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.

In Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), the Ninth Circuit seated en banc found that federal approval of a plan by a ski resort to make artificial snow with treated sewage effluent on Arizona's San Francisco Peaks, a mountain massif held sacred by the Navajo, Hopi, and four other claimant tribes, did not violate their religious liberty under the Religious Freedom Restoration Act (RFRA). The court accepted numerous factual findings about sincere religious exercise, but found federal approval of the scheme did not constitute a “substantial burden” on religion; rather, it only “decreased spiritual fulfillment” of tribal members. Despite a spirited dissent, the Ninth Circuit narrowly interpreted RFRA's language of “substantial burden” by making reference to the Supreme Court's 1988 holding in Lyng v. Northwest Cemetery Protective Association, 485 U.S. 439 (1988). This article shows how conventional wisdom about individualistic, subjective, and protean “spirituality” and in particular about “Native American spirituality” equips the court to denature highly specific and collective religious claims about the mountain by plaintiff tribes, and in turn to naturalize those claims as merely spiritual. Misrecognition of Native religions as Native spirituality then troubles the substantial burden analysis. While Navajo Nation suggests courts may never fully understand Native claims to sacred sites, the Supreme Court's 2014 holding in Burwell v. Hobby Lobby, Inc., 134 S. Ct. 2751, 2759 (2014), opens the door to revisiting the interpretive posture spelled out in Navajo Nation, and the Ninth Circuit's interpretive approach to “substantial burden” bears revisiting.

The article discusses the question of how Israel ought to treat its minority religions and whether its actual policies towards them accord with her moral and constitutional obligations. The first part of the paper offers three arguments purporting to show that Israel is justified in granting privileged status to the Jewish religion over other religions, and rejects each of them in turn. In particular, it rejects the view that Israel is allowed to privilege Judaism over other religions as far as the funding of religious services and needs is concerned. Nonetheless, the possibility that, on the symbolic level, weak privileging of Judaism may be permissible is left open. The second part of the paper questions whether the State of Israel guarantees equal treatment to all religions, and the answer is in the negative. Finally, the paper discusses the religious freedom of non-Jews in Israel and the way it has been interpreted by the courts. It is contended that both in terms of the freedom of religion and in terms of the freedom from religion, the protection of non-Jews is somewhat weaker than that granted to Jews, a state of affairs that ought to be remedied.

Recently there have been calls from Islamic nations for the creation of a crime of “defamation of religion.” Austria already has such an offense: section 188 of the Criminal Code of 1974 prohibits giving “justified offense” (berechtigtes Ärgernis) by “publicly disparag[ing] or ridicul[ing] a person who, or an object which, is the subject of veneration of a domestically established church or religious community, or a dogma, a lawful custom or a lawful institution of such a church or religious community.” This has recently been applied to secure the conviction of an activist of the right-wing Freedom Party of Austria, who announced at a semi-public seminar attended by about thirty people, including one undercover journalist, that Mohammed was a pedophile. Drawing on the law of comparable jurisdictions, this article traces the history of the provision and considers how it is applied by the courts. In this article it is contended that this provision, while rarely used, unduly restricts public discussion. At the least, the provision needs both reinterpretation and amendment; international human rights sources suggest that repeal should be seriously considered given that the existing offense of sedition is available for serious cases.

This study seeks to forge a new avenue of legal scholarship on the modern religious movement known as Hasidism. The paper focuses on Rabbi Shneur Zalman of Liady (ca. 1745–1812)—Hasidic master, religious thinker, and jurist. Much has been written on Shneur Zalman, his formidable leadership in the face of strident opposition and his groundbreaking religious philosophy. His legacy continues to animate contemporary Judaism, primarily through his spiritual heirs—the Lubavitch Hasidic community—and through his Hasidic thought known as Chabad. The present study maps out an aspect which has been widely neglected, but is nonetheless crucial to understanding this religious leader: Rabbi Shneur Zalman's legal activity. The first part of the study surveys existing research, assessing what has been achieved thus far, and what tools are available for further research. The second part of the essay highlights salient questions to be considered as part of a judicial biography, offering preliminary answers to these questions. The article concludes with the contention that without serious analysis of Rabbi Shneur Zalman's legal writings—or for that matter, legal writings of Hasidic masters in general—any intellectual history of this religious movement will be incomplete.

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.

In the twentieth century, the Orthodox Christian diaspora played a critical role in the development of modern Orthodox theology. Forced to take up residence in the West, major figures like Sergius Bulgakov (1871–1944), Georges Florovsky (1893–1979), Vladimir Lossky (1903–1958), and Alexander Schmemann (1921–1983) successfully reinvigorated Orthodox theology for succeeding generations. Their works have become the standard readings in theological faculties and seminaries the world over. But despite the durable and multifaceted heritage of modern Orthodox theology, contemporary Orthodox Christians have been, for the most part, rather timid in thoroughly engaging themselves with matters political. Notable exceptions include Nicolas Berdyaev (1874–1948), who provides a far-reaching critique of both state sovereignty and the Orthodox Church's historic role in supporting worldly realms of authority. For his part, Bulgakov offers some penetrating insights in favor of the separation of church and state in the very brief chapter devoted to this topic, “Orthodoxy and the State,” in his classic treatise, The Orthodox Church. Somewhat later in the twentieth century, the few noteworthy authors who have much more specifically engaged with broader political questions include the current archbishop of Albania, Anastasios Yannoulatos, and arguably the most important Orthodox political philosopher today, Christos Yannaras.