Freedom & The First Amendment Spring, 2005 PSC 291/Rel 297 Professors Green & Jackson

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1 Freedom & The First Amendment Spring, 2005 PSC 291/Rel 297 Professors Green & Jackson Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances. ---First Amendment to the Constitution of the United States This course is an introductory study of the concept of freedom as it finds expression in the First Amendment to the Constitution of the Unites States. Though the Amendment addresses four (or five) freedoms, our focus will be on the first: the so-called freedom of religion. We will examine some of the key historical and political antecedents to the Constitution s assertion of religious freedom, and we will read closely and critically key Supreme Court decisions that shaped the application of the First Amendment to American civic and social life. Work for the course will consist in regular class attendance, a mid-term examination, and a final essay. The precise topic of the final paper will be announced later in the course. The mid-term examination will be written in class on March 3 rd and will derive from study questions distributed earlier. The final paper is due in class on April 26 th. Admission to that final session requires submission of the final paper. Although we will not take attendance, we expect students to attend class sessions and to come prepared to discuss the assigned reading. Assigned books: J. Witte, Jr., Religion and the American Constitutional Experiment (Westview Press 2 nd ed. 2005). All other assignments for the course are on electronic reserve. January 13 Introduction Discussion of material that will be distributed in class. January 18 Overview W.S. Green, Religion and Society in American, in J. Neusner, ed., World Religions in America: An Introduction [Revised and Expanded Edition] (Westminister/John Knox Press, 1994, 2000), pp Stone v. Graham, 449 U.S. 39 (1980)

2 Freedom and the First Amendment/05/2 January 20 Biblical Antecedents: Covenant and Freedom Genesis 1:1-2:4; Exodus 19-24, (skim); Deuteronomy 17:14-20; Judges 8:22-23, 9:1-15; I Samuel 8; II Chronicles 19; Daniel 2-4, Esther W.S. Green, How Religion is a Foundation of Western Civilization, (handout) January 25 Render Unto Caesar: Christianity and Polity Matthew 22:15-21; Bruce Chilton, Primitive and Early Christianity, in J. Neusner, ed., God s Rule: The Politics of World Religions (Georgetown University Press, 2003), pp Harold J. Berman and John Witte, Jr., Church and State, The Encyclopedia of Religion 3, pp Harold J. Berman, Law and Religion in the West, The Encyclopedia of Religion, 8, January 27 Faith, Reason, and Freedom J. Noonan, Jr. & E. Gaffney, Jr., Religious Freedom: History, Cases, and Other Materials on the Interaction of Religion and Government (Foundation Press 2001), pp (hereafter, N&G ) Bernard Lewis, What Went Wrong: Western Impact and Middle Eastern Response (Oxford University Press, 2002), pp ( Secularism and the Civil Society ) February 1 February 3 The American Experience & Constitutional Development J. Witte, Jr., Religion and the American Constitutional Experiment (Westview Press, 2d ed. 2005), pp , (hereafter Witte ) N&G, pp February 8 2

3 Freedom and the First Amendment/05/3 February 10 The Role of the States: The American Experience Before 14 th Amendment Incorporation N&G, pp ( The People Against Ruggles (NY 1811)) N&G, pp ( Barnes v. First Parish in Falmouth (Mass. 1810)) N&G, pp (Alexis de Tocqville, Democracy in America (1835)) Witte, pp February 15 February 17 Federal Constitutional Interpretation Before Incorporation Reynolds v. United States, 98 U.S. 145 (1879) Cantwell v. Connecticut, 310 U.S. 296 (1940) Witte, pp February 22 February 24 Defining a Religious Objection United States v. Seeger, 380 U.S. 163 (1965) J. Hitchcock, The Supreme Court and Religion in American Life, Vol. II, pp (Princeton 2004) March 1 March 3 March 15 Mid-Term March 17 Free Exercise at the Supreme Court Wisconsin v. Yoder, 406 U.S. 296 (1972) Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) Religious Freedom Restoration Act of 1993 City of Boerne v. Flores, 521 U.S. 507 (1997) 3

4 Freedom and the First Amendment/05/4 Religious Land Use and Institutionalized Persons Act of 2000 Witte, pp March 22 March 24 The Establishment Clause and State Aid to Parochial Schools Lemon v. Kurtzman, 403 U.S. 602 (1971) Susan Tave Zelman v. Doris Simmons-Harris, 536 U.S. 639 (2002) Witte, pp March 29 March 31 Prayers and Pledges West Virginia State Bd. of Education v. Barnette, 319 U.S. 624 (1943) Lee v. Weisman, 505 U.S. 577 (1992) Michael A. Newdow v. United States, 328 F.3d 466 (9 th Cir. en banc, 2003), vacated because of lack of standing, 542 U.S. (2004) Oral Argument Transcript (scheduled before the Supreme Court on March 2, 2005) in Van Orden v. Perry (No ) and McCreary County v. ACLU of Kentucky (No )) April 5 April 7 Free Speech/Free Exercise Rights vs. Establishment Clause Concerns Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) Good News Club v. Milford Central School District, 533 U.S. 98 (2001) Locke v. Davey, 540 U.S. (2004) April 12 4

5 Freedom and the First Amendment/05/5 April 14 Academic Views on the Supreme Court and the Religion Clauses Michael W. McConnell, Religious Freedom at a Crossroad, University of Chicago Law Review (vol. 59/1992). pp Kathleen M. Sullivan, Religion and Liberal Democracy, University of Chicago Law Review (vol. 59/1992), pp Witte, pp April Work on papers April 26 Papers due 5