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 Excessive absences, more than six, will result in your being withdrawn from the course.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 14^th 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

 

WEEK 15

4/26-30            869-905

V.          What is “Religion”?                                                                    

A.      The Draft Cases

B.      Defining Religion in Other Contexts

 

5/3                   Review for Final Examination