Is there a legitimate basis for religious exemptions from laws that prohibit gender identity discrimination on the basis of people’s beliefs? The author argues that much depends upon how gender dysphoria is understood. If it is seen as a problem requiring medical diagnosis and treatment, then arguably there is no religious basis for discrimination, except in a few situations where being a biological male or female is theologically essential to a particular role. Transgender identification, understood as a medical issue, fits within a belief system that God created two sexes of human beings, male and female. Within that belief system one can make room for an understanding that there are those who experience disorders of sex development and those who have such a profound sense of being born in the wrong body that they undertake steps toward medical transition to align their bodies, as far as possible, with the opposite sex. However, recent reinterpretations of what it means to be transgender involve an assertion that it should not be seen as a medical issue, that affirmation of a person’s self-declared gender identity, with or without having hormonal treatment or surgery, is a matter of human rights and that the law should recognize that people may have a gender that, however described, is nonbinary. These views rely on certain beliefs and positions that have a very weak basis in science. They challenge religious beliefs, which accord with mainstream scientific understanding, that human beings are intrinsically a sexually dimorphic species. People of faith need the freedom to reject beliefs that are incompatible with their worldviews. That does not mean that ill-treatment of someone on the basis of their gender identity can ever be justified; but it does support a religious exemption from a legal obligation to accept someone else’s self-declared gender identity. It is one thing to ask me to respect your beliefs about yourself. It is another to ask me to act toward you as if I share your beliefs.

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?

How has American Catholicism interacted with American legal culture? Legal scholars have often examined this question in the context of contraception and abortion debates. This article focuses instead on the so-called Catholic left that emerged in protest against the Vietnam War in the late 1960s, and thereby seeks to bring the rich history of Catholic radicalism and peace activism into closer conversation with legal history. Drawing on both primary sources and a rich body of secondary literature in religious and social history that legal scholarship has not fully incorporated, the author examines ideas about law within the writings of Catholic left figures, including writer-monk Thomas Merton, sociologist-priest Paul Hanly Furfey, and activist-priest Berrigan brothers. Building on work by religious historians who have interpreted the Catholic radical tradition as a distinctive response to the limitations of political liberalism, this author emphasizes that the Catholic left also expressed a profound alienation from legal liberalism, with its veneration of lawyers and its faith in courts as sites of social progress. Revisiting the Catholic left through the lens of legal history raises questions for future research about the possible connections between leftist antiliberalism and the more familiar Catholic tradition of conservative illiberalism.

In 2015, Douglas NeJaime and Reva Siegel identified complicity-based conscience claims as a subcategory of religious liberty claims, which feature objections to generally applicable laws based on religious convictions that harm third parties. Here, we observe that Muslim-Americans have filed or joined amicus curiae briefs in support of litigants on both sides of the recent complicity-based conscience cases of Masterpiece Cakeshop v. Colorado (2018), Bostock v. Clayton County (2020), and Fulton v. City of Philadelphia (2021). This divergence of legal views within the Muslim-American community points to a broader rift in society generally toward issues involving the navigation of identity and faith in the context of American liberalism. In this article, we show that opposing arguments by Muslim-Americans in these complicity-based conscience cases presuppose two different conceptions of liberalism: (1) liberalism as the pursuit of broad religious, cultural, and value pluralism (modus vivendi), and (2) liberalism as the pursuit of social cohesion, assimilation, and fraternité among diverse constituencies (vivre ensemble). Muslim-Americans who advance a modus vivendi vision of liberalism base their arguments mainly on the view that Islam and other minority religions involve specific beliefs, doctrines, and moral injunctions regarding, inter alia, rules of personal conduct in society that deserve distinctive legal protections. Muslim-Americans who support a vivre ensemble conception of liberalism prioritize the uniform enforcement of civil rights laws over religion-based objections and, in doing so, seek an overlapping consensus between their beliefs and prevailing conceptions of expansive civil liberties.

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.

In his article “Gender Identity Discrimination and Freedom of Religion,” Patrick Parkinson raises the important question of how the government should reconcile conflicts between the rights of religious people and the rights of transgender and gender-nonconforming people. By focusing on whether gender identity is best defined as a medical issue or a belief system, however, Parkinson does little to answer it. Whether gender identity is a medical issue may be relevant to determining the sincerity of an individual’s faith-based objection to complying with an antidiscrimination law. It has no bearing, however, on the strength of trans and gender-nonconforming individuals’ countervailing interest in being protected from discrimination. Defining gender identity as a belief system does no more to undermine this interest. This should be apparent to defenders of religious exemptions, who assert that belief systems offer a basis for extending, rather than contracting, legal protections. Characterizing an individual’s gender identity as either a medical issue or a belief system thus does not show why that individual’s interests should give way to the interests of religious objectors through an exemption. To reach this conclusion, one must instead turn to other values, such as those implicit—though inadequately defended—in Parkinson’s article.

In this essay, a response to an article by Patrick Parkinson, Shannon Gilreath disputes Parkinson’s claim that religiously motivated discrimination against transgender people should be the subject of special exceptions to prevailing antidiscrimination law, especially where the transgender person does not seek to conform to the traditional male/female gender binary. Gilreath maps the ways in which Parkinson’s proposal is an argument for biological superiority, which has been the rationalization for systematic and systemic social inferiority throughout history, including most notably in the contexts of race, gender, and sexuality oppression. In concluding that Parkinson’s proposal is little more than a restatement of the faulty differences-based approach to equality through law, Gilreath ultimately concludes that its principles are wholly inconsistent with the legitimate purposes of antidiscrimination law.

In Gaum and Others v. Van Rensburg NO and Others, the South African High Court held the view that a decision taken by the Synod of the Dutch Reformed Church, which included a condition of a life of celibacy for gays and lesbians in order to be ordained as ministers in the church, along with a prohibition against the solemnizing of same-sex civil unions by ministers in the church, resulted in a violation of the right to equality and that unfair discrimination based on sexual orientation had taken place. Consequently, the finding in Gaum postulated a specific view on the permissible boundaries regarding conduct related to sexual orientation that should apply to a religious association. In this regard, Gaum is of concern when considering that courts in democracies around the world generally refrain from getting involved in matters related to the central doctrines of a religious association. Gaum’s findings are disquieting not only for the effective protection of the right to freedom of religion (in both an individual and associational context) but also for the furtherance of diversity. It is argued in this article that Gaum exceeded its jurisdiction in adjudicating on matters related to conduct regarding sexual orientation, an argument that critically focuses on the concept of equality against the background of the importance of the protection of the autonomy of religious associations.

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.

With the rise of originalism as an interpretive strategy, history has come to play an increasingly prominent role in the reasoning and methodology of the United States Supreme Court. That development has, by necessity, also shaped the approach to constitutional interpretation taken by other parties, including the large and growing number of groups who file amicus curiae briefs. When the amici in question are religious entities, this article suggests, this “historical turn” at times takes the shape of narrating aspects of a tradition’s sacred history for the benefit of both the Court and other, lay audiences. This article examines three recent amicus briefs by one of the most consistent and prolific religious amici, the United States Conference of Catholic Bishops. Across these briefs, this author traces the construction and deployment of history—both Catholic and American—as a middle term for negotiating the relationship between the US Constitution and its interpretation, on the one hand, and the interests and priorities of the religious tradition, on the other.

The juridical status of persons nowadays tends to be discussed only in narrow contexts: civic status (citizen, alien, and various visa statuses), marital status, penal status, employment status, religious or ethnic status within colonial and postcolonial states, status of the fetus, corporate personal status, and so on. In the century and a half since Henry Maine’s 1861 treatise, Ancient Law, in which he discerned a general movement from status to contract in progressive societies, broad discussions of status as a general feature of law are few, so a renewed comprehensive approach to the issue remains a desideratum. This symposium, which has its origins in an interdisciplinary conference held in November 2019 at Washington and Lee University School of Law, is a step in that direction. The articles and essay gathered here illuminate the multifarious ways in which juridical status of persons overlaps with religious conceptions of persona and status. They provide grounds for seeing the religious component as distinctive because of the uniquely privileged authority attributed to divinely mandated status distinctions and the urgency of claims to religious rights. They also show how a juridical status can straddle law and religion, and how legal institutions handle such hybrid forms of status.

The belief in witchcraft and sorcery is a significant cause of intentional homicide in Kenya. Moreover, those who kill people suspected of being witches often employ as a defense for their actions the so-called provocation by witchcraft argument: the homicide was purportedly committed under the influence of belief in witchcraft and sorcery. One major legal difficulty that the Kenyan courts have frequently been invited to resolve is thus the question as to whether the belief in witchcraft and sorcery avails to an accused person the defense of grave provocation and, if so, under what circumstances. Drawing largely on pertinent case law, statutes, and academic literature, the author explores the controversy over provocation by witchcraft. The author first offers an exposition of the concept of witchcraft and sorcery in Africa and critically discusses the evolution of the Kenyan courts’ interpretation of the country’s law on provocation in relation to witchcraft beliefs since the 1930s. The author establishes that under the current Kenyan common law, defenses of heat of passion and sudden provocation may apply in instances where there is no real provocation and that the courts have exceeded the boundaries of the provocation defense without well-grounded reasons. The author cautions that giving the doctrine of provocation such a broad construction and application may increase the already rampant killings of suspected witches in Kenya.

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.

Drawing on a qualitative study conducted with both individuals who have been shunned from the Jehovah’s Witnesses community and those who were in a position to shun others, the authors identify areas of development within the Serious Crime Act 2015 and propose that there is scope to interpret the law broadly to include instances of people shunned from the Jehovah’s Witnesses community.

In 2021, the debate about the spaces in which Europe’s Muslim citizens should be permitted to wear religious veils was reanimated by the introduction of new prohibitions introduced in Switzerland and France, and the decision of the Court of Justice of the European Union in joined cases C-804/18 and C-341/19. This article examines the jurisprudence of the European Court of Human Rights concerning veiling. We argue that veil bans reduce the ability of Muslim women to actualize themselves as citizens by limiting their capacity to develop their identity through autonomous action. As such, we argue, the right ultimately at stake—which should protect rights in respect of veiling—is the right to a private life under Article 8 of the European Convention on Human Rights, and judicial and popular conceptions of veiling should be reoriented to accommodate this view. Doing so, we argue, highlights the full range of functions that veiling implicates—including religious but also secular identarian concerns and exposes how a usually expansive right has been curtailed in cases involving veiling.

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.