We are in the midst of a continuing debate about the role of religion in American politics and law. Advocates of a greater role for religion in public life—and I count myself among them—lament the privatization of religion and the secularization of public debate. Although some of the claims about privatization and secularization may be exaggerated, it seems undeniable that religion, despite its apparently robust private health, plays a relatively modest role in the public life of modern America. The public role that it does play, moreover, is under a hovering cloud of suspicion, with critics constantly suggesting that the separation of church and state is being threatened.

In this essay, I advance a radical proposition: that privatization and secularization are the product, in part, of religious freedom run amuck. In particular, the concept of religious freedom has evolved to include not merely legal toleration, but also a strong commitment to religious equality. This principle of religious equality supports the protection and nurturing of religious diversity in the private realm. Ironically, however, it also suggests that the diversity among religions is irrelevant in determining the proper role for religion in the public sphere, for the equality principle implies that what is right for one is right for all. On this view, whatever the proper role for religion in politics and law, it must be no different for one religion than another. This public leveling of religion, moreover, tends to ensure that the “equal” role that religions play in American public life will be modest, if not inconsequential. Even as we continue to extol its private diversity, religion has become publicly generic and thereby largely insignificant.

Technological consciousness and libertarian doctrine reduce the material world to an instrument—or better, to an amorphous resource existing solely for those ends which we freely choose. We are trapped in matter without true form or meaning.

Even for the Christian, such reduction has grave consequences. God resides in a distant heaven or in a distant time. Only after years of exile in a nature bereft of divinity can we hope, perhaps, to be rewarded with bodily salvation in a different universe. In the meantime, any spirituality we hold to must be necessarily non-material— founded in a dualistic belief in the presence of the intangible Deity whispering to our own intangible selves. We are put asunder, into godless brains and disembodied souls.

Husband and Wife have a fight. It is the culmination of many such fights. In a rage, Husband packs his bags and leaves home. He never returns.

Husband is a reservist in the army. A war breaks out and he is called up to serve. He is sent abroad, never to return.

Husband is the captain of a ship. He leaves home for a long journey at sea. Wife does not join him. The ship sinks and nobody aboard survives.

Husband goes on a business trip abroad. Wife stays at home. Husband does not return when he is scheduled to. Nobody hears from him again.

Husband and Wife are separated during the Holocaust. Wife survives but is unable to locate Husband.

Years pass. Wife gets on with her life. She meets a man who proposes marriage to her. She wants to accept, but may she?

The answer to that question, if she is a traditional Jew who wishes to abide by the halakhah is no. According to the halakhah, Wife is still a married woman. If she remarries without unequivocally ascertaining Husband's death, she will have committed adultery, an act which is absolutely prohibited by Jewish law.

In law, as elsewhere, the role of symbolism is of more than symbolic importance. Religious symbols of women help to reinforce prevailing gender ideologies about the proper place of men and women and women's appropriate roles and status in society. In American society, religious symbols of women and the feminine have functioned to shape legal views of women. These views essentialize women's role and status to that of reproductive vessels, or what I will here refer to as “fetal containers.” This view of women as fetal containers has hindered the ability of women to secure either equal rights or equitable treatment under law.

Despite the general secularization of the law over the last century, the religiously-grounded image of woman as fetal container has persisted in legal doctrine, especially in laws concerning employment discrimination, abortion, and, most recently, fetal protection policies and surrogate motherhood contracts. Because such imagery of women has become a “naturalized” part of our secular cultural symbolism, its religious derivations are not always evident. Yet, law reform efforts need to address not only the more obvious forms of sex and gender discrimination, but also the pervasive influence of such religious symbols and their influence on the status of women.

In our time there has occurred a plague of claims and law suits against clergy and churches as a result of alleged clergy wrongdoing. Many of these cases have to do with sexual misconduct. Knowing that the individual clergy are likely to have very limited financial resources, claimants have joined churches and church officials in their lawsuits under theories of negligent selection, negligent assignment, or negligent supervision of clergy. These negligence theories have led to pre-trial discovery requests for confidential church records and clergy personnel files. This has created a serious dilemma for the churches involved, and in particular for the Roman Catholic Church whose canon law mandates the non-disclosure of records kept in the church's secret archives. This article will focus on the conflict between the civil procedural rules creating a right to pre-trial discovery and the free exercise rights of a church to select, evaluate and assign clergy without fear of disclosure of confidential information relied upon in the process.

This topic is more complicated than one might suspect from reading typical annotations and bible dictionary articles. There are some hundred or so relevant biblical texts, but they do not present an entirely coherent picture. To take these texts seriously requires leaving open a number of questions. Too often commentators and annotators have attempted to resolve such questions by making assertions grounded upon highly problematic evidence. This article does not consider texts pertaining exclusively to the “inheritance” of the land of promise by the various tribes of Israel such as Joshua 11:23; 13:1—19:51; and Ezekiel 47:13—48:29. Concern with preserving tribal inheritances is in the background of some texts that are considered; but here attention is limited to laws and traditions concerning transfer of property from persons in one generation to those of another, or, in a few instances, to other persons within the same generation in accordance with what, in modern legal terms, would be called the laws of intestate succession and bequest.

Modern consumer credit law is a large and complex body of law. Underneath the complexity, however, is a simple goal: to ensure that consumers are treated fairly and to prevent, or at least to redress, overreaching and abuse by creditors. To this extent, modern consumer law can be said to reflect a felt sense of societal responsibility to a particularly vulnerable group.

We tend to think of consumer credit law as a modern phenomenon; and indeed, the vast majority of consumer credit laws in this country have appeared since the late 1960s. But our generation did not invent consumer protection law; many of our modern rules have antecedents which date back for centuries. Indeed, consumer credit transactions are as old as civilization, and even the earliest societies regulated at least some lending and credit practices.

Ancient Israel was no exception; its legal codes contained many rules on lending practices. While these rules were not nearly as complex as our modern rules, they did address a remarkably wide range of issues which we would identify today as consumer protection issues. As part of a larger body of humanitarian laws and customs designed to protect against undue hardship, the rules on credit practices were similar in principle to our modern consumer laws in that they reflected a sense of responsibility toward the poor and most vulnerable members of society.

The perspectives of Jewish law and Anglo-American law are compared with regard to good Samaritan responses to difficulty in three areas: a) return of lost property, b) rendering aid, and c) coming to the rescue of someone in danger. With regard to good Samaritan expectations for return of lost property, the two systems seem similar. However, a comparison of Jewish and American law with respect to rendering aid and coming to the rescue of someone in danger demonstrates that Jewish law encourages a duty to help in a manner unusual under Anglo-American common law. Exceptions in case law and statutory developments are discussed.

In 1986, eight years after he had published his Luther's House of Learning, Gerald Strauss published his Law, Resistance, and the State, his second major attempt to deal with the emergence, nature, and functioning of the early modern territorial state in the Holy Roman Empire. This significant contribution to the interconnection of law and the Reformation deserves the attention of all who are committed to the study of both subjects. As far as I know, the book has not been examined in terms of these two subjects, though it is now available for some time. The following observations deal, therefore, with the book as a whole, especially problems of method, and in this connection the emphasis is on the opposition to Roman law. And then Strauss's view of the Reformation and its connection with the opposition to Roman law will be discussed. But first a brief view of the book.