Harvard University Gov.

90jm Comparative Constitutionalism: Religion and State
Instructor: Dr. Ofrit Liviatan Office: 1737 Cambridge Street, Room N408 Tel: 617-496-0881 E-mail: oliviatan@wcfia.harvard.edu

Fall, 2007 Meetings: Wednesdays, 2-4pm CGIS N050 Office Hours: Mondays, 2-4pm or by appointment

Seminar Description:
Comparative constitutional analysis advanced rapidly in recent decades. The transition towards constitutional democratization in various parts of the world, the growing availability of constitutional resources and the global search for a catalog of rights to address persistent social and cultural conflicts are some of the explanations to the rising interest in this field. A similar proliferation characterizes the study of religion, a phenomenon that remains enigmatic despite centuries of research: Psychologists of religion continue to debate the nature of the religious experience and its prominence in the individual’s life; the sociological prediction about the demise of religion in the modern world does not seem to materialize; the achievement of multicultural coexistence faces major challenges from the absolutism of religious worldviews and their potentially discriminating nature; and the right to freedom of religion persistently remains among the most violated worldwide despite its vast recognition as a fundamental human right. This seminar interconnects these two subject matters by introducing major themes of constitutional thinking through an in-depth cross-national study of religion-related issues. We will explore processes of constitution-making, implementation and enforcement of constitutions, the scope of protection afforded to fundamental rights, constitutional accommodation of diversity, the relationship between societies and their constitutions and more, using legal cases from the USA, Turkey, India, Israel, Spain Canada and England. Through these cases we will engage in a methodical study of the doctrine advocating separation between religion and state, and explore contemporary debates about same-sex marriage, the wearing of Islamic headscarf, blasphemy and more.


Requirements and Evaluation:
The final grade for the seminar will be calculated as follows: (1) Class participation, namely: attendance to all class meetings, proficiency in the assigned readings prior to each meeting and active participation in the discussion, will amount to 20% of the final grade. (2) Final Paper, 20-25 pages in length, on a topic of your choosing closely related to the themes of the course, will amount to 50% of the final grade. The paper is due on January 4, 2008 by 5pm and must be sent electronically to my e-mail address listed above. Late submission will result in grade deduction. You must receive my approval for the topic of your paper no later than October 17. I strongly recommend that you meet with me prior to that date to discuss and define your ideas. (3) Two short assignments on the class material, 3-4 pages each, due on October 3 and November 14, will amount to 15% of the grade in total. (4) Paper Outline, 2-3 pages in length, due on October 31, will count for 5% of the final grade. The outline should clearly articulate your thesis/research question, its research design, and a preliminary bibliography. (5) A 10 minutes presentation of your final paper either on December 5 or 12, will amount to 10% of the final grade.

The following books have been ordered for purchase at the Harvard COOP: Robert Audi and Nicholas Wolterstorff, Religion in the Public Square (Lanham: Rowman & Littlefield, 1997). Stuart Hampshire, Justice is Conflict (Princeton: Princeton University Press, 2000). John Gray, Two Faces of Liberalism (Cambridge: Polity Press, 2000) Philip Hamburger, Separation of Church and State (Cambridge, Mass: Harvard University Press, 2002) Bhiku Parekh, Rethinking Multiculturalism, 2nd Ed. (Houndmills: Palgrave, 2006). The rest of the material listed in the syllabus is available through the Seminar’s website and in a course packet that should be purchased at Gnomon Copy.


Schedule of Meetings:
September 17 – Introductory Session: Why is the Interaction of Law and Religion Interesting?

September 26 - Multicultural Challenges in Pluralist Democracies. Rodney Stark, “Secularization R.I.P,” Sociology of Religion 60, no. 3 (1999): 249-273. Joseph Carens, Culture, Citizenship, and Community (Oxford: Oxford University Press, 2000), 140-160. Bhiku Parekh, Rethinking Multiculturalism, 2nd Ed. (Houndmills: Palgrave, 2006), 1-15, 114-178, 196-294, 321-335. Susan Moller Okin, Is Multiculturalism Bad for Women? (Princeton: Princeton University Press, 1999), 9-24. Doriane Lambelet Coleman, “The Seattle Compromise: Multicultural Sensitivity and Americanization.” Duke Law Journal 47 (1998): 717-783.

October 3 –

Liberal Treatment of Religion: Neutrality and Separation. John Locke, A Letter Concerning Toleration (1689) Michael Walzer, “Drawing the Line: Religion and Politics,” Utah Law Review 1999, no. 3 (1999): 613-638. Robert Audi and Nicholas Wolterstorff, Religion in the Public Sphere (Lanham: Rowman & Littlefield Publishers, Inc., 1997), 1-120. Michael W. McConnell, “Believers as Equal Citizens” in Obligation of Citizenship and Demands of Faith, ed. Nancy L. Rosenblum (Princeton: Princeton University Press, 2000), 90-110. Stephen L. Carter, The Culture of Disbelief (New York: Doubleday, 1993), 23-43, 213-232.

Assignment I due at the Beginning of Class.


October 10 – Constructing Separation: Metaphor vs. Reality The Constitution of the United States. Amendment I. Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State (New York: New York University Press, 2002), 25-34, 47-54. Philip Hamburger, Separation of Church and State (Cambridge, Mass: Harvard University Press, 2002), 20-32, 65-78, 89-95, 101-189, 479-492. Skim the rest. Everson v. Board of Education of the Township of Ewing et al 330 U.S. 1.

October 17 – 1. The Implementation of the American Religious Freedom Regime Sherbert v. Verner 374 U.S. 398 (1963). Wisconsin v. Yoder 406 U.S. 205 (1972). Employment Division v. Smith 494 U.S. 872 (1990). Lemon v. Kurtzman 403 U.S. 602 (1971). County of Allegheny v. American Civil Liberties 492 U.S. 573 (1989). Santa Fe Independent School District v. Doe 530 U.S. 290 (2000). The Religious Freedom Restoration Act (RFRA), 1993. 2. Same-Sex marriage in the USA Goodridge v. Department of Public Health 440 Mass. 309 (2003). Standhardt v. Superior Court of the State of Arizona 206 Ariz. 276 (2004).

Deadline for receiving my approval for the topic of your final paper


October 24 – Can Separation be Revised? Noah Feldman, Divided by God: America's Church-State Problem--and What we Should Do about It (New York: Farrar, Strauss and Giroux, 2005), 235-251. Lucas Swaine, The Liberal Conscience (New York: Columbia University Press, 2006), 71-120. Stanley Fish, “Mission Impossible: Settling the Just Bounds Between Church and State,” Columbia Law Review 97 (1997): 2255-2333.

October 31 – The Cost of Imposed Secularization: Turkey. Niyazi Berkes, The Development of Secularism in Turkey (New York: Routledge, 1998), 479-503; 507-510. Bernard Lewis, The Emergence of Modern Turkey (Oxford: Oxford University Press, 2002), 1-17, 239-319, 401-442. The Turkish Constitution, Preamble and Articles 2, 4, 13, 14, 15, 24, 68, 136, 174. The Case of Refah Partisi (The Welfare Party) and Others v. Turkey. (Applications nos. 41340/98, 41342-4/98) The European Court of Human Rights. The Case of Şahin v. Turkey. (Application no. 44774/98). The European Court of Human Rights. Final Paper’s Outline is due at the Beginning of Class.

November 7 – Constitutional Accommodation of Religion: The Spanish Model. Alberto de la Hera, and Rosa María Martínez de Codes, eds., Spanish Legislation on Religious Affairs (Madrid: Ministerio de Justicia, 1998), 25-34; 41-45; 47-49; 51-55; 57-67; 69-85. Richard Gunther and Roger A. Blough, “Religious Conflict and Consensus in Spain: A Tale of Two Constitutions,” World Affairs 143 (1981): 366-412.


Javier Martinez-Torrón, “School and Religion in Spain.” Journal of Church and State 47, no. 1 (2005): 133-150. Gloria Moran, “The Spanish System of Church and State.” Brigham Young University Law Review 1995, no. 2 (1995): 535-553. The Case of the Unification Church. STC 46/2001 of Feb 15, 2001.

November 14 – Constructing Constitutionalism in a religiously polarized Reality – India and Israel India: The Constitution of India, Preamble, Articles 13- 17, 19. 23 ,25-30, 44, 48, 51. Tahir Mahmood, “Religion, Law and Judiciary in Modern India,” Brigham Young University Law Review 2006 no. 3 (2006): 755-775. Rajeev Bhargava, “What is Indian Secularism and what is it for?” India Review 1 no. 1 (2002), 1-32. Sri Venkataramana Devaru v. State of Mysore AIR 1958 SC 853. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945. The Muslim Women (Protection of Rights on Divorce) Act, 1986. Bal Patil v. Union of India (2005) 6 S.C.C. 690. Israel: Sammy Smooha, “Ethnic Democracy: Israel as an Archetype,” Israel Studies 2 no. 2 (1997): 198-241. Asher Cohen and Jonathan Rynhold, “Social Covenants: The Solution to the Crisis of Religion and State in Israel?” Journal of Church and State 47 no. 4 (2005): 725-745. Ruth Lapidoth, “Freedom of Religion and of Conscience in Israel,” Catholic University Law Review 47 no. 2 (1998): 441-465. Pnina Lahav, “Up Against the Wall: Women's Legal Struggle to Pray at the Western Wall,” Israel Studies Bulletin 16 no. 1 (2003): 19-22.


Assignment II is Due at the Beginning of Class. November 21 – Written vs. Unwritten Constitutions: Canada and England. Canada: The Canadian Charter of Rights and Freedoms, s. 1, 2, 15, 27, 29. The Divorce Act, 1985, s. 21.1. Robertson and Rosetanni v. The Queen (1963) 41 D.L.R. (2d) 485, (1964) 1 C.C.C. 1, (1963) S.C.R. 651, 41 C.R. 392. R. v. Big M Drug Mart Ltd. [1985] 1 S.C.R. 295. England: The Human Rights Act, 1998, sections 1-13. Wilkinson v. Her Majesty’s Attorney General [2006] R (Begum) v. Headteacher and Governors of Denbigh High School [2006] UKHL 15 R v. Chief Metropolitan Stipendiary Magistrate: Ex parte Choudhury [1990] 3 WLR 986. Parekh, Rethinking Multiculturalism, 295-304. Ofrit Liviatan, “Religious Freedom in England and Canada: The Impact of Alternative Constitutional Regimes,” APSA 2007.

November 28 – Conclusion: Defusing Religion-Based Tensions through the Legal Process John Gray, Two Faces of Liberalism (Cambridge: Polity Press, 2000). Stuart Hampshire, Justice is Conflict (Princeton: Princeton University Press, 2000).

December 5 – Individual Presentations of Research Projects December 12 – Individual Presentations of Research Projects


Final Paper is due on January 4, 2008, by 5pm. Late submission will result in grade deduction.

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