Law, Religion, and Social Change


HDS 2824

Professor M. Christian Green

Harvard Divinity School

Fall 2005

Mondays and Wednesdays, 10:00-11:30 (plus hour to be arranged)

Andover Hall, Room 102


Law and religion are disciplines that play crucial roles in constructing social and political norms and in adjudicating tradition and social change. Sometimes, law has acted out in front of prevailing sociocultural norms, as in the struggles for civil rights and the end of racial segregation and, more recently, on the issue of gay marriage. At other times, the law has been reactive and a follower of social change, as in the areas of reproductive rights and patients’ rights and the issues of abortion and euthanasia. In this course, we will read key legal decisions on the issues of racial segregation, abortion, euthanasia, gay marriage, and the death penalty, as well as writings on these issues from religious traditions, religious movements, and religious ethics. The key task of the course will be to come to an understanding of how law and religion act to resist or promote social change on these and other controversial moral issues. Making things even more exciting, the course will be taking place after or during the Senate confirmation hearings assessing the fitness of Judge John G. Roberts to take the place recently vacated by Justice Sandra Day O’Connor on the Supreme Court for the United States.  Since Justice O’Connor was a swing vote on the court on virtually all of the issues we will be considering, this means that our course will be taking place when considerable social change may be under way.



September 19   Introduction

September 21  Sources for Understanding Law, Religion, and Social Change

  • Burnham v. Superior Court of California, 495 U.S. 604 (1990) (a Justice Scalia decision)
  • Aristotle, Nichomachean Ethics, Bk. V, Chs. 1, 3, 5, 6-7, 10.
  • Augustine, Confessions, Bks. XI-XII.
  • Hans-Georg Gadamer, Truth and Method, Pt. II.
  • Martin Luther King, Jr. “Letter from a Birmingham Jail”
  • Catharine MacKinnon, “Toward a New Theory of Equality,” in Women’s Lives, Men’s Laws.
  • Catharine MacKinnon, “Not By Law Alone” and “Not a Moral Issue” in Feminism Unmodified.
  • Martha Fineman, “Recasting the Social Contract” and “The Tenable State,” Chs. 8 and 10 in The Autonomy Myth.

NOTE:  The readings cited here are completely optional and mostly to give you a sense of the sources that I will be citing in what will still be very much an introductory lecture.  They will be on reserve, should you wish to consult them after the lecture.  I would recommend that you read nothing for this class—though if you have read any of these texts before, it couldn’t hurt to review your notes.


September 26   From Plessy to Brown:  Precedent Overturned Plessy v. Ferguson, 163 U.S. 537 (1896)

  • Brown v. Board of Education, 347 U.S. 483 (1954)

September 28   The Brown Controversy:  50 Years

  • Balkin, What Brown v. Board of Education Should Have Said, esp. Pt. 1, Chs. 1-3 and Ely, MacKinnon, McConnell, Sunstein, and Bell opinions


October 3         From Segregation to Affirmative Action:  The State of the Debate Today

  • Grutter v. Bollinger, 539 U.S. 306 (2003)

October 5         Religion and Faith as Tools of Civil Rights

  • Marsh, The Beloved Community, esp. Introduction, Chs. 1, 4, and 8
  • Smith and Zepp, Search for the Beloved Community, Chs. 3 and 6.



October 12       The Right to Privacy, Roe v. Wade, and the Tenuous Fragility of Reproductive Freedom

  • Griswold v. Connecticut, 381 U.S. 479 (1965)
  • Roe v. Wade, 410 U.S. 113 (1973)
  • Planned Parenthood v. Casey, 505 U.S. 853 (1992)


October 17       Reconsidering Roe

  • Balkin et. al, What Roe v. Wade Should Have Said, esp. Pt. I and the West, Sunstein, Amar, Rosen, Collett, and Paulsen opinions

October 19       Religiosociopolitics of Roe

  • Baird & Rosenbaum, The Ethics of Abortion, esp. Pt. III-IV
  • Ginsburg, Contested Lives, esp. Chs. 5-10.
  • Luker, Abortion and the Politics of Motherhood, esp. Chs. 7-9.


October 24       The Future of Roe

  • Stenberg v. Carhart, 530 U.S. 914 (2004)
  • Planned Parenthood of Northern New England v. Heed, 390 F.3d 53 (2004)

(US Supreme Court certiorari granted as Ayotte v. Planned Parenthood, 2005)

October 26       Prefiguring Terri Schiavo

  • Matter of Quinlan, 70 N.J. 10 (1976)
  • Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990)


October 31       Euthanasia:  The State of the Debate

  • Moreno, Arguing Euthanasia, esp. Pts. I, II, and V.

November 2     Euthanasia:  The Current Dilemma

  • Schindler v. Schiavo, 2D00-1269 (07/01), 2D01-3626 (10/01), 2D02-5394 (06/03), 2D05-968 (03/05)
  • Oregon v. Ashcroft, 368 F.3d 1118 (2004)

(US Supreme Court certiorari granted as Gonzales v. Oregon, 2005)


November 7     Law and Religion Interlude Pt. 1

  • In-class presesentations by students.

November 9                           Culture of Life, Culture of Death:  Religiosociocultural Underpinnings of the Terri Schiavo Debate

  • Colby, The Long Goodbye  (selected portions TBA)
  • Webb, The Good Death  (selected portions TBA)


November 14   Cruel and Unusual: Social and Legal Evolution on the Death Penalty

  • Stanford v. Kentucky, 492 U.S. 361 (1989)
  • Atkins v. Virginia, 536 U.S. 304 (2002)
  • Roper v. Simmons, 125 S. Ct. 1183 (2005)

November 16   Capital Punishment:  The Secular Debate

  • Religion and the Death Penalty, Pt. III



November 23  Capital Punishment:  The Religious Debate

  • Religion and the Death Penalty, Pts. I and II


November 28   Capital Punishment:  The Religious Debate

  • Religion and the Death Penalty, Pts. I and II

November 30  From Bowers to Romer:  Shifting Precedents on Gay Marriage

  • Bowers v. Hardwick, 478 U.S. 186 (1986)
  • Romer v. Evans, 517 U.S. 620 (1996)


December 5  Same-Sex Marriage: The State of the Debate

  • Baird and Rosenbaum, Same-Sex Marriage, esp. Pts. II and III.

December 7   Student presentations on final paper projects.


December 12     The Present and Future of Same-Sex Marriage 

  • Goodridge v. Department of Public Health, 440 Mass. 309 (2003)
  • Lawrence v. Texas, 000 U.S. 02-102, 41 S.W. 3d 349 (2003)
  • Forum for Academic and Institutional Rights v. Rumsfeld, 390 F.3d 219 (2004)

December 14  A Theocultural Perspective on Gay Marriage

  • Jordan, Blessing Same-Sex Unions (selections TBA)


December 19   Toward a Theory of Law, Religion, and Social Change


Books Available at the Bookstore for Purchase (“REQUIRED”)

Jack Balkin, ed.  What Brown v. Board of Education Should Have Said:  The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision  (New York University Press, 2001).

Jack Balkin, ed.  What Roe v. Wade Should Have Said:  The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision (New York University Press, 2005).

Robert M. Baird and Stuart E. Rosenbaum, eds. The Ethics of Abortion:  Pro-Life v. Pro-Choice, 3rd ed. (Prometheus Books, 2001).

 Jonathan Moreno.  Arguing Euthanasia:  The Controversy Over Mercy Killing, Assisted Suicide, and the Right to Die (Touchstone, 1995).

Erik C. Owens, John D. Carlson, and Eric P. Elshtain, eds. Religion and the Death Penalty: A Call for Reckoning (Eerdmans, 2004).

Robert M. Baird and Stuart Rosenbaum, eds. Same-Sex Marriage: The Moral and Legal Debate 2nd ed (Prometheus Books, 2004).

 Mark D. Jordan, Blessing Same-Sex Unions (University of Chicago Press, 2005).

 Books Available for Purchase (“RECOMMENDED”)

Charles Marsh.  The Beloved Community: How Faith Shapes Social Justice: From the Civil Rights Movement to Today (Basic Books, 2005).

Faye D. Ginsburg, Contested Lives:  The Abortion Debate in an American Community (University of California Press, 1998).

Kristin Luker, Abortion and the Politics of Motherhood (University of California Press, reprint ed., 1985)

William H. Colby.  Long Goodbye:  The Deaths of Nancy Cruzan  (Hay House, 2002).

Marilyn Webb.  The Good Death:  The New American Search to Reshape the End of Life (Bantam, 1999).

Cases Online

There are at least four different websites by which to access the cases that will form the core readings of the course.  Since most of these websites require permission for republication and in light of the increasingly tendency to simply view them online, I leave it to you as to whether to read them online or print them out to form your own casebook.  I have created a separate list of links to the cases for each of these websites.  The links should in most cases take you directly to the case

Reserve Readings

From time to time, I will place copies of books and articles not available online on reserve at the Andover-Harvard Library under my name.  These will generally be extraneous and highly optional readings that I mention in class and want to make available after class for those who may wish to consult them.