Don''t Forget State Constitutions

From How Appealing:

"Atheists' new plan of attack against Pledge of Allegiance: state courts; An atheist New Jersey family is saying the phrase 'under God' in the Pledge of Allegiance is a violation of their equal protection under state law; Previously, such lawsuits were filed in federal court." The Christian Science Monitor has this report.

Spring 2015 Syllabus for Con Law II: Religion and the Constitution

Richard F. Duncan: Room 220 Law, email:richardfduncan@gmail.com, phone:472-6044

Office Hours: I don't maintain specific office hours; I have an open door policy and I will be in the office regularly and welcome your visits or appointments.

Class: This class meets from 3:15 until 4:45  on Thursdays and Fridays. Since the class meets for 90 minutes instead of 75 minutes, will meet 24 times rather than 28 times. Thus, we are required to cancel 4 classes during the semester.

Attendance Policy: Attendance is required.

Grading & Exam: Seventy-five percent (300 points) of your grade for this course will be based upon the final exam. Twenty-five percent (100 points) of your grade for the course will be based upon short reaction papers that you will write in response to Supreme Court oral arguments we listen to in class.

Casebook:  Varat, Amar & Cohen, Constitutional Law (14th Ed. Foundation Press 2013)

Online Materials: Professor William Linder's Exploring Constitutional Law (Link)

For Spring 2015, students should be prepared for 1 full assignment for each class. In other words, you should be prepared to discuss one complete assignments at all times. I may make a few minor adjustments to these assignments as the course progresses to include some links to recent First Amendment cases or issues.

Be sure to check this blog every day for announcements, additional required and optional reading, and discussion of cases and issues raised in the reading. 

LIST OF ASSIGNMENTS

I. Establishment Clause

1. Duncan article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available (free download) at SSRN;  Dreisbach article; Handout No. 1 (available in Handout racks by Jan. 12); Casebook p. 1615-1620

2. casebook p. 1621-1630;  Linder Introduction (Link); Engel v. Vitale (Link); Wallace v. Jaffree (Link); Lee v. Weisman (Link).

3. Casebook p. 1630-1634; Handout 2; Lynch v. Donnelly (Link); Allegheny County case (link); Casebook p.1634-1651; Summun case (link)

4. Legislative Prayers: Marsh v. Chambers (link); Town of Greece (link); Town of Greece oral argument (listen in class)

5. Handouts 3 and 4; Widmar v. Vincent (Link);Casebook p. 1651-1665

6. Casebook p. 1665-1688; Arizona tax credit case (Link)

7. Casebook p. 1689-1701; Rosenberger Oral Argument (listen in class)

8. Newdow case (Link) ; Casebook p. 1447-1448; my "clearest command" article (Link)

II. Free Exercise Clause

1. Linder Introduction (Link); Reynolds case (Link)


2. Casebook p. 1702-1708; Goldman case (Link)

3. Casebook p. 1709-1719; Handout 5; Handout 6 (Lukumi and Axson-Flynn)

4. Hosanna-Tabor decision (link); Locke v. Davey (Handout 7); Casebook p. 1722-1724; Cutter v. Wilkinson (link);

5. RFRA & Hobby Lobby: RFRA text (link); Hobby Lobby (Link)

6. RLUIPA:  Cutter v. Wilkinson (link); Holt v. Hobbs (link) (Sup Ct opinion)

7. Capstone problem (Free Exercise and Establishment Clauses): Colorado Christian University v. Weaver (link); my "clearest command" article (Link)

III. Religion and Freedom of Expression: Public Forum Analysis, Public Schools, Subsidized Speech, Expressive Association, and Election Campaign Speech

[ Reed v. Town of Gilbert oral argument]

1. Casebook p.1329-1348; McCullen v. Coakley (Link); Scotus blog preview (link).

2.  Snyder v. Phelps (link); Casebook p. 1348-1364

3. Casebook p. 1379-1400; Dariano (flag tee shirt case)(link)

4. Casebook p. 1401-1417; (Re-read Locke v. Davey Handout 7)

5. Casebook p.1435-1442

6. Casebook p.1447-1463; Christian Legal Society v. Martinez (link)

7. Citizens United (link)

Free Speech as Protecting Freedom of Thought and Conscience

Laurence Tribe, 57 U. Chi. at 1069:

Suppose that the government conspired with the TV networks to include subliminal messages urging viewers to “return the Administration to office” in key broadcasts shortly before a national election. Would this action violate any of your rights? The literal terms of the First Amendment do not prohibit such messages, but Justice Harlan's point was that the freedom of speech, the freedom of religion, and so forth make sense only if connected by a broader and underlying principle of freedom of thought and conscience.

See also Griswold opinion explaining the right of parents to educate their children in non-public schools as advancing the idea that:

the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only to utter or print, but the right to distribute, the right to receive, the right to read, and freedom of inquiry, freedom of thought, and freedom to teach, indeed the freedom of the entire university community.

See also Wooley v. Maynard: "We begin with the proposition that the right of freedom of thought protected by the First Amendment...includes both the right to speak freely and the right to refrain from speaking at all." 430 U.S. at 714.

Can government use its control over K-12 education funding to teach a captive audience of impressionable children the "truth" about human origins, sexual morality, marriage, family and many other values-laden concepts? Is this consistent with freedom of thought and belief-formation?

Let's Get Through These 3 Assignments This Week

3. Casebook p. 1379-1400; Dariano (flag tee shirt case)(link)

4. Casebook p. 1401-1417; (Quickly Re-read Locke v. Davey Handout 7)

5. Casebook p.1435-1442

Last Oral Argument: WALKER III v. TEXAS DIVISION, SONS OF CONFEDERATE VETERANS, INC.

Here is a link.

Listen at home and write a short reaction paper.

Readings for Thursday April 2

For Thursday April 2, please read the first two assignments in the Free Speech materials:

1. Casebook p.1329-1348; McCullen v. Coakley (Link); Scotus blog preview (link).

2.  Snyder v. Phelps (link); Casebook p. 1348-1364


Also: I am still waiting on your reaction papers top the Hobby Lobby oral argument.