Religious freedom is moving in opposite directions in Canada and the United States. In recent years, Canadian law has moved openly toward the separation of church and state. American law has moved quietly in the opposite direction. Most public opinion-makers still think America remains faithful to the separatism of Thomas Jefferson. To end…[Read more]

While Thomas Jefferson’s theory of strict separation of church and state has long captured the 20th century constitutional and cultural imagination, it was his friendly rival John Adams’ theory of the freedom of both private and public religion that dominated American life until the 1940s and is returning to prominence in recent United States Sup…[Read more]

This essay, dedicated to Professor Lindberg in admiration and appreciation, introduces one such Lutheran jurist, Johannes Eisermann (ca. 1485-1558). Eisermann, a former student of Philipp Melanchthon, was the founding law professor of the new Evangelical University of Marburg and counselor to one of the strongest Lutheran princes of the day,…[Read more]

Modern American marriage law was born of both Christian and Enlightenment teachings. Christians have long regarded marriage as a natural, contractual, social, and spiritual institution that depends ultimately on church, state, and society alike to be effective and enduring. Enlightenment liberals, however, have slowly reduced marriage to a…[Read more]

This Article analyzes the distinct legal contributions of the Lutheran, Calvinist, Anglican, and Anabaptist traditions from the sixteenth century to the twentieth. All four Protestant movements triggered massive shifts of jurisdiction from the church to the state, and engineered striking legal reforms of marriage and family, education and…[Read more]

This chapter surveys the arguments for and against religious establishment and religious freedom that informed the Massachusetts Constitution of 1780 and the subsequent amendments of 1821 and 1833. Most preachers, politicians, and citizens during this period agreed that religion was an essential source of morality, and that the Constitution should…[Read more]

This essay offers a critical rereading of the Western theological and legal doctrine of illegitimacy or bastardy. The text first traces the Western stigma against bastards to the Bible, particularly to the story of Ishmael, the illegitimate son of Abraham and Hagar. It then shows the systematic discrimination against bastards in classic canon law…[Read more]

Martin Luther (1483-1546) was one of the great revolutionaries in the Western legal tradition. The Protestant Reformation that he inaugurated produced fundamental changes in legal theory, political organization, church-state relations, marriage, education, and social welfare. These changes were inscribed on the legal and confessional systems of…[Read more]

This Article argues that Martin Luther’s classic tract, Freedom of a Christian (1520) had a shaping influence on modern theories of human dignity, liberty, and equality. For Luther, the essence of human dignity lies in the juxtaposition of human depravity and human sanctity. Human dignity is something of a divine fulcrum that keeps our depravity…[Read more]

The wall of separation between church and state has been an abiding metaphor in the history of Western thought, and especially in the history of American law. This essay reviews two important new volumes that trace the evolution, and escalation, of separationist thought in America from the mid- eighteenth to the mid-twentieth centuries. While…[Read more]

This brief article surveys the interaction of law and religion from biblical times until today.

This Article provides a brief analysis of the main shifts in Western law and legal theory in four watershed periods: (1) the Christianization of Rome and Romanization of Christianity in the fourth and fifth centuries; (2) the Papal Revolution of the twelfth and thirteenth centuries; (3) the Protestant Reformation of the sixteenth century; and (4)…[Read more]

The historical Protestant tradition has interpreted the biblical teachings on male headship in a variety of ways – from stern theories of patriarchy within the church, state, and family to gender-equality in all relationships. This Article uses a nineteenth- century English literary debate between the patriarchal views of James Fitzjames S…[Read more]

This Article juxtaposes the theories of religious liberty developed by Thomas Jefferson and John Adams. It argues that Jefferson’s notion of a “wall of
separation between church and state” was a minority view in his day, and in the century to follow. More commonplace was Adams’ view that balanced the freedom of all peaceable private religio…[Read more]

This Article offers a capacious definition of politics and religion and then reviews selectively (1) some of the early modern European models of politics born of the Protestant Reformation; and (2) the transplantation and adaptation of some of these Protestant models in American history.

After surveying the range of historical and contemporary meanings of democracy, this article surveys briefly the past and present contributions of Protestant ideas of human nature, social order, and rule of law to the development of modern democratic theory and law.

This Article introduces the thought of Emory Woodruff professors Harold J Berman focused his intial works on Soviet Russia, but moved on to study law and religion later in his career. His works challenge readers to look beyond current crises to contemplate a new common law and faith on a global scale. Professor Perry also focused on the study of…[Read more]

The doctrine of covenant has reemerged in a number of contemporary Jewish, Christian, and Islamic circles as a common trope to map and measure the higher (or spiritual dimensions) of the marital union. The doctrine of covenant has also reemerged separately in a number of recent American states as a convenient means of strengthening marital…[Read more]

Eighty years ago, the nation stood transfixed by the spectacle of two giants, William Jennings Bryan and Clarence Darrow, fighting valiantly over the place of creation and evolution in the public school. Bryan, three-time presidential candidate, defended creationism as “inerrant fact” and denounced evolution as “atheistic fiction.” Darrow, celebra…[Read more]

Modern Catholics, Protestants, and Orthodox Christians alike produced original teachings on law and politics, constructing them on distinct theological foundations, particularly their theology of human nature. But, until recent years, these Christian legal teachings did not penetrate Western legal education, given its pervasive devotion to legal…[Read more]