Harvard University

Gov. 90jm

Comparative Constitutionalism: Religion and State

Instructor: Dr. Ofrit Liviatan

Office: 1737 Cambridge Street, Room N408 Fall, 2007
Tel: 617-496-0881 Meetings: Wednesdays, 2-4pm
E-mail: oliviatan@wcfia.harvard.edu 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.
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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.

Readings:
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.
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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.

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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
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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.
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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.
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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

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