In Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), the Supreme Court declared constitutional the Forest Service's development plan in an area of the Six Rivers National Forest (known as the High Country) that is central to the religious practice of the Yurok, Karuk, and Tolowa Nations. The Court admitted that “[i]t is undisputed that the Indian respondents’ beliefs are sincere and that the Government's proposed actions will have severe adverse effects on the practice of their religion” (447). Nevertheless, because the disputed area was on public land, the Court thought that the government should be allowed to manage its property in any way it saw fit, regardless of the severe adverse effects on the religious practice of the local Indigenous nations. In this article, I read materials from the trial that led to the Lyng decision, focusing on the Indigenous witnesses and their testimony that has been largely ignored in the Lyng decision. The U.S. legal framework of free exercise does not allow the courts to fully consider the stories told by the Indigenous witnesses in trial. A law-and-literature approach allows me, though, to tell a different story about the High Country, one that centers Indigenous knowledge and sovereignty.

The article challenges the fashionable but finally unsupportable opinion in political and academic circles that there exists no compelling, unitary, universally resonant moral and legal justification of human rights. The argument is intimated by two overlooked passages in the preamble to the Universal Declaration of Human Rights that presuppose the right of self-defense against arbitrary force, understood as both a moral and legal concept, and as relevant both to personal and collective life. It shows how the logic of defensive force underlies the three formative human rights instruments: the UDHR, and the two covenants on political, legal, economic, social, and cultural rights. The underlying claim is that good reasons of a particular kind are required to justify any use of force, a claim that makes perfect sense against the backdrop of the atrocities committed by the German fascists and their allies in the mid-twentieth century. The article also refers to compelling, if preliminary, evidence of the widespread cross-cultural acceptance of the moral and legal right of self-defense, suggesting a basis for the worldwide comprehensibility and appeal of human-rights language.

This article makes the counterintuitive argument that the millennia-old approach of Jewish law to regulating surveillance, protecting communications, and governing collection and use of information offers important frameworks for protecting privacy in an age of big data and pervasive surveillance. The modern approach to privacy has not succeeded. Notions of individual “rights to be let alone” and “informational self-determination” offer little defense against rampant data collection and aggregation. The substantive promise of a “fundamental human right” of privacy has largely been reduced to illusory procedural safeguards of “notice” and “consent”—manipulable protections by which individuals “agree” to privacy terms with little understanding of the bargain and little power to opt out. Judaism, on the other hand, views privacy as a societal obligation and employs categorical behavioral and architectural mandates that bind all of society's members. It limits waiver of these rules and rejects both technological capacity and the related notion of “expectations” as determinants of privacy's content. It assumes the absence of anonymity and does not depend on the confidentiality of information or behavior, whether knowledge is later used or shared, or whether the privacy subject can show concrete personal harm. When certain types of sensitive information are publicly known or cannot help but be visible, Jewish law still provides rules against their use. Jewish law offers a language that can guide policy debates. It suggests a move from individual control over information as the mechanism for shaping privacy's meaning and enforcement, to a regime of substantive obligations—personal and organizational—to protect privacy. It recognizes the interconnected nature of human interests and comprehends the totality of the harm that pervasive surveillance wreaks on individuals and social relations. It offers a conceptual basis for extending traditional privacy protections to online spaces and new data uses. And it provides a language of dignity that recognizes unequal bargaining power, rejects the aggregation and use of information to create confining personal narratives and judgments, and demands equal protection for all humans.

The duty to obey juristic injunctions in Islamic law is often assumed to follow a simple model: God commands, the jurists discover the meaning of those commands, and the faithful follow the jurists’ interpretation. By examining the arguments advanced by some prominent classical Islamic jurisprudes in support of the claims for law's normativity, I show that the jurists saw themselves as representatives of their communities in the quest to formulate opinions about actions in a way that is faithful to revelation. This model can be summarized as follows: (1) the jurists, by virtue of their knowledge, inform individuals of how to act according to revelation; (2) the pronouncement of a jurist who is knowledgeable and fair may be followed without revisiting their justifications; (3) everyone has a duty to act according to revelation and to rebuke those who do not. A reasonable individual should be motivated to follow juristic pronouncements when all these conditions are present. My main claim is that the basic model wherein God is an authoritative commander and the jurists are informants is unsatisfactory. The jurists saw themselves as more than mere discoverers and informers. This Islamic model has unique features when it comes to understanding authority in general. The uniform commitment to a formal moral source, coupled with the contingent nature of the robust reasons given by the system, make the Islamic model distinct from some modern accounts. The Islamic model offers a view of legal authority that is specific to a cohesive community that shares a basic moral commitment. This model fits the classical need for a theory of authority that is both persuasive and authoritative.

This article provides the first history of the Church of Jesus Christ of Latter-day Saints as a legal entity. It makes two contributions. First, this history recasts the story of the so-called first disestablishment, revealing that it was longer and more contentious than is often assumed. Disestablishment produced a body of corporate law encoded with strong theological assumptions. Because corporate law was the primary mechanism for regulating churches, this created problems for groups like Roman Catholics and Latter-day Saints who did not share the law's theological commitments. Far from being settled in the early 1830s, the first disestablishment continued to spawn bitter legal battles into the late nineteenth and early twentieth centuries. Second, this article reveals legal personality as one of the key points of conflict between the Latter-day Saints and American society. This is a useful corrective to accounts that emphasize polygamy and theocracy as the points of legal contention. An understanding of the history of the church as a legal entity supplements these stories by revealing how the hard-fought legal battles of the late nineteenth century can be seen as an extension of the process of legal disestablishment that began during the American Revolution.

The Middle Ages are not usually considered an era when the law was friendly to laborers. Numerous regulations in medieval England were very unfriendly to them. However, religious laws—that is, canon law—did act to protect laborers when it came to working on holy days. Examining cases in the ecclesiastical courts, this article traces discussions concerning who was to blame, from theory into practice, when masters compelled their subordinates to work on holy days. Differing ideas on how to assign blame were ultimately reflected in the ecclesiastical courts. Some courts prosecuted only masters, while others prosecuted both masters and subordinates.

This article combines historical and philosophical analysis to examine and critique the ideas motivating Christian conservative legal activism. Such activists routinely claim to be motivated by a Christian worldview, which they define as a comprehensive explanation of reality that determines all their thinking and action, including their legal activism and argumentation. Examination of the historical and philosophical roots of the concept of worldview identified by Christian thinkers reveals two understandings of the concept: an analytic tool for rationally comparing the evidence for different social philosophies, and a pre-theoretical lens that determines what counts as evidence in the first place. Christian conservatives have largely favored the first sense of worldview as a tool to understand issues like sexuality and gender identity in an essentialist way and to demonstrate with foundationalist logic the rational superiority of their legal conclusions about these issues. However, a comparison of the Christian conservative worldview and the queer theory worldview illustrates how this understanding of worldview as a tool fails because there is no neutral perspective outside of any worldview, from which one could examine and compare one to another. The idea of worldview as a pre-theoretical, historically, and socially contingent lens can be more productive. Embracing this notion of worldview in a personalist way is necessary to build a culture of dialogue that uses narrative to pursue the truth while also respecting and honoring the different perspectives from which these narratives are told.

This article explores one tumultuous encounter between a religious legal tradition and the modern principle of equality—an encounter that also has the potential to shed light on a much wider cluster of questions. The author tracks the ways that the responsa written by prominent Conservative rabbis on the subject of female rabbinic ordination and gender equality implicitly (but unambiguously) reflect the push toward increased equality that weighed on the movement's trajectory, showing that the debate about the ordination of female rabbis reveals two principal trends in Conservative legal rulings, which differ in their responses to the challenge of egalitarianism and their visions of the law, and notes two outlier responsa that cannot be neatly classified within either trend. The author then examines the deep-seated historical, ideational, and sociological processes concurrent with the rise of what some have called the egalitarian age, which have produced these diverging responses and visions, and it determines an appropriate framework to understand them. The author shows that the fight for increased gender equality is situated within an intricate social context that imbues it with meaning and shapes its outcomes and modes of expression. In concluding, the author suggests applying the insights gained in the course of the analysis to other circumstances in which gender egalitarianism clashes with religious tradition. The framework by which the ordination of women in the Conservative movement is analyzed also proves useful, mutatis mutandis, in understanding and comparing the responses of other faith communities as they deal with challenges caused by the egalitarian age.

Some years back, around 2013, I was asked to write an article on the uses of the Bible in African law. Researching references to the Bible and biblical law across the African continent, I soon learned that, besides support for arguments by a few states in favor of declaring themselves “Christian nations,” the main use was in emerging debates over homosexuality and same-sex relationships—almost exclusively to condemn those relationships. In January 2013, the newly formed African Consortium for Law and Religion Studies (ACLARS) held its first international conference at the University of Ghana Legon. There, African sexuality debates emerged forcefully in consideration of a paper by Sylvia Tamale, then dean of the Makarere University School of Law in Uganda, who argued pointedly, “[P]olitical Christianity and Islam, especially, have constructed a discourse that suggests that sexuality is the key moral issue on the continent today, diverting attention from the real critical moral issues for the majority of Africans . . . . Employing religion, culture and the law to flag sexuality as the biggest moral issue of our times and dislocating the real issue is a political act and must be recognised as such.”

In many African societies, gender roles and sexuality are intensely scrutinized, policed, and often enforced. Frequently, this situation results in perceived deviations being characterized in very strong terms. Many Africans across religious and denominational boundaries seem united in their opposition and criticism of same-sex relationships. In the twenty-first century, criminalization of same-sex relationships has witnessed an uptick across the continent. In Nigeria, same-sex union was criminalized in 2014, an act that witnessed massive support from Protestant, especially Pentecostal, Christian communities. Prominent Pentecostal leaders spearheaded the campaign in support and defense of the anti-gay laws in the country. Reasoned opposition to a practice based on religious faith, doctrine, and scriptural prescriptions is an integral aspect of the protection for the practice of religion. However, there is a palpable tension in the debates around rights to free sexual expression as a fundamental element of legally protected human rights and the equally constitutionally embedded right to religious practice, expression, and exercise. At what point, therefore, does the respect for the free exercise of religion and religious expression come into conflict with the respect for, and protection of, minority rights such as claimed rights to sexual expression such as many LGBTQI persons are increasingly contesting? Framed differently, is the verbal and non-verbal promotion of hatred, violence, indignity, and insult or giving offence to a segment of the population based on sexual orientation a part of free religious expression? How do the Pentecostal arguments against same-sex relations in Nigeria approximate to hate speech, defined as a verbal attack on a person or group of persons based on their attributes such as gender and sexual orientation, religion, or ethnicity? To analyze these and related issues, this essay examines the arguments used by the leader of the largest Pentecostal organization in Nigeria—and by far, the most important Pentecostal voice in the country—in the wake of the legal prohibition of homosexuality in Nigeria in 2014.

The increased visibility of same-sex relationships and the call for same-sex marriages have been particular challenges to the traditional marriage system in Africa in the contemporary period. While some critics have argued, erroneously, that same-sex relationships were completely unknown to the African continent until the advent of Western modernity, others have suggested that the practices speak to a greater malaise confronting African societies. Nigeria is not an exception in this case. In light of these trends, this article examines the Same-Sex Marriage Prohibition Act, which was promulgated by the Nigerian government in 2014 and has since led to infractions upon the human rights of citizens in same-sex relationships. The article examines these developments around same-sex relationships in the context of wider social and economic challenges to the traditional marriage institution in Nigeria.

In Kenya, debates about sexual orientation have assumed center stage at several points in recent years, but particularly before and after the promulgation of the Constitution of Kenya in 2010. These debates have been fueled by religious clergy and by politicians who want to align themselves with religious organizations for respectability and legitimation, particularly by seeking to influence the nation's legal norms around sexuality. I argue that through their responses and attempts to influence legal norms, the religious and political leaders are not only responsible for the nonacceptance of same-sex relationships in Africa, but have also ensured that sexuality and embodiment have become a cultural and religious battleground. These same clergy and politicians seek to frame homosexuality as un-African, unacceptable, a threat to African moral and cultural sensibilities and sensitivities, and an affront to African moral and family values. Consequently, the perception is that homosexuals do not belong in Africa—that they cannot be entertained, accommodated, tolerated, or even understood. Ultimately, I argue that the politicization and religionization of same-sex relationships in Kenya, as elsewhere in Africa, has masked human rights debates and stifled serious academic and pragmatic engagements with important issues around sexual difference and sexual orientation while fueling negative attitudes toward people with different sexual orientations.