Law and Religion

The Supreme Court's jurisprudence on religion has undergone a dramatic transformation in recent decades, rapidly accelerating over the past dozen years. This transformation affects both the Constitutional strictures of the First Amendment and a variety of statutory provisions, particularly the Religious Freedom Restoration Acts. The Court has expanded a particular view of the "free exercise" of religion, while limiting the prohibition on the "establishment of religion." We will study this transformation by situating it in relation to the very different landmark decisions of the mid-20th century. In so doing, we will explore the ways that judicial decisions construct the very category of "religion" in setting the boundaries between secular law and religious life. Is "religion," as a separate sphere of society, a cultural and historically specific construct? Are there universally recognized criteria for "religion," such as an organized community or a belief in God? Should religious communities be exempt from some secular legal regimes, such as anti-discrimination law -- even while benefiting from a variety of government subsidies? What influence should religious parents be able to exert over the content of education in public schools? We will draw on perspectives from political theory and theology to enrich our understanding of the legal materials.