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SUMMARY OF CONTENTS
Contents
Preface
Acknowledgments
I. INTRODUCTION
II. HISTORY
III. RELIGION IN THE REGULATORY STATE
IV. THE POWER OF THE PURSE
V. RELIGION AND THE GOVERNMENT’S INFLUENCE ON CULTURE
VI. WHAT IS “RELIGION”?
Table of Cases
Table of Statutes
Table of Authorities
Index
CONTENTS
Preface
Acknowledgments
I. INTRODUCTION
A. The Religion Clauses and Underlying Values: The Case of Sabbath Observances
Stansbury v. Marks
Estate of Thornton v. Caldor, Inc.
Notes and Questions
II. HISTORY
A. The Theory and Practice of Religious Establishments
Thomas Hobbes, Leviathan
Notes and Questions
George Washington, Farewell Address
Constitution of Massachusetts (1780)
Barnes v First Parish in Falmouth
Notes and Questions
B. Evangelical and Enlightenment Ideas of Church-State Separation
Thomas Jefferson, Notes on the State of Virginia
Elisha Williams, The Essential Rights and Liberties of Protestants
John Locke, A Letter Concerning Toleration
Notes and Questions
George Washington, Letter to the Religious Society Called Quakers
Thomas Jefferson, Letter to a Committee of the Danbury Baptist Association
Notes and Questions
C. The Virginia Assessment Controversy
Virginia Declaration of Rights (1776)
Notes and Questions
A Bill Establishing a Provision for Teachers of the Christian Religion (1784)
Notes and Questions
James Madison, Memorial and Remonstrance Against Religious Assessments
Notes and Questions
A Bill for Establishing Religious Freedom (1786)
Notes and Questions
D. The Constitutional Provisions
1. Framing the First Amendment
Annals of Congress, Aug 15, 1789
Journal of the First Session of the Senate of the United States of America, Sept 3, 1789
Senate Journal, Sept. 9, 1789
Annals of Congress, Aug 17, 1789
a. Issues Concerning Establishment
b Issues Concerning Free Exercise
2. Perspectives and Developments in the Early Republic
James Madison, Detached Memorandum
Notes and Questions
3. Incorporation in the Fourteenth Amendment
Permoli v New Orleans
Notes and Questions
Elk Grove Unified School District v. Newdow
Abington School District v. Schempp
Notes and Questions
Robert Nozick, Anarchy, State, and Utopia
Notes and Questions
III. RELIGION IN THE REGULATORY STATE
A. Free Exercise: Is Accommodation Required?
1. The Historical Debate
Michael W McConnell, The Origins and Historical Understanding of Free Exercise of Religion
Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective
Notes and Questions
2. The First Free Exercise Cases
People v. Philips
Simon’s Executors v. Gratz
Notes and Questions
3. Belief and Conduct: The Mormon Cases
Reynolds v. United States
Notes and Questions
4. The Rise of Exemptions
Sherbert v. Verner
Notes and Questions
Wisconsin v Yoder
Notes and Questions
5. The Exemptions Period
Thomas v. Review Board
Notes and Questions
Lyng v. Northwest Indian Cemetery Protective Association
Notes and Questions
6. The Decline of Exemptions
Employment Division v. Smith
Notes and Questions
7. The Return of Exemptions
a. The Religious Freedom Restoration Act
b RFRA’ s Partial Invalidation: City of Boerne
c. The Modern Patchwork of Free Exercise
B. Free Exercise After Smith
1. The Free Exercise Clause Itself
Church of the Lukumi Babalu Aye v. City of Hialeah
Notes and Questions
Rader v Johnston
Fraternal Order of Police v. City of Newark
Notes and Questions
2. RFRA
Gonzales v. O Centro Espirita Beneficente Iniao
Notes and Questions
Burwell v. Hobby Lobby Stores, Inc.
Notes and Questions
3. State RFRAs (and State Constitutional Provisions)
Elane Photography v. Willock
Notes and Questions
Stinemetz v. Kansas Health Policy Authority
Notes and Questions
4. RLUIPA
Holt v. Hobbs
Notes and Questions
5. Targeted Legislative Accommodations
Spencer v. World Vision
Notes and Questions
C. The Establishment Clause: Is Accommodation Unconstitutional?
1. An Introduction a Case Law and Theoretical Arguments
Welsh v. United States
Notes and Questions
b. The Historical Understanding
Annals of Congress, Aug 17, 20, 1789
Notes and Questions
2. The Current Doctrine
Cutter v. Wilkinson
Notes and Questions
3. Denominational Neutrality
Larson v Valente
Board of Education, Kiryas Joel Village School
District v. Grumet
Notes and Questions
D. Institutional Religion
1. Formation of Churches
a. Religious Structures
b Civil Legal Structures
c. First Amendment Concerns
Madison’ s Veto Message
Notes and Questions
2. Internal Church Property Disputes: The Rise of “Neutral Principles of Law”
Watson v. Jones
Notes and Questions
Jones v. Wolf
Notes and Questions
Masterson v. Diocese of Northwest Texas
Notes and Questions
3. The Reaffirmation of Church Autonomy: Hosanna-Tabor
Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C.
Notes and Questions
4. Churches and Tort Law
Kubala v. Hartford Roman Catholic Diocesan Corporation
Notes and Questions
Redwing v. Catholic Bishop for Diocese of Memphis
Notes and Questions
IV. THE POWER OF THE PURSE
A. Introduction: Government Aid in Modern Times and in the Founding Generation
Everson v. Board of Education
Notes and Questions
Note on the Uses of History: Religious Assessments and the Establishment Clause
Board of Education v Allen
Notes and Questions
B. The Historical Struggle over Nonpublic Education: Subsidy or Suppression?
1. Before the Civil War
John C. Jeffries, Jr., and James E. Ryan, A Political History of the Establishment Clause
Notes and Questions
2. After the Civil War
a Reconstruction
b. The Blaine Amendment
c Continued Conflict
Pierce v. Society of Sisters
Notes and Questions
Brief for the Governor of Oregon in Pierce v. Society of Sisters
Notes and Questions
C. The Lemon Approach: No Aid to Religious Teaching
1. The Basic Decisions
Lemon v. Kurtzman
Notes and Questions
Committee for Public Education v. Nyquist
Notes and Questions
2. Lemon Applied: Different Forms of Aid, Different Institutions
a. Forms of Aid to Nonpublic Schools
b Distinctions Among Institutions
i. Hospitals
ii Universities
iii. Social Service Organizations
c Conclusion: The Relevance of the Lemon Approach
D. The New Approach: The Permissibility of Neutral Aid
1. Indirect Aid Through Genuine Private Choice
Witters v. Washington Dept. of Services for the Blind
Notes and Questions
Zelman v. Simmons-Harris
Notes and Questions
2. Direct Aid to Religious Institutions
Mitchell v. Helms
Notes and Questions
Freedom From Religion Foundation v. McCallum
Notes and Questions
E. Is Neutrality Concerning Aid Constitutionally Required?
Rosenberger v. Rector and Visitors of Univ. of Virginia
Notes and Questions
Locke v. Davey
Notes and Questions
Colorado Christian University v. Weaver
Notes and Questions
F. What Counts as “Aid”? The Problem of Tax Exemptions
Walz v. Tax Comm’n of New York
Notes and Questions
Bob Jones University v. United States
Notes and Questions
G. Generally Applicable “Strings” on Government Aid
1. Does Religious Freedom Ever Require Exemptions from Strings on Aid?
Office of Legal Counsel, U S Department of Justice, Memorandum: Application of the Religious Freedom Restoration Act to the Award of a Grant Pursuant to the Juvenile Justice and Delinquency Prevention Act
Notes and Questions
2. Does the Establishment Clause Prohibit Exemptions from Strings on Aid?
American Civil Liberties Union of Massachusetts v. Sibelius
Notes and Questions
Lown v. Salvation Army
Notes and Questions
H. Standing to Challenge Expenditures Under the Establishment Clause
Hein v. Freedom From Religion Foundation
Notes and Questions
V. RELIGION AND THE GOVERNMENT’S INFLUENCE ON CULTURE
A. Efforts to Create a Public Culture
1. Compelled Oaths and Affirmations
Torcaso v. Watkins
Notes and Questions
Commonwealth v Cooke
Notes and Questions
Board of Education v. Barnette
Notes and Questions
2. Prayers and Religious Exercises in the Public Schools
Engel v. Vitale
Abington School District v. Schempp
Notes and Questions
Lee v. Weisman
Notes and Questions
Note on the Pledge of Allegiance
3. Prayer Outside the Public Schools
George Washington, Thanksgiving Proclamation
Notes and Questions
Marsh v. Chambers
Town of Greece v. Galloway
Notes and Questions
4. Public Religious Displays
a. Crèches (and Other Holiday Symbols)
Lynch v. Donnelly
County of Allegheny v ACLU
Notes and Questions
b Ten Commandments Displays: McCreary County and Van Orden
Van Orden v Perry
Notes and Questions
5. Evolution and Creationism
Epperson v. Arkansas
Notes and Questions
Edwards v. Aguillard
Notes and Questions
6. “Nor Inhibit” Religion
Catholic League for Civil and Religious Rights v. City and County of San Francisco
Notes and Questions
Mozert v. Hawkins County Board of Education
Notes and Questions
Note on Teaching About Religion in Public Schools
B. Regulation of Private Religious Speech
1. Free Speech Principles: Government as Regulator
a Prior Restraints
Lovell v. City of Griffin
Notes and Questions
b. Overbreadth and Vagueness
c Content Discrimination
Peck v. Sony Music Corp.
Notes and Questions
2. Free Speech Principles: Government as Property Owner
Commonwealth v. Davis
Notes and Questions
Widmar v. Vincent
Notes and Questions
3. Applying Widmar: Religious Speech in Limited Public Forums
Lamb’s Chapel v. Center Moriches Union Free School District
Notes and Questions
Board of Education v. Mergens
Notes and Questions
Good News Club v. Milford Central School
Notes and Questions
4. Religious Free Speech: Does Free Exercise Add More Protection?
Heffron v. International Society for Krishna Consciousness
Notes and Questions
5. Freedom of Association
Christian Legal Society v. Hastings College of Law
Notes and Questions
C. The Line Between Government Speech and Private Speech
Capitol Square Review & Advisory Board v. Pinette
Pleasant Grove City v. Summum
Santa Fe Independent School District v. Doe
Notes and Questions
Guidelines on Religious Exercise and Religious Expression in the Federal Workplace
D. Religion and Democracy
1. Religious Voices in Politics: Case Law
Lemon v. Kurtzman
McDaniel v. Paty
Notes and Questions
Roe v. Wade
Harris v. McRae
Webster v. Reproductive Health Services
Atkins v. Virginia
Bowers v. Hardwick
Lawrence v. Texas
Obergefell v. Hodges
Notes and Questions
Clayton v. Place
Notes and Questions
2. Religious Voices in Politics: Commentary
Robert Audi, The Place of Religious Argument in a Free and Democratic Society
Michael W. McConnell, Five Reasons to Reject the Claim that Religious Arguments Should be Excluded from Democratic Deliberation
Notes and Questions
3. Religion and Judicial Decision Making
Idaho v. Freeman
Notes and Questions
4. Institutional Participation in Politics and Policy Making
Branch Ministries v. Rossotti
Notes and Questions
Larkin v Grendel’ s Den
Notes and Questions
VI. WHAT IS “RELIGION”?
A. The Framing-Era Definition of “Religion”
Virginia Declaration of Rights (1776)
Notes and Questions
B. Supreme Court Decisions
Torcaso v. Watkins
United States v. Seeger
Wisconsin v. Yoder
Thomas v Review Board
Frazee v. Illinois Dep’t of Employment Security
Notes and Questions
C. An Example From Abroad
Grainger plc v. Nicholson
Notes and Questions
D. A Multi-Factor Approach
Malnak v. Yogi
Table of Cases
Table of Statutes
Table of Authorities
Index
PREFACE
The subject of religion and the state has unquestionably come of age in recent years There is now a large enough body of court decisions on the First Amendment’ s religion provisions to support a full-length casebook indeed, more than one And the relationship of religion to government and public life has doubtless provoked even greater interest since the September 2001 terrorist attacks, which were inspired by a religious view radically opposed to the modern Western arrangement of religious liberty.
This casebook on religion and the U S Constitution reflects the authors’ thinking on the subject over the period of a number of years It reflects several premises about how to teach and understand the relations between government and religion
The heart of the book is organized according to three fundamental ways in which government interacts with religion: the regulation of religious activity (Part III), the funding of religious activity (Part IV), and the treatment of religion in government’ s culture-shaping activities such as public schools (Part V).
Each of these ties together a number of sections a structure that is designed to help students see logical relationships between cases that may involve quite different sets of facts. In each of these three major areas, we examine doctrines under both components of the First Amendment’ s religion provision: free exercise of religion and nonestablishment of religion.
One of the chief reasons why the Supreme Court’ s case law on religion has been so inconsistent and shifting is that for years the Court treated these two First Amendment concepts in isolation from each other, labeling cases as “Free Exercise Clause cases ” or “Establishment Clause cases ” The structure of this casebook with free exercise rulings immediately followed by nonestablishment rulings in the same area, and vice versa is designed to help teachers xx
and students think about the two clauses together, to consider the implications of nonestablishment in every free exercise dispute, and vice versa. The interaction of these two clauses is the key point of Part I; it continues to be emphasized throughout the text.
This casebook seeks throughout to integrate current issues concerning religion and the state with historical and theoretical perspectives on those issues One of the great rewards of studying church-state relations is the rich history of reflection and debate on the subject that extends back for centuries. The questions that underlie today’ s debates for example, how to maintain a moral framework for society and at the same time respect the rights of conscientious dissenters are truly perennial questions, even though they may take different forms in different times and places Accordingly, Part II of the book provides a concentrated historical
background on the development of religious liberty in America from the established churches of the colonial era up through the enactment of the First Amendment. Subsequently, each of the three largest parts of the book (III through V listed above) begins with a historically oriented section, and the text returns to historical and theoretical materials throughout
To make possible the integration of these rich historical and theoretical perspectives, the casebook relies on fairly significant notes following the leading cases It is difficult to make sense of the Supreme Court’ s case law under the Religion Clauses, which is so shifting and inconsistent taken on its own terms, without understanding that there are various historical and theoretical tensions that pull the Justices in different directions. The notes following the cases aim to help students by summarizing the holding and rationale of the case before delving into its complications and variations. And the authors have worked hard to include questions on both sides of the issues People who look through the book will find citations to a wide range of authors.
The richness of the subject of religion and the state means that it is difficult to cover every page of these materials in one course Different emphases are possible: basic Religion Clause doctrines, the historical background of current issues, the legal problems faced by religious organizations, and so forth. The Teacher’ s Manual accompanying the book provides instructors with suggested syllabi for these varying emphases
New developments following the publication of this edition, such as Supreme Court decisions and significant lower court decisions and scholarly commentary, will be posted on the supplemental website at http://aspenlawschool com/books/religionandtheconstitution/defaul t.asp.
A word about editing style: Another advantage of a subject as focused as religion and the Constitution is that students can read
opinions in something resembling their actual form, without the need for constant severe editing. Therefore, a number of the cases here are lightly edited. We have, however, tried to streamline the reading by eliminating reported citations within excerpts (The case citation almost always appears somewhere else in the materials.) We
xxi
have indicated the editing out of text within an excerpt by ellipses, but we have not indicated where citations or footnotes have been dropped
Finally, as with the previous editions, we welcome comments from teachers and readers on all aspects of the book
Michael W. McConnell Thomas C. Berg
Christopher C. Lund
February 2016
ACKNOWLEDGMENTS
Professor McConnell thanks the many colleagues and students who have helped him to grapple with these issues over the years, and the law schools of Stanford University, the University of Chicago, and University of Utah, which have supported his research
Professor Berg thanks his colleagues and students for their insights over the years, and the University of St. Thomas School of Law (Minnesota) and Cumberland Law School (Samford University) for their support of his research.
Professor Lund thanks his colleagues and students for their contributions, large and small, to his thinking on this subject, and thanks Wayne State University Law School for the variety of ways in which it has supported his research
The authors together thank the many colleagues at law schools and elsewhere who have used the first three editions and provided comments on them, and those who generously permitted the use of excerpts from their own publications. We especially thank two colleagues: John Garvey, who made so many contributions as coauthor on the first three editions; and Douglas Laycock, who has contributed not only a wealth of advice and encouragement on the book, but also years of intellectual inspiration and challenge on its subject matter. Finally, the authors thank Stanford law students Josh
Dos Santos and Trevor Ezell and St Thomas law students Bridget Duffus and Katie Zuroski for their assistances with the index, tables, and cross-references for the fourth edition.