A significant body of legal academic writing produced in recent years has argued that one of the primary purposes of the First Amendment's Religion Clauses was to protect freedom of conscience. But in the two decades since the Supreme Court's decision in Employment Division v. Smith, a number of commentators have suggested that freedom of conscience has lost its place as the focus of Free Exercise and Establishment Clause jurisprudence. Indeed, some have gone so far as to argue that protection for freedom of conscience has disappeared from the Free Exercise Clause almost entirely, leaving conduct that is motivated by a religious conscience without special constitutional protection. To be sure, some protection for freedom of conscience remains—but its constitutional source is often to be found outside of the Religion Clauses and its concern is often with non-religious activity.

This evolution of doctrine has been extensively criticized by scholars of the Religion Clauses, many of whom view these developments as departures from original intent and from long-settled constitutional practice. Michael McConnell, Martha Nussbaum, and others have also advanced normative critiques, arguing that religious conscience is in many ways distinctive and merits distinctive constitutional solicitude under the Free Exercise Clause. At the same time, the Supreme Court's rejection of special privileges for religious claims of conscience has been welcomed by other scholars, some of whom have argued that preferential protection for religiously-motivated conduct is a form of unconstitutional discrimination. Two of the most prominent proponents of this position are Christopher Eisgruber and Lawrence Sager, who maintain that the Religion Clauses should be read to promote equal liberty rather than to provide special exemptions.

One of the most striking images of God, both in the Bible and in Jewish tradition generally, is that of judge: “The judge of all the earth.” In this sense, one may describe God as He who holds in His hands all legal authority: He is the legislator, He is the judge, and He is the one who executes judgment. Alongside God's judgment, the Bible recognizes the existence of a human system of judgment, in which human beings act as judges; indeed, it even commands it: “You shall appoint judges and officers in all your gates.” What is the relation between God, the judge of all the earth, and those human beings who fulfill the function of judges? The majority of classical Jewish sources in the Bible and in Rabbinic literature that deal with law and the legal system reflect a certain relationship between human judgment and divine justice. Thus, we find in the Bible the notion that God emanates His authority to the judges who perform this function. In this spirit, Moses commands the judges whom he has appointed: “judge righteously… for the judgment is God's.” The relation assumed here between God and human judgment finds expression in different ways, extending over a considerable spectrum. At one end, one might describe God as the transcendent source of authority of the legal system, whose practical significance is limited. On the other end, one might describe it as a Divine Presence that inspires the judges and even allows them to appeal to God and to involve Him in the legal decision.

Jewish law is normally characterized by a pluralist discourse and, even when controversies are acrimonious, the merits of competitive arguments are recognized and receive some legitimacy. By contrast, Jewish family law, especially in the case of marriage annulment, is characterized quite differently, patently diverging from the pluralist hermeneutic discourse normally characterizing Jewish law. This divergence is the subject of this article.

From the work of early classic commentators to modern Jewish Law scholars, the character of marriage annulment in Jewish law has been much debated. Questions about both the authority of the Sages to annul a marriage and the meaning of annulment have arisen. Commentators have probed famous passages in the Babylonian Talmud mentioning the concept of marriage annulment (Heb. hafka'at kiddushin), often simply with the words “the Sages annulled the betrothal.” Similarly, discussing a case where a Jewish writ of divorce (get) was formally void but validated by the Sages, the Palestinian Talmud states “their [i.e., the Sages'] words uproot the words of the Torah,” which implies that the Sages have the authority according to Jewish law to annul a marriage in certain circumstances.

Following the 2006 retirement of Sandra Day O'Connor and the confirmation of Samuel Alito to succeed her, Roman Catholics formed a majority on the United States Supreme Court for the first time in this institution's 210-year history. This Catholic majority was further strengthened by the appointment of Sonia Sotomayor in 2009. Perhaps even more remarkably, by the time of Elena Kagan's first case in October of 2010, not a single Protestant sat on the nation's highest judicial body.

By way of comparison, in 1960 the Court consisted of seven Protestants, one Catholic and one Jew; in 1985, eight Protestants and one Catholic sat on the Court. This phenomenon is further reflected in judicial appointments. Since 1985, only one Protestant has been appointed,4 Justice David Souter, compared to seven Catholics and three Jews. The prima facie reason for this transformation is simple: President Reagan began the Protestant erosion by appointing two Catholics; George H.W. Bush followed by appointing a Catholic; and Bill Clinton, George W. Bush, and Barack Obama chose only Jewish and Catholic nominees. The deeper reasons, which are considerably more complex, are the focus of this article.

Significant controversy surrounds individuals' reliance on religious healing approaches to the treatment of illness, particularly when such efforts focus on the provision of care for children. These approaches, rooted in organized religions and their theologies, encompass a wide range of practices, ranging from prayer, meditation, and the laying on of hands, to exorcism, speaking in tongues, Spiritism, shamanic intervention, and various rituals of Santería. Numerous faith communities espouse one or more forms of religious healing while discouraging reliance on conventional medical treatments: These communities include the Christian Science Church, the Church of the First Born, End Time Ministries, Faith Tabernacle, Followers of Christ Church, Bible Believers' Fellowship, Christ Assembly, Christ Miracle Healing Center, Church of God Chapel, Church of God of the Union Assembly, Holiness Church, Jesus Through Jon and Judy, “No Name” Fellowship, Northeast Kingdom Community Church, and The Source.

Others, such as the Assemblies of God, have moved away from an exclusive reliance on religious healing practices to a more holistic approach that combines religious-healing with at least some aspects of biomedicine. For many of these listed groups, health and illness represent the physical manifestation of moral concerns relating to salvation, which can only be addressed through religious healing.

On December 29, 1170, in the late afternoon (and thus after the main meal of the day but shortly before vespers), four knights entered Canterbury Cathedral. Impelled, as far as history knows, by the angry words of King Henry II, “will no one rid me of this turbulent priest,” they had come to confront Archbishop Thomas Becket and win King Henry's favor by forcing the long-simmering dispute between Becket and his king to some final resolution. When the Archbishop refused their conflicting demands and reacted with scorn to their insults, the knights withdrew, only to arm themselves and follow Becket into the cathedral. As the traditional account has it:

[t]he bell for vespers began to sound, and the archbishop, with his cross borne in front of him, made his way in as usual into the cathedral. Hardly had he reached the ascent to the choir than the noise of armed men and the shout of the knights announced that the pursuers were at hand. “Where is the archbishop, where is the traitor?” resounded through the hollow aisles, mingling strangely with the recitation of the psalms in the choir. Becket, hearing this, turned back a few steps, and calmly awaited their approach in the corner of the northern transept before the little altar of S[t .] Benedict. “Here,” he cried, “is the archbishop—no traitor, but a priest of God.” Awed by his demeanor, and perhaps by the sanctity of the place, no one dared strike. A parley began. They sought to lash their failing courage into action by words. A hasty and insulting epithet gave Fitz Urse the opportunity he wanted. A blow aimed at the archbishop's head only knocked his skull-cap to the ground, but it was enough to loose the bandogs of hell. A stroke from Tracy cut off the tonsured back of [Becket's] skull, another from Brito brought him to his knees.