In June of 1995, the Chief Reporter for the Secretary of State for Scotland, Miss Gillian Pain, completed a Public Inquiry for an application for a coastal superquarry on the Western Isles of Scotland. The company, Redland Aggregates Limited, proposed to extract and transport by sea upward of five million and less than 12 million tons of rock a year. The rock, a feldspar called anorthosite, would be sold as road aggregate throughout Europe. At a national level, the proposal became the Scottish test case for Agenda 21, the blueprint for sustainable development arising from the UN Conference on Environment and Development in Rio in June of 1992. At a local level, this Public Inquiry highlighted and defined community concerns about the development, of which religion was primary. The significance of the religious dimension of the superquarry debate extended from the local to the national and international spheres.

To place the testimonies presented by Mr. Mcintosh, Professor MacLeod, and Chief Sulian Stone Eagle Herney in perspective, it is necessary to understand the role religion plays in daily life on Harris and in the superquarry proposal process. On first appearance, a proposal for one of the world's largest coastal superquarries seems devoid of any religious implications. However, much of the local debate before and during the Inquiry revolved around religious and theological issues. In the constitutional monarchy of Great Britain, where the separation of church and state is inconceivable, the Western Isles of Scotland stand out as a place where religion is still one of the most fundamental guides to policy decision-making. The people of Harris share with the Mi'kmaq of Canada a set of expectations about the role of religion in politics.

Religious freedom in America is guaranteed by the first sixteen words of the Bill of Rights:

This simple declaration is pivotal. Its adoption in 1791 was the culmination of an era just as surely as it opened another. The first amendment has inspired almost 200 years of judicial history in which the United States Supreme and lower courts have attempted to fill these plain words with specific content. Its passage climaxed nearly as long a period of significant colonial history. An understanding of that history is indispensable to the interpretation of the first amendment since, as the Supreme Court has said:

Scholars frequently describe American religious disestablishment using commercial analogies, reckoning that states “privatized” religion or subjected churches to “free-market competition” by making them more like commercial businesses, yet this article demonstrates in part how churches pioneered many of the corporate devices that came to define American enterprise after the Civil War. Such descriptions are thus anachronistic. Antebellum jurists were not concerned about the similarity of churches to businesses, but rather their similarity to states, and the republican fear that churches could be rival sovereign states at first structured the law of disestablishment and incorporation. In most states, churches gained rights of general incorporation but faced significant limitations on their corporate governance and property holdings. In Dartmouth College, the Marshall Court reimagined religious societies as private owners who, instead of governing as rival sovereignties, administered property in trust under their charters. But with the vague charters of general incorporation, state judges were left without a definite source of law to adjudicate church disputes. This article argues that courts thus allowed trust law to function as a conflict of laws analysis: Judges treated religious doctrine as a foreign legal system with rules that could be ascertained and accorded respect in American courts. Such a move created a positive, corporate right of religious liberty that becomes obscured if one conceives of religious freedom only as an individual right to be asserted against the state.

We live in a world in which four fifths of its population live in frustration while the other fifth lives in fear. The United Nations, our world's “figleaf,” does not hide the shame of humanity but rather scandalizes humanity's malaise. It is troubling that the League of Nations and the United Nations were born after two world wars. Humanity's unity should come as a natural birth and not as the result of a caesarian section, i.e., through violent global wars. This is reminiscent of the ages of epidemics. Then, because of ignorance about the causes behind these illnesses, plagues swept through communities, leaving millions of dead behind. Yet, after technology made it possible for us to see smaller forms of life and medicine brought us a better understanding of germs, communities became better equipped to halt disease and heal the sufferers. If a country now is devastated by an epidemic, we blame it on the lack of sufficient hygiene. So too, the wars that erupt here and there are caused by ignorance of the intellectual organisms that infect communities with hate and influence people to commit atrocities. In today's world, relying on science, we concern ourselves with preventing germ warfare while sheltering the intellectual viruses that destroy us: our intellectual foods are still polluted. We cannot afford to continue to be confused or ignorant about these invasive germs.

On the Sunday following the attacks of September 11, 2001, millions of Americans crowded into churches, synagogues and mosques around the country. They came in record numbers, seeking consolation, reassurance and understanding—a framework for processing what was for most a ghastly, unprecedented and utterly incomprehensible event. The religious leaders that greeted them that Sunday would play a seminal role as mediators—strategically situated between the political and media-dominated reactions to the attacks and congregants desperately seeking clarity amidst the smoke, rubble and devastation of that day.

In the weeks following 911, my family and I visited one such Protestant church, the kind of Black church that sociologists of Black religion now call the Mega-Church, located in one of America's most thriving metropolitan areas and boasting a congregation of well over 10,000 members. The sanctuary was a scaled down version of a large arena with balcony and mezzanine seating. Flanking each side of the stage/pulpit were cinematic screens projecting images of an American flag swaying gently in the wind and a choir singing its “Mormon Tabernacle” rendition of “America the Beautiful.”

On the grounds of an (essentially) Roman Catholic moral theology and political philosophy, Michael J. Perry states and argues for positions that vindicate the accent of recent popes on human rights as both a matter of faith and of reason—positions I believe to be largely valid and that could gain even stronger support from a Reformed Christian philosophical theology. This should not be surprising, for the Catholic tradition was the common tradition for centuries, it deeply stamped the legal structure of the West that gave rise to “rights talk,” and those strands which led to human rights in its modern form were implicitly in it, even if they were strengthened by the struggles of Protestants to establish a right to convert and, later, to advocate the freedom of religion on spiritual, intellectual, and organization grounds. Perry knows, as most Catholic and Protestants believe, that social morality is unavoidably linked to religion, that these matters can be discussed in public discourse, and that it is fateful for politics, law, social well-being and international relationships to do so. These matters are made clear not only in this book, but also in his earlier Love and Power: The Role of Religion and Morality in American Politics, The Constitution and the Courts: Law or Politics and Religion in Politics: Constitutional and Moral Perspectives. In the present book, as in the other remarkable products of this decade, we find Perry engaged not only with contemporary political philosophy and jurisprudence, which are largely secular in outlook, but with a number of scholars who are concerned with what David Tracy has called “public theology,” a term which several Protestants as well as Catholics have adopted—although in somewhat different ways.

One significant challenge confronting any state legal system is defining what speech should be permitted, or, more precisely, what speech should and should not enjoy protection from governmental interference. While the parameters of freedom of speech have been shaped and reshaped over several centuries, Anglo-American jurisprudence has not yet fully defined one of the several categories of speech that is not—and should not be—protected from interference. This is the category of incitement. Jewish law (halakhah), too, has long wrestled with this category of speech and has yet to define its contours clearly. This paper explores how these two legal systems define this category of speech, whether their approaches are commensurable, and how each can benefit from nuances found in the other.

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.

The idea of civil rights continues to arouse intense controversy. Despite the great advances in civil rights law during the past generation, American public life is still marked by severe disagreements over whether individuals and, especially, groups have rights to receive certain kinds of help from the state not only in the social and economic spheres but even in such matters as demarcation of voting districts and other political arrangements. The disagreements bear on the applications of certain basic principles of communal life and on the contents of the principles themselves.

In this paper I will explore four avenues. First, I shall briefly analyze some of the main elements in the concept of civil rights law in order to clarify why the law needs moral foundations, and how civil rights are related to the human rights that are the central concern of morality. Second, I shall show how the moral principle of human rights can itself be rationally justified. Third, I shall briefly develop certain applications of this moral principle to the economic problems that constitute some of the main areas of controversy in civil rights law. Fourth, I shall indicate how the moral principle of human rights bears on certain residual controversies about the applications of civil rights law to the problems of affirmative action and preferential treatment.

Over the past four hundred years, international law has increasingly distanced itself from the theological discourse that was once at its core. Today there is some evidence of a renewed conversation between international lawyers and those with theological expertise or concerns. But that conversation is far from advanced. With notable exceptions, theologians, within the Christian tradition at least, have implicitly heeded Albert Gentili's late 16th century warning—“Let the theologians keep silence about a matter which is outside of their province”—to the point of letting international law go its own way. At least the relationship of theology to international law is not a frequent topic at meetings of theologians, or of the books and articles which they write. As for the manner in which international law treats religion and the theological discourse that it spawns, the current vice president of the International Court of Justice remarks that, “in the twentieth century, international law has so far distanced itself from religion that the latter receives scarcely a mention in the standard treatises.” Gone are the days when those who shaped modern international law, such as Suarez and Vitoria, were also highly trained theologians. Thus from the sides of both theology and international law, there is a long way to go if we are to get back to—and move beyond—the way things once were.

This article examines legislative changes related to abortion regulation in Australia that create obligations of medical referral on practitioners who have a conscientious objection to abortion. Despite a significant Australian history of accepting secularized conscience claims, particularly in the field of military conscription, the limitation of conscience claims about abortion can be traced to a failure to appreciate the significant secular arguments that can be made to support such claims. We draw on arguments of plurality and pragmatism as capable of providing a firm foundation for legislative protections of freedom of conscience in the case of medical referral for abortion. These justifications are not dependent on religious grounds, and therefore they have the potential to be relevant and persuasive in a secular society such as Australia. Acceptance of a pluralistic argument in favor of freedom of conscience is a powerful commitment to the creation of a society that values human autonomy and a diversity of opinion. It sits comfortably with the democratic values that are enshrined in the Australian political system and institutions. It avoids the potential damage to the individual that may be wrought when conscience is overridden by state compulsion.

Happiness has both universal and culturally specific forms. This article describes three sensibilities of happiness in Judaism: the prophetic life of struggle; the happiness of ashrei, with its life of simplicity in accordance with the will of God; and simchah, the life-lived-in-relationship given supreme expression in Moses's covenantal vision in the book of Deuteronomy. Focusing, in particular, on the social vision of Moses, the article explores how Jewish notions of happiness challenge contemporary conceptions of happiness grounded in materialism and acquisition, and it discusses how a focus on material happiness threatens to undermine relationships and the social fiber that is the thread from which true and lasting happiness is woven.

Keown is clear that the Buddhist tradition is remarkably diverse and that his paper presents only one Buddhist perspective, one based on his interpretation of relevant passages from the Pali canon. However, there is a real danger that those readers who are perhaps not broadly read in Buddhism could be misled to think that the position presented in Keown's paper is the Buddhist view rather than a Buddhist view. In fact, he sometimes seems to slide rather far in that direction himself. He states on page two that “an accurate understanding of basic Buddhist values does generate an authentic Buddhist ethic about end-of-life decisions; [and] … suicide, assisted suicide and euthanasia are all contrary to Buddhist ethics.” This claim tends to imply that there is only one normative Buddhist view on these issues. Starting with his premise that “Buddhisms” rather than Buddhism is the more accurate way to speak, it is more likely that there are plural systems of Buddhist ethics rather than a single one, and thus there could be variable authentic Buddhist views on end-of-life issues.

These are heady times in America's law and religion conversation. On the campaign trail in 1999, then-candidate George W. Bush declared Jesus to be his favorite political philosopher. Since his election in 2001, legal commentators have criticized both President Bush and the Supreme Court for improperly basing their decisions on their sectarian Christian convictions. Though we pledge to be one nation under God, a recent characterization of the law and religion discourse sees America as two sub-nations divided by God. Moreover, debate concerning the intersection between law, politics and religion has moved from the law reviews to the New York Times Sunday Magazine, which has published over twenty feature-length articles on these issues since President Bush took office in 2001. Today, more than anytime in the past century, the ideas of an itinerant first-century preacher from Bethlehem are relevant to American law.

The article discusses the question of how Israel ought to treat its minority religions and whether its actual policies towards them accord with her moral and constitutional obligations. The first part of the paper offers three arguments purporting to show that Israel is justified in granting privileged status to the Jewish religion over other religions, and rejects each of them in turn. In particular, it rejects the view that Israel is allowed to privilege Judaism over other religions as far as the funding of religious services and needs is concerned. Nonetheless, the possibility that, on the symbolic level, weak privileging of Judaism may be permissible is left open. The second part of the paper questions whether the State of Israel guarantees equal treatment to all religions, and the answer is in the negative. Finally, the paper discusses the religious freedom of non-Jews in Israel and the way it has been interpreted by the courts. It is contended that both in terms of the freedom of religion and in terms of the freedom from religion, the protection of non-Jews is somewhat weaker than that granted to Jews, a state of affairs that ought to be remedied.

Recently several governments have contracted with religious agencies to provide welfare services. For instance in the United States, George W. Bush has furthered the idea of “charitable choice” and the idea that churches should develop social welfare. In Australia, with the dismantling of the Commonwealth Employment Services (C.E.S.), contracts for the provision of “employment services” have been tendered out, with the result that the majority of services have been given to various religious agencies. This paper explores the significance of this development in the context of what I call enterprise theology.

Enterprise theology is a form of discourse that is addressed to certain members in the community whom it is envisaged need special help and correction. There are two components of this expression.

If law is anything today, it is dispirited. It lacks life, vitality, enchantment, vision. Neither law nor its practitioners sing—or even hum. My students tell me that they know this but want to hope for more. This article tries to suggest something more, which is already present in America's state constitutions if we can dare turn to hear it. It is the voice of the spirit of the laws of the land. It sings of a vision, and this article is an attempt to tell enough of the story of that vision so that you, too, may hear “an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.”

To listen for the spirit, we can best attend to (in addition to the language of law texts) language of the spirit, language in which humankind has lived in hopes of relating to Ultimate Reality for millennia. The spirit we hope to tap is not necessarily theistic, but there is some correspondence among ideas of spirit, consciousness and God. As with the best of such language, we must speak not only of belief but also of doubt and mystery beyond necessary reason.