Spring
2004
Baylor
University
College
of Arts & Sciences / J. M. Dawson Institute of Church-State
Studies
CHS
(PSC, REL) 3339
Law and Religion in the United
States
Monday,
Wednesday, & Friday 10-10:50 am Room:
Draper 349
Instructor: Francis J. Beckwith, MJS, PhD, Associate Professor of Church-State
Studies
Teaching Assistant: Hunter Baker,
JD, PhD candidate in religion, politics & society, Baylor
University
Email: Francis_Beckwith@baylor.edu / Phone: 710.6464 (office)
Office: Carroll
Library 321 / Hours: M, W, F 9am –
9:50 am; T, W 2-3 pm; or by appointment
Web
Site: http://francisbeckwith.com
COURSE
PURPOSE
According to the Baylor catalog, this course is “an
examination of the relationship between government and religion in the American
experience. Special attention is given to United States Supreme Court decisions
dealing with prayer and Bible reading in public schools, government aid to
church-related schools, and religious liberty rights of individuals and
churches.” This semester we will focus on three overlapping areas of study in
law and religion: (1) the most important court cases in Free Exercise and
Establishment jurisprudence, (2) the principles that can be extracted from those
cases and the arguments, both philosophical and legal, that have been offered by
jurists and scholars, and (3) the relationship between the principles of the
American founding, and the debates and disagreements surrounding those
principles and their interpretations, and how they have shaped our present
understandings of religious liberty and establishment. We will cover these areas
under a sequential presentation of the following topics (which appear
sequentially in the textbook): (I) History; (II) Religion in the Regulatory
State; (III) The Power of the Purse; (IV) Religion and the Government’s
Influence Over Culture; and (V) What is “Religion”?
COURSE
REQUIREMENTS
The final grade in this class
will be based largely on two exams, a mid-term and a final (80% of your total
grade; 40% for each exam). However, your grade will also be
measured by the following:[1]
1)
You
are expected to attend class regularly.
2)
You
are expected to be on time. (Tardiness will result in half an
absence)
3)
You will be allowed only six
absences during the semester. Excessive absences, more than six, will result in
your being withdrawn from the course. Attendance will count for 10% of your
grade.
4)
You have a professional obligation
to prepare for class. I shall
sometimes conduct the class as a Socratic discussion, which means that what you
get out of the class is a function both of your own preparation and the level of
preparation of your classmates -- and vice versa. If you are unprepared, it will
count as one absence. Prepared
and good participation will count for 10% of your grade.
5)
When
we go over court cases in the casebook you should be looking for the following
elements:
A.
What
proceedings have taken place thus far in the case? How did it begin? Who
sued whom for what? ("A student sued a school district for violating his free
exercise rights”) Then what happened in the trial court? How did it get to the
appellate court (in virtually every case in this class, the U.S. Supreme Court)?
What else has happened in the case?
B.
What
did the appellate court do with the case?
C.
What
are the relevant facts in the view of the appellate court? How does the appellate court know these
facts?
D.
What
are the issues before the court?
E.
What
are the appellant's (petitioner's, complainant's) arguments on the
issue?
F.
What
are the appellee's (respondant's) arguments?
G.
What
does the case hold? What is the rule or principle that this case provides for
deciding future disputes? Extracting the holding of a case is not necessarily a
simple matter. The challenge is to state the holding with sufficient generality
that it will apply to future disputes (so it can't be "The School District Must
Allow Lamb’s Chapel to Show a Movie in Its Building ") but with sufficient
specificity that it will be of some help in the future (so it can't be "Any
School District Must Allow Any Religious Body to Show Any Movie in Its
Building."). There may be language
in the opinion that looks like it could be the holding. Sometimes it may even
begin with a phrase such as, "We therefore hold that ...," but that may be
followed by something like "the trial judge erred in denying defendant's motion
for a new trial," which by itself is of no interest to anyone except the
parties in this case -- and perhaps the trial judge. You will have to put the
holding in your own language in most cases.
H.
What was the court's rationale? Why
did it adopt the holding(s) that it did?
I. Were there concurring or dissenting
judges who wrote opinions? What
position(s) did they take and why?
J. How do you evaluate the court's
decision? Was the outcome correct? Why?
K.
Does the case contain important
dicta? Even though not necessary to
the decision here, does it give an indication how the court would decide a
slightly different case? Could it
be useful in advising a client (if you were an attorney)?
REQUIRED
TEXT
McConnell,
Garvey & Berg, Religion & The Constitution
(2002) (published by Aspen Law &
Business)
OTHER
REQUIRED WRITINGS
Selected court cases, articles, op-ed pieces will be distributed (or
assigned via the internet), when necessary, during the semester.
RECOMMENDED
TEXT
Beckwith,
Law, Darwinism & Public Education: The Establishment Clause and The
Challenge of Intelligent (2003) (published by Rowman
& Littlefield)
RECOMMENDED
SOURCES (Online)
Because
for many of you law is a new subject, in the course of your readings you will
come across terms and concepts whose definitions you do not know. I will, of
course, define many of these in class. However, it is primarily your
responsibility to find their meanings. Here are three online sources that you
may find helpful:
1.
Nolo Legal Dictionary -
http://www.nolo.com/lawcenter/dictionary/wordindex.cfm
2.
The Jurist - http://www.jurist.law.pitt.edu/
3.
Findlaw - http://www.findlaw.com/
DAILY
SCHEDULE, TOPICS, READING ASSIGNMENTS
Date Topic
WEEK
1
1/12
xvii-xix
Introduction to Course
1/14-16
1-20
Introduction to law and religion
WEEK
2
1/19
No Class – MLK, Jr. Day
1/21-23
21-53
I. History
A.
The Theory
and Practice of Religious Establishment
B.
Major
Influences on the Idea of Religious Liberty
WEEK
3
1/26-30
53-100
C. The Virginia Assessment Controversy
D.
The
Constitutional Provisions
1.
Framing the
First Amendment
2.
Incorporation
of the 14th Amendment
WEEK
4
2/2-6
101-165
II. Religion in the Regulatory State
A.
Free
Exercise: Is Accomodation Required?
1. The Historical
Debate
2. The First Free Exercise
Cases
3. Belief and Conduct: the
Mormon Cases
4. Modern
Exemptions
WEEK
5
2/9-13
165-200
5. The Demise of
Exemptions
6.
Federal
Leglisation to Restore Exemption
7.
State
Religious Freedom Provisions
WEEK
6
2/16-20
200-275
B. Current Free
Exercise Litigation
1.
Free Exercise
Under Smith: Neutrality
and General
Applicability
2.
Issues Under
Heightened Free Exercise Scrutiny
WEEK7
2/23-27
275-360
C. Establishment
Clause?: Is Accomodation Permitted
1.
Introduction:
The Clash of the Clauses?
2.
Current
Doctrine
3.
Effect on
Third Parties
4.
Denominational
Neutrality
5.
Pervasive
Government Presence
WEEK
8
3/1-3/3 360-424
D. Institutional
Religion
1.
The Formation
of Churches
2.
The
Fragmentation of Churches
3.
Churches as
Employers
4.
Torts by
Churches
3/5
Preparation for mid-term examination
WEEK
9
3/8
Mid-term examination
3/10-12 425-483
III. Power of the Purse
A.
Introduction
Government Aid in Modern Timess and in the The Founding Generation
B.
The
Historical Struggle Over Nonpublic Education: Subsidy or
Suppression?
1.
Before the
Civil War
2.
After the
Civil War
C.
The Lemon
Approach: No
Aid to Religious Teaching
3/13-21 No Class – Spring
Break
WEEK
10
3/22-26
483-576
1. Lemon Applied:
Different Forms of Aid...
2. The High Water Mark
of “No Aid.”
D. The New
Approach: “Neutral” Aid
1.
The Rise of
Neutrality: “Indirect” Forms of Aid
2.
Direct Aid:
The First (?) Overrulings
E.
Ongoing
Controversies Over Government Aid
1.
School
Vouchers Under the Establishment Clause
2.
State
Constitutional Regulations—and Overriding Federal Rights?
WEEK
11
3/29-4/2 576-671 (recommended: BECKWITH, ix-xxxii,
1-177)
3.
“Strings” on
Government Aid
4.
Religious
Social Services and the “Charitable Choice” Debate....
IV. Religion and the Government’s Influence Over Culture
A.
Efforts to
Create a Public Culture
1.
Compelled
Affirmations of Belief: Test Oaths and Others
2. Official Prayers in Public Schools:
the Modern Decisions
3. School Curriculum Issues: Evolution
and Creationism
WEEK
12
4/5-7
671-730
4.
Challenges to
the Public Schools Curriculum
5.
Alternatives
to Public Education
6.
Public
Religious Displays
7.
Sunday
Closing Laws
4/9
No Class – Easter Holiday
WEEK
13
4/12
No Class – Easter Holiday
4/14-16
730-797
B.
Regulation of
Private Religious Speech
1.
Free Speech
Principles
2.
Religious
Free Speech: Does Free Exercise Add More Protection?
3.
Religious
Speech in Public Forums
4.
Religious
Speech in Public Schools
WEEK
14
4/19-23
797-867
C. Drawing the Line Between
Government and Private Speech
D. Religion and Democracy
1.
Religious
Voices in Politics: Cases
2.
Religious
Voices in Politics: Commentary
3.
Judges and
Teachers
4.
Institutional
Participation in Policymaking