Course 5397:WRC: Law and Religion in the United States Section Fall 2016 Course Area: Law and Society/Interdisciplinary

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1 COURSE DESCRIPTION Course 5397:WRC: Law and Religion in the United States Section Fall 2016 Course Area: Law and Society/Interdisciplinary The First Amendment reflects a particular concern for religion, but the meaning of religion, its legal treatment, and the limits of religious expression have been fiercely debated. This course explores those debates through the doctrinal, historical, and theoretical dimensions of the First Amendment, paying particular attention to the case law that has developed around these clauses. Finally, we will review the protections for religion in the workplace provided by Title VII of the Civil Rights Act of In addition to reviewing the major decisions by the United States Supreme Court on the free exercise and establishment clause, this course provides the historical background for the development of the separation of church and state. Law and religion is designed to teach students to think in sophisticated ways about religious liberty and the interaction of religion and politics. INSTRUCTOR INFORMATION Instructor: Harvey Brown, Justice, First Court of Appeals jharveybrown@gmail.com Office phone: Office hours: By appointment. Another excellent time to get your questions answered is directly before class. I typically arrive by 8:00. Office: CLASS HOURS To be determined TTH 8:35-10:00 (By going a little later, we will be able to skip class on Sept. 15 when I will be out of town without the need to make it up.) LEARNING RESOURCES The two assigned texts for this course are: 1. McConnell, Berg, and Lund Religion and the Constitution (4th ed. Aspen 2016). 2. Witte, John, Jr. and J. A. Nichols, Religion and the American Constitutional Experiment, 4th ed. (Boulder/New York/London: Westview Press, 2016) Be sure to get the fourth editions of both books. They are brand new so no used copies will be available. The book by Professor Witte is written for undergraduates. It is an easy read so don t let the number of pages intimidate you. I think you will find it a helpful overview. You will also like its table of cases summarizing every religious liberty case.

2 In addition, we will read some selected First Amendment Supreme Court cases cited in the course outline as well as supplementary materials. The handouts are all relatively short. I highly recommend State and Religion in a Nutshell (2016) by Thomas Berg. COURSE OBJECTIVES By the conclusion of this course the student will have: 1. examined the major issues of church-state relationships in the United States; 2. briefly surveyed the history of the development of the separation of church and state in the United States; and 3. examined some of the primary literature of church-state relationships, specifically, decisions of the United States Supreme Court. As a result, students will develop an understanding of the history of U.S. church-state relationships by examining a series of major issues and a framework for examining future churchstate issues. CLASS ATTENDANCE Students missing more than 34% of the class will be given a failing grade. ACADEMIC ACCOMMODATIONS Students needing learning accommodations should inform the professor immediately. COURSE REQUIREMENTS & GRADE SCALE First Two Quizzes. Broadly speaking, the first quiz will focus on the free exercise clause and the second quiz will focus on the establishment clause. Each quiz will count toward 7.5% of your final grade. The quizzes will be roughly 40 minutes and will be objective. They will consist of multiple-choice, true/false, and shortanswer questions. They will be closed book. The questions are not tricky. If you attend the classes (including the class that will include review of materials), take notes, and do the readings, you should be able to get an A with a few hours of study. The quizzes will be closed book. Papers. You will be assigned four papers, each with a different value. You have already received an describing each assignment and its due date. The papers are due by 10:05 on the day listed in the syllabus. At 10:06 they will be deemed late, which will result in a deduction that will vary by how late the paper is turned in. Class participation. Your class participation will count 10% of your final grade. Participation means a substantive contribution to the class. Everyone can sign up before class for a pass for that class twice. Thus, you must declare in advance of the class that you do not want to be called on that day.

3 You can pass for any reason. Just put a P (for pass) next to your name on the attendance roster when you sign in. After you have used your two passes, if you answer, I don t know for questions you should have anticipated, you will not get the full 10% credit. PAPERS 75% MID-TERM QUIZZES 15% CLASS ATTENDANCE AND PARTICIPATION 10% LATE WORK & TEST POLICY Late Work No late work will be accepted unless arrangements have been made with me before the due date. Missed Quizzes/Test You should not miss any exams. If you are sick, you need to notify me in advance. I reserve the right to administer a different exam, and/or schedule the makeup for a later date. Missing an exam without giving prior notice will result in a zero for that test, with no makeup. Computer and Phone Use Laptop computers are permitted in class but may not be used for any purpose except taking notes and reviewing assigned reading. You may not use your phones or other electronic gadgets during our class for any reason. You may not surf the net or read s or text messages. Our primary text is McConnell, Berg, & Lund Religion and the Constitution (4 th ed. Aspen 2016) (MBL). There are a few cases that are not covered in the book and that I have added or will add. They are located in one of three handouts: a religious accommodation handout, a free exercise handout, and an establishment clause handout. Additionally, there are some historical works, law review articles, and articles from the popular media that will be posted on Blackboard. The readings are relatively short. I have rearranged the book s organization, principally with the goal of putting the history where it is most relevant. MBL s organization starts out slow, and you might get restless; my reorganization starts out more quickly. We will plunge directly into one of the most contested issues in the field. Some of MBL s cross-references will not work so well when we read the book in a different order than they intended. Where necessary, I will just explain in class. For the daily assignments, you do not need to read the notes and questions in MBL unless you are instructed otherwise. These are often several pages in length and therefore the reading assignments are less than they might otherwise appear to be. When I want you to read the notes and questions, I will use the abbreviations N&Q.

4 Please bear in mind that we will only be meeting twice a week and we will not meet during one regularly scheduled class so the reading assignments are a little longer than normal. The book Religion and the American Constitutional Experiment is written for undergraduates so the readings, while occasionally somewhat long, are fairly easy. The book is very good at reviewing themes and big picture issues. Read all the Supreme Court edited cases covered in the assigned MBL pages. The style of most of the cases are in bold, capitalized and underlined but some are only in bold and caps. You should read both if they are in the assigned pages. (For example, you should read both Lynch v. Donnelly on p. 503 and County of Allegheny v. ACLU on p. 512). The syllabus is subject to change, at the instructor s sole discretion, depending on the interests and needs of the students and new cases from the courts.

5 Aug 23 MBL, 3-4 (Stansbury case and note 1); 7-10, (Washington s Farewell Address and Mass Constitution); Witte, Aug 25 Religious Accommodation Handout; MBL including summaries of cases listed in this section and N&Q 5 on p. 681; and MBL, including N&Q 2 on p Aug 30 MBL including all N&Q Sept. 1 MBL , including N&Q; MBL ; U.S. v. Lee (1982) in FE handout; Sept 6 William P. Marshall, In Defense of Smith (Handout); and Michael W. McConnell, A Response to Professor Marshall (Handout); MBL (including N&Q), Sept (including text intro to RLUIPA); MBL (including the intro entitled Targeted Legislative Accommodations); MBL Sept 13 MBL including N& Q; Stormans Inc. v. Wiesman (9 th Cir. 2015) (FE handout including dissent from denial of for writ of certiorari), Harbor Missionary Church Corp. v. City of San Buenaventure (9 th Cir. 2016) (FE Handout); Sept 15 No Class Sept 20 MBL Sept 22 MBL and Conlon v. Intervarsity Christian Fellowship, (6 th Cir. 2014) (FE Handout) Sept 27 MBL 78-93; MBL 24-32, (letters of Washington and Jefferson); and Witte and Nichols, p ; William Penn, The Great Case of Liberty of Conscience (1670) Handout; Witte, Sept 29 MBL including N&Q, 23-24, 39-50, 61-65; MBL ; Witte, 20-23; Oct. 4 Read MBL and MBL notes 3 and 4; MBL note 3; Oct 6 Handout: Toleration is a Concession: Religious Freedom is a Right. MBL including N&Q Quiz at end of class Oct. 11 MBL (end with majority opinion); Witte, ; MBL Oct. 13 MBL N&Q 1 & 3 and Notes on the Uses of History (MBL ) MBL, N&Q 1; Green, Bad History, p. 1-9, (Handout); Board of Education v. Allen (1968); MBL including N&Q 2 and 3 from and ( Universities ) Oct. 18 MBL including N&Q 1 & 4 and Comm. for Public Educ. v. Nyquist and MBL (section entitled Forms of Aid to Nonpublic Schools) Oct. 20 Oct. 25 MBL including N&Q 2 on p ; MBL including N&Q 1 on p. 377; MBL Trinity Lutheran v. Pauley, (9 th Cir. 2015) (Handout)

6 Oct. 27 MBL , including N&Q 2& 3 on p and N&Qs 1-4 on and N&Q 1-3 on ; MBL , Oct including notes and questions 2 on p. 470, n. 6 on p. 474 Nov. 1 N&Q on p ; MBL ; Review Bad History by Green, p. 3-4 for discussion of Marsh (Handout) Nov. 3 MBL including N&Q 4 and 5 on p ; Review Bad History by Green, p. 3-4 for discussion of Lynch v. Donnelly; MBL Nov. 8 MDL , ( Content Discrimination ), 569; McCullen v. Coakley (2014) (Handout); MBL 570 (beginning with N&Q 2 The Modern Approach )- 581 including N&Q 1 & 2 on p , N&Q 1 on p. 580 Nov. 10 Quiz at end of class. MBL including N&Q 2 on p. 581 and N&Q 1-2 on p Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (Handout) Nov. 15 MBL including all N&Q; Witte, p ; Nov. 17 MBL including N&Q 1 on p. 628; MBL ; MBL 648; MBL Nov. 22 Sex, Atheism, and the Free Exercise Clause by Douglas Laycock (Handout); Witte, p The handouts are all relatively short. I have edited all the case handouts or provided only the official Supreme Court syllabus so you would have some basic information about the case for class discussion. The readings assignments are as follows:

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