In this essay, I recount the history of the founding and early years of the Journal of Law and Religion from its origins in the Committee on Religion and Law through the editorial transitions in 1988 that led to a second phase of JLR’s history. In recounting this history, I focus on the exceptional scholars who brought JLR into existence and nurtured its growth during those early years, creating, in the process, not only new academic endeavor but a community and a kind of family.

The state of the Free Exercise Clause in U.S. constitutional law is uncertain. With an opportunity in Fulton v. Philadelphia to clarify the vitality of the current standard from Employment Division v. Smith, the United States Supreme Court has declined to do so. The lasting impact of Smith has been to move away from directly requiring government justifications for infringing free exercise. Instead, courts now use neutrality and general applicability as heuristics for government justification. Yet, relying solely on neutrality and general applicability to proxy for government justification when infringing religious exercise distracts courts from conducting a fact-based inquiry. This article demonstrates how more scrutiny of the legislative facts in free exercise doctrine may serve as a viable alternative to Smith’s flawed approach for evaluating government justifications. The author first shows empirically how more factual scrutiny—directly requiring the government to justify its actions with evidence—can benefit government and religious claimants and then discusses the normative advantages of a fact-intensive approach to constitutional scrutiny. During a moment of sharp division over religious freedom and other competing rights, factual scrutiny can be a powerful tool for handling free exercise challenges and promoting responsible religious freedom.

This article examines the evolution of the Russian Orthodox Church’s identities and political alignments from the post-Soviet era to the present in three chronological phases. First, the author explores the church’s varied post-Soviet identities shaped by experiences of repression, collaboration, dissidence, and emigration from 1991 to approximately 2010. The author identifies key legislative and political developments between 2010 and 2021 that have aligned the Russian Orthodox Church with the autocratic state. Finally, the author analyzes the shifting stance of the Moscow Patriarchate on Ukraine from 2014 to 2022, including Patriarch Kirill’s support for Russia’s full-scale war against Ukraine since 2022, which is interpreted as a continuation of the church’s historical role as a collaborator during Soviet times. The author argues that the church’s contemporary role is confined to providing ritualistic and spiritual legitimization for state ideology, perpetuating a logic of authority, control, obedience, and dichotomous friend/enemy thinking reminiscent of Soviet-era security services. Through this analysis, the author reveals how the state and church leadership of the past decades has strategically positioned the church in preparation for conflict.

This article discusses the significance of the extensive data-gathering procedures incorporated into recent synodal preparations and how they advance Pope Francis’s commitment to forging a church informed by a dialogue between theological ideas and empirical realities. Drawing on my prior case analysis of the Synod on the Family, I argue that despite the limits in place then on lay participation in the formal synod discussions, the diversity of the laity’s self-reported experiences penetrated the bishops’ deliberations. This achievement is in part a function of the synod communication structure whereby participants are allocated to shared-language groups, thus avoiding self-selection based on a priori doctrinal or country-specific biases; the resulting (forced) dialogue with difference helps foster the gradual development of more inclusive doctrinal framings as seen in the post-synodal Amoris Laetitia. In a historic expansion, the Synod on Synodality formally includes lay voting participants and therefore lay perspectives will directly shape the synod proposal outcomes. Like the bishops, lay Catholics do not speak with one voice, and thus the task of finding moral consensus will still necessarily require respectful mutual listening and reciprocal dialogue.

After its initial founding by the Council on Religion and Law at Harvard, the Journal of Law and Religion had its first life at Hamline University School of Law beginning in 1983. This essay is a history of its second life—from 1987/1988 to 2013—describing the vision and the people who pursued that vision through the journal in those years and some of the roundtables and symposia it published.

Of all the principles in classical Jewish law that stand out from a comparative legal perspective perhaps none is more notable than the ban on self-incrimination in criminal procedures. Contrary to the most basic evidentiary assumptions of other ancient legal systems, this principle differs fundamentally from the right to remain silent that is part of both early modern and modern legal systems. Only rabbinic jurisprudence incorporates an outright exclusion of criminal confessions. Despite receiving much scholarly attention over the centuries, this principle’s fundamental justification relating to the rule of law and the public pursuit of justice has gone unnoticed. This article explores this salient jurisprudential perspective, and sheds new light on this principle by contrasting the Jewish legal approach with the primary modes of criminal adjudication that were adopted in the West. What emerges from this comparative analysis is that this seemingly anomalous principle actually reveals much about the core commitments and values of Jewish law. These, in turn, have substantial implications for certain contemporary legal practices and dilemmas.

This article is a response to Christians in public and private life who favor policies, employ rhetoric, and view migrants in ways that contravene their faith traditions. Speaking primarily from the perspective of Christian migrant-serving, faith-based organizations in the United States, the author examines their challenges, sources of consolation, and understanding of migrants in light of their work and religious touchstones in an era of political polarization and unprecedented forced displacement. He outlines an inclusive path forward, rooted in a commitment to the common good, to solidarity with the displaced, and to a deeper understanding of the hopes, aspirations, and gifts of migrants.

This article foregrounds the Western Apache fight to save the sacred site of Chi’chil Biłdagoteel, or Oak Flat, which at this writing is threatened by a proposed copper mine. Like many other Native peoples, Western Apaches have historically resisted colonial suppression by reconfiguring ancestral traditions to make them legible to authorities as religion. In their current struggle, Western Apaches are restoring and repairing their relationships with the sacred landscapes of their ancestral homelands. The controversy over Oak Flat also demonstrates how US religious freedom law continues to impose an implicitly Christian model for religion and how Western Apaches today are pushing back against that model even as they necessarily use it to claim the protected status that religion enjoys in the United States. Chi’chil Biłdagoteel thus illuminates the ongoing paradoxes of US religious freedom law, the privileges that Christianity still holds within this legal regime, and the ongoing vibrancy of living Apache religion.

This essay begins with a quotation from Carl Schmitt in which he quotes Søren Kierkegaard on the significance of the exception in political theology. The essay is an extended reflection on this quotation within a quotation. Through a comparison of Kierkegaard and Schmitt, the author presents two readings of the state of exception: the first centers on the figure of the sovereign, while the second centers on the figure of the martyr. The sovereign suspends the law from above, while the martyr suspends it from below. In the political sphere, there are two ways of becoming the exception: the sovereign versus the martyr.

Islamic veiling has attracted a remarkable degree of international and domestic attention in the current political climate. In the popular and political climate, the argument for social cohesion (or living together) is frequently invoked to justify bans on wearing Islamic veils. For example, the social cohesion argument was widely used in parliamentary debates leading up to the bans on wearing Islamic full-face veils (such as burqa or niqab) in France and Belgium. In response to the French and Belgian bans, the European Court of Human Rights has ruled that a ban on wearing Islamic full-face veils is justified on the grounds of living together, rulings that many academic circles have criticized. Yet in this extensive commentary on the bans of Islamic veiling, one important question remains unanswered: Is social cohesion (or living together) a valid argument for banning the wearing of Islamic veils? The author explores this question through the lens of the European human rights framework and analyzes the ECtHR’s approach to French and Belgian anti-veil legislation enacted on the grounds of social cohesion.

In the aftermath of World War II, eugenics and the pseudoscientific base used to justify its practices are generally understood to have phased off the scene. If, however, eugenics never actually disappeared but has been persistent, and in turn becomes one of the best explanations for mass incarceration today, what role did Christianity—especially Evangelicalism—play in this unprecedented moment of imprisonment? Building on legal scholarship identifying the significant role of eugenic philosophy that manifests in penal policy and ongoing phenomena into the early twenty-first century, this article examines key figures in the backdrop of eugenics’ particular early developments, and leading figures—namely, Billy Graham and Prison Fellowship’s Chuck Colson—whose ministries operated in close proximity to the prison during the latter twentieth century and especially over the past fifty years as incarceration rates skyrocketed. After examining several important theological tenets reflected within Evangelicalism that are compatible with eugenic logic, a critical approach is developed drawing from more robust theological considerations that if appropriated earlier might have found evangelicals resisting the mass incarceration building efforts rather than supporting them.

In the late eighteenth century, Johann David Michaelis criticized Moses Mendelssohn for bringing what Michaelis termed his native Jewish tradition into his thinking on universal matters. Yet leaning on Jewish sources had been a key feature of European natural law thinking from the onset of modernity. In this article, the author reads Mendelssohn’s natural law theory as conversant with early modern legal thought that was scrutinized in the enlightenment, shedding new light on Mendelssohn’s innovations and on what Mendelssohn was up against when he offered natural law foundations for toleration. The author finds that arguments for and against toleration of the Jews from the seventeenth century to the nineteenth were tied to the question of whether Judaism contained universal laws or laws particular to the Jews, and suggests that Mendelssohn’s approach, while rejected from the eighteenth to the twentieth century, may be newly relevant today.

Today in South Korea, individuals of certain faiths are unable to take a wide range of state-administered qualifying examinations due to their religious convictions. The Constitutional Court of Korea has repeatedly refused their request for religious accommodations, such as an alternative test date for Sabbath or holy day observers who are unable to take exams on their original dates. The authors analyze the series of Constitutional Court decisions rejecting the need for such accommodation by focusing on the court’s use of its main analytical tool, the proportionality principle. These decisions reveal important shortcomings in the court’s application of the proportionality principle, including challenges inherent to proportionality and more specific deficiencies in the court’s application of the general principle. The article thus sheds light on how the proportionality principle is applied in the context of Korean constitutional jurisprudence and the resultant deprivation of protection for certain fundamental rights in Korea. The authors compare the court’s approach with that of courts in Spain, Switzerland, and the United States. They then propose a number of ways to improve the court’s proportionality analysis and its constitutional reasoning.

Taking Ktunaxa Nation v. British Columbia as a focal point, the author argues that the legal framing of Indigenous sacred land claims in terms of religious freedom carries significant costs. It impels courts to bracket consideration of sovereignty and territorial rights, while positioning Indigenous worldviews as nonrational rather than as dynamic intellectual traditions and ways of life that are respectably different from those embodied in settler systems of law. Genuinely fair adjudication of such claims requires not religious exemptions from general laws but recognition of the sui generis rights of Indigenous nations in relation to lands they never ceded (acknowledging historical injustice); deep differences between dominant European settler and Indigenous cultures (acknowledging that settler law is also cultural); and the validity of Indigenous environmental philosophies (acknowledging that they are no less rational than Western ones).

A curious list from the Mishnah lists seven labors that a woman does for her husband. The juxtaposition of these seven tasks in a list creates a hierarchy among them, which dictates the order in which the performance of a task is transferred to an enslaved woman as the size of the woman’s dowry increases. Scholars read this text to understand how wealth shapes a woman’s labor obligations, but they have taken the form and contents of the list as a given. This article argues that the list establishes the category of wives’ work in rabbinic literature and defines it as work that is performed interchangeably by the wife or enslaved women. The form of the list can be compared to other lists within the Mishnah as well as lists of housework in contemporary traditions. These comparisons allow for a more critical stance toward the interplay of slavery and status in the Mishnah. The Mishnah’s framing of a wife’s work as interchangeable belies how the individual tasks were embedded in broader social, economic, and technological transformations.

In this article, we explore the status of Samaritans in early modern Ottoman Damascus through a focus on a particular firman—a sultanic legal decree. The firman orders that Samaritans—a religious group that traces its origins to ancient Israel but differs from Jews in several aspects—are not to be employed as clerks by Ottoman authorities. We argue that the firman indicates Ottoman officials engaged in religious status management despite the lack of legal terminology for minority in the document. The significance of the firman regarding conceptualizing status, we suggest, is that it points to an alternative model of minoritization that is not based in modern European legal approaches to religious minority status and law but which accounts for people’s experiences of minority status before modernity.

The article explores the connection between the rule of law and the right to freedom of thought, conscience, and religion from an empirical and theoretical perspective. The author posits that the two are not merely interdependent, but that freedom of thought, conscience, and religion is foundational for embedding the rule of law because a state needs to facilitate freedom of thought, conscience, and religion to encourage the exploration of virtue to inform consensus around society’s common norms. This virtue-building role of freedom of thought, conscience, and religion gives the human right its foundational role for creating the conditions required for embedding the rule of law. This conclusion is drawn from Martin Krygier’s analysis of the sociological conditions necessary to embed the rule of law and a comparison of the worldwide rule of law, religious freedom, and happiness indexes. To support a universal approach to the human right and to underpin the identified essentiality of it, the author proposes a theoretical approach grounded in the theory of common grace; Rowan Williams’s other-regarding communal approach to rights; and the framework for plural living together proposed by Herman Dooyeweerd. The author posits that this approach could be adapted with a plural metanarrative to accommodate dialogue around virtue building and dispute resolution within societies with very different outlooks.

This article examines anti-mask protests in the United States in the context of the COVID-19 pandemic. Specifically, I look at the cultural (mis)appropriation of slogans by anti-mask protestors, such as “I can’t breathe” and “My body, my choice.” Noting that this is at first glance a bit of a puzzling phenomenon, I show that there is a relationship between the anti-mask protest, white Christian grievance politics, and the disintegration of the public sphere. Drawing on the work of Bonnie Honig, I argue that the anti-mask protests represent a mode of opting out of public engagement, hence opting out of the practice of using rational argumentation to explain why things ought to be a certain way, as well as listening to the reasons of others. Insofar as this has become a popular mode of engagement among a significant number of Americans, it needs to be understood in the language of foregoing responsibility for others in US pluralistic democracy. Indeed, further explication of the relationship between responsibility and freedom is absolutely necessary. I maintain that opting out is ethically untenable because of the nature of interdependence with others and the necessity of adhering to the rule of law. An ethic of reciprocity properly grounds an understanding of embodied freedom, resisting the extremes of grievance politics.

A brief commotion arose during the hearings for one of twenty-first-century India’s most widely discussed legal disputes, when a dynamic young attorney suggested that deities, too, had constitutional rights. The suggestion was not absurd. Like a human being or a corporation, Hindu temple deities can participate in litigation, incur financial obligations, and own property. There was nothing to suggest, said the attorney, that the same deity who enjoyed many of the rights and obligations accorded to human persons could not also lay claim to some of their constitutional freedoms. The lone justice to consider this claim blandly and briefly observed that having specific legal rights did not perforce endow one with constitutional rights. Nevertheless, a handful of recent and high-profile disputes concerning Hindu temple deities and the growing influence of Hindu nationalist politics together suggest that the issue of deities’ rights is far from a settled matter. This article argues that declining to recognize deities’ constitutional rights accurately reflects dueling commitments in the Indian Constitution.

Suppose that people seek confidentiality in what would otherwise be a public process—such as litigating or applying for a firearms license—because they are afraid that publicly identifying them will stigmatize them in their (or their families’) religious communities. Should the law allow them to proceed anonymously to better protect their interests and to avoid discouraging their lawsuits or applications? Or would that unduly stigmatize the religious community by branding it as improperly censorious or judgmental—or interfere with religious community members’ ability to evaluate for themselves how their coreligionists are using the courts and other government processes?