John Lewis's civil rights activism in the 1960s often obscures the fact that he won elective office as a racially moderate politician. Scholars have long noted the efficacy of using deracialized, or racially transcendent, campaign strategies to get elected, despite normative concerns. These strategies were critical to electing Black governors, senators, and even President Obama. However, in the age of Black Lives Matter, some have questioned the continued usefulness of the strategy. Using Rep. Lewis's life as a guide, I examine the ways that some Black politicians continue to use deracialization, even in this racially charged social and political moment, and I explain how younger cohorts of Black politicians challenge this approach. Ultimately, I argue that while deracialization is a contested strategy, its efficacy has not diminished. Rather, Black politicians have expanded the boundaries of what constitutes racially transcendent politics to include consensus issues like voting rights, which while highly racialized, are not likely to induce an erosion of support among non-Black Democratic voters.

The first thing I thought when I finished reading Stephen Carter's recent book, The Culture of Disbelief, was: This guy needs to get out of New Haven more often. Anybody who believes that America does not take religion seriously cannot possibly be looking at all of America.

When I look at America, I apparently see a very different culture from the one Carter identifies. The divergence in our perceptions is not merely an empirical disagreement; rather, this divergence in fact masks a basic doctrinal difference. I am suggesting, in other words, that it is because we have such different views of legal doctrine that we perceive the place of religion in our society so differently.

This is a legal essay, however. Its subject is thus primarily the doctrinal issues; these issues occupy Parts 3 through 6 below (and, to a lesser extent, Part 2). I argue that American culture is like a religion, with its own texts, its own authorities, and its own values. One of these values is that other religions must remain in their own sphere. While my focus here is legal doctrine, insofar as it is accurate to maintain that doctrinal differences in the realm of religion and the law can significantly drive divergent perceptions of religious reality, then it may be useful to underscore Carter's own view of reality as well as my rather different perception; such an underscoring is the objective of Parts 1 and 2.

The ancient Greeks never speak of themselves as “polytheistic,” of their religion as “polytheism.” Certainly, thinkers comparing various world-views must have given a place to this one early on. Sextus Empiricus, ca. A.D. 200, notes that, if one looks around, some people assume one god, hena theon, some many, pollous; such an observation could probably have been made hundreds of years before. Yet from here to the labels “polytheistic” and “polytheism” is a big step. They are met in no text B.C. It is Philo, outsider and critic, who first employs them.

The ground was prepared in that the adjective was current long before, though not descriptive of a creed. Significantly, the noun is not traceable earlier at all, nor the nominal use of the adjective, what we translate as “a polytheist.” Here is the passage with the adjective from Aeschylus. The daughters of Danaus flee from Egypt to Greece with their father in order not to be forced into marriage by their cousins. Expecting the latter to pursue them, they take refuge at the sanctuary of Argos, favoured—the father explains—by quite a few of the mightiest Olympians; and they implore the king not to let them be dragged from this “many-godded seat.” Even for Lucian, Philo's junior by over a century, the adjective has much the same meaning and, of course, there is no noun.

This article explores whether allowing such expansive arbitration is a wise idea for the United States (and other western democracies). Like all arbitration, religious arbitration starts with a contract to arbitrate, but frequently does not invoke the law of the United States as the law to be used to resolve disputes, but instead allows parties to resolve disputes according to their own religious principles, both procedurally and substantively. The article is organized into two substantive parts. One part explores the strengths and weaknesses of the seven arguments against faith-based arbitration, which are (1) one law for one people; (2) religious arbitration produces substantive injustice; (3) religious arbitration produces procedural injustice; (4) religious arbitration is often subtly coercive to its members; (5) liberal society has a difficult time policing religious arbitration; (6) enforcement of religious arbitration sometimes violates people's rights to religious freedom; and (7) allowing religious arbitration promotes isolation and non-integration of religious communities. The next part explains and criticizes the five arguments in favor of religious arbitration, which are (1) religious arbitration is a religious freedom imperative; (2) religious arbitration can resolve some commercial disputes more accurately than secular courts can; (3) religious arbitration is the only way to resolve certain religious problems; (4) secular regulation of religious arbitration helps moderate and integrate religion; and (5) religious arbitration promotes value sharing between religious and secular cultures and as such enriches public discourse. The article concludes with an endorsement of the value of religious arbitration subject to reasonable procedural and substantive limitations.

What is divinity if it can come
Only in silent shadows and in dreams?
—Wallace Stevens

The history of Church-State relations in seventeenth and eighteenth century America is the account of the process by which the arguments of those who asked for exemptions from contemporary Church-State practices became the accepted norms for society at large.

There is an essential distinction, however, between the demand for exemptions in that period and modern claims for exemptions on account of religion. In our time, religious people ask for exemptions from laws that society generally sees as inherently secular; and they generally ask for exemptions for themselves or their group, but do not specifically attack the laws and usually have little difficulty with others being bound by them. In the seventeenth and eighteenth centuries, laws such as proclamations of days of prayer and fasting, or laws for the financial support of clergy, were essentially religious in nature but were passed for the secular purpose of bolstering the moral fabric of society. Moreover, although those opposing them were often willing to settle for exemptions only for themselves, they usually attacked the legislation as bad for society, as a violation of religious liberty.

The July 14, 2006, issue of Commonweal carried an article by Michael J. Perry, entitled The Morality of Human Rights: A Problem for Nonbelievers?. In that article, as in his books The Idea of Human Rights: Four Inquiries, and Toward a Theory of Human Rights: Religion, Law, Courts, Perry argues that a plausible nonreligious foundation for the idea of human rights has yet to be articulated—that this idea, therefore, appears to be unavoidably religious. He expresses concern that “the growing marginalization of religious belief in many societies that have taken human rights seriously—in particular, in many liberal democracies… may leave those societies bereft of the intellectual resources to sustain the morality of human rights.”

Nicholas Wolterstorff shares Perry's judgment. “It is impossible to develop a secular account of human dignity adequate for grounding human rights. Or to speak more cautiously: given that, after many attempts, no one has succeeded in developing such an account, it seems unlikely that it can be done.”

Felix S. Cohen, the distinguished synthesizer of American Indian law, prophetically proclaimed more than a generation ago:

Since these words were written the practice of Indian law and of law among Indians has greatly expanded. Indian litigants have made some notable advances and suffered some setbacks. But, as the most recent revisors of the Cohen Handbook point out, “the abiding principles of Indian law have changed little” since Cohen articulated them in 1942. Included among these principles or doctrines are acknowledgement of the federal government's “trust obligation to Indians” and recognition that “Indian tribes and individuals are entitled to be free of invidious discrimination under federal and state laws.” The implications and even the truth of these principles have been extensively debated and litigated. Their relevance for the practice of Indian religions remains hazy. With the passage of the American Indian Religious Freedom Act (hereinafter AIRFA) a decade ago, there was some reason to believe that that practice might at last fall under the aegis of the trust responsibility, but the Act has been interpreted by the Courts to add nothing substantial to Indian rights and protections under the religion clauses of the First Amendment, rights and protections enjoyed by all Americans. And the Congress has done nothing since the passage of AIRFA to counter that view.

Many legal systems have foundational stories about their provenance, serving to heighten the stature and authority of the normative order. Yet, these primary myths are often complicated by secondary ones that describe later climactic moments. A prevalent plot of this latter kind involves a defiant political actor who contests the jurisdiction of the courts and relates the legal order's response to this daunting challenge. The crucible of struggle forges a formidable legal institution that can withstand assault or a weaker one that limply survives.

Such stories captivate the collective legal imagination of a paideic community, a process first analyzed by the late Robert Cover. Hence they are preserved, told, and retold. However, the morals of secondary stories are more variable. Precisely because they examine moments of disturbance and conflict their implications are frequently in dispute. Thus, the very act of narration aims to amplify core truths implicit in these tales and announce their essential lessons.

The narrative history of the epic “trial of the Judean king” among Jews in antiquity and late antiquity affords a striking instance of this phenomenon. Making a lasting impression on the Jewish legal imagination of this period, the trial's impact and perpetual legacy are nevertheless highly contested. While the enduring lesson of the trial revolves around the relationship between law and power, what that legacy is depends entirely on the way the tale of the trial is told and, perhaps more importantly, retold.

When this essay appears in print, it will be two years since the death of legal philosopher and constitutional law scholar Ronald Dworkin. One recurring reminder of the magnitude of that loss is the absence of Dworkin's regular, insightful essays for the New York Review of Books analyzing significant US Supreme Court decisions. Thus, when, last term, a closely divided (5–4) Court released its much-anticipated decision in Burwell v. Hobby Lobby, upholding a challenge by three for-profit corporations to the contraceptive coverage provisions (the so-called contraceptive mandate) of the Patient Protection and Affordable Care Act of 2010 (ACA), sadly missing in the flurry of commentary was Dworkin's assessment of the case. Readers of this journal may perhaps appreciate the allusion when I say that the decision prompted me to wonder, “What would Dworkin do?” That same question arose again when, on July 3, 2014, in Wheaton College v. Burwell, over a strong dissent by Justices Sotomayor, Ginsburg, and Kagan, the Court granted the emergency request of Wheaton College to be relieved from complying with the ACA's accommodation procedure for religious nonprofit organizations that object to contraceptive coverage on religious grounds, even before the lower courts had ruled on the merits of the college's claim.

Scientists are sometimes tempted to use data collected by Nazi researchers in the infamous death camps. Recently, scientists interested in hypothermia have attempted to use data from extensive studies on the effects of cold that took place in 1942 at the Dachau concentration camp. About 300 persons, mostly Jews, were placed in near-freezing water for varied periods of time, and then warmed by different techniques. About one third of the victims died. Should scientists use this data on what happens to people when they get cold, and how they can be warmed? Some German and Canadian scientists already have. By contrast, the United States Environmental Protection Agency recently refused to republish Nazi data on the toxic gas phosgene.

Ethicists have not found common ground for agreement on the question of using morally tainted data. Philosopher Arthur L. Caplan, a bioethicist at the University of Minnesota, argues that the Nazi data can be used so long as the purpose is an important one, and the data is presented with a clear moral denunciation of how it was obtained. The moral repugnance of the data source might be overruled, suggests Caplan, by the possibility of saving lives. On the other hand, Jay Katz of Yale University Law School disagrees with Caplan's position. The data, argues Katz, should be condemned to oblivion and never used by science, although the descriptions of the experiments can be republished as a reminder of the Nazi horror.

“We have it in our power to begin the world over again.” Thomas Paine, pamphleteer of the American Revolution and defender of the French Revolution, captures in this phrase a central insight conveyed in the idea of human rights: we have it in our power to begin the world again. The sentiment is cast in simple declarative form. As such it may seem naive. We are, after all, constrained—are we not—by the inheritance of a world already accomplished, a world whose structures bind us in untold ways? But the intention of Paine's statement is more than aspirational. It affirms a vision of what is possible—and what is desirable—given the deepest character of who we are and what we might become. If we comprehend the full dialectic between self and world, then we have it in our power to begin the world again even as the world is the matrix—the source and the condition—of our power. That's a central insight conveyed in the idea of human rights which has stirred up such controversy, philosophical and political, since it emerged at the beginnings of the modern era.

On December 29, 1170, in the late afternoon (and thus after the main meal of the day but shortly before vespers), four knights entered Canterbury Cathedral. Impelled, as far as history knows, by the angry words of King Henry II, “will no one rid me of this turbulent priest,” they had come to confront Archbishop Thomas Becket and win King Henry's favor by forcing the long-simmering dispute between Becket and his king to some final resolution. When the Archbishop refused their conflicting demands and reacted with scorn to their insults, the knights withdrew, only to arm themselves and follow Becket into the cathedral. As the traditional account has it:

[t]he bell for vespers began to sound, and the archbishop, with his cross borne in front of him, made his way in as usual into the cathedral. Hardly had he reached the ascent to the choir than the noise of armed men and the shout of the knights announced that the pursuers were at hand. “Where is the archbishop, where is the traitor?” resounded through the hollow aisles, mingling strangely with the recitation of the psalms in the choir. Becket, hearing this, turned back a few steps, and calmly awaited their approach in the corner of the northern transept before the little altar of S[t .] Benedict. “Here,” he cried, “is the archbishop—no traitor, but a priest of God.” Awed by his demeanor, and perhaps by the sanctity of the place, no one dared strike. A parley began. They sought to lash their failing courage into action by words. A hasty and insulting epithet gave Fitz Urse the opportunity he wanted. A blow aimed at the archbishop's head only knocked his skull-cap to the ground, but it was enough to loose the bandogs of hell. A stroke from Tracy cut off the tonsured back of [Becket's] skull, another from Brito brought him to his knees.