This essay begins with a quotation from Carl Schmitt in which he quotes Søren Kierkegaard on the significance of the exception in political theology. The essay is an extended reflection on this quotation within a quotation. Through a comparison of Kierkegaard and Schmitt, the author presents two readings of the state of exception: the first centers on the figure of the sovereign, while the second centers on the figure of the martyr. The sovereign suspends the law from above, while the martyr suspends it from below. In the political sphere, there are two ways of becoming the exception: the sovereign versus the martyr.

The state of the Free Exercise Clause in U.S. constitutional law is uncertain. With an opportunity in Fulton v. Philadelphia to clarify the vitality of the current standard from Employment Division v. Smith, the United States Supreme Court has declined to do so. The lasting impact of Smith has been to move away from directly requiring government justifications for infringing free exercise. Instead, courts now use neutrality and general applicability as heuristics for government justification. Yet, relying solely on neutrality and general applicability to proxy for government justification when infringing religious exercise distracts courts from conducting a fact-based inquiry. This article demonstrates how more scrutiny of the legislative facts in free exercise doctrine may serve as a viable alternative to Smith’s flawed approach for evaluating government justifications. The author first shows empirically how more factual scrutiny—directly requiring the government to justify its actions with evidence—can benefit government and religious claimants and then discusses the normative advantages of a fact-intensive approach to constitutional scrutiny. During a moment of sharp division over religious freedom and other competing rights, factual scrutiny can be a powerful tool for handling free exercise challenges and promoting responsible religious freedom.

US and UK courts define religion as a belief system dealing with existential concerns, which is separable from politics, and need not be theistic. Where does this concept of religion come from? Some scholars trace it to the advent of the Protestant Reformation when religion became a matter of competing theological propositions. My analysis of both John Calvin and Roger Williams shows that those Protestant thinkers emphasized the view that religion is essentially a belief system. However, Protestantism cannot explain all of the features of the US and UK concept of religion. It is because of the liberal belief in individual rights and in popular sovereignty that early liberals like Roger Williams and contemporary courts embrace the separability of religion from politics. These courts also reject the view that religion is necessarily theistic given their liberal commitment to treating citizens that subscribe to certain non-theistic ideologies as equal citizens to citizens with theistic ideologies.

Of all the principles in classical Jewish law that stand out from a comparative legal perspective perhaps none is more notable than the ban on self-incrimination in criminal procedures. Contrary to the most basic evidentiary assumptions of other ancient legal systems, this principle differs fundamentally from the right to remain silent that is part of both early modern and modern legal systems. Only rabbinic jurisprudence incorporates an outright exclusion of criminal confessions. Despite receiving much scholarly attention over the centuries, this principle’s fundamental justification relating to the rule of law and the public pursuit of justice has gone unnoticed. This article explores this salient jurisprudential perspective, and sheds new light on this principle by contrasting the Jewish legal approach with the primary modes of criminal adjudication that were adopted in the West. What emerges from this comparative analysis is that this seemingly anomalous principle actually reveals much about the core commitments and values of Jewish law. These, in turn, have substantial implications for certain contemporary legal practices and dilemmas.

In the late eighteenth century, Johann David Michaelis criticized Moses Mendelssohn for bringing what Michaelis termed his native Jewish tradition into his thinking on universal matters. Yet leaning on Jewish sources had been a key feature of European natural law thinking from the onset of modernity. In this article, the author reads Mendelssohn’s natural law theory as conversant with early modern legal thought that was scrutinized in the enlightenment, shedding new light on Mendelssohn’s innovations and on what Mendelssohn was up against when he offered natural law foundations for toleration. The author finds that arguments for and against toleration of the Jews from the seventeenth century to the nineteenth were tied to the question of whether Judaism contained universal laws or laws particular to the Jews, and suggests that Mendelssohn’s approach, while rejected from the eighteenth to the twentieth century, may be newly relevant today.

Islamic veiling has attracted a remarkable degree of international and domestic attention in the current political climate. In the popular and political climate, the argument for social cohesion (or living together) is frequently invoked to justify bans on wearing Islamic veils. For example, the social cohesion argument was widely used in parliamentary debates leading up to the bans on wearing Islamic full-face veils (such as burqa or niqab) in France and Belgium. In response to the French and Belgian bans, the European Court of Human Rights has ruled that a ban on wearing Islamic full-face veils is justified on the grounds of living together, rulings that many academic circles have criticized. Yet in this extensive commentary on the bans of Islamic veiling, one important question remains unanswered: Is social cohesion (or living together) a valid argument for banning the wearing of Islamic veils? The author explores this question through the lens of the European human rights framework and analyzes the ECtHR’s approach to French and Belgian anti-veil legislation enacted on the grounds of social cohesion.

In 1963, Martin Luther King, Jr. wrote Letter from Birmingham Jail in response to white clergy members who had urged him to cease demonstrating against segregation laws, follow the standards of law and order, and pursue change through official governmental channels. These remonstrations mirror arguments invoked to delegitimize dissent and provide support for legal but immoral governmental policies such as American slavery, Nazi atrocities, and apartheid. At the heart of religious justifications for such arguments is Romans 13:1–7, which endorses human government as God ordained but can be interpreted to require unqualified obedience to law. It is also the go to passage used by Christians to describe the role and authority of police officers in their law enforcement capacity. The way Romans 13 has often been interpreted and applied, however, is exegetically and theologically problematic. Most importantly, the passage is not describing the role of individual police officers as is often argued, but rather the operation of human government as an institution. This flawed starting point has led to a cascade of other interpretive errors, which include describing police officers as agents of God’s wrath and delegitimizing dissent against unjust laws. It also promotes some of the most pernicious features of American law enforcement, including the alienating idea of police as the thin blue line, the we-they mentality that demeans those being policed, the use of warrior to describe the policing role, the militarization of law enforcement, and the systemic racism that plagues U.S. policing. In this article, the author offers a more exegetically and theologically accurate reading of Romans 13, with very different implications for role of law enforcement, and gestures toward a much-needed Christian theology of policing.

Expressivist theories of law focus not only on what legal arrangements do but also what they communicate. The expressivist view has gained special currency in the context of religious establishment. Even when governmental involvement with religion is not coercive or does not materially violate anyone’s rights, it may nevertheless be undesirable by virtue of expressing a preference for a certain religion or a privileged status for certain religious groups over others. The existing literature, however, lacks an equivalent expressivist analysis of the related but distinct domain of free exercise of religion. What is expressed when a religious individual or group is granted special relief from the legal requirements that would otherwise apply to them? I argue that just like religious establishments, religious exemptions not only implicate rights and material interests but also have important expressive dimensions that both help account for their value and impose limits on their desirability.

This article is a response to Christians in public and private life who favor policies, employ rhetoric, and view migrants in ways that contravene their faith traditions. Speaking primarily from the perspective of Christian migrant-serving, faith-based organizations in the United States, the author examines their challenges, sources of consolation, and understanding of migrants in light of their work and religious touchstones in an era of political polarization and unprecedented forced displacement. He outlines an inclusive path forward, rooted in a commitment to the common good, to solidarity with the displaced, and to a deeper understanding of the hopes, aspirations, and gifts of migrants.

The Reverend Dr. Martin Luther King, Jr. was concerned about both poverty and race, inextricably linked because of the long and brutal history of racial injustice in housing, employment, and education. What Dr. King called the beloved community reflected a vision of a world built on peace, human dignity, and shared material abundance for all people. To explore this linkage of poverty and race, I employ two related Christian theological concepts: the universal destiny of the goods of the earth and the social mortgage that encumbers all private property to ensure the equitable provision of those goods to all and for all generations. I analyze the ways in which the universal destiny of goods can be mediated through U.S. property law by structuring the ownership and use of land and buildings within the context of social obligation. But while the law has the capacity to ensure ownership, security, and infrastructure for all, U.S. society has failed to make the necessary payments on the social mortgage that would create this reality—a failure due primarily to severe racial and economic injustices, both historical and contemporary. Yet there is hope: I present examples that offer glimpses of the beloved community.

Today in South Korea, individuals of certain faiths are unable to take a wide range of state-administered qualifying examinations due to their religious convictions. The Constitutional Court of Korea has repeatedly refused their request for religious accommodations, such as an alternative test date for Sabbath or holy day observers who are unable to take exams on their original dates. The authors analyze the series of Constitutional Court decisions rejecting the need for such accommodation by focusing on the court’s use of its main analytical tool, the proportionality principle. These decisions reveal important shortcomings in the court’s application of the proportionality principle, including challenges inherent to proportionality and more specific deficiencies in the court’s application of the general principle. The article thus sheds light on how the proportionality principle is applied in the context of Korean constitutional jurisprudence and the resultant deprivation of protection for certain fundamental rights in Korea. The authors compare the court’s approach with that of courts in Spain, Switzerland, and the United States. They then propose a number of ways to improve the court’s proportionality analysis and its constitutional reasoning.

This article foregrounds the Western Apache fight to save the sacred site of Chi’chil Biłdagoteel, or Oak Flat, which at this writing is threatened by a proposed copper mine. Like many other Native peoples, Western Apaches have historically resisted colonial suppression by reconfiguring ancestral traditions to make them legible to authorities as religion. In their current struggle, Western Apaches are restoring and repairing their relationships with the sacred landscapes of their ancestral homelands. The controversy over Oak Flat also demonstrates how US religious freedom law continues to impose an implicitly Christian model for religion and how Western Apaches today are pushing back against that model even as they necessarily use it to claim the protected status that religion enjoys in the United States. Chi’chil Biłdagoteel thus illuminates the ongoing paradoxes of US religious freedom law, the privileges that Christianity still holds within this legal regime, and the ongoing vibrancy of living Apache religion.

On February 6, 1968, leaders of the Southern Christian Leadership Conference drafted a letter addressed to the president, Congress, and the U.S. Supreme Court. The letter argued that the U.S. constitution facilitated economic and social second-class citizenship because the constitution did not protect economic and social rights but instead protected only civil and political rights. The letter’s authors demanded that the nation repent for its continued subordination of the poor and minorities and atone by recognizing economic and social rights. In this article, the authors recover the draft letter—a proposed economic and social bill of rights—and assert it was and remains a morally compelling call to recognize and protect positive fundamental rights under the constitution. The authors maintain that while the SCLC leaders who drafted the letter were clear that law alone could not end the sinful conditions that created racism and poverty, they were becoming more adamant that a radical redesign of the constitution was a necessary step toward building a beloved community.

In the aftermath of World War II, eugenics and the pseudoscientific base used to justify its practices are generally understood to have phased off the scene. If, however, eugenics never actually disappeared but has been persistent, and in turn becomes one of the best explanations for mass incarceration today, what role did Christianity—especially Evangelicalism—play in this unprecedented moment of imprisonment? Building on legal scholarship identifying the significant role of eugenic philosophy that manifests in penal policy and ongoing phenomena into the early twenty-first century, this article examines key figures in the backdrop of eugenics’ particular early developments, and leading figures—namely, Billy Graham and Prison Fellowship’s Chuck Colson—whose ministries operated in close proximity to the prison during the latter twentieth century and especially over the past fifty years as incarceration rates skyrocketed. After examining several important theological tenets reflected within Evangelicalism that are compatible with eugenic logic, a critical approach is developed drawing from more robust theological considerations that if appropriated earlier might have found evangelicals resisting the mass incarceration building efforts rather than supporting them.

The Muslims of South Asia are more than five hundred million people, distributed between Pakistan, India, and Bangladesh, and there are more Muslims in South Asia than in any other region in the world. After Indonesia, which is the largest Muslim country in the world, India, Pakistan, and Bangladesh are the second, third, and fourth largest Muslim countries, respectively. Although the prevalent approach in the study of Islam is to consider its so-called Arab character as central, the Muslims in pre-Partition India constituted the largest body of Muslims in the world, and the vast political and intellectual influence exerted by South Asian Muslims on the wider Muslim world is often neglected. Many of the most important political, intellectual, and spiritual developments within Islam have had their origins, or have flourished, in South Asia, and Muslims from the region have played important roles in the global history of Islam, including during the colonial period, in resistance to colonial rule, and in intellectual responses to and dialogue with Western thought. Pakistan was specifically created to provide a homeland for South Asia’s Muslim population and its trials and tribulations over the past seventy-five years have been carefully watched by Muslims and non-Muslims alike. Muslims constitute India’s largest minority, with an often uneasy—to say the least—relationship to the majority. In the context of the three books under discussion, I explore issues, such as secularism, modernity, and religion, and their impacts on the conception of the nation-state that was promoted during the nineteenth and twentieth centuries as an expression of political modernity.

Taking Ktunaxa Nation v. British Columbia as a focal point, the author argues that the legal framing of Indigenous sacred land claims in terms of religious freedom carries significant costs. It impels courts to bracket consideration of sovereignty and territorial rights, while positioning Indigenous worldviews as nonrational rather than as dynamic intellectual traditions and ways of life that are respectably different from those embodied in settler systems of law. Genuinely fair adjudication of such claims requires not religious exemptions from general laws but recognition of the sui generis rights of Indigenous nations in relation to lands they never ceded (acknowledging historical injustice); deep differences between dominant European settler and Indigenous cultures (acknowledging that settler law is also cultural); and the validity of Indigenous environmental philosophies (acknowledging that they are no less rational than Western ones).

In Where Do We Go from Here: Chaos or Community? the Reverend Dr. Martin Luther King, Jr. speaks with conviction on the need for and importance of community. King depicts American society and modern civilization as a great “world house” that is inhabited, inherited—and imperiled. Behind the metaphor of the world house is a prophetic vision and dream—the realization of what he called the “beloved community.” In this article, the author considers King’s beloved community ideal through a housing lens. Engaging with King’s metaphor, the author frames the beloved community as an apologetic for integrated community. The author views the metaphor of the world house as a significant means to expand understanding of beloved community, elevate housing as a moral-ethical concern, and engender radical structural solutions that can be realized through racial justice in the housing sector.