The European Court of Human Rights is currently considering several German cases on the autonomy of religious organizations or churches within secular German labor law and resulting conflict resolution issues that arise within religious communities. In the past, the European Court of Human Rights has consistently underlined the importance of church autonomy, relying on the European Convention of Human Rights and Fundamental Freedoms Article 9 guarantees of freedom of thought, conscience and religion:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Implementing these provisions in the context of religious autonomy, the Court has critically noted:

[T]he autonomous existence of religious communities is indispensable for pluralism in a democratic society and is, thus, an issue at the very heart of the protection which Article 9 affords.… The right [of religious communities] to an autonomous existence is at the very heart of the guarantees in Article 9.

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.”

Is trial rhetoric, with its shadings, deliberate obfuscations, and outright deceptions, directly justified and limited by the same moral considerations which control important private conversations, where the same devices may sometimes be appropriate? Is a trial like any other dialogue that can be called moral? Or does such speech find its justification and limitations solely in its purely instrumental relation to the preservation of ordinary moral values—justice or respect for rights—as does killing in warfare? Is a trial lawyer's talking like a soldier's killing? But this cannot be right. Surely a lawyer's speech can contribute to a loss of life, liberty, or property, but dialogue, as the specifically moral medium of human relations, would seem intrinsically valuable, the preferred medium for things of public concern, the polar opposite of violence. Perhaps, then, the conversation which takes place in the courtroom is both controlled by internal, noninstrumental norms, as in the first view, and discontinuous with ordinary moral conversations, as in the second: a form of distinctively political argument, intrinsically valuable, not subject to ordinary moral stric-tures, a realm apart.

The distinctive contribution of Roman Catholic moral theology to public policy discourse has been to insist that it be open to conversation partners representing quite diverse religious and philosophical traditions. Thus Catholicism has what might well be considered a peculiar way of addressing “religiously” both civil rights and legislation: it dissociates the legitimation of rights and laws from specifically religious commitments. A key category in the Catholic approach is “common good,” as a normative description of social coherence; and its corollaries, including “justice” as its standard, mutual “rights” and “duties” as its constituents, and “public authority” and “law” as its guarantors. It is to the possible context and meanings of these terms that I wish to devote attention. Despite the fact that they are the focus of virtually all social theory in Catholic tradition, there is far from unanimity on their interpretation and implementation. I will focus on contemporary Catholic social thought, though I will refer briefly to some of its origins, especially in Thomas Aquinas.

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.

A widely held view on the purpose of criminal law is that it is designed to maintain social order. Assuming this view to be correct, how does criminal law achieve its purpose? The standard answer is by deterring crimes through the threat of penalties, and by incapacitating or rehabilitating criminals so that they cannot or will not engage in future crimes. Sociologists, however, have a somewhat different answer: criminal law maintains social order by branding deviant behavior as criminal. Society, it is argued, is constructed through opposition and contrast: it creates and preserves its identity, its distinct structure and unique shape, by emphasizing the differences between its own characteristics and practices and the characteristics and practices of the Other, the deviant. Deviance, in this view, is essentially a relative phenomenon. The definition of deviance, which changes from era to era and from place to place, is just that characteristic which society designates to establish, through it and in contrast to it, its identity and boundaries. Whatever the society, the deviant in that society is one who “represents the forces excluded by the group's boundaries,” informing society “as it were, what the evil looks like, what shapes the evil can assume.” In doing so, the deviant shows society “the differences between kinds of experience which belong within the group and kinds of experience which belong outside it.”

Religious issues and clergy played a prominent and now largely forgotten role in the defeat of President Franklin D. Roosevelt's controversial 1937 proposal to add six Justices to the U.S. Supreme Court. Although many prominent Protestant, Roman Catholic, and Jewish clergy and lay persons shared Roosevelt's frustration with the Court's obstruction of legislation to ameliorate the ravages of the Great Depression and reform the nation's economic system, many of the New Deal's most ardent supporters feared that Roosevelt's plan threatened religious liberty by making the Court vulnerable to political pressure. Opposition to Court-packing among clerics and lay persons, who warned that it could subject religious minorities to majoritarian tyranny, may have contributed heavily to the plan's defeat. The prevalence of these fears that diminution of judicial independence would threaten religious freedom helps to demonstrate that the Supreme Court already was widely regarded as an important guardian of personal liberty on the eve of the Court's transition from its long-time role as a defender of property rights to its modern role as a protector of personal rights.

Religious accommodation analysis often takes the form of a tripartite test. One of the factors in such a test is the presence of burden, the current judicial understandings of which have been inadequate to capture a wide range of impact that government regulations have on the individual or community practice of religion. This article considers and compares the jurisprudence of the high courts of the United States and Canada and the European Court of Human Rights and argues for an expansive understanding of the burden requirement in the evaluation of religious accommodation claims, namely to consider burden as (1) coercion, (2) impact, and (3) ratification. I argue that it is imperative to acknowledge different kinds of burden before proceeding to determine its gravity. This approach takes religion more seriously than prevailing approaches and provides for a more equitable distribution of the burden of proof in religious accommodation claims.

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.

One of the most striking images of God, both in the Bible and in Jewish tradition generally, is that of judge: “The judge of all the earth.”In this sense, one may describe God as He who holds in His hands all legal authority: He is the legislator, He is the judge, and He is the one who executes judgment. Alongside God's judgment, the Bible recognizes the existence of a human system of judgment, in which human beings act as judges; indeed, it even commands it: “You shall appoint judges and officers in all your gates.”What is the relation between God, the judge of all the earth, and those human beings who fulfill the function of judges? The majority of classical Jewish sources in the Bible and in Rabbinic literature that deal with law and the legal system reflect a certain relationship between human judgment and divine justice. Thus, we find in the Bible the notion that God emanates His authority to the judges who perform this function. In this spirit, Moses commands the judges whom he has appointed: “judge righteously… for the judgment is God's.”The relation assumed here between God and human judgment finds expression in different ways, extending over a considerable spectrum. At one end, one might describe God as the transcendent source of authority of the legal system, whose practical significance is limited. On the other end, one might describe it as a Divine Presence that inspires the judges and even allows them to appeal to God and to involve Him in the legal decision.

The Indian Constitution guarantees that individuals have the freedom to choose their partners free from state interference. However, the Uttar Pradesh Vidhi Virudh Dharma Samparivartan Pratishedh Adhyadesh, 2020 (Uttar Pradesh Prohibition of Unlawful Religious Conversion Law, 2020) prohibits religious conversion to the extent that it assumes all conversions are illegal, which may have a negative impact on interfaith marriages involving consenting adults. The author argues that the provisions of the Uttar Pradesh Ordinance forbidding religious conversion are vague and inadequate for addressing forceful or unlawful conversion for marriages, do not demonstrate any reasonable relation to the object of the legislation, and are constitutionally repugnant. The author concludes that by conferring police powers on state agencies to intervene in interfaith marriages, the Uttar Pradesh Ordinance erodes citizens’ freedom to choose a partner and their individual autonomy, privacy, and personal liberty—rights that are enshrined under India’s constitution.

In a series of cases over the past year, the U.S. Supreme Court upheld then struck down COVID-19–related restrictions on worship in various states across the country. Those decisions clarified that, under the Free Exercise Clause, laws burdening religion aren't “generally applicable” when they treat religious conduct less favorably than comparable secular conduct. But they also relied on controversial claims that religious gatherings were comparable to places like grocery stores in their likelihood of spreading the virus. This article offers a different perspective. In addition to the rule about comparators, general applicability also contains a second rule. Where a law requires officials to consider the religious reasons for conduct as a precondition for regulating it, the law isn't generally applicable and ought to be subject to heightened scrutiny. The Court mostly passed over that requirement in the COVID-19 church-closure cases. But rightly understood, it may have provided an alternative path for resolving them—and one that didn't depend on controversial comparisons between churches and shopping centers. Instead, focusing on this second aspect of general applicability would have yielded a commonsense conclusion: where a law or policy grants favored treatment for activities it explicitly deems “essential,” “critical,” or “life-sustaining,” one of those things must be religion, absent compelling reason to the contrary. And understanding the rationale behind that conclusion provides important insights about the meaning of the Free Exercise Clause and several other issues at the heart of the First Amendment.

After delivering a Carlson Lecture at the University of Minnesota in 1994, Hannan Ashrawi was asked by an audience member if a newly formed, independent State of Palestine would adopt the Sharīa (Islamic law) as the law of the land. The question reveals a deep seated fear in the American mind about Islamic justice. Because Islamic concepts of law and justice have developed from a very different worldview, they seem incomprehensible to us. We don't understand why Muslims argue about theology when talking about legal cases that appear in the news.

The Islamic community is organized as a theocracy, where God is the ruler of the community. In such a community, there is very little doubt that God is the ultimate authority in all things, including questions of law. There might, however, be considerable doubt about how the human members of the community respond to, make use of, and/or interpret God's intentions. Islam is no exception to this rule. Throughout its history, groups of people have answered questions about God and the community in different ways.