Religion and the Constitution

The framers of the U.S. Constitution sought to ensure that the federal government would neither promote religion nor interfere with religious liberty. The very first two clauses of the First Amendment to the U.S. Constitution capture the framers' concern: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." On parchment, those 16 words seem simple enough. In practice, however, the two clauses often are in tension and give rise to enduring controversy over the meaning of "establishment" and "free exercise." For example, if the government exempts church property from taxation, is it assisting the establishment of religion? If the government does not exempt church property from taxation, is it interfering in the free exercise of religion?

In the United States, controversies about what the religion clauses prohibit or protect intensified in the 1940's, when the United States Supreme Court first recognized that the First Amendment applied to the states, not just the federal government. We will use the case method to study every major court opinion that implicates the First Amendment's religion clauses. This intensive study necessarily focuses on the last 70 years, since it was not until the 1940 case of Cantwell v. Connecticut that the Supreme Court began to protect religious rights under the First Amendment.

Working in legal teams, students will develop appellate briefs on real freedom of religion cases decided recently by the U.S. Courts of Appeals and will present oral arguments before the "Evergreen Supreme Court." Students will also rotate as justices to read their peers' appellate briefs, hear arguments and render decisions. Readings for the program will include Internet resources and various books and journal articles, as well as court opinions. Study will be rigorous; the principal text will be a law school casebook.