demonstrate deep familiarity with the jurisprudence of the Establishment Clause in the following respects:
(A) early development;
(B) organized religious exercises in the public schools;
(C) school curricula;
(D) Ceremonial Deism;
(E) Legislative Prayer; 
(F) Public Displays;
(G) Public Forums;
(H) Private Sponsorship;
(I) Access to Public facilities; and
(J) Government Aid to Religion or Religious Institutions (educational and other)

5. Demonstrate deep familiarity with the jurisprudence of the Free Exercise Clause in the following respects:
(A) Difference in meaning of the term Religion for Free Exercise Clause;
(B) Early cases;   
(C) Traditional compelling Interest Test and its development;
(D) The transformation of the traditional Approach (Employment Div. v. Smith);
(E) The role of intentional discrimination under the contemporary Constitutional test;
(F) The effect and constitutionality of accommodation statutes.

6.  Identify and apply statutory schemes for the accommodation of religion at the state and federal level.

7. Examine the constitutional limits and framework for the law of religious institutions and property disputes.

8. Demonstrate familiarity with the issues relating to clergy abuse.

9. Understand the basics of the Ministerial Exception and issues of standing under the Religious Clauses. 7. Develop a working familiarity with the U.S. Alien Tort Claims Act and its relevance to CSR related litigation.

10. Identify and understand the basic approaches to issues of religious liberty in selected foreign jurisdictions (France, Turkey, U.K., India, China).

11. Develop familiarity with the basic framework for protection of religious liberty within the jurisprudence of regional human rights organizations.

Learning Outcomes Assessment:


Student achievement in all learning outcomes will be measured in a 24 hour take home final examination. Learning Outcomes will be monitored through student participation in the weekly discussion of problems that build on readings.   



            1.         Frank S. Ravitch and Larry Catá Backer, Law and Religion: Cases, Materials and Readings (3rd ed., West Academic, 2015)
                        ISBN- 978-0-314-28407-5 (TEXT) REQUIRED

            2.         Leslie Griffin (ed.), Law and Religion (Aspen Publishers, 2010)
                        ISBN 978-0-7355-7819-7 (GRIFFIN)  


Class 1: Read: (1) Presidential Executive Order 13798 (4 May 2017) “Promoting Free Speech and Religious Liberty;” (2) J. Sessions, Memorandum (6 Oct. 2017) “Federal Law Protections for Religious Liberty;” (3) J. Sessions, Remarks at the DOJ’s Religious Liberty Summit (30 July 2018).
            Overview Class Policies and Procedures
                        Constitutional and International Context

Class 2: Read GRIFFIN pp. 1-7; TEXT pp. 3-37.
The Early Development of Establishment Clause Doctrine

Class 3: Read TEXT pp. 37-63; 400-411
            From the Early School Prayer Cases to the Lemon Test.

Class 4: Read TEXT pp. 65-95
            Public Religious Exercises
                        - Organized “Religious” Exercises in the Public Schools
                                    -Lee and its Aftermath

Class 5: Read TEXT pp. 95-124
            Public Religious Exercises Continued
                        - Organized  “Student Initiated Prayer” Concept
                        - Moment of Silence Laws

Class 6: Read TEXT pp. 124-180
            Religion and Curriculum
-Creationism/Intelligent Design in Public Schools
-Kitzmiller case (pp. 138-180)

Class 7: Read pp. 180-211;
            Religious Exercises
                        - Ceremonial Deism

Class 8: Read pp. 211-253
            - Legislative Prayer
            - Municipal Prayer                 

Class 9: Read TEXT pp. 255-281
            Religious Symbolism and Public Displays
                        Government sponsored enforced displays

Class 10: Read TEXT pp. 281-327
            Religious Symbolism and Public Displays                           
- The Ten Commandments Cases                    

Class 11: Read TEXT pp. 327-364
            Religious Symbolism and Public Displays.
                        - Other Displays
            Religious Symbolism and Public Displays
                        - Privately Sponsored Displays on Public Property

Class 12: READ TEXT pp. 364-397
            Transfer to private parties
            Equal Access to Government Facilities and Programs

Class 13: Read TEXT pp. 399-419
            Government Aid to Religion or Religious  Institutions
                        - The Lemon Test
Class 14: Read TEXT pp. 419-454
            Government Aid to Religion or Religious Institutions
                        -The Move Toward Formal Neutrality
- School Vouchers

Class 15: Read TEXT pp. 454-465; Trinity Lutheran Church v. Comer (2017).
            Government Aid to Religion or Religious Institutions
                        - Must Government Fund Religion Under General Funding Programs?

Class 16: TEXT Chapter 5 pp. 467-597

 Class 17: Read TEXT pp. 599-638
            The Free Exercise Clause
                        - What is Religion?
                        - Free Exercise Clause Exemptions:  The Early Cases
                        - Free Exercise Clause Exemptions and the Compelling Interest Test
                        - Retreat from Compelling Interest

Class 18: Read TEXT pp. 638-682
            Laws of “General Applicability”
                        - Intentional Discrimination and Free Exercise Rights

Class 19: TEXT Read pp. 682-718; Sean Davis, How RFRA Works (Infgraphic)
            Free Exercise: From Constitution to Constitutional Accommodation via Statute
-       RFRA and the Legislative Response to Smith


            State RFRAs

Class 21: Read TEXT Chapter 7, pp. 737-848

Class 22: Read TEXT pp. 849-885
            Religious Entities: Property Disputes & Schisms

Class 23: Read TEXT pp. 885-919
            Liability for Clergy Abuse
            The Ministerial exception

Class 24: Read TEXT pp. 919-942
            Standing and the Religion Clauses
            Mootness, Ripeness and the Religion Clauses

Class 25: Read TEXT pp. 1089-1144
            Law and Religion beyond the U.S. Group Presentations
                        --United Kingdom
--Other European States
Class 26: Read TEXT pp. 1293-1327
            Regional Human Rights Organizations
                        --OAS; African Union

Class 27-28: Read TEXT pp. 1327-1364; 1364-191
            The European System

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