Freedom of Religion in the US Supreme Court Jurisprudence

optional courses

The course is designed as an introduction to common law. The very first freedom of the First Amendment to the US Constitutions, i.e. freedom to exercise religion and no-establishment clause, gives an occasion to discuss jurisprudence and methods of the United States Supreme Court and its justices.

1. The Ten Commandments on state grounds permissible (Van Orden v. Perry, 2005) or not (McCrearyCounty v. ACLU, 2005)?

2. The first questions on the meaning of the First Amendment freedom to believe and to act (Cantwell v. Connecticut, 1940, and Murdock v. Pennsylvania, 1943).

3. Worship of a graven image - to overturn a precedence (Minersville School District v. Gobitis, 1940, and West Virginia State Board of Education v. Barnette, 1943).

4. Parochial scho1. Introduction 1: The Ten Commandments on public property. Cases: Van Orden v. Perry (2005) and McCrearyCounty v. ACLU (2005). Follow-up: American Legion v. American Humanist Association (2019).

2. Introduction 2: ‘Ministerial exception’. Cases: Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) and Our Lady of Guadalupe v. Morrissey-Berru (2020).

3. The Incorporation doctrine and the religion clauses 1: First questions on the meaning of the First Amendment freedom to believe and to act: 1789–1868–1940. Cases: Cantwell v. Connecticut (1940) and Murdock v. Pennsylvania (1943).

4. The Incorporation doctrine and the religion clauses 2: Worship of a graven image—to overturn a precedence. Cases: Minersville School District v. Gobitis (1940) and West Virginia State Board of Education v. Barnette (1943).

5. Permissible accommodation and impermissible establishment 1: Theories of the Establishment Clause: The wall of separation—the Earl Warren’s Court—saga on parochial schools begins in 1947. Cases: Everson v. Board of Education of the Township of Ewing (1947) and Board of Education v. Allen (1968).

6. Permissible accommodation and impermissible establishment 2: To avoid political division along religious lines—the 1973 Lemon test. Case: Lemon v. Kurtzman (1971). The line of precedence or the bunch of contradictory decisions? Cases: Committee For Public Education and Religious Liberty v. Nyquist (1973), Meek v. Pittenger (1975), Mueller v. Allen (1983), School District of City of Grand Rapids v. Ball (1985), Aguilar v. Felton (1985).

7. Permissible accommodation and impermissible establishment 3: Problem not only of expenses on “separation”—“Aguilar is no longer good law” and remarks on the doctrine of stare decisis. Cases: Board of Education of Kiryas Joel Village School District v. Grumet (1994) and Agostini v. Felton (1997), and Espinoza v. Montana Department of Revenue (2020).

8. Theories of the Establishment Clause 1: The crèche and the endorsement test of Justice O’Connor. Case: Lynch v. Donnelly (1984).

9. Theories of the Establishment Clause 2: Christmas tree and menorah—the coercion test of Justice Kennedy. Case: County of Allegheny v. ACLU (1989) and Mitchell v. Helms (2000).

10. Theories of the Establishment Clause 3: Any modification of the Lemon test? Cases: Lamb’s Chapel v. Center Moriches Union Free School District (1993) and American Legion v. American Humanist Association (2019).

11. Government and Religion 1: School prayer and legislative prayer policy. Cases: Lee v. Weisman (1992) and and Town of Greece v. Galloway (2014).

12. Government and Religion 2: Obamacare and freedom of conscience—individuals and business companies. Cases: Burwell v. Hobby Lobby Stores, Inc. in (2014), Zubik v. Burwell (2016) and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020)

13. Free Exercise Clause: Sunday closing laws and ritual killing. Cases: Sherbert v. Verner (1963), Wisconsin v. Yoder (1972), Goldman v. Weinberger (1986) and Church of the Lukumi Babalu Aye v. City of Hialeah (1993).

14. Hostility towards religion?

15. Perspectives of the new Roberts’ Court.

ols saga begins (Everson v. Board of Education of the Township of Ewing, 1947).

5. To avoid political division along religious lines - the Lemon test (1973).

6. The wall of separation? - the Earl Warren's Court.

7. The line of precedence or the bunch of contradictory decisions? (Aguilar v. Felton, 1985).

8. From permissible accommodation to impermissible establishment (Board of Education of Kiryas Joel School District v. Grumet, 1994).

9. "Aguilar is no longer good law." Remarks on the doctrine of stare decisis (Agostini v. Felton, 1997).

10. The cr?che and the endorsement test of Justice O'Connor (Lynch v. Donnelly, 1984).

11. Christmas tree and menorah. The coercion test of Justice Kennedy (County of Allegheny v. ACLU, 1989).

12. School prayer policy (Lee v. Weisman, 1992).

13. Keeping holy the Sabbath - Sunday closing laws (Sherbert v. Verner, 1963).

14. Freedom to exercise: consuming peyote (People v. Woody, 1964)

15. New perspectives of the Roberts' Court

Cases of the US Supreme Court (excerpted in F. Longchamps de Bérier, Textbook on the First Amendment: Freedom of Speech and Freedom of Religion, Kraków 2013 and/or sent by the teacher) and articles related to them (e.g. H.L.A. Hart, American Jurisprudence through English Eyes: The Nightmare and the Noble Dream, in: H.L.A. Hart, Essays in Jurisprudence and Philosophy, Oxford 1983, pp. 123–144; F. Longchamps de Bérier, Church-State Relations: Separation without the Wall, “Studia Iuridica” 1995, No. 30, pp. 61–92 and F. Longchamps de Bérier, Law and Collective Identity: Religious Freedom in the Public Sphere, “Krakowskie Studia z Historii Państwa i Prawa” 2017, No 1, pp. 169–180).

Additional literature: Freedom of Religion. A Comparative Law Perspective, ed. G. Blicharz, Warszawa 2019.

Skills in analyzing court cases.

Classes held once a week for 90 minutes are skills oriented. Therefore presence (three absences allowed only) and active participation in class discussion are essential to complete the course successfully, although a written exam, i.e. a short essay, will be necessary to get a final grade.