In 2015 Magna Carta celebrated its 800th anniversary. The Great Charter has been widely heralded as a fount of many rights that are highly valued in British and American law. One right that people have identified in the Carta is that of religious freedom. Magna Carta contains two provisions guaranteeing freedom of the church from government authority. In 2013, the United States Supreme Court relied on that authority in a ruling that affirmed the principle of religious autonomy. This article argues that relying on the legacy of Magna Carta for the principle of religious freedom is tenuous: the document had little influence on the development of the First Amendment. Even Magna Carta's authority for the principle of church autonomy is overstated, as the Carta had nothing to do with the development of that principle in American law. Finally, judicial reliance on Magna Carta for the principle of religious freedom risks elevating protections for religious institutions over the interests of individuals. As a result, the legacy of Magna Carta for the principle of religious freedom is mixed, at best.

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. The first section describes the “school choice” movement of the past fifty years, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. The second section argues that based on the current state of the law it should not be unconstitutional, under the First Amendment's Establishment Clause, for states to elect to make faith-based schools eligible for charters, and, therefore, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools should be deemed unconstitutional by the US Supreme Court. Put differently, this is not the sort of issue in which the “play in the joints” between the Free Exercise and Establishment Clauses should apply so as to give states the option of restricting charter schools to secular schools.

Scholars frequently describe American religious disestablishment using commercial analogies, reckoning that states “privatized” religion or subjected churches to “free-market competition” by making them more like commercial businesses, yet this article demonstrates in part how churches pioneered many of the corporate devices that came to define American enterprise after the Civil War. Such descriptions are thus anachronistic. Antebellum jurists were not concerned about the similarity of churches to businesses, but rather their similarity to states, and the republican fear that churches could be rival sovereign states at first structured the law of disestablishment and incorporation. In most states, churches gained rights of general incorporation but faced significant limitations on their corporate governance and property holdings. In Dartmouth College, the Marshall Court reimagined religious societies as private owners who, instead of governing as rival sovereignties, administered property in trust under their charters. But with the vague charters of general incorporation, state judges were left without a definite source of law to adjudicate church disputes. This article argues that courts thus allowed trust law to function as a conflict of laws analysis: Judges treated religious doctrine as a foreign legal system with rules that could be ascertained and accorded respect in American courts. Such a move created a positive, corporate right of religious liberty that becomes obscured if one conceives of religious freedom only as an individual right to be asserted against the state.

In Shergill & Others v. Khaira & Others [2014] UKSC 33, the UK courts considered whether a Sikh holy saint had the power to dismiss trustees who questioned his “succession” to the religious institution of the Nirmal Kutia Johal. The Supreme Court, reversing the decision of the Court of Appeal that religious questions were “nonjusticiable,” reinstated the judgment at first instance of the High Court to the contrary. The decision of the Supreme Court is important because whenever questions of the identification and legitimacy of successors to a religious institution have arisen, their “justiciability” before a secular court has invariably been a bone of contention on grounds that it threatens the autonomy of religious institutions. In Shergill the Supreme Court got around these concerns by drawing a normative distinction between the public law of the land (which the courts are required to determine), and the internal private law of a religious institution on matters of succession, ordination, and removal (which are not in themselves for the courts to decide). But Shergill also went further than previous case law in two respects. First, the fundamental tenets of a belief system are capable of an objective assessment by a secular court provided that there is public law element to a dispute, in which case the court can then decide on the fitness of the successor for office. This means there is no general presumption that a secular court is barred from considering religious questions per se. Second, these principles apply just as much to the judicial consideration of non-Christian faiths as they to the Christian religion, and this is so notwithstanding the court's unfamiliarity with other faiths.

The question “What is religion?” has again been roiling the academy, the courts, and public debate. In 1965, the Supreme Court of the United States opined on this question, deciding the fate of would-be conscientious objectors who would not affirm the existence of God. Relying largely on Paul Tillich, the Court ruled in their favor, expanding the notion of “religious belief” beyond its conventional Western confines. This article reexamines the issues raised in this case by exploring the theology of Paul Tillich, particularly its critique of religion as a separate sphere and its challenge to basic tenets of liberal political theory inherited from John Locke. The article, however, also juxtaposes the religion-expanding aspects of Tillich's thought with his strictures about “demonic” distortions of religion, requiring an excursus into Tillich's notions of the divine/demonic relationship. Tillich's rejection of the compartmentalization of “religion” led him to declare that more religious meaning may be found in putatively “secular” artifacts, such as Cubist art, than in conventionally “religious” symbols and institutions, including the Church. This approach both demands a radically interdisciplinary approach to “religion” and casts a skeptical eye on some putatively “religious” claims. The article concludes by juxtaposing Tillich's anti-essentialist critique of “religion” with more recent, and dramatically different, critiques, particularly those advanced by Talal Asad and Saba Mahmood.

In Pilate and Jesus, Giorgio Agamben argues that Pontius Pilate never formally condemned Jesus of Nazareth. “The traditional interpretation of Jesus’ trial … must be revised,” he urges, because “there has not been any judgment in a technical sense.” In Agamben's telling, Pilate's non-judgment is the original truth of Jesus's death that has been covered over by tradition. This is an intriguing hypothesis, but Agamben's use of sources in arguing it is highly irregular. This article offers a critique of the legal and philological argumentation of Pilate and Jesus. In the process, it revisits an ancient—and still actual—controversy surrounding the Roman trial of Jesus and demonstrates that Pilate did sentence Jesus, pro tribunali, to death on a cross.