The genre of Islamic juristic opinions (fatāwā or nawāzil) provides a fascinating window into how Muslim jurists—both medieval and modern—have applied theoretical sharī‘a guidelines to actual problems facing their communities. Because Muslim practitioners have historically sought fatāwā (sing. fatwā) on matters ranging from the legal to the ethical to the ritual, these juristic opinions allow us to trace not only the concerns of believers in different Muslim societies over time, but also the moral imagination of the jurists as they grappled with those concerns. In this article, I present a close reading of a fatwā by the late modern Moroccan jurist al-Mahdī b. Muḥammad al-Wazzānī (1849–19231) on the moral value of polygamy versus monogamy. I show how his legal opinion can be fruitfully read in the context of larger debates across the Middle East and Muslim societies over marriage law and ethics. I suggest that al-Wazzānī’s fatwā represents a traditionalist reaction to the wave of modernist-feminist religious reform that was sweeping through the region at the turn of and into the twentieth century, and that sought to discredit the traditional Islamic practice of polygamy in favor of monogamy.

This article deals with late antique Jewish and Christian discourse on social hierarchy, martyrology, and attitudes toward the law and the commandments. I place Jewish and Christian attitudes to martyrdom in late antiquity within the larger system of the commandments. Beyond the circumstantial connections between martyrdom and the affirmation or violation of laws, I argue that martyrdom constitutes an important lens for the examination of the rule of the law and for the negotiation of socio-religious hierarchies. I argue that the elevation of martyrdom creates inner tension vis-à-vis the idea of life-long righteousness based on adherence to the law. I discuss the construction of martyrdom as the final and ultimate commandment, necessary for reaching a state of perfection. Through addressing a case where martyrdom is presented as competing with, if not substituting, a life according to the law, I discuss the theme of an upside-down world, which appears in both Christian and Rabbinic literature, concerning martyrs. In this framework, I discuss the view of martyrdom as a kind of stairway to heaven—an instrument for rapid advancement allowing to overtake those who lived according to the law—and the unique perception of law and martyrology in the fourth-century Syriac-Christian Book of Steps, which places the martyrs below the perfect.

The concept of mercy is often proposed as an antidote to the punitive excesses of our current criminal justice system. But this concept is typically presented in generalized, abstract terms that seem unworkable as a pragmatic decision strategy. Its religious origins and associations only add to this impression. In fact, however, if the biblical accounts of mercy are interpreted using the narrative strategy that is featured in current scholarship, an eminently practical decision protocol emerges from these accounts. This protocol diverges from the common or popular view of mercy. It omits the demand for contrition or gratitude on the part of the wrongdoer, viewing this as an effort to exercise domination rather than extending mercy, and minimizes compassion on the part of the decision maker due to its tendency to merge into favoritism. Instead, the protocol recommends that the decision maker deal with the wrongdoer on a direct personal level, suppress any emotional responses such as anger or indignation, and consider the collateral consequences of the proposed punishment. The author describes the way the protocol can be derived from leading biblical narratives about mercy, including the expulsion from the garden, the mark of Cain, Christ and the adulteress, and the prodigal son. He expands on this derivation by analyzing the book of Jonah, rejecting the common view that this work is a satire and treating it instead as a profound inquiry into the nature of mercy. He concludes by applying the protocol he has derived to policy level decisions in the criminal justice system, specifically judicial sentencing, administrative parole and the use of restorative justice.

This festschrift essay honors the academic life and work of Douglas Laycock, one of the most important scholars and advocates in American law and religion. This essay offers tribute to a mentor from whom I took three classes and an independent study in law school, for whom I worked as a research assistant, and with whom I have remained in close conversation during my two decades in the academy. It also offers an insider’s account of Laycock’s intellectual project and influence—punctuated with stories, observations, and nuggets of wisdom drawn from a close reading of his scholarship and briefs. This essay traces Laycock’s career from his early academic work to his later role in landmark Supreme Court litigation, ultimately seeing Laycock’s deepest legacy as lying not only in the doctrines he helped shape, but in a model of intellectually serious, cross-ideological engagement that both inspires us and calls us to account.

It was a puzzle to the British and has been a puzzle to historians ever since, why the American colonists, who enjoyed a degree of liberty, political autonomy, and even low taxation that was the envy of subjects in the home country, would join in a risky revolution to sever ties with the nation of their origin. The answer, according to Edmund Burke, was in large part religion. “Religion,” he explained to fellow members of Parliament in his “Speech on Conciliation with the Colonies,” always a “principle of energy,” was “no way worn out or impaired” in North America—and that religion was of a particular kind. Burke wrote: “The religion most prevalent in our Northern Colonies is a refinement on the principle of resistance; it is the dissidence of dissent, and the Protestantism of the Protestant religion.” Of all faiths, this hyper-Protestantism, wrote Burke, is “the most adverse to all implicit submission of mind and opinion.” This article sets out the ecclesiological, experiential, and theological differences among the largest Protestant denominations in Revolutionary America and the ways in which these differences contributed not just to the revolutionary spirit, but to the democratic and republican strands of revolutionary and constitutional thought in the new United States. The biggest contrast was between members and clergy of the Church of England, who were most involved to remain Loyalists, Reformed Protestants (Congregationalists and Presbyterians), who inclined toward republicanism, and Baptists, who were the most democratic and individualistic.

Douglas Laycock’s career in Religion Clause scholarship and advocacy spans two periods marked by two distinct concerns at the heart of the debates. This article connects them. In the first period, from the 1980s into the 2000s, the central issue was what general value or principle should drive Religion Clause decision-making. Laycock’s approach, substantive neutrality toward religion, focused on minimizing government effects on religious choices and thus led the way in reconciling two key values: neutrality on the one hand, and religious liberty or voluntarism on the other. In the second period, from the mid-2000s forward, religious liberty became caught up in the United States’ cycle of polarization. Laycock again led the way; his work on Religion Clause neutrality supports the effective defense of religious liberty in a polarized age. In particular, he called for aggregating neutrality: recognizing that any policy can have differing effects on the religious choices of different relevant actors and comparing those effects with the goal of minimizing burdensome effects on religious choices overall. This approach, done with care, can take account of the effect on competing sides and thus productively address polarized conflicts.

This article summarizes several of Douglas Laycock’s important contributions to understanding the history surrounding the Establishment Clause of the U.S. constitution. But even more, the author contends that reflecting on Laycock’s use of history might provide a model for mediating between different modes of constitutional interpretation—especially originalism on the one hand and various normative or anti-positivist theories on the other.

There is likely no law and religion scholar who has done more to shape the doctrine of strict scrutiny as a protection for religious exercise than Professor Douglas Laycock. Since five justices have called the notorious Free Exercise case—Employment Div., Dept. of Human Res. of Ore. v. Smith—into question, Laycock’s work has taken on additional salience. And that is even more true as justices and scholars have asked and debated what test should replace Smith if overruled. Some scholars have argued that the court should abandon strict scrutiny across the board and Bruen-ize the First Amendment—that is, incorporate the newly minted Second Amendment historical-analogue approach from New York State Rifle & Pistol Ass’n v. Bruen into the First Amendment context. In this article, I discuss three important aspects of Laycock’s work regarding strict scrutiny: (1) the textual and historical arguments Laycock has made to support strict scrutiny in the religious exercise context; (2) the important insights he has offered about how the doctrine should operate, particularly with respect to his most-favored-nation theory; and (3) the normative justifications Laycock has offered to support this approach. Building on previous work of mine, I explain additional reasons why strict scrutiny is an important and historically justified doctrine in the free exercise context. I also explain why Bruen’s categorical historical-analogue approach, while potentially useful in some constitutional contexts, would be problematic in the Free Exercise context. More importantly—and ironically—Bruen’s purported historical approach would be contrary to the best textual and historical understanding of the Free Exercise Clause.

In a separate essay, we argue that a right to freedom of religion as it is standardly understood is morally indefensible. In this article, we sharpen this proposition, arguing that there is no account of religion on which there is even a pro tanto right for activities to be exempted from generally applicable regulations—or otherwise privileged over other human projects, commitments, and passions—in virtue of their being religiously motivated. Beyond largely uncontroversial invocations of freedoms of thought, speech, and association, what remains of a pre-theoretical embrace of a right to freedom of religion is best explained by the principle of equal regard. Along the way, we respond to the work of Cécile Laborde and Alan Patten, who both maintain that an equality-centered view of religious freedom cannot adequately protect religion unless religious exercise is understood to be elevated in value over other human projects. In our response, we review our account of equal regard and its application to the kinds of cases that worry Laborde and Patten, showing that equal regard can account for the sense of injustice elicited by those cases. We also briefly address the positive views of Laborde and Patten and suggest that their accounts, and others with the same structure, inherit the problems of more straightforward accounts of freedom of religion.

Douglas Laycock’s theory of substantive neutrality has had much to say about contemporary debates in U.S. law and religion, particularly for courts and scholars grappling with the problem of religious exemptions from general laws. It is fair to say that the U.S. Supreme Court has in many respects adopted Laycock’s approach in free exercise cases. But Laycock’s work on the Establishment Clause side has unfortunately been less influential on the Supreme Court. In the context of Establishment Clause challenges to government-sponsored religious expression, Laycock has argued that the government endorsement of religion through official sponsorship of religious speech violates substantive neutrality because government endorsement of religion encourages religious belief without leaving room for private individual choice. But the court has moved away from any consideration of endorsement or substantive neutrality in cases considering challenges to official religious expression, focusing instead on vaguely-described historical practices and understandings. In this article, the author explains the correctness and insightfulness of Laycock’s theory, which elucidates and justifies the Supreme Court’s now-abandoned endorsement doctrine and explains why the Supreme Court’s current approach to the issue of official religious speech is much more problematic than the substantive neutrality approach.

In Employment Division v. Smith (1990), the U.S. Supreme Court held that neutral and generally applicable laws would no longer receive strict scrutiny review. Many feared that Smith had severely truncated the protection of the First Amendment Free Exercise Clause. Three years later, however, in a controversial Santerian slaughtering case, Douglas Laycock persuaded a unanimous Supreme Court in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah to highlight an important limitation on the Smith neutrality standard. Both “masked as well as overt” government hostility, targeting, or discrimination against religion are constitutionally “suspect,” Lukumi made clear. Recent Supreme Court free exercise cases have emphasized this limitation. Over the past decade, the European Court of Human Rights and the Court of Justice of the European Union are replaying the same story that played out in the U.S. Supreme Court in the 1980s and 1990s and have gradually weakened their religious freedom provisions into a guarantee of government neutrality alone. In their most recent cases, these pan-European high courts have upheld blatantly discriminatory regulations of Muslim and Jewish ritual slaughtering, favoring animal welfare over religious freedom. These courts need to take a lesson from Laycock’s argument in Lukumi that neutrality requires states not to take sides for or against religion and not to uphold laws that have the mere pretense of neutrality while targeting the core practices of religious minorities.

I am grateful to my friends and colleagues who organized and wrote for this festschrift. I have organized much of my work on religious liberty around the principle of substantive neutrality. Substantive neutrality attempts to integrate the whole cluster of Religion Clause values—neutrality, liberty, voluntarism, and separation. Substantive neutrality requires regulatory exemptions for religious conduct, but not when religiously motivated conduct aligns too closely with secular self interest, and subject to exceptions as needed to achieve compelling government interests. If government subsidizes the private sector to provide secular services such as education, medical care, or social services, substantive neutrality requires that the funds be distributed neutrally to religious and secular providers alike. And substantive neutrality requires that government take no position on religious questions. There should be no government-sponsored prayers or religious observances and no government-sponsored religious displays. I disagree with Mark Greenberg’s and Larry Sager’s paper, which argues that religious exercise should be protected only in parallel with protection for other serious personal commitments, under a principle of “equal regard.” Their position overrides constitutional text and ignores the substantial reasons why the Founders protected religious liberty as such. It is also completely unworkable, as they to some extent recognize.