A significant body of legal academic writing produced in recent years has argued that one of the primary purposes of the First Amendment's Religion Clauses was to protect freedom of conscience. But in the two decades since the Supreme Court's decision in Employment Division v. Smith, a number of commentators have suggested that freedom of conscience has lost its place as the focus of Free Exercise and Establishment Clause jurisprudence. Indeed, some have gone so far as to argue that protection for freedom of conscience has disappeared from the Free Exercise Clause almost entirely, leaving conduct that is motivated by a religious conscience without special constitutional protection. To be sure, some protection for freedom of conscience remains—but its constitutional source is often to be found outside of the Religion Clauses and its concern is often with non-religious activity.

This evolution of doctrine has been extensively criticized by scholars of the Religion Clauses, many of whom view these developments as departures from original intent and from long-settled constitutional practice. Michael McConnell, Martha Nussbaum, and others have also advanced normative critiques, arguing that religious conscience is in many ways distinctive and merits distinctive constitutional solicitude under the Free Exercise Clause. At the same time, the Supreme Court's rejection of special privileges for religious claims of conscience has been welcomed by other scholars, some of whom have argued that preferential protection for religiously-motivated conduct is a form of unconstitutional discrimination. Two of the most prominent proponents of this position are Christopher Eisgruber and Lawrence Sager, who maintain that the Religion Clauses should be read to promote equal liberty rather than to provide special exemptions.

A few years ago I visited Nicaragua as part of a program sponsored by my university. We traveled by bus to the coffee country outside of Matagalpa and met with members of the Union of Organized Women of Yasica Sur, in a community center the women had built in a hollow beside the road. The president of the group described how thirty years ago, she and a small group of women organized to improve the supply of drinking water for their children. Over time, the women moved from providing water to providing schools and bridges, and then affordable medical care and medicines. The organization now has about one thousand members and is one of the most effective in the region. Yet the needs are still great.

Many of the women had walked for over an hour in their best clothes to visit with us. As we listened to them, I heard also my aunts and grandmothers, who did not look so very different from these women, who were just as smart, determined and hard-working, and whose lives were not so very different, except their crop was not coffee: it was sugarcane and pineapple. The sense of connection was shortlived, however. There was a question-and-answer period, and the president asked us what we did at home. One of my colleagues shared she was an environmental engineer, who specialized in lakes. The president smiled and said, “We could use you here.” Then I told her I taught international law. The president listened for the translation, regarded me and said, “I am not educated. Your work is too high for me.” So much for my solidarity with the Union of Organized Women of Yasica Sur.

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.

In democratic countries where the law might be influenced by religious communities, family law cases can present one of the most sensitive and complex challenges. Religious laws governing personal status and the supervision of family relations are vital components of many religions and, in some cases, crucial to the cultural survival of the religious community. However, the family laws of some religions are discriminatory towards women, same-sex couples, people of other religions, and other groups. Currently, there is heated political and scholarly debate about the tension between the norms of multiculturalism, which dictate that religious communities be allowed to preserve their values and culture, including through autonomy over family law, and liberal norms prohibiting the discrimination that religious family law can perpetrate.

One of the best known liberal advocates for restricting discriminatory cultural practices of minority groups was Susan Moller Okin. Okin maintained that many cultural minorities are more patriarchal than the surrounding culture and that the female members of the patriarchal culture might be much better off were the culture into which they were born to become extinct, if, that is, it could not be altered so as to uphold women's equality. She pointed to religious personal law as one example of a sphere in which patriarchal cultures strive to maintain autonomy at the cost of women's and girls' freedom and basic rights. Consistent with her view, nation states should not give legal autonomy over family matters to patriarchal minorities unless these minorities reform their religious laws so as not to discriminate against or impair the rights of women and girls.

Jewish law is normally characterized by a pluralist discourse and, even when controversies are acrimonious, the merits of competitive arguments are recognized and receive some legitimacy. By contrast, Jewish family law, especially in the case of marriage annulment, is characterized quite differently, patently diverging from the pluralist hermeneutic discourse normally characterizing Jewish law. This divergence is the subject of this article.

From the work of early classic commentators to modern Jewish Lawscholars, the character of marriage annulment in Jewish law has been much debated. Questions about both the authority of the Sages to annul a marriage and the meaning of annulment have arisen. Commentators have probed famous passages in the Babylonian Talmud mentioning the concept of marriage annulment (Heb. hafka'at kiddushin), often simply with the words “the Sages annulled the betrothal.” Similarly, discussing a case where a Jewish writ of divorce (get) was formally void but validated by the Sages, the Palestinian Talmud states “their [i.e., the Sages'] words uproot the words of the Torah,” which implies that the Sages have the authority according to Jewish law to annul a marriage in certain circumstances.

In October 1846, the men and women of the African Methodist Episcopal Church in St. Louis (African Church) met to consider whether they would remain with the Methodist Episcopal Church (MEC) or align with the recently-formed Methodist Episcopal Church, South (MECS). Two years earlier, in 1844, amid growing conflict over the question of slavery within the national Methodist Church, its General Conference had adopted a Plan of Separation that provided for the withdrawal of the southern Methodists and the creation of their own ecclesiastical government. The Plan provided that each Border State congregation would have the right to determine for itself by a vote of the majority with which of the two churches it would affiliate.

After the southern conferences had organized the new MECS in May 1845, the trustees of the all-white Fourth Street Methodist Church (Fourth Street Church), whose quarterly conference exercised nominal authority over the African Church, informed the black congregants that they could retain their house of worship only if they voted to join the southern Methodists. Throwing caution to the wind, and putting at risk a decade-and-a-half of patient efforts to achieve formal congregational independence within the Methodist Church, the black congregants voted decisively, by a 110 to 7 margin, to remain affiliated with the Northern Conference.

Following the 2006 retirement of Sandra Day O'Connor and the confirmation of Samuel Alito to succeed her, Roman Catholics formed a majority on the United States Supreme Court for the first time in this institution's 210-year history. This Catholic majority was further strengthened by the appointment of Sonia Sotomayor in 2009. Perhaps even more remarkably, by the time of Elena Kagan's first case in October of 2010, not a single Protestant sat on the nation's highest judicial body.

By way of comparison, in 1960 the Court consisted of seven Protestants, one Catholic and one Jew; in 1985, eight Protestants and one Catholic sat on the Court. This phenomenon is further reflected in judicial appointments. Since 1985, only one Protestant has been appointed,4 Justice David Souter, compared to seven Catholics and three Jews. The prima facie reason for this transformation is simple: President Reagan began the Protestant erosion by appointing two Catholics; George H.W. Bush followed by appointing a Catholic; and Bill Clinton, George W. Bush, and Barack Obama chose only Jewish and Catholic nominees. The deeper reasons, which are considerably more complex, are the focus of this article.

In the opening decades of the nineteenth century, Samuel Brown Wylie, an Irish-Presbyterian minister of a group of Scottish and Scots-Irish Presbyterians known as the Covenanters, and William Findley, a United States Congressman and also a descendant of the Covenanters, debated the Constitution's compatibility with Christianity and the proper bounds of religious uniformity in the newly founded Republic. Their respective views were diametrically opposed, yet each managed to borrow from different aspects of earlier political traditions held in common while also laying the groundwork for contrasting political positions which would more fully develop in the decades to come. And more than a few times their views seem to criss-cross, supporting contrary trajectories from what one might expect.

Their narrative, in many ways strange, challenges certain “Christian” understandings of early America and the Constitution, yet it also poses a few problems for attempts at a coherent theory of secularity, natural law, and the common good in our own day.

Samuel Brown Wylie is an obscure figure in American history. As a Covenanter, Wylie was forced to immigrate to America due to his involvement in the revolutionary United-Irishmen in Ulster. After finding it impossible to unite with other Presbyterians in Pennsylvania, Wylie became the first minister in the “Reformed Presbyterian Church of the United States,” which would also be called “the Synod of the Reformed Presbyterian Church.” According to his great-grandson, Wylie also went on to become the vice-Provost of the University of Pennsylvania.

Significant controversy surrounds individuals' reliance on religious healing approaches to the treatment of illness, particularly when such efforts focus on the provision of care for children. These approaches, rooted in organized religions and their theologies, encompass a wide range of practices, ranging from prayer, meditation, and the laying on of hands, to exorcism, speaking in tongues, Spiritism, shamanic intervention, and various rituals of Santería. Numerous faith communities espouse one or more forms of religious healing while discouraging reliance on conventional medical treatments: These communities include the Christian Science Church, the Church of the First Born, End Time Ministries, Faith Tabernacle, Followers of Christ Church, Bible Believers' Fellowship, Christ Assembly, Christ Miracle Healing Center, Church of God Chapel, Church of God of the Union Assembly, Holiness Church, Jesus Through Jon and Judy, “No Name” Fellowship, Northeast Kingdom Community Church, and The Source.

Others, such as the Assemblies of God, have moved away from an exclusive reliance on religious healing practices to a more holistic approach that combines religious-healing with at least some aspects of biomedicine. For many of these listed groups, health and illness represent the physical manifestation of moral concerns relating to salvation, which can only be addressed through religious healing.

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.