Our Constitution does not include a single reference to God, yet devotes more attention to religious liberty than to any other liberty-bearing feature of our constitutional jurisprudence. And our constitutional tradition of religious liberty is marked by a number of provocative circumstances: An example is the rule of Sherbert v. Verner, which purported to give religiously-motivated persons a right to disregard legal impediments to their projects except when the laws in questions were justified by a compelling state interest; but Sherbert -- in the 27 years that it was nominally the governing rule -- was invoked successfully in only four cases, three of which involved state unemployment benefits. Recently, issues in this domain have taken on a particular edge, with claims of religious liberty being offered as reasons not to comply with laws insisting on the equal treatment of gays and lesbians or requiring the provision of insurance benefits to women that include contraceptive medications. In this class we will consider religious liberty and its potential collision with norms of equality from both a moral and legal point of view. We will address fundamental issues such as how if at all can we distinguish "religious" projects and commitments from other gripping projects and commitments; and, assuming that the line between religion and non-religion somehow can be drawn, what if anything justifies special moral or constitutional attention to religion. Supreme Court cases will constitute an important part of our reading, but they will be grist for reflection along with writings in moral or political philosophy. Each student will be expected to submit a short (5 to 8 page), critical, paper mid-course, and a somewhat longer (12 to 15 page) paper at the end of the course. Grades will be based on the two papers and on class participation.
Constitutional & Public Law