Cole Durham
Spring Term 1996
Department of Legal Studies


The Freedom of Religion course is designed as an introduction to the constitutional and human rights issues involved i building societies that allow genuine and robust religious pluralism. The course begins by developing a broad comparative framework for analyzing existing church-state systems, with a special emphasis on European and American models. It then explores emerging consensus on fundamental religious freedom norms, as evidenced in key international human rights documents such as the European Convention. Some time is spent with selected classical texts on religious freedom (primarily Locke, Rousseau, Jefferson, and Madison) because of the enduring contribution these thinkers have made.

With this background, the course turns to an analysis of a range of recurrent issues. The precise issues vary from year to year and depend to some extent on the interest of those in the course. Representative issues include: (1) the threshold problem of determining who can assert religious freedom rights -- how to define religion in an impartial and non-discriminatory way; (2) determining the outer limits of religious freedom and the extent to which religious freedom claims warrant exemptions from ordinary legislation (e.g., preferential hiring cases, group rights issues); (4) church-state tensions in public educational settings (school prayer, release time, religious instruction, the extent to which religious groups should have equal access with other groups to public facilities); (5) the extent to which religious groups should be entitled to exert influence on issues such as abortion; (6) issues relating to evangelization (overlaps between freedom of religion and freedom of speech); and (7) the extent to which governmental aid should be available to religious organizations.

At a time when the perils associated with excessive nationalism and ethnic tension highlight the risks of pluralism, the course seeks to identify principles and practices that make the great paradox of liberal theory -- pluralistic community -- possible.

Topic / Reading:

I. General Introduction

A. Aristotle
B. Aquinas
C. John Locke, A Letter Concerning Toleration
D. J.J. Rousseau, Civil Religion

II. The Theoretical Background of the Religion Clause of the First

A. A Memorial and Remonstrance Against Religious Assessments
B. Thomas Jefferson's Bill for Religious Freedom
C. Federalist No. 10 (James Madison) (Of Faction)
D. Federalist No. 51 (James Madison) ( On Partition of Power)

III. Case Law

A. Historical and Analytical Overview

1. Everson v. Board of Education (1947)
2. Defining Religion

B. Free Exercise of Religion

1. Reynolds v. United States (1879)
2. Braunfeld v. Brown (1961)
3. Sherbert v. Verner (1963)
4. Wisconsin v. Yoder (1972)
5. United States v. Lee (1982)
6. Employment Division v. Smith (1990)

C. Accommodation (or Non-Accommodation) of Religion

1. Preferential Hiring : Corporation of the Presiding Bishopric of the Church of Jesus Christ of Latter-Day Saints v. Amos

2. Release Time: Zorach v. Clauson (1952)

3. Abortion: Harris v. McRae (1980)

IV. International, Constitutional, and Statutory Religious Liberty Norms

A. Religious Liberty Provisions of the United States Constitution

B. Religious Liberty Provisions of the Basic Law of the Federal Republic of Germany

C. Universal Declaration of the Human Rights, Article 18.

D. The European convention for the Protection of Human Rights and Fundamental Freedoms

E. United Nations Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based Religion (1981)

F. Helsinki Final Act (1975)

G. Concluding Document of Vienna meeting of the conference on Security and Cooperation in Europe

H. The Character of Paris for a New Europe(1990)

I. Law of the USSR on Freedom of Conscience and Religious Organizations

Digitized version prepared by the Curriculum Resource Center (CRC)
CEU Budapest, Hungary
Revised: April 1996


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