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584 - Freedom of Religion Under the Constitution (2 hours)*
This course concerns the First Amendment’s two Religion Clauses: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” These sixteen words are the most disputed and litigated of constitutional issues. The Supreme Court has not read the Religion Clauses literally. The Court has, as Prof. Steven Gey has written, “vacillated between a moderately separationist interpretation of the Religion Clauses and a more lenient approach that permits—sometimes requires—government action accommodating religious belief and practice. Of course the meaning of a constitutional provision is not coterminous with what the Supreme Court says the provision means. Lawyers are citizens and advocates, and frequently lawyers also are judges and public policymakers. Consequently, any meaningful discussion of the meaning of constitutional norms cannot rely only on what courts have said the Constitution means. Doctrines change, and lawyers are often the catalysts for those changes. This course is designed to examine a discrete interpretive issue: What should the Religion Clauses—i.e., what should the free exercise and anti-establishment norms of the First Amendment—mean in our modern, secular, religiously pluralistic democracy? In that respect, our discussion will often operate outside of the realm of court decision. We will begin with a look at the major Religion Clauses cases. Some of these you may have covered in Constitutional Law; many you will not have seen before. From there we will consider the (more interesting, perhaps) question of the role private religious belief should play in public policymaking. Specifically, we will consider: What is the proper role of religious conviction in the policy-making of the liberal state? In essence, this question is: What do the religion clauses of the 1st Amendment mean in contemporary American society, and—specifically to each student—what should they mean? This question will guide us for the rest of the course. Once each student has come to her/his position as to this core question, we will consider the following, particularly with regard to the part religious morality has played in shaping the policy of each question: Capital Punishment Abortion Physician-assisted Suicide Same-Sex Marriage
* This course may be offered for 3 hours during some years.