Comparative Freedom of Religion

Course Description: 

The first part of the course will be taught by Professor Durham, and will introduce students to the international norms that provide for the protection of freedom of religion or belief. The course will analyze the key relevant norms in the UN system, under the European Convention, within the OSCE, and within other regional human rights systems. Particular attention will be paid to relevant decisions of the UN Human Rights Committee and the European Court of Human Rights. Issues addressed include the right to engage in religious persuasion and limits on proselytism, the right to registration of religious organizations, religious autonomy rights, and obligations of states to protect citizens from religious persecution.

The second part of the course will focus on comparative constitutional law perspectives on freedom of religion and church-state relationships, and will be held by Professor Scharffs. The course will include illustrative cases and materials from approximately fifteen countries and regions, as well as some international human rights materials.

The class will discuss the range of possible church-state structures including the theocratic state, established religions, religious status systems, endorsed religions, preferred sets of religions, cooperation, accommodation, separation, laïcité, secular control regimes, and abolitionist regimes. Then study a comparative framework for conceptualizing church-state relationships will be studies, followed by a discussion on an innovative schematic for conceptualizing the relationship between the degree of religious freedom in a society and the degree of identification between religion and the state. Special attention will also be given to the tensions that arise between religious freedom and other important rights and values, including discrimination against racial minorities, women, indigenous peoples, sexual l minorities, and the rights of children. The course will also discuss various approaches to the financial relationships between churches and the state, including direct financial aid to churches, indirect aid, and aid to religiously affiliated social service organizations. As conclusion of the course there will be a discussion of different views about the place of religion in public life, including the appropriate roles and limitations of religion in politics, religious elements in governmental activities, religious influence on law and public policy, and religious symbols on public property.


Learning Outcomes: 

Students successfully completing the course will have developed the following:

  • Ability to understand the basic international human rights approach to law and religion issues, with special emphasis on the European Court of Human Rights and United Nations institutions.
  • Ability to understand the range of constitutional law approaches to law and religion issues, and the implications, advantages and disadvantages of various systems.
  • Ability to understand the  formative tensions in the history of religious freedom, including the pattern of groups moving from persecuted to persecutor, the English experience with the emergence of toleration, the emergence of religious liberty rights, and controversies over proselytism.
  • Ability to understand theoretical and religious perspectives on freedom of religion, including different approaches to defining religion, general justifications for freedom of religion and belief, religious arguments for and against freedom, tolerance, and mutual respect, and the value of multiple justifications.
  • Ability to understand the basic framework of international human rights approaches to freedom of religion and belief, including the evolution of international protection of freedom of religion or belief, freedom of religion and the Universal Declaration of Human Rights, the International Covenants, with a focus on the International Covenant of Civil and Political Rights and the Optional Protocol, The role of U.N. monitoring institutions in protecting religious freedom, and a regional human rights regimes, and the approaches to implementing international norms in national legal systems.
  • Ability to understand comparative constitutional perspectives on religion-state relationships, including the range of possible religion-state structures, and the likely institutional implications of these types of relationships, including positive identification regimes,  non-identification regimes, focusing on the tensions between accommodation and separation, and the hazards of excessive positive or negative identification regimes.
  • Ability to understand various approaches to the issue of setting appropriate limitations on religious actions and manifestations, including the history of the development, partial demise, and partial rehabilitation of the compelling state interest in U.S. freedom of religion jurisprudence, as well as European and other international approaches to the problems of limitations.
  • Ability to understand many of the special issues that arise with respect to freedom of belief and expression, including the mechanisms for protecting the core domain of conscience, religious speech, including religious persuasion and efforts to limit such speech, and conflicts that arise between freedom of speech and freedom of religion, including religiously motivated speech that offends others, and speech that offends religious sensitivities.
  • Ability to understand the range of conflicts and tensions that can arise between religious freedom and other rights, including non-discrimination norms against racial minorities, and those protecting women, children, and sexual minorities.
  • Ability to understand the issues that arise with respect to financial relationships between religion and the state, including a variety of approaches including direct state aid to churches, indirect state aid to churches, and aid to religiously-affiliated social service organizations.
  • An ability to understand the special sensitivities that arise in the context of religion and education, including state aid to religious schools, and religion in public schools.
  • Ability to understand the range of views that exist about the appropriate role of religion in public life, including the ideas of public reason and ecumenical dialogue, the influence of religion in politics, the use of religion by politics, and issues involving religious symbols on public property

The final grade is based on class-participation [10%] and a written final exam [90%]. The final examination will be a two-hour, open-book, in-class exam, comprised of essay questions. The first half of the exam will focus on material in the first credit (14 class sessions), and the second half of the exam will focus on material in the second credit (14 class sessions).