(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.
COURSE SHORT DESCRIPTION
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.
STATEMENT OF LEARNING OUTCOMES AND ASSESSMENT
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.
____________________
COURSE MATERIALS
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)
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SYLLABUS:
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
(Pix credit: Civil
Liberties: Securing Basic Freedoms; image credit: http://www.lemon-buy-back.com/)
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 GROUP
DISCUSSION
(Pix credit: Infographic List: https://infographiclist.com/2012/05/15/world-of-religion-infographic/)
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
(How RFRA Works; Becketlaw.org: https://www.becketlaw.org/research-central/rfra-info-central/)
Class 20: Read TEXT pp. 718-735; Religious
Freedom Acts by State; Masterpiece
Cakeshop, Ltd. V. Colorado Civil Rights Commission (2017);
RLUIPA
State RFRAs
Class 21: Read TEXT Chapter 7, pp. 737-848
CLASS GROUP
DISCUSSION
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
--Turkey
--France
--United
Kingdom
--Other European
States
--China
--India.
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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