In Employment Division v. Smith (1990), the U.S. Supreme Court held that neutral and generally applicable laws would no longer receive strict scrutiny review. Many feared that Smith had severely truncated the protection of the First Amendment Free Exercise Clause. Three years later, however, in a controversial Santerian slaughtering case, Douglas Laycock persuaded a unanimous Supreme Court in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah to highlight an important limitation on the Smith neutrality standard. Both "masked as well as overt" government hostility, targeting, or discrimination against religion are constitutionally "suspect," Lukumi made clear. Recent Supreme Court free exercise cases have emphasized this limitation. Over the past decade, the European Court of Human Rights and the Court of Justice of the European Union are replaying the same story that played out in the U.S. Supreme Court in the 1980s and 1990s and have gradually weakened their religious freedom provisions into a guarantee of government neutrality alone. In their most recent cases, these pan-European high courts have upheld blatantly discriminatory regulations of Muslim and Jewish ritual slaughtering, favoring animal welfare over religious freedom. These courts need to take a lesson from Laycock's argument in Lukumi that neutrality requires states not to take sides for or against religion and not to uphold laws that have the mere pretense of neutrality while targeting the core practices of religious minorities.
The Roman Curia is the body of institutions that assist the pope in his ministry as supreme pastor of the Catholic Church. The much-awaited reform of the curia, by means of the Apostolic Constitution Praedicate Evangelium, gave rise to strong hopes of decentralization and efficiency at the Vatican and the church. However, a close reading of this new norm does not immediately lead to concluding that any more ecclesiastical competences of the Holy See have been transferred to particular churches. Instead, the reform may be characterized as a decentralization of procedures, rather than competences, and a passionate call for the spiritual conversion and professionalism of Vatican officials. The reform is also in line with the type of synodal church that Pope Francis announced from the beginning of his pontificate, in which decisions are made after listening to everyone who is affected by that decision and by everyone who has something to contribute to the discussion. In this article, the author offers, for readers who are not experts in the law or doctrine of the Catholic Church, a discussion of the main changes brought by the reform, their significance, and possible consequences, as well as some recent changes introduced after the election of Pope Leo.
After the Occultation of the Twelfth Imam (al-ghaybah al-kubr & amacr;) in the fourth AH/tenth CE century, the applicability of divinely ordained punishments, hud & umacr;d, became a subject of theo-juridical controversies between two groups of Shi'i jurists: pro- and anti-hud & umacr;d. In the aftermath of the Islamic Revolution of 1979 and the establishment of a Shi'i theocracy, Iranian theocrats supported the pro-hud & umacr;d Shi'i jurists, and as a result, hud & umacr;d punishments were incorporated into the Islamic Penal Code and have been applied by the state ever since. Some Iranian legal reformers, recognizing the challenges in applying hud & umacr;d punishments, have put forward two politico-juridical mechanisms (zarfiyat): the secondary ruling and the state order. These two mechanisms, the reformers assert, may be used by the Islamic Republic of Iran to suspend hud & umacr;d punishments. In this article, I examine both the arguments presented by reformers and the objections to these arguments raised by conservative and Shi'i orthodox-minded jurists. These objections pose doctrinal challenges that impede the utilization of these mechanisms, thus obstructing the suspension of hud & umacr;d punishments.
This festschrift essay honors the academic life and work of Douglas Laycock, one of the most important scholars and advocates in American law and religion. This essay offers tribute to a mentor from whom I took three classes and an independent study in law school, for whom I worked as a research assistant, and with whom I have remained in close conversation during my two decades in the academy. It also offers an insider's account of Laycock's intellectual project and influence-punctuated with stories, observations, and nuggets of wisdom drawn from a close reading of his scholarship and briefs. This essay traces Laycock's career from his early academic work to his later role in landmark Supreme Court litigation, ultimately seeing Laycock's deepest legacy as lying not only in the doctrines he helped shape, but in a model of intellectually serious, cross-ideological engagement that both inspires us and calls us to account.
This article examines the rise of ecclesial units in US prisons, wherein inmates are trained and certified for Christian evangelism as state-assigned inmate field ministers. Unlike general religious education programs in public prisons, these newer units, referred to within prison communities as God pods, function as ecclesial training centers for Christian ministry undertaken by matriculated state prisoners. The author contrasts the work of inmate field ministers with that of public chaplains governed by mandates of religious neutrality. Drawing from on-site and archival research, the author contends that these new programs instantiate Christian doctrine as government speech while imposing religious tests for public benefits upon state prisoners. The author profiles recent case law advancing a history-and-tradition standard for Establishment Clause cases, while noting the long-standing expectation of religious neutrality by public institutions. The author highlights recent scholarly accounts of US prisons as imbued with Christian theology amid a broader defunding of secular rehabilitation. While religious entrepreneurs have long delivered Christian programming in public prisons, new ecclesiastical units institutionalize Christian doctrine as state rehabilitation, raising urgent questions about religious liberty in the carceral sphere and the future of faith-based programming.
Since the early centuries of Christianity, the pope has had help in governing the universal church. Throughout history, the power of the Roman Curia has been centralized in a curia of cardinals-at the expense of diminishing the role of the college of bishops. The Second Vatican Council's contributions to the episcopate and the role of the laity inspired, if only in part, the reforms of Paul V and John Paul II. Praedicate Evangelium, the apostolic constitution authored by Pope Francis, emphasizes the pastoral dimension of the curia, the participation of the bishops, and the co-responsibility of all the faithful. It recognizes, for the first time in church history, the possibility that lay people can, in some cases, direct dicasteries. This historic statement is, however, a starting point for reform. Synodality and decentralization may require further changes both in the Roman Curia and at the diocesan level. In addition, there is an urgent need for the institutions and individuals involved in the central governance of the Catholic Church to ensure respect for the law, transparency, accountability, and anything that could constitute an abuse of power.
Douglas Laycock's theory of substantive neutrality has had much to say about contemporary debates in U.S. law and religion, particularly for courts and scholars grappling with the problem of religious exemptions from general laws. It is fair to say that the U.S. Supreme Court has in many respects adopted Laycock's approach in free exercise cases. But Laycock's work on the Establishment Clause side has unfortunately been less influential on the Supreme Court. In the context of Establishment Clause challenges to government-sponsored religious expression, Laycock has argued that the government endorsement of religion through official sponsorship of religious speech violates substantive neutrality because government endorsement of religion encourages religious belief without leaving room for private individual choice. But the court has moved away from any consideration of endorsement or substantive neutrality in cases considering challenges to official religious expression, focusing instead on vaguely-described historical practices and understandings. In this article, the author explains the correctness and insightfulness of Laycock's theory, which elucidates and justifies the Supreme Court's now-abandoned endorsement doctrine and explains why the Supreme Court's current approach to the issue of official religious speech is much more problematic than the substantive neutrality approach.
This article deals with late antique Jewish and Christian discourse on social hierarchy, martyrology, and attitudes toward the law and the commandments. I place Jewish and Christian attitudes to martyrdom in late antiquity within the larger system of the commandments. Beyond the circumstantial connections between martyrdom and the affirmation or violation of laws, I argue that martyrdom constitutes an important lens for the examination of the rule of the law and for the negotiation of socio-religious hierarchies. I argue that the elevation of martyrdom creates inner tension vis-& agrave;-vis the idea of life-long righteousness based on adherence to the law. I discuss the construction of martyrdom as the final and ultimate commandment, necessary for reaching a state of perfection. Through addressing a case where martyrdom is presented as competing with, if not substituting, a life according to the law, I discuss the theme of an upside-down world, which appears in both Christian and Rabbinic literature, concerning martyrs. In this framework, I discuss the view of martyrdom as a kind of stairway to heaven-an instrument for rapid advancement allowing to overtake those who lived according to the law-and the unique perception of law and martyrology in the fourth-century Syriac-Christian Book of Steps, which places the martyrs below the perfect.
The concept of mercy is often proposed as an antidote to the punitive excesses of our current criminal justice system. But this concept is typically presented in generalized, abstract terms that seem unworkable as a pragmatic decision strategy. Its religious origins and associations only add to this impression. In fact, however, if the biblical accounts of mercy are interpreted using the narrative strategy that is featured in current scholarship, an eminently practical decision protocol emerges from these accounts. This protocol diverges from the common or popular view of mercy. It omits the demand for contrition or gratitude on the part of the wrongdoer, viewing this as an effort to exercise domination rather than extending mercy, and minimizes compassion on the part of the decision maker due to its tendency to merge into favoritism. Instead, the protocol recommends that the decision maker deal with the wrongdoer on a direct personal level, suppress any emotional responses such as anger or indignation, and consider the collateral consequences of the proposed punishment. The author describes the way the protocol can be derived from leading biblical narratives about mercy, including the expulsion from the garden, the mark of Cain, Christ and the adulteress, and the prodigal son. He expands on this derivation by analyzing the book of Jonah, rejecting the common view that this work is a satire and treating it instead as a profound inquiry into the nature of mercy. He concludes by applying the protocol he has derived to policy level decisions in the criminal justice system, specifically judicial sentencing, administrative parole and the use of restorative justice.
Douglas Laycock's career in Religion Clause scholarship and advocacy spans two periods marked by two distinct concerns at the heart of the debates. This article connects them. In the first period, from the 1980s into the 2000s, the central issue was what general value or principle should drive Religion Clause decision-making. Laycock's approach, substantive neutrality toward religion, focused on minimizing government effects on religious choices and thus led the way in reconciling two key values: neutrality on the one hand, and religious liberty or voluntarism on the other. In the second period, from the mid-2000s forward, religious liberty became caught up in the United States' cycle of polarization. Laycock again led the way; his work on Religion Clause neutrality supports the effective defense of religious liberty in a polarized age. In particular, he called for aggregating neutrality: recognizing that any policy can have differing effects on the religious choices of different relevant actors and comparing those effects with the goal of minimizing burdensome effects on religious choices overall. This approach, done with care, can take account of the effect on competing sides and thus productively address polarized conflicts.
In this article, the author develops an Islamic normative legal theoretical framework by using three key Islamic methodological approaches-(1) juridical theory of law (usul), (2) legal maxims (qawa'id), and (3) purposive-based theory (maqasid)-in light of Ronald Dworkin's notions of rules, principles, and policies, respectively. While usul is used to develop rules, qawa'id and maqasid provide the normative values that govern rulemaking. In addition to presenting a coherent model of Islamic normative legal theory, the author examines legitimacy issues of Islamic law that relate to links of rules to shari'a revealed texts and applies the Islamic normative legal theoretical framework to contemporary rulings on the environment, organ transplants, and Islamic finance. The case studies show that using the integrated normative framework would yield more ethical rulings than those that focus on juridical methods (usul) only. The author argues that while the extent of legal legitimacy can vary across different rulings, the application of the Islamic normative legal framework ensures normative legitimacy in all cases, ensuring the moral character of Islamic law.
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.
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.
