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Published in Ecclesiastical Law Journal 14 (2012): 327-354 
 

The Study of Law and Religion in the United States: An Interim Report 

John Witte, Jr. 
Director, Center for the Study of Law and Religion, Emory University 

 

Abstract 

The study of law and religion has exploded around the world. This article, prepared in 
celebration of the silver anniversary of the Ecclesiastical Law Society, traces the development 
of law and religion study in the United States.  Despite its long tradition of strict separation of 
church and state and despite its long allegiance to legal positivism and intellectual 
secularization, the United States has emerged as a world leader of the new interdisciplinary 
field of law and religion.  Hundreds of American scholars, from different confessions and 
professions, are now at work in this field, and two dozen major research centers and journals 
have been established at American law schools.  After canvassing some of the main themes 
and trends in American law and religion scholarship today, this article concludes with a brief 
reflection on some of the main challenges before Christian scholars who work in the field of 
ecclesiastical law.1  

Keywords: Law and Religion; Interdisciplinary Legal Study; Legal Positivism; 
Separation of Church and State; Natural Law Theory; Religious Freedom; Religion-State 
Relations; Freedom of Public Religion; Oliver Wendell Holmes, Jr.; United States Supreme 
Court; Protestantism; Catholicism; Orthodox Christianity 

	

	

1 This Article is an expansion of my lecture at the 25th anniversary conference of the Ecclesiastical Law Society 
held at Emmanuel College, Cambridge University, March 2, 2012.  I am grateful to Professor Dr. Mark Hill and the 
Rev. Dr. Will Adam for their editorial direction, and fellow lecturers Professors Silvio Ferrari and Julian Rivers for 
their exquisite lectures and the learned conversation amongst the three of us.  The material from this Article is 
drawn in part from the following volumes, each of which provide more detailed footnotes: John Witte, Jr. and 
Frank S. Alexander, eds., Christianity and Law: An Introduction (Cambridge, 2008); John Witte, Jr. and Frank S. 
Alexander, eds., Modern Christian Teachings on Law, Politics, and Human Nature, 2 vols. (New York, 2006); 
John Witte, Jr. and Joel A. Nichols, Religion and the American Constitutional Experiment, 3d ed. (Boulder, CO, 
2010); John Witte, Jr., God’s Joust, God’s Justice: Law and Religion in the Western Tradition (Grand Rapids, MI, 
2006).  



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INTRODUCTION 

Over the past two generations, a new interdisciplinary movement has emerged in the 
United States dedicated to the study of the religious dimensions of law, the legal dimensions of 
religion, and the interaction of legal and religious ideas and institutions, norms and practices. 
This study is predicated on the assumptions that religion gives law its spirit and inspires its 
adherence to ritual and justice.  Law gives religion its structure and encourages its devotion to 
order and organization.  Law and religion share such ideas as fault, obligation, and covenant 
and such methods as ethics, rhetoric, and textual interpretation.  Law and religion also balance 
each other by counterpoising justice and mercy, rule and equity, discipline and love.  This 
dialectical interaction gives these two disciplines and dimensions of life their vitality and their 
strength.  

To be sure, most scholars acknowledge, the spheres and sciences of law and religion 
have, on occasion, both converged and contradicted each other.  Every major religious 
tradition has known both theonomism and antinomianism -- the excessive legalization and the 
excessive spiritualization of religion.  Every major legal tradition has known both theocracy and 
totalitarianism -- the excessive sacralization and the excessive secularization of law.  But the 
dominant reality in most eras and most cultures, many scholars now argue, is that law and 
religion relate dialectically.  Every major religious tradition strives to come to terms with law by 
striking a balance between the rational and the mystical, the prophetic and the priestly, the 
structural and the spiritual.  Every major legal tradition struggles to link its formal structures 
and processes with the beliefs and ideals of its people.  Law and religion are distinct spheres 
and sciences of human life, but they exist in dialectical interaction, constantly crossing-over 
and cross-fertilizing each other.2 

It is these points of cross-over and cross-fertilization that are the special province of the 
scholarly field of law and religion.  How do legal and religious ideas and institutions, methods 
and mechanisms, beliefs and believers influence each other -- for better and for worse, in the 
past, present, and future?  These are the cardinal questions that the burgeoning field of law 
and religion study has set out to answer.  Over the past two generations, scholars of various 
confessions and professions have addressed these questions with growing alacrity.  

In the United States, this is now a substantial scholarly guild. The Association of 
American Law Schools, the principal scholarly group to which most American law professors 

	

	

2 See esp. the early anchor text in this field by Harold J. Berman, The Interaction of Law and Religion (Nashville, 
TN, 1974), updated in Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (Grand Rapids, 
MI, 1993); Harold J. Berman, et al., The Nature and Functions of Law, 5th ed. (Westbury, NY, 2006); and in Harold 
J. Berman, Law and Language: Effective Symbols of Community (Cambridge, 2013).  See further Howard O. 
Hunter, ed., The Integrative Jurisprudence of Harold J. Berman (Boulder, CO, 1996). 



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belong, has a large section of members on law and religion, and growing sections on Jewish 
law and Christian law as well – collectively involving nearly 500 American law professors.  Law 
and religion themes are also becoming more prominent in the Association’s other sections -- 
and in parallel legal societies -- on legal history, constitutional law, comparative law, 
international law, law and society, and jurisprudence.  The American Political Science 
Association has some 450 members in its Religion and Politics Section, drawn principally from 
university departments of politics and government, with a few legal scholars involved as well.  
And the Society of Christian Ethics has an informal group of some 150 members, several of 
them with legal training, who have stated interests in the interaction of law, religion, and ethics.  

Some 110 American law schools now have at least one basic course on religious liberty 
or church-state relations as part of their basic legal curriculum, and a growing number of law 
schools also offer courses in Christian canon law, Jewish law, Islamic law, and natural law.  
Many scholars now include serious consideration of law and religion materials in their 
treatments of legal ethics, legal history, jurisprudence, law and literature, legal anthropology, 
comparative law, family law, human rights, and other basic law courses.  Some two dozen 
American law schools now have interdisciplinary programs or concentrations in law, religion, 
and ethics, several with specialty journals, websites, and blogs on law and religion, or with 
heavy law and review content in their general law journals.3  Some 750 books and 5000 
articles on law and religion themes were published in America from 1985 to 2010.4  Religion is 
no longer just the hobbyhorse of isolated and peculiar professors principally in their twilight 
years and suddenly concerned about their eternal destiny.  It is no longer just the 
preoccupation of law schools that were explicitly founded on Catholic, Protestant, Evangelical, 
Mormon, or Jewish beliefs.  Religion now stands alongside economics, philosophy, literature, 
politics, history, and other disciplines as a valid and valuable conversation partner with law.   

A half century ago, even the most optimistic forecaster could have not predicted such a 
precocious growth of law and religion study in America.  In the 1960s and 1970s, American 
universities were still in the thrall of the secularist hypothesis that the spread of Enlightenment 
reason and science would slowly eclipse the sense of the sacred and restore the sensibilities 

	

	

3 These American law schools have structured law and religion programs with joint degrees, cross-listed courses, 
research projects, public lectures and conferences, and/or print, digital, and social media offerings: Brigham 
Young, Campbell, Catholic, DePaul, Detroit, Duke, Emory, Faulkner, Fordham, George Washington, Hofstra, 
Notre Dame, Pepperdine, Regent, Rutgers, Seton Hall, St. John’s, St. Mary’s, St. Thomas, Touro, Valparaiso, 
Vanderbilt, Villanova, Wake Forest.  
4 See, e.g., F.C. DeCoste and Lillian MacPhearson, Law, Religion, Theology: A Selective Annotated Bibliography 
(West Cornwall, CT, 1997); “Reviews on New Books in Law and Religion,” Journal of Law and Religion 16 (2001): 
249-1035 and 17 (2002): 97-459, and ongoing scholarship reflected and reviewed in such specialty journals as 
the Ecclesiastical Law Journal, Studia Canonica, Bulletin of the Medieval Canon Law Society, Zeitschrift der 
Savigny-Stiftung (Kanonisches Abteilung), Ius Commune, Journal of Law and Religion, Journal of Church and 
State, Oxford Journal of Law and Religion, Rutgers Journal of Law and Religion, and others. 



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of the superstitious.5  Liberalism, Marxism, and various new critical philosophies were regnant 
on many American university campuses, and even divinity schools and seminaries were 
arguing that “God is dead” and that organized religion is dying.  In this same period, American 
law schools sat comfortably in the embrace of a legal positivist philosophy that viewed law as 
an autonomous science which had no place for religion, morality, or any other non-legal 
perspective.  And the United States Supreme Court was hard at work building up a “high and 
impregnable wall of separation” between church and state and striking down laws that did not 
have a “secular purpose” or primary secular effect.  Nothing in the intellectual, professional, 
and constitutional climate of the mid-twentieth century seemed conducive to the growth of law 
and religion study.   

The aim of this article is to analyze a bit how we got from there to here – from a system 
of American law and legal education in the 1960s and 1970s that little place for religion to the 
current system that embraces religion as an important source and dimension of law, politics, 
and society.  Part I traces the implosion of legal positivism and the rise of interdisciplinary legal 
study in American law schools, including the study of law and religion.  Part II traces the 
erosion of the wall of separation between church and state in constitutional law and the new 
constitutional pattern of granting equal treatment to religion and non-religion alike.  Part III 
surveys some of the main themes of law and religion scholarship in the United States today.  
Part IV lifts up a few of the main challenges that will face the principally Christian readership of 
this journal over the next twenty-five years, as we prepare for the golden anniversary of the 
Ecclesiastical Law Society. 

 
FROM LEGAL POSITIVISM TO INTERDISCIPLINARY LEGAL STUDY 

"The better the society, the less law there will be.  In Heaven there will be no law, and 
the lion will lie down with the lamb.... In Hell there will be nothing but law, and due process will 
be meticulously observed."6  So wrote Yale law professor, Grant Gilmore, to conclude his Ages 
of American Law.  The book was published in 1974, just at the end of the “age” of legal 
positivism.  Gilmore crafted this catchy couplet to capture the pessimistic view of law, politics, 
and society made popular by the American jurist and Supreme Court Justice Oliver Wendell 
Holmes, Jr. (1841-1935).  Contrary to the conventional portrait of Holmes as the sage and 
sartorial “Yankee from Olympus,”7 Gilmore portrayed Holmes as a “harsh and cruel” man, 
chastened and charred by the savagery of the American Civil War and by the gluttony of the 
Industrial Revolution. These experiences, Gilmore argued, had made Holmes “a bitter and 
lifelong pessimist who saw in the course of human life nothing but a continuing struggle in 

	

	

5 For parallel secularization movements in Europe, see Silvio Ferrari, “Law and Religion in a Secular World: A 
European Perspective,” Ecclesiastical Law Journal _ (2012): __ [this issue]; Julian Rivers, The Law of Organized 
Religions: Between Establishment and Secularism (Oxford, 2010).  
6 Grant Gilmore, The Ages of American Law (New Haven, CT, 1977), pp. 110-11. 
7 Catherine Drinker Bowen, Yankee From Olympus: Justice Holmes and His Family (Boston, 1944). 



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which the rich and powerful impose their will on the poor and the weak.”8  The cruel excesses 
of the Bolshevik Revolution, World War I, and the Great Depression in the first third of the 
twentieth century only confirmed Holmes in his pessimism that human life was “without 
values.”9 

This bleak view of human nature shaped Holmes’ bleak view of law, politics, and 
society.  Holmes regarded law principally as a barrier against human depravity – a means to 
check the proverbial “bad man” against his worst instincts and to make him pay dearly if he 
yielded to temptation.10  Holmes also regarded law as a buffer against human suffering – a 
means to protect the vulnerable against the worst exploitation by corporations, churches, and 
Congress.  For Holmes, there was no higher law in heaven to guide the law below.  There was 
no path of legal virtue up which a man should go.  For Holmes, the “path of the law” cut a 
horizontal line between heaven and hell, between human sanctity and depravity.  Law served 
to keep society and its members from sliding into the abyss of hell.  But it could do nothing to 
guide its members in their ascent to heaven.   

Holmes was the “high priest” of a new “age of faith” in American law, Gilmore wrote with 
intended irony, which replaced an earlier era dominated by the church and the clergy.11  The 
confession of this new age of faith was that America was a land “ruled by laws, not by men.”  
Its catechism was the new case law method of the law school classroom.  Its canon was the 
new concordance of legal codes, amply augmented by New Deal legislation.  Its church was 
the common law court where the rituals of judicial formalism and due process would yield legal 
truth.  Its church council was the Supreme Court which now issued opinions with as much 
dogmatic confidence as the divines of Nicea, Augsburg, and Trent.  

This new age of faith in American law was in part the product of a new faith in the 
positivist theory of knowledge that swept over America in the later nineteenth and twentieth 
centuries, eclipsing earlier theories of knowledge that gave religion and the church a more 
prominent place.  In law, the turn to positivism proceeded in two stages.  The first stage was 
scientific.  Inspired by the successes of the early modern scientific revolution—from 
Copernicus to Newton—nineteenth-century American jurists set out to create a method of law 
that was every bit as scientific and rigorous as that of the new mathematics and the new 
physics.  This scientific movement in law was not merely an exercise in professional rivalry.  It 
was an earnest attempt to show that law had an autonomous place in the cadre of positive 
sciences, that it could not and should not be subsumed by theology, philosophy, or political 
economy.  In testimony to this claim, American jurists in this period poured forth a staggering 

	

	

8 Gilmore, Ages of American Law, pp. 48-56, 110, 147 n.12.  
9 Albert W. Alschuler, Life Without Values: The Life, Work and Legacy of Justice Holmes (Chicago, 2000).  
10 Oliver Wendell Holmes, Jr., “The Path of the Law (1897),” in Oliver Wendell Holmes, Jr., Collected Legal 
Papers (New York, 1920), p. 170. 
11 Gilmore, Ages of American Law, pp. 41-67 



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number of new legal codes, new constitutions, new legal encyclopedias, dictionaries, 
textbooks, and other legal syntheses that still grace, and bow, the shelves of our law libraries.  

The second stage of the positivist turn in law was philosophical.  A new movement—
known variously as legal positivism, legal formalism, and analytical jurisprudence—sought to 
reduce the subject matter of law to its most essential core.  If physics could be reduced to 
"matter in motion" and biology to "survival of the fittest," then surely law and legal study could 
be reduced to a core subject as well.  The formula was produced in the mid-nineteenth 
century—most famously by John Austin (1790-1859) in England and Christopher Columbus 
Langdell (1826-1906) in America: Law is simply the concrete rules and procedures posited by 
the sovereign, and enforced by the courts. Many other institutions and practices might be 
normative and important for social coherence and political concordance.  But they are not law.  
They are the subjects of theology, ethics, economics, politics, psychology, sociology, 
anthropology, and other humane disciplines.  They stand, in Austin’s apt phrase, beyond “the 
province of jurisprudence properly determined.”12  

This positivist theory of law, which swept over American law schools from the 1890s 
onward, rendered legal study increasingly narrow and insular.  Law was simply the sovereign's 
rules.  Legal study was simply the analysis of the rules that were posited, and their application 
in particular cases.  Why these rules were posited, whether their positing was for good or ill, 
how these rules affected society, politics, or morality were not relevant questions for legal 
study.  By the early twentieth century, it was common to find American law schools separated 
from other parts of the university with their own faculties, facilities, and libraries.  It was 
common to read in legal textbooks that law is an autonomous science, that its doctrines, 
language, and methods are self-sufficient, that its study is self-contained.13  It was common to 
think that law has the engines of change within itself; that, through its own design and 
dynamic, law marches teleologically through time "from trespass to case to negligence, from 
contract to quasi-contract to implied warranty."14  

Holmes was an early champion of this positivist theory of law and legal development.  
He rebuked more traditional views with a series of famous aphorisms that are still often quoted 
today.  Against those who insisted that the legal tradition was more than simply a product of 

	

	

12 See esp. John Austin, The Province of Jurisprudence Determined, Being the First of a Series of Lectures on 
Jurisprudence, or, The Philosophy of Positive Law (London, 1861-63); Christopher Columbus Langdell, A 
Selection of Cases on the Law of Contracts (Boston, 1879), preface; Christopher Columbus Langdell, "Harvard 
Celebration Speeches," Law Quarterly Review 3 (1887): 123-125. 
13 See, e.g., John Wigmore, "Nova Methodus Discendae Docendaeque Jurisprudentiae," Harvard Law Review 
30 (1917): 812-29; Oliver Wendell Holmes, Jr., "Learning and Science," and "Law in Science, Science in Law," in 
Holmes, Collected Legal Papers, pp. 139, 231; Robert Stevens, Law School: Legal Education in America from the 
1850s to 1980s (Chapel Hill, NC, 1983). 
14 Barbara Shapiro, "Law and Science in Seventeenth-Century England," Stanford Law Review 21 (1969): 728. 



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pragmatic evolution, he wrote, “The life of the law is not logic but experience.”15  Against those 
who appealed to a higher natural law to guide the positive law of the state, Holmes cracked, 
“There is no such brooding omnipresence in the sky.”16  Against those who argued for a more 
principled jurisprudence, Holmes retorted, “General principles do not decide concrete cases.”17  
Against those who insisted that law needed basic moral premises to be cogent, Holmes 
mused, “I should be glad if we could get rid of the whole moral phraseology which I think has 
tended to distort the law. In fact even in the domain of morals I think that it would be a gain, at 
least for the educated, to get rid of the word and notion [of] Sin.”18  

Despite its new prominence in the early twentieth century, American legal positivism 
was never without its detractors. Already in the 1920s and 1930s, sociologists of law argued 
that the nature and purpose of law and politics cannot be understood without reference to the 
spirit of a people and their times—of a Volksgeist und Zeitgeist as their German counterparts 
put it.19  The legal realist movement of the 1930s and 1940s used the new insights of 
psychology and anthropology to cast doubt on the immutability and ineluctability of judicial 
reasoning.20  The revived natural law movement of the 1940s and 1950s saw in the horrors of 
Hitler’s Holocaust and Stalin’s gulags, the perils of constructing a legal system without 
transcendent checks and balances.21  The international human rights movement of the 1950s 
and 1960s pressed the law to address more directly the sources and sanctions of civil, 
political, social, cultural, and economic rights.  Marxist, feminist, and neo-Kantian movements 
in the 1960s and 1970s used linguistic and structural critiques to expose the fallacies and false 
equalities of legal and political doctrines.  

By the early 1970s, the confluence of these and other movements had exposed the 
limitations of a positivist definition of law standing alone.  Leading jurists of the day—Lon 
Fuller, Jerome Hall, Karl Llewellyn, Harold Berman, and others—were pressing for a broader 
understanding and definition of law.22  Of course, they said in concurrence with legal 

	

	

15 Oliver Wendell Holmes, Jr., The Common Law (Boston, 1881), p. 1. 
16 Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J. dissenting); see also Michael H. 
Hoffheimer, Justice Holmes and the Natural Law (New York, 1992). 
17 Lochner v. New York, 198 U.S. 45, 76 (1905). 
18 Oliver Wendell Holmes, Jr., “Letter to Sir Frederick Pollock (May 30, 1927),” in Mark DeWolfe Howe, ed., 
Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock, 1874–1932, 2 
vols. (Cambridge, MA: Harvard University Press 1941), vol. 2, p. 200. 
19 See, e.g., Julius Stone, The Province and Function of Law: Law as Logic, Justice, and Social Control (London, 
1947); Gustav Radbruch, Der Geist des englischen Recht (Heidelberg, 1946). 
20 William W. Fisher, Morton Horwitz, and Thomas Reed, eds., American Legal Realism (New York, 1993); 
Wilfred E. Rumble, American Legal Realism: Skepticism, Reform, and the Judicial Process (Ithaca, NY, 1968).  
21 Charles Grove Haines, The Revival of Natural Law Concepts (New York, 1965); Roscoe Pound, The Revival 
of Natural Law (Notre Dame, IN, 1942).  See further below note _ and accompanying text.  
22 Karl Llewellyn, Jurisprudence (Chicago, 1962); Lon L. Fuller, The Morality of Law, (New Haven, CT, 1964); 
Jerome Hall, Studies in Jurisprudence and Criminal Theory (New York, 1958); Jerome Hall, Foundations of 



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positivists, law consists of rules—the black letter rules of contracts, torts, property, 
corporations, and sundry other familiar subjects.  Of course, law draws to itself a distinctive 
legal science, an "artificial reason," as Sir Edward Coke (1552-1634) once put it.23  But law is 
much more than the rules of the state and how we apply and analyze them.  Law is also the 
social activity by which certain norms are formulated by legitimate authorities and actualized by 
persons subject to those authorities.  The process of legal formulation involves legislating, 
adjudicating, administering, and other conduct by legitimate officials.  The process of legal 
actualization involves obeying, negotiating, litigating, and other conduct by legal subjects.  Law 
is rules, plus the social and political processes of formulating, enforcing, and responding to 
those rules.24  Numerous other institutions, besides the state, are involved in this legal 
functionality.  The rules, customs, and processes of churches, colleges, corporations, clubs, 
charities, and other non-state associations are just as much a part of a society's legal system 
as those of the state.  Numerous other norms, besides legal rules, are involved in the legal 
process.  Rule and obedience, authority and liberty are exercised out of a complex blend of 
concerns, conditions, and character traits—class, gender, persuasion, piety, charisma, 
clemency, courage, moderation, temperance, force, faith, and more.  

Legal positivism could not, by itself, come to terms with law understood in this broader 
sense.  As Grant Gilmore predicted in his 1974 title, a new interdisciplinary “age” of American 
law was dawning.  In the 1970s and thereafter, American jurists began to (re)turn with 
increasing alacrity to the methods and insights of other disciplines to enhance their 
formulations.  This was the birthing process of the modern movement of interdisciplinary legal 
study.  The movement was born to enhance the province and purview of legal study, to 
refigure the roots and routes of legal analysis, to render more holistic and realistic our 
appreciation of law in community, in context, in concert with the humane, social, and exact 
sciences.25  In the 1970s, a number of interdisciplinary approaches began to enter the 
mainstream of American legal education—combining legal study with the study of philosophy, 
economics, medicine, politics, and sociology.  In the 1980s and 1990s, new interdisciplinary 
legal approaches were born in rapid succession—the study of law coupled with the study of 
anthropology, literature, environmental science, urban studies, women's studies, gay-lesbian 
studies, and African-American studies.  And, importantly for our purposes, the study of law was 
also recombined with the study of religion.  

	

	

Jurisprudence (Indianapolis, 1973); Berman, The Interaction of Law and Religion; Harold J. Berman, Law and 
Revolution: The Formation of the Western Legal Tradition (Cambridge, MA, 1983). 
23 Anthony Lewis, "Sir Edward Coke (1552-1633): His Theory of 'Artificial Reason' as a Context for Modern Basic 
Legal Theory," Law Quarterly Review 84 (1968): 330.  
24 Berman, Law and Revolution, pp. 4ff; Jerome Hall, Comparative Law and Social Theory (Baton Rouge, LA, 
1963), pp. 78ff. 
25  See, e.g., Richard A. Posner, "The Present Situation in Legal Scholarship," Yale Law Journal 90 (1981): 
1113-30; Robert C. Clark, "The Interdisciplinary Study of Legal Evolution," Yale Law Journal 90 (1981): 1238-74; 
Symposium, "American Legal Scholarship: Directions and Dilemmas," Journal of Legal Education 33 (1983): 403-
11.  



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FROM STRICT SEPARATION TO EQUAL TREATMENT OF RELIGION 

The rise of law and religion study in America coincided not only with the gradual 
implosion of legal positivism but also with the gradual erosion of the wall of separation between 
church and state.  The American positivist ideal of strict separation of law and religion had 
been one of the foundations of the American constitutional ideal of strict separation of church 
and state.  As legal positivism became stronger in the first two thirds of the twentieth century, 
the wall of separation between church and state rose higher in constitutional and cultural 
importance.  As legal positivism declined after the 1970s, the wall of separation gradually 
crumbled, too. 

The wall of separation metaphor had many early champions in American history, but it 
was especially the writings of America’s founder, Thomas Jefferson (1743-1826), that would 
prove to be the most prescient and influential in the twentieth century.26  In a series of writings 
from the 1770s to 1820s, Jefferson argued that true religious liberty could be achieved only by 
privatizing religion and secularizing politics.  Religion must be "a concern purely between our 
God and our consciences," he wrote in 1802.  Politics must be conducted with "a wall of 
separation between church and state."  "Public religion" is a threat to private religion, and must 
thus be discouraged.  "Political ministry" is a menace to political integrity and must thus be 
outlawed.  Religious privatization is the bargain we must strike to attain religious freedom for 
all.  A wall of separation is the barrier we must build to contain religious bigotry for good.27  

Jefferson read this understanding of religious liberty directly into the new 1791 
constitutional guarantee of the First Amendment: “Congress shall make no law respecting an 
establishment of religion or prohibiting the free exercise thereof.”  On the one hand, he argued, 
the state must protect the liberty of conscience and free exercise of all its peaceable subjects -
- however impious or impish their religious beliefs and practices might appear.  “The Jew and 
the Gentile, ... the Mahometan, the Hindu, and [the] Infidel of every denomination” is equally 
deserving of religious liberty, Jefferson wrote.28  "Almighty God hath created the mind free,” 
and thus “no man shall be compelled to frequent or support any religious worship, place, or 
ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or 
goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men 

	

	

26 See Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation (New York, 2002); see also Philip A. 
Hamburger, Separation of Church and State (Cambridge, MA, 2002). 
27 See various drafts of this famous document in Dreisbach, Thomas Jefferson, pp. 148ff.; Ralph Ketcham, 
“James Madison, Thomas Jefferson, and the Meaning of ‘Establishment of Religion’ in Eighteenth-Century 
Virginia, “ in No Establishment of Religion: America’s Original Contribution to Religious Liberty, ed. T. Jeremy 
Gunn and John Witte, Jr. (Oxford, 2012), pp. 154-179. 
28 Saul K. Padover, ed., The Complete Jefferson (New York, 1943), p. 1147. 



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shall be free to profess, and by argument to maintain, their opinion in matters of religion, and 
that the same shall in no wise diminish, enlarge, or affect their civil capacities.”29   

On the other hand, Jefferson argued, the state should disestablish all religion.  The 
state should not give special aid, support, privilege, or protection to religious doctrines or 
groups -- through special tax appropriations and exemptions, special donations of goods and 
realty, or special laws of incorporation and criminal protection.  The state should not direct its 
laws to religious purposes.  The state should not draw on the services of religious 
associations, nor seek to interfere in their order, organization, or orthodoxy.30  Religion 
flourishes best if state officials leave it alone.  

The state, in turn, operates best if religious officials leave it alone, Jefferson continued.  
Church officials must respect the wall of separation as much as the state’s officials.  Clerics 
need to stick to their specialty of soulcraft rather than interfere in the specialty of statecraft.  
Religion is merely “a separate department of knowledge,” Jefferson wrote, echoing the new 
positivist philosophy of Frenchman, Auguste Comte (1798-1857).31  Far from being queen of 
the sciences, as was traditionally thought, religion is just one specialized discipline alongside 
physics, biology, law, politics, medicine, and many other disciplines.  Preachers are the 
specialists in religion, and are hired by their congregants to devote their time and energy to this 
religious specialty alone.  “Whenever, therefore, preachers, instead of a lesson in religion, put 
them off with a discourse on the Copernican system, on chemical affinities, on the construction 
of government, or the characters of those administering it, it is a breach of contract, depriving 
their audience of the kind of service for which they were salaried.”32  

In his own day, Jefferson’s call for a strict separation of church and state was 
considered to be too radical to effect much constitutional change.  But these separationist 
ideals gradually found their way into a number of state constitutions in the later nineteenth and 
early twentieth centuries.33  And in the 1947 case of Everson v. Board of Education, the United 
States Court time read this Jeffersonian understanding of religious liberty directly into the First 
Amendment as well.34  Justice Hugo Black wrote famously for the Everson Court:   

Neither a state nor the Federal Government can set up a church.  
Neither can pass laws which aid one religion, aid all religions, or 

	

	

29 Ibid., pp. 946-947.  
30 Ibid., pp. 518-519, 673-676, 946-947, 957-958.  See further Edwin S. Gaustad, Sworn on the Altar of God: A 
Religious Biography of Thomas Jefferson (Grand Rapids: Wm. B. Eerdmans, 1996). 
31 See The Positive Philosophy of Auguste Comte, trans. Harriet Martineau (London, 1853). 
32  Letter from Thomas Jefferson to P.H. Wendover (March 13, 1815), quoted and discussed in Hamburger, 
Separation of Church and State, pp. 152-154. 
33 For different accounts, see Dreisbach, Thomas Jefferson; Hamburger, Separation of Church and State; Steven 
K. Green, The Second Disestablishment: Church and State in Nineteenth Century America (New York, 2010).   
34 The Court first used this metaphor in Reynolds v. United States, 98 U.S. 146, 164 (1879). 



11	
	

	

prefer one religion over another.  Neither can force nor influence a 
person to go or to remain away from church against his will or force 
him to profess a belief or disbelief in any religion.  No person can be 
punished for entertaining or professing religious beliefs or disbeliefs, 
for church attendance or non-attendance.  No tax in any amount, 
large or small, can be levied to support any religious activities or 
institutions, whatever they may be called, or whatever form they may 
adopt to teach or practice religion.  Neither a state nor the Federal 
Government can, openly or secretly, participate in the affairs of any 
religious organizations or groups, or vice versa.  In the words of 
Jefferson, the clause against establishment of religion by law was 
intended to erect "a wall of separation between church and state."35  
 

In its early First Amendment free exercise cases (and free speech cases on religion), 
the Supreme Court used this Jeffersonian logic to protect the private exercises of religion, 
even those of unpopular religious groups.  Religious proselytizers like Jehovah’s Witnesses, 
the Court held repeatedly, could not be denied licenses to preach, parade, or pamphleteer just 
because they were unpopular.36  Public school students could not be compelled to salute the 
flag or recite the pledge if they were conscientiously opposed.37  Other parties, with scruples 
of conscience, could not be forced to swear oaths before receiving citizenship status, property 
tax exemptions, state bureaucratic positions, social welfare benefits, or standing in courts.38  
And religious organizations had constitutional protection to adjudicate their own internal 
disputes over property and polity without state interference.39  On the religion side of the wall 
of separation, the First Amendment provided religion with ample protection.   

On the political side of the wall, however, religion could not depend upon the state’s 
patronage.  The Court drove this point home in a long series of establishment clause cases 
from 1948 to 1987 that banished religion from the nation’s public (government-run) schools.  
The court outlawed the use of religious teachers, prayers, Bibles, devotions, Decalogue 
displays, creationist teachings, and moments of silences in public schools on the argument 
that these traditional educational practices violated the wall of separation of church and 

	

	

35 Everson v. Board of Education, 330 U.S. 1, 15-16 (1947). 
36 The main cases are Cantwell v. Connecticut, 310 U.S. 296 (1940); Cox v. New Hampshire, 312 U.S. 569 
(1941); Murdock v. Pennsylvania 319 U.S. 141 (1943); Follet v. McCormick, 321 U.S. 574 (1944); Fowler v. 
Rhode Island, 345 U.S. 67 (1953); Poulos v. New Hampshire, 345 U.S. 395 (1953); Sherbert v. Verner, 374 U.S. 
398 (1963).  
37 The main case is West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).   
38 The main cases are In re Summers, 325 U.S. 561 (1945); Girouard v. United States, 328 U.S. 61 (1946); First 
Unitarian Church v. County of Los Angeles, 357 U.S. 545 (1958).    
39 The main case is Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952). 



12	
	

	

state.40  The Court also removed religious schools from much of their traditional state support.  
States could not provide salary and service supplements to religious schools, could not 
reimburse them for administering standardized tests, could not lend them state-prescribed 
textbooks, supplies, films, or counseling services, could not allow tax deductions or credits for 
religious school tuition.41 The wall of separation between church and state, the Court insisted, 
also required a wall of separation between public state schools and private religious schools.  
The free exercise clause protected religion in private schools, but the establishment clause 
barred religion in public schools or public patronage of religious schools. 

In Lemon v. Kurtzman (1971), the Court distilled the Jeffersonian logic of its early cases 
into a general test to be used in all First Amendment establishment clause cases.  Henceforth 
every law challenged under the establishment clause would pass constitutional muster only if it 
could satisfy three criteria.  The law must: (1) have a secular purpose; (2) have a primary effect 
that neither advances nor inhibits religion; and (3) foster no excessive entanglement between 
church and state.  Incidental religious "effects" or modest "entanglements" of church and state 
could be tolerated, but defiance of any of these criteria would be constitutionally fatal.42   

This constitutional reification of Jeffersonian logic rendered the establishment clause a 
formidable obstacle to many traditional forms of state patronage of and cooperation with 
religion.  Particularly the lower federal courts used this test to outlaw all manner of government 
subsidies for religious charities, social services, and mission works, government use of 
religious services, facilities, and publications, government protections of Sundays and Holy 
Days, government enforcement of blasphemy and sacrilege laws, government participation in 
religious rituals and religious displays.  It often did not take law suits to effectuate these 
reforms.  Particularly local governments, sensitive to the political and fiscal costs of 
constitutional litigation, often voluntarily ended their prayers, removed their Decalogues, and 
closed their coffers to religion long before any case was filed against them.  The Jeffersonian 
logic of the establishment clause seemed to demand this.  

While many officials and citizens – and the elite media with them -- have remained 
faithful to this Jeffersonian logic, the reality is that separation of church and state is no longer 
the law of the land in America.  Over the past thirty years, the Supreme Court has been quietly 
defying its earlier separationist logic and has reversed some of its harshest separationist 

	

	

40 The main cases are McCollum v. Board of Education, 333 U.S. 203 (1948); Engel v. Vitale, 320 U.S. 471 
(1962); Abington School District v. Schempp, 374 U.S. 203 (1963); Stone v. Graham, 449 U.S. 39 (1980); 
Wallace v. Jaffree, 472 U.S. 38 (1985); Edwards v. Aguillard, 482 U.S. 578 (1987).   
41 The main cases are Lemon v. Kurtzman, 403 U.S. 602 (1971); Sloan v. Lemon, 413 U.S. 825 (1973); Meek v. 
Pittinger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977); Grand Rapids School District v. Ball, 473 
U.S. 373 (1985); Aguilar v. Felton, 473 U.S. 402 (1985).  See infra note _ for cases overturning several of these 
precedents.  
42 Lemon, 403 U.S. at 602.  



13	
	

	

precedents.43  The Court has several times upheld government policies that provide religious 
parties and non-religious parties with equal access to and equal treatment in public activities, 
forums, facilities, and funds.  Under this new equality logic, Christian clergy were just as 
entitled to run for state political office as non-religious candidates.44  Church-affiliated 
pregnancy counseling centers could be funded as part of a broader federal family counseling 
program.45  Religious student groups could have equal access to state university and public 
high school classrooms that were open to non-religious student groups.46  Religious school 
students were just as entitled to avail themselves of general scholarships, remedial, and 
disability services available to public school students.47  Religious groups were given equal 
access to public facilities or civic education programs that were already opened to other civic 
groups.48  Religious parties were just as entitled as non-religious parties to display their 
symbols in public forums.49  Religious student newspapers were just as entitled to public 
university funding as those of non-religious student groups.50  Religious schools were just as 
entitled as other private schools to participate in a state-sponsored educational improvement 
or school voucher program.51   

The Court has defended these more recent holdings on wide-ranging constitutional 
grounds -- as a proper accommodation of religion under the establishment clause, as a 
necessary protection of religion under the free speech or free exercise clauses, as a simple 
application of the equal protection clause, among other arguments.  Collectively, these cases 
have shifted the center of gravity of the First Amendment religion clauses from separationism 
and secularization to equal treatment of public and private religious expression. 

One theme common to the Court’s recent First Amendment cases is that religion no 
longer needs to remain hidden on the private side of the wall of separation between church 
and state.  Public expression of religion must be as free as private expression of religion.  Not 
because the religious groups in these cases are really non-religious.  Not because their public 

	

	

43 Mitchell v. Helms, 530 U.S. 793, 808 (2001), overruling Meek v. Pittenger, 421 U.S. 329 (1975) and Wolman v. 
Walter, 433 U.S. 229 (1977); Agostini v. Felton, 521 U.S. 203, 235 (1997), overruling Aguilar v. Felton, 473 U.S. 
402 (1985). 
44 McDaniel v. Paty, 435 U.S. 618 (1978).  
45 Bowen v. Kendrick, 487 U.S. 589 (1988). 
46 Widmar v. Vincent, 454 U.S. 263 (1981); Board of Education of the Westside Community Schools v. Mergens, 
496 U.S. 226 (1990). 
47 Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986); Zobrest v. Catalina Foothills 
School District, 509 U.S. 1 (1993). 
48 Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993); Good News Club v. 
Milford Central School District, 533 U.S. 98 (2001).  
49 Capitol Square Review and Advisory Board, 515 U.S. 753 (1995).  
50 Rosenberger v. University of Virginia, 515 U.S. 819 (1995). 
51 Mitchell v. Helms, 530 U.S. 793 (2000); Zelman v. Simmons-Harris, 122 S.Ct. 24690 (2002). 



14	
	

	

activities are really non-sectarian.  And not because their public expressions are really part of 
the cultural mainstream.  To the contrary, these public groups and activities deserve to be free, 
just because they are religious, just because they engage in sectarian practices, just because 
they sometimes take their stands above, beyond, and against the mainstream.  They provide 
leaven and leverage for the polity to improve.  

A second theme common to these cases is that the freedom of religion sometimes 
requires the support of the state.  Today's state is not the distant, quiet sovereign of Jefferson's 
day from whom separation was both natural and easy.  Today's modern welfare state, whether 
for good or ill, is an intensely active sovereign from whom complete separation is impossible.  
Few religious bodies can now avoid contact with the state's pervasive network of education, 
charity, welfare, child care, health care, family, construction, zoning, workplace, taxation, 
security and other regulations.  Both confrontation and cooperation with the modern welfare 
state are almost inevitable for any religion.  When a state's regulation imposes too heavy a 
burden on a particular religion, the free exercise clause should provide a pathway to relief.  
When a state's appropriation imparts too generous a benefit to religion alone, the 
establishment clause should provide a pathway to dissent.  But when a general government 
scheme provides public religious groups and activities with the same benefits afforded to all 
other eligible recipients, establishment clause objections are rarely availing.  And, even on rare 
occasions, when federal courts do target religion for special burdens or benefits, Congress and 
state legislatures provide statutory fixes. 

A third theme common to these cases is that freedom of public religion also requires 
freedom from public religion.  Government must strike a balance between coercion and 
freedom.  The state cannot coerce citizens to participate in religious ceremonies and subsidies 
that they find odious. But the state cannot prevent citizens from participation in public 
ceremonies and programs just because they are religious. It is one thing to outlaw Christian 
prayers and broadcasted Bible readings from the public school; after all, students are 
compelled to be there.  It is quite another thing to ban moments of silence and private religious 
speech in these same public schools.  It is one thing to bar direct tax support for religious 
education, quite another thing to bar tax deductions for parents who choose to educate their 
children in religious schools.  It is one thing to prevent government officials from delegating 
their core police powers to religious bodies, quite another thing to prevent them from facilitating 
the charitable services of voluntary religious and non-religious associations alike.  It is one 
thing to outlaw governmental prescriptions of prayers, ceremonies, and symbols in public 
forums, quite another thing to outlaw governmental accommodations of private prayers, 
ceremonies, and symbols in these same public forums. 

A final theme common to these cases is the freedom of public religion does not mean 
the establishment of a common religion.  Today, the public religion of America is a collection of 
particular religions, not a combination of religious particulars.  It is a process of open religious 
discourse, not a product of ecumenical distillation.  All religious voices, visions, and values, in 
all their denominational particularity, have the right to be heard and deliberated in the public 
square.  All public religious services and activities, unless criminal or tortious, have a chance to 
come forth and compete.   



15	
	

	

Some conservative Evangelical and Catholic groups in America have seen and seized 
on this insight better than most.  Their rise to prominence in the public square in the last three 
decades should not be met with glib talk of censorship or habitual incantation of Jefferson's 
mythical wall of separation.  The rise of the so-called Christian right should be met with the 
equally strong rise of the Christian left, of the Christian middle, and of many other Jewish, 
Muslim, and other religious groups who test and contest its premises, prescriptions, and 
policies.  That is how a healthy democracy works.  The real challenge of the new Christian 
right is not to the integrity of American politics but to the apathy of American religions.  It is a 
challenge for peoples of all faith and of no faiths to take their seat in public debate.   

Unlike a generation ago, no one seated at this table of public deliberation today needs 
to hide their Bibles, Qur’ans, or prayer books.  No one needs to remove their yarmulkes, 
headscarves, or crucifixes.  No one needs to cover their deep convictions under a patina of 
purported neutrality.  American judges and jurists have overcome their allergies to public 
expressions of religion.  They have come to realize that every serious position on the 
fundamentals of public and private life – on warfare, marriage reform, bioethics, environmental 
protection, and more -- rests on a set of founding metaphors and starting beliefs that have 
comparable faith-like qualities.52  As federal judge, John T. Noonan, Jr., writes: it impossible 
for judges or other officials "to pretend that they are neutrals somehow free from all prejudice 
when they decide intrachurch disputes, determine who has a religious claim, or balance the 
State's interest in relation to the First Amendment."53  Today, easy claims of neutrality and 
objectivity in public and political argument face very strong epistemological and constitutional 
headwinds. 

THE MAIN THEMES OF AMERICAN LAW AND RELIGION SCHOLARSHIP  

The field of law and religion scholarship in America has profited from both trends 
described in the prior two sections: the gradual implosion of legal positivism and the gradual 
erosion of the wall of separation.  Religion is now a legitimate voice in legal and political 
discourse and a legitimate subject of interdisciplinary legal study.  In the vast new law and 
religion literature that has emerged in the American academy over the past three decades, ten 
themes stand out, some more prominent than others. 

First, by far the largest body of law and religion scholarship is devoted to the American 
law of religious freedom, which I summarized a bit in the last section.  This is in part the law of 
the First Amendment, as interpreted and applied by the federal courts.  The no-establishment 

	

	

52 See, e.g., Robert M. Cover, "The Supreme Court 1982 Term -- Foreword: Nomos and Narrative," Harvard Law 
Review 97 (1983): 4-68; Stephen L. Winter, A Clearing in the Forest: Law, Life, and the Mind (Chicago, 2001).  
53 John T. Noonan, Jr., "The Tensions and the Ideals," in Religious Human Rights in Global Perspective: Legal 
Perspectives, ed. Johan D. van der Vyver and John Witte, Jr. (The Hague, 1996), pp. 593-606, at 604. See 
further Scott C. Idleman, "The Role of Religious Values in Judicial Decision Making," Indiana Law Journal 68 
(1993): 433.  



16	
	

	

case law has been heavily focused on the role of religion in public education, the place of 
government in religious education, and government use and support of religious symbols, 
ceremonies, and services. The free exercise case law has treated a wider swath of claims -- 
the claims of individuals to conscientious objections to military service, education, oath 
swearing, medical procedures, and more; their claims to special constitutional protections for 
religious dress, grooming, proselytism, holy day observance, and access to sacred sites; their 
calls for special accommodations within the military, prisons, hospitals, public schools, 
government agencies, public forums, and private workplaces and associations.  The federal 
courts have used both the establishment and free exercise clauses to deal with the rights of 
religious groups to incorporate, to hold and use property, to govern their religious polity and 
clergy, to maintain internal laws and norms of discipline, to resolve internal disputes, and to 
provide education, charity, and other services.   

While many of these religious liberty questions in America remain subject to federal – 
and increasingly also state – constitutional laws, they now also arise under federal, state, and 
local statutes and regulations.  Over the past three decades, hundreds of special protections, 
immunities, and exemptions for religion have quietly found their way into the laws governing 
evidence, civil procedure, taxation, bankruptcy, labor, employment, workplace, military, 
immigration, prisons, hospitals, land use, zoning, education, charity, child care, and more.  
Ironically, parties seeking religious freedom protections today get more protection under one of 
these statutes than by filing a First Amendment case in federal court.  Hundreds of American 
legal scholars have been writing on these religious liberty themes, and this topic will continue 
to dominate American law and religion scholarship in the foreseeable future.54   

Second, a growing number of American scholars of religious liberty have been drawn to 
the study of comparative and international laws of religious freedom, and of the religious 
sources and dimensions of human rights.  This is a relative new field of study in American law 
schools; few American jurists engaged this topic seriously before 1990.  This new scholarly 
emphasis is part and product of the rise of comparative legal studies altogether in American 
law schools, catalyzed further by the Supreme Court’s new use of international norms to help 
make constitutional judgments.  It is driven, in part, by new interest in the constitutional 
transformations of post-colonial Africa, post-fascist Latin America, and post-Communist 
Russia, Eastern Europe, and central Asia.  It is driven, in part, by new interest in the 
jurisprudence of religious freedom in the European Court of Human Rights and in various 
European national courts.  It is driven, in part, by the new great awakening of religion around 
the world that has radically shifted the religious demographic landscape of the West.  
American legal scholars have been in the vanguard of a growing international guild of scholars 

	

	

54 See, e.g., Kent Greenawalt, Religion and Fairness, 2 vols. (Princeton, 2006-2008); Michael W. McConnell, 
John H. Garvey, Thomas C. Berg, Religion and the Constitution, 2d ed. (New York, 2006); Douglas Laycock, 
Religious Liberty, 4 vols. (Grand Rapids, MI, 2010 - ); William W. Bassett, Religious Organizations and the Law, 2 
vols. with updates (St. Paul, MN, 1999); James Serritella, Religious Organizations in the United States: A Study of 
Identity, Liberty, and the Law (Durham, NC, 2006). 



17	
	

	

dedicated to the study of the international and regional human rights instruments affecting 
religion, and of the contributions of various faith traditions to the cultivation -- and abridgement 
-- of human rights and democratic norms around the world.55   

A small library of books has emerged from this international guild documenting the 
contributions of the main world religions, especially Western Christianity, to modern 
understandings of human rights. A central question animating this literature is whether human 
rights are a universal good of human nature or a distinctly Western (Christian) invention that 
has no easy resonance in other cultures with different founding beliefs and values.  If human 
rights are truly universal, what other formulations besides those rooted in Western philosophy, 
theology, and culture need to be incorporated?  If human rights are distinctly Western 
(Christian) inventions, what other normative structures and systems do non-Western traditions 
offer to protect human dignity and to promote peace, justice, and an orderly society?  A related 
question is whether human rights norms must now be cast in secular or neutral language in 
order to be legitimate and universal.  Are Christian, Jewish, Islamic, Hindu, Buddhist, 
Confucian, Indigenous and other such declarations of human rights now in vogue, by 
definition, parochial and exclusive?56  Another small library of books has emerged analyzing 
the wide range of human rights issues that confront religious persons and communities 
today.  A central question at work in this literature is whether freedom of religion and belief is 
something distinctive or simply the sum of all the other rights that other parties can claim, too.  
If religious freedom is distinctive, what special rights and liberties attach uniquely to religious 
parties that are not given to other non-religious parties?  If religious freedom is not distinctive, 
how do core claims of conscience or central commandments of faith get protected when they 
run contrary to the cultural mainstream or majoritarian rules?57  

A third large body of scholarship in American law schools has gathered around the 
perennially contested issues of law, religion, and family life.  Historically, in the West, and in 
many religious communities still today, the marital household was viewed as both a spiritual 
and temporal institution, and sexual activity had both moral and material dimensions.  Western 
churches and states thus collaborated in governing sex, marriage, and family life. They both 
had rules and procedures for sexual etiquette, courtship, and betrothal; for marital formation, 

	

	

55 See a good summary and sampling of the recent literature and instruments in W. Cole Durham, Jr. and Brett 
G. Scharffs, Law and Religion: International, National, and Comparative Perspectives (New York, 2010); 
Johannes A. van der Ven, Human Rights or Religious Rules? (Leiden, 2010); Natan Lerner, Religion, Secular 
Beliefs and Human Rights: 25 Years After the Human Rights Declaration (Leiden, 2006); Tad Stahnke and J. Paul 
Martin, eds., Religion and Human Rights: Basic Documents (New York, 1998); Tore Lindholm, W. Cole Durham, 
Jr., and Bahia G. Tahzib-Lie. Facilitating Freedom of Religion or Belief: A Deskbook (Leiden, 2004); Paul M. 
Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge: Cambridge 
University Press, 2005).  
56 For a recent summary of this literature, with ample bibliography, see John Witte, Jr. and M. Christian Green, 
eds., Religion and Human Rights: An Introduction (Oxford, 2011).   
57 See literature analyzed in Mary Ann Glendon, “Is Religious Freedom Becoming a Second Class Right?” Emory 
Law Journal __ (2012): __.  



18	
	

	

maintenance, and dissolution; for conjugal duties, debts, and desires; for parental roles, rights, 
and responsibilities.  They collaborated in setting moral and criminal laws to police and punish 
illicit sex.  For many centuries, these two powers kept overlapping rolls of sexual sin and crime: 
adultery and fornication, sodomy and buggery, incest and bestiality, bigamy and polygamy, 
prostitution and pornography, abortion and contraception.  They also operated interlocking 
tribunals to enforce these rules on sex, marriage, and family life. The church guarded the inner 
life through its canons, confessionals, and consistory courts.  The state guarded the outer life 
through its policing, prosecution, and punishment of sexual crimes. To be sure, church and 
state officials clashed frequently over whose laws governed.  And their respective laws on 
these subjects did change a great deal -- dramatically in the fourth, twelfth, sixteenth, and 
nineteenth centuries.  But for all this rivalry and change, Christianity -- and the Jewish, Greek, 
and Roman sources on which it drew -- had a formative influence on Western laws of sex, 
marriage, and family life.58  

Most of these classic legal doctrines have now been eclipsed by the dramatic rise of 
new public laws and popular customs of sexual liberty and personal privacy in America and 
other Western lands.  Courtship, cohabitation, betrothal, and marriage are now mostly private 
sexual contracts with few roles for church and state to play and few restrictions on freedoms of 
entrance, exercise, and exit.  Classic crimes of contraception and abortion have been found to 
violate constitutional liberties.  Classic prohibitions on adultery and fornication have become 
dead or discarded letters on most statute books.  Free speech laws protect all manner of 
sexual expression, short of obscenity.  Constitutional privacy laws protect all manner of 
voluntary sexual conduct, short of child abuse and statutory rape.  The classic prohibitions on 
incest, polygamy, and homosexuality still remain on some law books, but they are now the 
subjects of bitter constitutional and cultural battles.  All this has attracted a large body of 
scholarship among American lawyers and legal historians.  A central question of this 
scholarship is how to rethink and reconstruct traditional family norms and practices in a 
manner that respects modern norms of privacy, freedom, and equality, yet protects women, 
children, and other dependents who have often suffered gravely in the modern sexual and 
divorce revolution.59   

Three new questions at the intersection of law, religion, and family are now attracting a 
great deal of new scholarly attention.  The first concerns the growing contests between 
religious liberty and sexual liberty.  May a state require a minister to marry a gay or 

	

	

58 See literature distilled in John Witte, Jr., From Sacrament to Contract: Marriage, Religion, and Law in the 
Western Tradition, 2d ed. (Louisville, KY, 2011).  
59 See especially the work of the late Don S. Browning, director of the Religion, Culture, and Family at the 
University of Chicago, and author of numerous titles, including Marriage and Modernization (Grand Rapids, MI, 
2003); Don S. Browning, et al., From Culture Wars to Common Ground: Religion and the American Family 
Debate, 2d ed. (Louisville, KY, 2000).  See also among family law scholars Margaret Brining, From Contract to 
Covenant: Beyond the Law and Economics of the Family (Cambridge, MA, 2000); id., Family Law and 
Community: Supporting the Covenant (Chicago, 2010).  



19	
	

	

interreligious couple, a medical doctor to perform an elective abortion or assisted-reproductive 
procedure, or a pharmacist to fill a contraceptive prescription -- when those required actions 
run counter to those parties’ core claims of conscience or central commandments of their 
faith?  May a religious organization dismiss or discipline an official or member because of their 
sexual orientation or practice, or because they had a divorce or abortion?  These are 
becoming major points of contestation and litigation.60  A second question concerns religiously-
based polygamy.  A century and a half ago, the United States Supreme Court firmly rejected 
the religious freedom claims of Mormons to practice polygamy.  These issues are back in the 
American courts and culture wars again, with Fundamentalist Mormons and various Muslim 
groups pressing their case on grounds of religious freedom, sexual autonomy, domestic 
privacy, and equal protection.  This, too, has triggered a small avalanche of writing.61  A third 
question concerns the growing call by selected Muslims, and other religious minorities to opt 
out of the state’s family law system and into their own religious legal systems. This is raising a 
lot of hard legal and cultural questions:  What forms of marriage should citizens be able to 
choose, and what forums of religious marriage law should state governments be required to 
respect?  How should religious minorities with distinct family norms and cultural practices be 
accommodated in a society dedicated to religious liberty and self-determination, and to 
religious equality and non-discrimination?  Is legal or normative pluralism necessary to protect 
Muslims and other religious believers who are conscientiously opposed to the values that 
inform modern state laws on sex, marriage, and family?  Doesn’t state accommodation or 
implementation of a faith-based family law system run the risk of higher gender discrimination, 
child abuse, coerced marriage, unchecked patriarchy, or worse, and how can these social 
tragedies be avoided?  Won’t the addition of a religious legal system encourage more forum 
shopping and legal manipulation by crafty litigants involved in domestic disputes, often pitting 
religious and state norms of family against each other? Does the very state recognition, 
accommodation, or implementation of a religious legal system erode the authority and 
compromise the integrity of those religious norms?  Isn’t strict separation of religious norms 
and state laws the best way to deal with the intimate questions of sex, marriage and family 
life?  These hard questions are generating a great deal of important new scholarship.62 

	

	

60 See a fine recent treatment in Robert K. Vischer, Conscience and the Common Good: Reclaiming the Space 
Between the Individual and the State (Cambridge, 2010); Douglas Laycock, Anthony R. Picarello, and Robin 
Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Lanham, MD, 2008); Kent 
Greenawalt, Private Consciences and Public Reasons (New York, 1995).  
61 See sources and analysis in John Witte, Jr., Why Two in One Flesh: The Western Case for Monogamy over 
Polygamy (Oxford, forthcoming).   See also a recent case in the British Columbia Supreme Court which sets out 
the main arguments in detail: Reference Re: Section 293 of the Criminal Code of Canada, No. S097767, slip op. 
(BCSC, Nov. 23, 2011). 
62 See, e.g., Joel A. Nichols, ed., Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and the 
Boundaries of Civil Law and Religion (Cambridge, 2012); Symposium, “Sharia, Family, and Democracy: Religious 
Norms and Family Law in Pluralistic Democratic States,” Emory International Law Review 25 (2012): 779-1059; 
Rex Ahdar and Nicholas Aroney, eds., Sharia in the West (Oxford, 2010). 



20	
	

	

Fourth, this last question – about the place of faith-based family laws in Western 
democracies – points to a larger question about the place of religious legal systems altogether 
in Western democracies, and the forms and functions of law within organized religious bodies.  
The internal religious legal systems of Christians, Jews, and Native American Indians have 
long attracted small groups of scholarly specialists in American universities.  These topics are 
now becoming more mainstream in American law schools as well; several law schools now 
have specialty programs or concentrations on these topics.  Among Christian legal systems, 
Catholic canon law gets the closest scholarly attention – in part because of the promulgation of 
the Code of Canon Law in 1983, in part because recent scandals over clerical pedophilia have 
focused new attention on the internal government of the Catholic Church. American 
Episcopalians, Lutherans, Presbyterians, and other mainline Protestants as well as 
Evangelicals and Orthodox Christians have historically had less comprehensive internal bodies 
of ecclesiastical law and discipline.  This is now leading to costly litigation in secular courts in 
disputes over church property, schools, charities, labor and employment, and more.  Non-
Catholic Christian groups in America have begun working assiduously to put their legal houses 
in order with the aid of law professors – though they have not yet developed a body of 
“American ecclesiastical law” on the scale of the English ecclesiastical law so ably developed 
by Mark Hill, Norman Doe, and others.63     

Jewish law, especially in its historical and Orthodox forms, has long had a small 
foothold in American law schools.  This topic has become more mainstream with the rise of 
organized Jewish law courts in America that now arbitrate a number of issues of marriage, 
divorce, property, inheritance, and commerce for the Jewish faithful who prefer to appear 
before them rather than before secular courts.64  American Jewish law courts are, in fact, now 
viewed as models of religious arbitration for Christian, Muslim, Hindu, and other religious 
groups in America who prefer to avoid litigation in secular courts. 

The study of Muslim law (Shari’a) is now a hot growth industry in American law schools 
and other university departments.  Part of this new interest is the natural consequence of the 
rapid growth of different Muslim communities in America and other Western lands and the 
need to discern their distinct legal needs and accommodations.  But more of it is driven by the 
increased tensions between Islam and the West born of 9/11, 7/7, Fort Hood, the rise of al-
Quaeda, and the bloody wars against terrorism in Iraq, Afghanistan, and beyond.  While some 
American legal scholars continue to perpetuate “a clash of civilizations”65 ethic, more of them 

	

	

63 For a good recent example, see Ira C. Lupu and Robert W. Tuttle, The Keys to the Kingdom: Ecclesiastical 
Polity and Discipline in American Protestantism (Grand Rapids, MI, 2013). See the monumental studies of Mark 
Hill, Ecclesiastical Law, 3d ed. (Oxford, 2007); Norman Doe, The Law of the Church in Wales (Cardiff, 2002). 
64 See, e.g., Michael J. Broyde, The Pursuit of Justice and Jewish Law: Halakhic Perspectives on the Legal 
Profession, rev. ed. (New York, 2007); Elliot N. Dorff, The Unfolding Tradition: Jewish Law After Sinai (New York, 
2005); Elliot N. Dorff and Arthur Rosett, A Living Tree: The Roots and Growth of Jewish Law (Albany, NY, 1988).  
65 This is the title of Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order, pbk. ed. 
(New York, 2011).  



21	
	

	

have seen clearly the need to deepen our legal, cultural, and religious understandings across 
Muslim, Christian, and Jewish lines, and to develop a pan-Abrahamic jurisprudence of public, 
private, penal, and procedural law.66  

Fifth, the emerging new scholarship on religious legal systems has moved into a 
broader scholarly inquiry about the influence of world religions on the secular legal systems 
around them, both historically and currently.  Part of this inquiry concerns the exportation, 
transplantation, or accommodation of discrete internal religious rules or procedures into 
secular legal systems.  But more of this inquiry concerns the influence of religious ideas and 
practices of each of these world religions on the public, private, penal, and procedural law of 
the state. Cambridge University Press has inaugurated a series of fresh studies on law and 
Christianity, Judaism, Islam, Hinduism, Buddhism, Confucianism, and Indigenous Religions.67  
Other books are beginning to emerge offering intra- and interreligious perspectives on discrete 
legal topics – human rights, family law, constitutionalism, private law, and more.68   

Sixth, and as a specialized form of this last topic, American jurists have long studied the 
historical influence of Christianity on the Western legal tradition.  Legal historians of Anglo-
American law – since the days of James Kent and Joseph Story in the early nineteenth century 
– have documented the influence of early modern English ecclesiastical law and medieval 
canon law on the American legal system.  More recent historians have also addressed the 
influence of discrete groups like the New England Puritans on colonial law, or of eighteenth-
century Baptists on First Amendment religious liberty law.  These early specialized pockets of 
study are becoming broader in their inquiry and more mainstream in their influence.  American 
legal historians like Harold J. Berman, James A. Brundage, Charles Donahue, R.H. Helmholz, 
John T. Noonan, Jr., Brian Tierney, and others have shown the enduring influence of medieval 
and early modern Catholic canon law on American and broader Western laws of marriage and 
family, constitutionalism and human rights, criminal law and procedure, property and 

	

	

66 See esp. the work of my colleague, Abdullahi An-Na’im, Muslims and Global Justice (Philadelphia, 2011); id., 
Islam and Human Rights (Burlington, VT, 2010); id., Islam and the Secular State: Negotiating the Future of 
Shari’a (Cambridge, MA, 2008); id., Towards an Islamic Reformation: Civil Liberties, Human Rights, and 
International Law (Syracuse, NY, 1990).  See also, for example, Robert F. Cochran, ed., Faith and Law: How 
Religious Traditions from Calvinism to Islam View American Law (New York, 2008). 
67 See Witte and Alexander, eds. Christianity and Law: An Introduction; id., Christianity and Human Rights: An 
Introduction (Cambridge, 2011); Timothy Lubin, Donald R. Davis, and Jayanth K. Krishnan, eds., Hinduism and 
Law: An Introduction (Cambridge, 2010); Christine Hayes, ed., Judaism and Law: An Introduction (Cambridge, 
forthcoming); Rebecca French et al., eds., Buddhism and Law: An Introduction (Cambridge, forthcoming).  See 
also, e.g., Michael W. McConnell, Robert F. Cochran, and Angela Carmella, eds., Christian Perspectives on Legal 
Thought (New Haven, CT, 2001); Don S. Browning, et al., eds., Sex, Marriage, and Family in World Religions 
(New York, 2006); id., Children and Childhood in World Religions (New Brunswick, NJ, 2009). 
68 For a good sampling, see Frank S. Ravitch, Law and Religion, A Reader: Cases, Concepts, and Theory, 2d 
ed. (St. Paul, MN, 2008).  



22	
	

	

inheritance law, and much more.69  Several American law professors, most notably Alan 
Watson, have exposed the classical Roman law foundations on which these medieval canon 
law developments built.70  And a few legal historians are following this story of Christian legal 
influence into the European and North American Protestant worlds of the sixteenth through 
nineteenth centuries.71  

Seventh, natural law theory is becoming a topic of growing interest in American law 
schools -- despite Holmes’ deprecation of the natural law as a “brooding omnipresence in the 
sky.”  The modern study of natural law theory began already in the mid-twentieth century.  The 
horrible excesses of Nazi Germany and Stalinist Russia catalyzed the modern international 
human rights revolution, which defined and defended the natural rights protections of human 
dignity and the natural law limits on state power.  The rise of Catholic social teachings and the 
monumental reforms of the Second Vatican Council in 1962-1965 together gave further 
powerful impetus to Catholic natural law theories.  Today, American scholars like John Finnis, 
Robert George, Russ Hittinger, Stephen Pope, Jean Porter, and others illustrate the wide 
range of Catholic natural law and natural rights teachings on a whole range of fundamental 
legal, political, and social issues.72  A number of Jewish, Protestant, Eastern Orthodox, and 
Muslim scholars are now also resurrecting the rich natural law teachings of their own traditions, 
and developing new natural law theories to address fundamental legal questions today in and 
on terms that others with different faith traditions can appreciate.73  And all these groups have 
found interesting overlaps with the burgeoning religion and science scholarship that is 

	

	

69 See, e.g., Berman, Law and Revolution, James A. Brundage, Law, Sex, and Christian Society in Medieval 
Europe (Chicago, 1987); id., Medieval Canon Law (London, 1995); Charles Donahue, Law, Marriage, and Society 
in the Later Middle Ages (Cambridge, 2008); R.H. Helmholz, The Spirit of the Classical Canon Law (Athens, GA, 
1996); id., Roman Canon Law in Reformation England (Cambridge, 1990); John T. Noonan, Jr., Canons and 
Canonists in Context (Goldfach, 1997); id., Power to Dissolve: Lawyers and Marriages in the Courts of the Roman 
Curia (Cambridge, MA, 1972); Brian Tierney, Religion, Law, and the Growth of Constitutional Thought, 1150-1625 
(Cambridge, 1982); id., Medieval Poor Law: A Sketch of Canonical Theory and its Application in England 
(Berkeley, CA, 1959)..  
70 A good summary of his voluminous scholarship is included in Alan Watson, The Spirit of the Roman Law 
(Athens, GA, 2005); id., Legal Transplants: An Approach to Comparative Law (Edinburgh, 1974).  See also, e.g.,  
Bruce W. Frier and Thomas A.J. McGinn, eds., Casebook on Roman Family Law (Oxford, 2004); Herbert 
Hausmaniger and Richard Gumauf, eds., A Casebook on Roman Property Law, trans. George A. Sheets (Oxford, 
2012). 
71 See, e.g., Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western 
Legal Tradition (Cambridge, MA, 2003); John Witte, Jr., Law and Protestantism: The Legal Teachings of the 
Lutheran Reformation Cambridge, 2002); id., The Reformation of Rights: Law, Religion, and Human Rights in 
Early Modern Calvinism (Cambridge, 2007).  
72 See, e.g., John Finnis, Natural Law and Natural Rights, 2d ed. (Oxford, 2011); Robert P. George, In Defense 
of Natural Law (Oxford, 1999); Russell Hittinger, The First Grace: Rediscovering the Natural Law in a Post-
Christian World (Wilmington, DL, 2003); Stephen J. Pope, Human Evolution and Christian Ethics (Cambridge, 
2007); Jean Porter, Ministers of the Law: A Natural Law Theory of Legal Authority (Grand Rapids, MI, 2010). 
73 See, e.g., David Novak, Natural Law in Judaism (Cambridge, 1998); David VanDrunen, Natural Law and the 
Two Kingdoms: A Study in the Development of Reformed Social Thought (Grand Rapids, MI, 2010); John A. 
McGuckin, The Ascent of Christian Law: Patristic and Byzantine Reformulations (New York, 2011).  



23	
	

	

exposing the natural foundations of human morality and sociability.  Natural law theory, while 
still controversial, is becoming a promising new arena of interreligious and interdisciplinary 
dialogue.   

Eighth, natural law arguments often inform a related area of continued importance in 
law and religion study: the topic of legal ethics, both by itself and in comparison with 
theological ethics, business ethics, medical ethics, and more.  Legal and theological ethicists 
have long recognized the overlaps in form and function of the legal and religious professions. 
Both professions require extensive doctrinal training and maintain stringent admissions 
policies.  Both have developed codes of professional ethics and internal structures of authority 
to enforce them.  Both seek to promote cooperation, collegiality, esprit de corps.  There are 
close affinities between the mediation of the lawyer and the intercession of the cleric, between 
the adjudication of the court and the arbitration of the consistory, between the beneficence of 
the bar and the benevolence of the diaconate.  Ideally, both professions serve and minister to 
society.  Both professions seek to exemplify the ideals of calling and community.  Nonetheless, 
there can be strong tensions between one’s legal professional duties and personal faith 
convictions as well.  What does it mean to be a Christian, Jewish, Muslim, Hindu, or Buddhist 
lawyer at work in a secular legal system?  These topics now have attracted a small cluster of 
important new scholarship.74 

Ninth, this last question -– about the place of the religious believer in the legal 
profession – has raised the broader question of the place of overt religious arguments in legal 
discourse altogether.  This is in part an epistemological question: whether legal and political 
argumentation can and should forgo religious and other comprehensive doctrines in the name 
of rationality and neutrality.  In America, this is also in part a constitutional question: whether 
the First Amendment prohibition on establishment of religion requires that all laws be based on 
secular and neutral rationales in order to pass constitutional muster.  In the heyday of secular 
liberalism and strict separationism in the 1960s and 1970s, it was common to insist that all 
political debates sound in terms of rationality and neutrality.75  Today, as we saw above, a 

	

	

74 See, e.g., Symposium, “The Relevance of Religion to a Lawyer’s Work: An Interfaith Conference,” Fordham 
Law Review 56 (1998): 1075-1651; Symposium, “Rediscovering the Rule of Religion in the Lives of Lawyers and 
Those They Represent, Fordham Urban Law Journal 26 (1999): 821-1200; Thomas L. Shaffer and Robert F. 
Cochran, Lawyers, Clients, and Moral Responsibility, 2d ed. (St. Paul, MN, 2009); Thomas L, Shaffer, On Being a 
Christian and a Lawyer (Provo, UT, 1981); Joseph Allegretti, The Lawyer’s Calling: Christian Faith and Legal 
Practice (New York, 1996).  
75 For a nice sifting of recent arguments, see John Perry, The Pretenses of Loyalty: Locke, Liberal Theory, and 
the American Political Theology (Oxford, 2010); Steven D. Smith, The Disenchantment of Secular Discourse 
(Cambridge, MA, 2010). 



24	
	

	

number of jurists have argued that religious and other comprehensive doctrines are essential 
parts of an enduring legal and political morality.76 

 But welcoming serious public deliberation by people of all faiths imposes its own strong 
demands.  It demands that these faith communities develop a clear conceptual bilingualism: 
the development of a public language that casts deeply held convictions into terms that others, 
with different faith assumptions and experiences, can understand and accept, even for their 
own reasons.  It demands deep and sincere empathy: learning to appreciate the deep 
convictions and cardinal practices of the other, even if only by distant analogy; that is the heart 
of the Golden Rule.  It demands long and respectful patience: spending the time to listen and 
to deliberate to every serious position before rushing to cultural, constitutional, or political 
judgment.  And it demands unswerving commitment of all parties to the first premises of 
American constitutional democracy: that there be religious freedom for all and religious 
establishment for none.  

Tenth, and finally, questions of law and religious language, have also raised broader 
questions about the overlaps between legal and theological interpretation, translation, and 
hermeneutics.  Legal historians have long been intrigued by the overlaps between the 
scholarly methods used to interpret the Bible and the constitution, a code and a creed, a 
consistory judgment and a judicial opinion.  The rise of modern literary theory and of form-
critical methods of biblical interpretation has heightened this scholarly interest in how to 
discern the original meaning and understanding of authoritative texts.  And with the rise of 
globalization and the study of global law and world religions, a number of American jurists 
have become keenly interested in the questions of translation, transplantation, and 
transmutation of legal and religious ideas across cultural, disciplinary, and denominational 
boundaries.77 

THE DISTINCT CHALLENGES OF CHRISTIAN JURISPRUDENCE 

As the foregoing map makes clear, Catholic and Protestant scholars have been among 
the leaders of the law and religion movement in American legal education -- along with growing 
numbers of Jewish and Muslim scholars, and a growing number of specialists on Asian and 
Traditional religions.  Legal scholars from these various religious traditions have already 
learned a great deal from each other and have cooperated in developing richer understanding 
of sundry legal and political subjects.  This comparative and cooperative interreligious inquiry 

	

	

76 See especially the work of my colleague, Michael J. Perry, Under God?  Religious Faith and Liberal 
Democracy (Cambridge, 2003); id., The Political Morality of Liberal Democracy (Cambridge, 2010); id., Toward ad 
Theory of Human Rights: Religion, Law, and the Courts (Cambridge, 2007).  
77 See, e.g., recent titles by Kent Greenawalt, Legal Interpretation: Perspectives from Other Disciplines and 
Private Texts (Oxford, 2010); Jaroslav Pelikan, Interpreting the Bible and the Constitution (New Haven, CT: 
2004); Milner S. Ball, Called By Stories: Biblical Sagas and Their Challenge for Law (Durham, NC, 2000); id., The 
Word and the Law (Chicago, 1993). 



25	
	

	

into fundamental issues of law, politics, and society needs to continue -- especially in our day 
of increasing interreligious conflict and misunderstanding.   

Christian scholars of law and religion, however – those who tend to be the readers of 
this distinguished Ecclesiastical Law Journal, including this author -- face some distinct 
challenges and opportunities in this new century that are worth spelling out by way of 
conclusion.   

A first challenge is for us Western Catholics and Protestants to make room for our 
brother and sisters in the Eastern Orthodox Christian tradition.  Many leading Orthodox lights 
dealt with fundamental questions of law, politics, and society with novel insight, often giving a 
distinct reading and rendering of the biblical, apostolic, and patristic sources that Christians 
have in common.  Moreover, the Orthodox Church has immense spiritual resources and 
experiences whose implications are only now beginning to be seen.  These spiritual resources 
lie, in part, in Orthodox worship—the passion of the liturgy, the pathos of the icons, the power 
of spiritual silence.  They lie, in part, in Orthodox church life—the distinct balancing between 
hierarchy and congregationalism through autocephaly, between uniform worship and liturgical 
freedom through alternative vernacular rites, between community and individuality through a 
trinitarian communalism, centered on the parish, on the extended family, on the wizened 
grandmother (the "babushka" in Russia).  And these spiritual resources lie, in part, in the 
massive martyrdom of millions of Orthodox faithful in the last century—whether suffered by 
Russian Orthodox under the Communist Party, by Greek and Armenian Orthodox under 
Turkish and Iranian radicals, by Middle Eastern Copts at the hands of religious extremists, or 
by North African Orthodox under all manner of fascist autocrats and tribal strongmen.   

These deep spiritual resources of the Orthodox Church have no exact parallels in 
modern Catholicism and Protestantism, and most of their implications for law, politics, and 
society have still to be drawn out.  How the Orthodox Church can apply them to the nurture of 
law, constitutionalism, and human rights is one of the great challenges, and opportunities, of 
this new century.  At minimum, it would be wise for us Westerners to lay aside our simple 
caricatures of the Orthodox Church as a politically corrupted body that is too prone to clerical 
indiscipline, mystical idolatry, and nominal piety to have much to offer to a human rights 
regime.  A church with nearly 300 million members scattered throughout the world defies such 
a glib description.  It would be wise to hear what an ancient church, newly charred and 
chastened by decades of oppression and martyrdom, considers essential to the regime of 
religious rights.  It would be enlightening to watch how ancient Orthodox communities, still 
largely centered on the parish and the family, will reconstruct social and economic rights.  It 
would be prudent to see whether a culture, more prone to beautifying than to analyzing, might 
transform our understanding of cultural rights.  It would be instructive to listen to how a tradition 
that still celebrates spiritual silence as its highest virtue might recast the meaning of freedom of 
speech and expression.  It would be illuminating to feel how a people that have long cherished 
and celebrated the role of the woman—the wizened babushka of the home, the faithful 



26	
	

	

remnant in the parish pews, the living icon of the Assumption of the Mother of God—might 
elaborate the meaning of women’s rights.78 

A second challenge is to trace the roots of these modern Christian teachings into the 
earlier modern period of the seventeenth through nineteenth centuries.  Scholars have written 
a great deal about patristic, scholastic, early Protestant, and post-Tridentine Catholic 
contributions to law, politics, and society.  But many of the best accounts of the history of 
Christian legal, political, and social thought stop in 1625.  That was the year that the father of 
international law, Hugo Grotius (1583-1645), uttered the impious hypothesis that law, politics, 
and society would continue even if “we should concede that which cannot be conceded without 
the utmost wickedness, that there is no God, or that the affairs of men are of no concern to 
him.”79  While many subsequent writers conceded Grotius’ hypothesis, and embarked on the 
great secular projects of the Enlightenment, many great Christian writers did not.  They have 
been forgotten to all but specialists.  Their thinking on law, politics, and society needs to be 
retrieved, restudied, and reconstructed for our day.  

A third challenge is to make these modern Christian teachings on law, politics, and 
society more concrete.  In centuries past, the Catholic, Protestant, and Orthodox traditions 
alike produced massive codes of canon law and church discipline that covered many areas of 
private and public life.  They instituted sophisticated tribunals for the equitable enforcement of 
these laws.  They produced massive works of political theology and theological jurisprudence, 
with ample handholds in catechisms, creeds, and confessional books to guide the faithful.  
Some of that sophisticated legal and political work still goes in parts of the Christian church 
today.  Modern Christian ethicists still take up some of the old questions.  Some Christian 
jurists have contributed ably and amply to current discussion of human rights, family law, and 
religious liberty.  But the legal structure and sophistication of the modern Christian church as a 
whole is a pale shadow of what went on before.  It needs to be restored lest the church lose its 
capacity for Christian self-rule, and its members lose their capacity to serve as responsible 
Christian “prophets, priests, and kings.”  

The intensity and complexity of the modern culture wars over family, education, charity, 
religious liberty, constitutional order, and other cardinal issues demand this kind of 
fundamental inquiry. Too often of late, Christians have marched to the culture wars without 
ammunition—substituting nostalgia for engagement, acerbity for prophecy, platitudes for 
principled argument.  Too often of late, Christians have been content to focus on small battles 

	

	

78 See sources in John Witte, Jr. and Michael Bourdeaux, eds., Proselytism and Orthodoxy in Russia: The New 
War for Souls (Maryknoll, NY, 1999); John Witte, Jr. and Frank S. Alexander, eds., The Teachings of Modern 
Orthodox Christianity on Law, Politics, and Human Nature (New York, 2007). 
79 Hugo Grotius, De Iure Belli ac Pacis (1625), Prolegomena, 11.  See, e.g., Oliver O’Donovan and Joan 
Lockwood O’Donovan, From Irenaeus to Grotius: Christian Political Thought, 100-1625 (Grand Rapids, MI, 1999); 
Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150-1625 
(Grand Rapids, MI, 1997). 



27	
	

	

like prayers in schools and Decalogues on courthouses, without engaging the great domestic 
and international soul wars that currently beset us. The church needs to reengage responsibly 
the great legal, social, and political issues of our age, and to help individual Christians 
participate in the public square in a manner that is neither dogmatically shrill nor naively 
nostalgic but fully equipped with the revitalized resources of the Bible and the Christian 
tradition in all their complexity and diversity. 

A fourth challenge is for modern Catholic, Protestant, and Orthodox Christians to 
develop a rigorous ecumenical understanding of law, politics, and society.  This is a daunting 
task.  It is only in the past three decades, with the collapse of Communism and the rise of 
globalization, that these three ancient warring sects of Christianity have begun to come 
together and have begun to understand each other.  It will take many generations more to 
work out the great theological disputes over the nature of the Trinity or the doctrine of 
justification by faith.  But there is more confluence than conflict in Catholic, Protestant, and 
Orthodox understandings of law, politics, and society, especially if they are viewed in long and 
responsible historical perspective.  Scholars from these three great Christian traditions need to 
come together to work out a comprehensive new ecumenical “concordance of discordant 
canons” that draws out the best of these traditions, that is earnest about its ecumenism, and 
that is honest about the greatest points of tension.  Few studies would do more both to spur 
the great project of Christian ecumenism and to drive modern churches to get their legal 
houses in order.  

A final challenge, and perhaps the greatest of all will be to join the principally Western 
Christian story of law, politics, and society known in North America and Western Europe with 
comparable stories that are told in the rest of the Christian world.  Over the past two centuries, 
Christianity has become very much a world religion—claiming some two billion souls.  Strong 
new capitals and captains of Christianity now stand in the south and the east—in Africa, Korea, 
China, India, the Philippines, Malaysia, and well beyond.   In some of these new zones of 
Christianity, the Western Christian classics are still being read and studied.  But rich new 
indigenous forms and norms of law, politics, and society are also emerging, premised on very 
different Christian understandings of theology and anthropology.  It would take a special form 
of cultural arrogance for Western and non-Western Christians to refuse to learn from each 
other.