POSC 4220: Religion and the Law (EP4)

What does it mean to live a religious life in a country that takes seriously the separation of church and state? What is the proper role of religion in public discourse? This course examines the status of religious expression in the law, examining such issues as school prayer, vouchers for religious education, and the teaching of intelligent design, as well as the role religion has played in the decisionmaking of the nation’s leaders.

Spring 2015

Required Readings

Ravitch, Frank S.  2004.  Law and Religion, A Reader: Cases, Concepts and Theory.  St. Paul, MN: West Publishing.

Beckwith, Francis J.  2003.  Law, Darwinism, and Public Education: The Establishment Clause and the Challenge of Intelligent Design.  Lanham, MD: Rowman & Littlefield Publishers.

O’Brien, David.  2005.  Animal Sacrifice & Religious Freedom: Church of the Lukumi Babalu Aye v. City of Hialeah.  Lawrence, KS: University of Kansas Press.

Sachs, Jeffrey.  2006.  The End of Poverty: Economic Possibilities for Our Time.  Penguin Classics.

Hing, Bill Ong.  2010. Ethical Borders: NAFTA, Globalization, and Mexican Migration.  Temple University Press.

Boyle, Gregory.  2011.  Tattoos on the Heart: The Power of Boundless Compassion.  Free Press.

Syllabus

      1/13           Introduction.  What are religious values?  Why are they important to so many people, in America and abroad?  What is the proper role of religion in public discourse?  For the introductory session, we will begin to think about these questions, which are major themes of the course that will preoccupy class discussions throughout the semester.  We will also review the syllabus and discuss course requirements, including the research paper.

I.  The Establishment of Religion

                       

      1/20           Public Funding of Religion.  Can public financing be used to support private religious education?  Are children in private religious schools entitled to the same financial support from the government that children in public schools receive?  Or are there good reasons to treat parochial school students differently?  We will consider these debates as they relate to funding for special education, computers and other resources, and school vouchers.

a.      Theoretical Perspectives.  Ravitch, pp. 58-80 (Levy & Hamburger, “What Does History Teach Us About the Separation of Church and State”); 495-507 (Carter, “Reflections on the Separation of Church and State”)

b.      Early Public Funding Cases.  Ravitch, pp. 4-32 (Everson v. Board of Education of Ewing Township (1947); McCollum v. Board of Education (1948); Zorach v. Clauson (1952); Board v. Allen (1968); Walz v. Commission (1970))

c.       The Lemon Test & Public Funding.  Ravitch, pp.371-409 (Lemon v. Kurtzman (1971)); 327-352 (Aguilar v. Felton (1985); Agostini v. Felton (1997); Mitchell v. Helms (2000))

d.      School Vouchers and Other Educational Programs.  Ravitch, pp. 410-454 (Zelman v. Simmons-Harris (2002)), 385-395 (Locke v. Davey (2004))

     

                        PAPER PROPOSALS DUE FRIDAY, JANUARY 30, AT 1:00 PM

           

      1/27           The School Prayer Controversy.  What, if any, religious expression is permissible in the public schools?  The Lord’s Prayer?  A non-denominational prayer?  A moment of silence?  The phrase “under God” in the pledge of allegiance?  What are the potential costs and benefits of this expression?  If majorities of Americans are Christians, should they be permitted to advance their values in an educational setting?

a.      Theoretical Perspectives.  Ravitch, pp.554-579 (Esbeck, “The Establishment Clause as a Structural Restraint on Governmental Power”)

b.      Early School Prayer Cases.  Ravitch, pp. 32-58 (Engel v. Vitale (1962); School District of Abington County v. Schempp (1963)); 124-138 (Wallace v. Jaffree (1985)

c.       Later Approaches.  Ravitch, pp. 81-124 (Lee v. Weisman (1992); Jones v. Clear Creek Independent School District (1992); ACLU v. Black Horse Pike Regional Board of Education (1995); Santa Fe Independent School District v. Doe (2000))

d.      The Pledge of Allegiance.  Ravitch, pp. 196-205 (Newdow v. U.S. Congress (2002); 869-879 (Elk Grove v. Newdow))

      2/3             Intelligent Design in the Classroom.  Is the teaching of intelligent design in the classroom equivalent to permitting prayer in the public schools?  Or is it necessary to counterbalance the teaching of evolution, which is premised on secular, scientific values?  Does the establishment clause require the suppression of alternative viewpoints like the teaching of intelligent design?  We will evaluate this debate by comparing a scholarly work that favors the teaching of intelligent design with a recent federal court decision invalidating its use in the Pennsylvania schools.

a.      Foundational Principles.  Ravitch, pp. 139-151 (Epperson v. Arkansas (1968); Edwards v. Aguillard (1987))

b.      The Case for Intelligent Design.  Francis S. Beckwith, Law, Darwinism, and Public Education: The Establishment Clause and the Challenge of Intelligent Design (2003)

c.       Judicial Responses.  Ravitch, pp. 151-196 (Kitzmiller v. Dover Area School District (2005))

      2/10           Ceremonial Deism.  At least since Marsh v. Chambers (1983), the Supreme Court has suggested that there are some forms of ceremonial religious expression that are so devoid of specific religious content that they do not raise Establishment Clause concerns.  Members of minority religions, however, believe that the Court underappreciates the amount of religious content in these “ceremonial” forms of expression.  Do you agree with the Court that ceremonial deism can stand as an exception to the Establishment Clause?  Is such expression truly benign?

a.      Ceremonial Deism.  Ravitch, pp. 226-248 (Marsh v. Chambers (1983); Wynne v. Town of Great Falls, South Carolina); Blackboard (Town of Greece v. Galloway)

b.      Theoretical Challenges.  Ravitch, pp. 205-226 (Epstein, “Rethinking the Constitutionality of Ceremonial Deism”)

c.       Government Sponsored Displays.  Ravitch, pp. 247-332 (Lynch v. Donnelly (1984); Allegheny v. ACLU (1989); McCreary County v. ACLU of Kentucky (2005); Van Orden v. Perry (2005); Staley v. Harris County (2006))

d.      Access to Facilities and Programs.  Ravitch, pp. 349-370 (Lamb’s Chapel v. Center Moriches Union Free School District (1993); Good News Club v. Milford Central School (2001))

      2/17           Monday Schedule: No Class

                        PART ONE OF TERM PAPER DUE FRIDAY, FEBRUARY 20, AT 1:00 PM

      2/24           Midterm Exam

     

II.  The Free Exercise of Religion

      3/3             Historical and Philosophical Perspectives on the Free Exercise of Religion.  What does the First Amendment’s guarantee of the “free exercise” of religion require?  Can religious groups practice their beliefs as they see fit, or can government regulate their behavior?  What if a group wishes to incorporate hallucinogenic drugs into its ceremonies?  Or requires its members to abstain from work on Saturdays?  What accommodation can religious groups expect?  What should they expect?

a.      Theoretical Perspectives.  Ravitch, pp. 748-761 (Idleman, “Why the State Must Subordinate Religion); 762-779 (Hamilton, “Religion, the Rule of Law, and the Good of the Whole); 779-797 (Perry, “Religion, Politics, and the Constitution”)

b.      Traditional Approaches to Free Exercise.  Ravitch, pp. 580-617 (Reynolds v. U.S. (1878); Braunfeld v. Brown (1961); Sherbert v. Verner (1963); Goldman v. Weinberger (1986))

c.       Rehnquist Court Retrenchment.  Ravitch, pp. 617-638 (Oregon v. Smith (1990))

d.      Evaluating Recent Approaches.  Ravitch, pp. 678-694 (McConnell, “Religious Freedom at a Crossroads”); 694-700 (Lupu, “Employment Division v. Smith and the Decline of Supreme Court Centrism”)

                    

      3/10           Sacrifice or Slaughter?  The Santeria Controversy.  Practitioners of the Santeria religion in Hialeah, Florida, regularly incorporated animal sacrifice into their religious ceremonies, a practice that city officials wished to discourage.  In 1987, the city council enacted an ordinance “expressing concern over religious practices inconsistent with public morals” and “punishing whoever unnecessarily or cruelly kills any animal.”  We will consider the moral and philosophical debates underlying this controversy and evaluate the appropriateness of the Supreme Court’s eventual resolution of the case.

a.      The Animal Sacrifice Case.  Ravitch, pp. 638-659 (Church of the Lukumi Babalu Aye v. Hialeah (1993))

b.      Evaluating the Hialeah Decision.  David M. O’Brien, Animal Sacrifice & Religious Freedom: Church of the Lukumi Babalu Aye v. City of Hialeah (2005)

      3/17           Spring Break: No Class

III.  Morality and Public Policy

      3/24           Morality and Foreign Policy.  What does it mean to conduct a moral foreign policy?  Do Americans have an obligation to address poverty in other parts of the world?  In The End of Poverty (2006), Jeffrey Sachs challenges us to think critically about our international obligations and to provide foreign aid to nations in need.  We will discuss the challenges of balancing our own national interests with the needs of the international community.

a.      Ethics and Foreign Aid.  Sachs, The End of Poverty (2006).

PART TWO OF TERM PAPER DUE FRIDAY, MARCH 27, AT 1:00 PM

      3/31           Morality and Domestic Policy 1: Immigration  The issue of immigration has been a persistent source of controversy in American domestic policy, with the influx of undocumented immigrants from Mexico a special cause of concern.  Is there an ethical approach we can take to immigration policy?  In Ethical Borders (2010), Bill Ong Hing develops an ethical rationale for opening up the U.S./Mexican border, as well as improving conditions in Mexico so that its citizens would have little incentive to migrate.  We will evaluate Hing’s proposal, as well as policy alternatives.

a.      Ethics and Immigration Policy.  Hing, Ethical Borders (2010)

      4/7             Morality and Domestic Policy 2: Same-Sex Marriage and the Law.  Beginning in 1993, state supreme courts across the country began ruling in favor of same-sex marriage equality, even though majorities of the public opposed same-sex marriage on the time.  How appropriate is it for courts to take the lead on morality policies innovations?  How can judges balance their responsibilities as judges against the deeply held religious convictions of the citizenry?

a.       Early Same-Sex Marriage Cases.  Baker v. Nelson (1971); Jones v. Hallahan (1973)

b.      Turning Point: Hawaii and Vermont.  Baehr v. Lewin (1993); Baehr v. Miike (1996); Baker v. Vermont (1999)

c.       Massachusetts and Beyond.  Goodridge v. Department of Public Health (2003); Opinion of the Justices to the Senate (2004); In re Marriage Cases (2008)

d.      U.S. Supreme Court.  U.S. v. Windsor (2013); Hollingsworth v. Perry (2013)

      4/14           Morality and Public Service.  As Fordham students preparing to graduate and embark on careers, we are challenged to reflect on how we can lead lives that embody the Jesuit philosophy of homines pro aliis (“men and women for others”).  Fr. Gregory Boyle, S.J., in Tattoos on the Heart, provides one model of public service.  What can we learn from Fr. Boyle’s experiences that we can reflect in our own lives and careers, and in government policy?

a.       Ethics and Public Service.  Boyle, Tattoos on the Heart (2011)

      4/21           Student Presentations.  In the final two class sessions, students will present their final papers to the class.  The first half of the class will present on this date.

      4/28           Student Presentations.  The second of half of the class will present their final papers on this date.  If time permits, we will also review for the final exam.

                        FINAL EXAM: TBA

COURSE ASSIGNMENTS

Participation (10%).  Participation is a major component of this course (10%).  In addition to regular classroom discussion, each week you will be assigned a portion of the reading and be expected to be prepared to report on it to your fellow students (including summarizing the material and developing discussion questions based on it).  You will also give an oral presentation at the end of the semester, which is described below.

Reflection Papers (10%).  Students will be responsible for a one-page assignment, due each week, presenting (a) a discussion question, and (b) a response to the question, grounded in the day’s readings.  Please note: students may rewrite any reflection paper for a higher grade.  Revised reflection papers are due one week after the original drafts have been returned to you.

Exams (40%).  There will be one midterm exam (20%) and a final (20%).  The exams include short-answer and essay questions.  The final exam is not cumulative, covering post-midterm material. Exams will not be rescheduled except under extraordinary circumstances, and not unless arranged in advance. 

Research Paper (30%).  The major project for the course is an original research paper in which you describe a public policy problem that requires action, and propose a public policy solution.  The topic of the paper should relate broadly to the subject of ethics and government; however, I encourage you to be creative in your choice of topic, to find a subject that interests you.  The paper will be written in multiple installments. 

PART ONE: Due Friday, February 20, at 1:00 PM.  In a 10-12 page paper, describe a major public policy problem that requires action.  When describing the problem, you should take the following points into consideration: What is the nature of the problem?  Who thinks it is a problem, and why?  Who thinks it is not a problem, and why?  What has been the response of government officials so far to the problem?  e.g., What legislative proposals, court decisions, or other government actions have attempted to deal with it?  What have been the strengths and weaknesses of these approaches?  What negative consequences can you foresee if the problem is not dealt with?  Your paper should cite at least 10 government documents and 10 academic sources.

PART TWO: Due Friday, March 27, at 1:00 PM.  In a 10-12 page paper, describe and evaluate a specific public policy solution that can address the problem that you described in your first paper.  When discussing the solution, you should take the following points into consideration:  What is your specific proposal?  What are its strengths and weaknesses, using Kingdon’s assessment criteria? (technical feasibility, value acceptability, anticipation of future constraints)  What are the strengths and weaknesses of alternative proposals?  Your paper should cite at least 10 government documents and 10 academic sources.

PART THREE: Due on the date of your oral presentation (either April 21 or April 28).  Your final paper will be a 20-24 page paper that is composed of revised versions of your first two papers.  Please note: I expect to see substantially revised versions of your first two papers, based on my comments and corrections as well as your own continued reflections on the subject matter.  Your final paper grade will be based on the final revised draft.

Note: I expect to meet regularly with you  as you are developing your papers.  Minimally, I require TWO meetings in my office: once at the beginning of the project, to discuss your proposed topic and to develop a structure for the paper; and once before the submission of your final draft, to discuss my comments and your plans for the revision.  We will schedule specific appointment times in class.

Oral Presentation (10%).  In our last two sessions (April 21-28), you will present your public policy proposal to the class for evaluation and discussion.  Each presentation will be approximately 10 minutes long, with 5 additional minutes for questions and comments.  Further details about the oral presentation will be discussed in class.