I understand my primary task in this essay to be to take you inside the world of evangelical political reflection and engagement. Though I actually grew up Roman Catholic and attended the liberal Union Theological Seminary in New York, I am by now an evangelical insider, rooted deeply in red state mid-South America, a member of a Southern Baptist church (actually, an ordained minister), a teacher at a Tennessee Baptist university, and a columnist for the flagship Christianity Today magazine. Due to the blue state/red state, liberal/conservative boundary-crossing that has characterized my background, I am often called upon to interpret our divided internal “cultures” one to another. Trained to be fair-minded and judicious in my analysis and judgments (though not always successful in meeting the standards of my training), I seek to help bridge the culture wars divide that is tearing our nation apart.

As one deeply invested in American evangelicalism, most of my attention these days now goes to the internal conversation within evangelical life about our identity and mission, especially our social ethics and political engagement. In this essay I will focus extensively on problems I currently see with evangelical political engagement, addressing those from within the theological framework of evangelical Christianity and inviting others to listen in to what I am now saying to my fellow evangelicals.

Commercial transactions are often characterized by asymmetric information between the buyer and seller: one side of the market, usually the seller, knows more about the quality of the product or service offered than the other side. In his 1970 seminal article, George Akerlof predicted that unless counteracting forces are in place, this asymmetric information phenomenon will cause the volume of transactions in this marketplace to shrink to the point where only the most inferior version of the product, called a lemon, will be traded.

Practically speaking, numerous institutions mitigate the asymmetrical information problem so that the marketplace does not deteriorate into a lemons market. These countervailing forces include seller guarantees, brand names, product liability laws, consumer screening, third-party comparisons, and the institution of standards and certification by the government or consumer and industry groups.

My purpose here will be to analyze one aspect of the lemons problem from the perspective of an imagined society governed entirely by Jewish law and ethics. I will refer to this society as a Torah society. Specifically, I will show how Jewish warranty law counteracts the lemons problem and compare its solutions to those of American warranty law as well as state lemon laws in the U.S.

Warranty law works best to counteract the lemon problem if it operates in an environment of trust. As I will show, Jewish law puts the task of moral education in the hands of parents and teachers with the goal of producing the character trait of trustworthiness.

On February 10, 1947, the United States Supreme Court handed down Everson v. Board of Education of Ewing Township. For scholars of the First Amendment, Everson marks the beginning of the Supreme Court's modern era with respect to church-state relations. It is easy enough to state the reason for the decision's prominence, for it was in Everson where the Establishment Clause was first “incorporated” through the Fourteenth Amendment and made applicable to the actions of all state and local governments. But just what did it mean to take the restraints on federal power that comprise the principle of no-establishment and to make them limits on the governments of the several states, as well as on the thousands of municipalities, counties, and school districts that dot the land? In Part II of these remarks, I will focus on what has occurred downstream of Everson over these event-filled sixty years. As the reader will see, I am of the belief that Everson's new deal has resulted in more good than harm for religious freedom. Still the record is mixed, as it is with most major developments. However, before going there, in Part I of this extended essay, I look back in time to recapture just what was in the bundle of restraints that all nine of the Justices in Everson said they were bringing forward via the Fourteenth Amendment and making newly binding on the many unsuspecting state and local officials.

Ezekiel's lament emphasizes that oppression in general, and especially oppression of the needy and the distressed, is always an extremely immoral and illegal act. In the Bible, “oppression” describes the unilateral taking of another person's property or depriving her of her rights. Yet, sometimes even an apparently voluntary agreement might be oppressive. Preventing oppression, therefore, has became one of the declared aims of contractual doctrine, as in the well-known American doctrine of unconscionability.

Unconscionability and oppression are broad concepts that describe a wide-ranging array of cases and situations. Not surprisingly, therefore, despite the formidable and complex body of legal writing on the unconscionability doctrine, a great deal of ambiguity remains as to its theoretical basis, as well as its practical content.

In this article I seek to enrich the modern Western discussion by analyzing Jewish law doctrine which addresses the issue of oppressive exploitative contracts, an approach which is both unique and to date largely neglected by scholars in the area. This Jewish law doctrine developed in response to a specific kind of oppressive contract, in which a semi-monopolistic party exploits the distress of a needy party in order to demand an above-market price (hereinafter referred to as oppressive-exploitative contracts).

The political rise of the religious right has brought to the fore the question of whether and to what extent religious values and beliefs should be taken into account when developing public policy. Policymakers have increasingly, or perhaps only more overtly, turned to religion for guidance on important public policy matters, such as abortion, stem cell research, and punishment, including the death penalty. Given the decidedly moral flavor of the debate over distributive justice, it is not surprising that many Americans and a growing number of policymakers have begun to look to religion for guidance on the question of how best to allocate tax burdens.

While tax scholars have long debated questions of equity and distributive justice, with one notable exception, they have largely ignored religious arguments. Given the large number of Americans who identify themselves as religious, to say nothing of most politicians, limiting the inquiry into tax equity to secular arguments runs the risk of relegating academic debate to the sidelines, as decision-makers look to the Bible and other religious texts for guidance and support.

The nature and scope of the right to freedom of religion in international law is an increasingly contested and divisive question. While virtually all scholars from an array of traditions insist that the right itself is universal, they assert quite different foundations for and often widely divergent conceptions of that right.

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.

In 1990, the Supreme Court faced the Free Exercise claim of Alfred Smith and Galen Black, both of whom were denied unemployment compensation because they had been fired for misconduct. Smith and Black, however, argued that such a denial violated their First Amendment rights because the alleged misconduct—smoking peyote—was part of a Native American Church ceremony. Overturning the Oregon Supreme Court, the Court struck down the Sherbert balancing test, arguing that an individual cannot excuse himself from a law merely because it “contradicts” his “religious convictions.” To do so, the Court continued,

Such a conclusion would “contradict[] both constitutional tradition and common sense.”

This article explores whether United States law, in actuality, does not allow individuals to become “laws unto themselves.” While legal scholars in exploring this question have typically focused on the Supreme Court's decision in Boy Scouts of America v. Dale, this article will focus on a more obscure and rarely discussed area of United States law: the foreign compulsion defense. I will argue that it is the foreign compulsion defense which demonstrates that the law does allow individuals to raise themselves above facially neutral and generally applicable laws when they are faced with an irreconcilable legal conflict between foreign and domestic law.

This comment on Chaim Saiman's illuminating comparison between rabbinic and Christian approaches to religious texts that are in some sense authoritative focuses on what we can fairly infer from the sharp difference he describes. I believe there is much more to be said on this fascinating topic, and I now write with large gaps in my understanding of relevant subjects. I concentrate here on the question whether the Christian view that Professor Saiman describes actually has strong logical implications for what one should regard as desirable interpretive and legislative strategies for the (secular) law of large diverse societies. On that crucial point, I am more skeptical than Saiman appears to be.

I begin with a few preliminary observations, and then pose some other questions about connections between religious perspectives and views about ordinary legal interpretation before tackling my main topic.

In 2006, the Turkish Grand National Assembly (TGNA) made a notable departure from historical precedent when it replaced the Population Register Law of 1972. The 1972 law, in Article 43, required that the national registry records on all households in Turkey contain the religion of all family members unless, under Article 46, an individual or family went to court to make a revision in these records. This was the legal basis of the inclusion of religious information on Turkish identity cards, issued in accordance with the information in family registers. Article 35 of The Population Services Law of 2006 now provides: “Requests about the religious information in household registers shall be approved, modified, left blank or deleted, in accordance with the written application of the concerned person.”

We shall argue, in this paper that Article 35 of the Population Services Law of 2006 is unconstitutional just like Article 43 of the Population Register Law of 1972 was, and that information about individuals' religions should be deleted from both the national register and individuals' identity (ID) cards. The inclusion of religious information in the identity cards of citizens or resident aliens, who apply for Turkish citizenship, violates the religious liberty in Turkey, particularly under a “neutrality” conception of that right. We shall review the jurisprudence of the Turkish Constitutional Court concerning ID cards in the light of the negative and positive aspects of religious liberty, focus on the different meanings of neutrality such as “formal neutrality,” “substantive neutrality,” “aim neutrality,” “justification neutrality” and “consequences neutrality.” Before we evaluate this practice under neutrality theory, however, it would be appropriate to begin with a historical narrative about the origin of religious notations on Turkish identity cards, and explain the content and the meaning of the new law.

Death comes to us all. It is a reality that grips us all because we become separated from our loved ones. In all cultures, there is the hope that when death comes, it will be swift and will allow us to depart without prolonged suffering. There is also a social dimension to this inevitable event in human life: we hope that our death will not force hardship on family and friends, making them pay both financially and emotionally due to an uncertain condition that is created by a lingering spirit that does not sever its ties to the body. It is at such moments that we realize the importance of having a clear definition of death.

Brain death as a way of measuring when death comes is an issue that has recently been under scrutiny throughout the world of medicine, but it has also been hotly debated in Islamic jurisprudence as well. Thanks to advanced medical technology, it has now become possible to transplant body organs of a person suffering from brain death into the body of a needy ill person, but for the most part, successful transplantation must take place before the emergence of traditional death symptoms. Physicians and ethicists have struggled with the difficulty in offering a medical definition for brain death. The question that has arisen for Muslim jurists is whether, from the point of view of Islamic jurisprudence, someone suffering from brain death should be considered as dead for purposes of permitting transplantation of organs, or whether Muslims must treat a brain-dead patient as a living person from a legal and ethical perspective.

Jesus' Legal Theory—A Rabbinic Reading opens with a startling claim. The increasing number of legal scholars who have begun exploring the relationship between Christianity and American law in the past several years have neglected to consider the insights of Jesus himself. “[N]otably absent from this literature,” Professor Saiman writes, “is any extensive examination of Jesus, and his views about jurisprudence and legal theory. Despite the overall diversity of his writings, there is little discussion about what Jesus thought about law, lawyers, legal rules and the legal order.” What, the article asks, does Jesus' own legal theory look like?

In the course of researching the attitudes of nineteenth-century rabbis about American slavery, David Cobin found that the name Sabato Morais featured prominently among rabbis who had publicly expressed strong anti-slavery sentiments. This information sent Cobin to the American Jewish History Library where some of Morais's papers are archived to find original documents on the matter. There he found sermons from 1861 to 1862 with English script title pages and text all written in Pitman Shorthand, presumably by Morais himself. One of these, an undated document entitled The Slavery of the Bible, described as a lecture, seemed to be exactly on point. Cobin's first hurdle, however, was transcribing Morais's lecture. After a significant search he found Dorothy Roberts, who had become an expert on Civil War Pitman Shorthand specifically in order to engage in this kind of scholarly transcription. It was soon clear, however, that transcribing a more than one hundred and forty year-old shorthand written for oneself was not a simple matter. There were obsolete words, partial words, undecipherable words, words left out, references to obscure incidents, incomplete quotations, and words in multiple languages. Cobin enlisted the collaboration of his colleague Earl Schwartz as co-editor, and together they partnered in the transcription process with Dorothy Roberts. Roberts transcribed the shorthand as best she could. Cobin and Schwartz then researched the history, filled in the Judaic references and mined old dictionaries and their own imaginations for language of the times to fit the words Roberts could not fully transcribe. Roberts always made the final decision on the appropriateness of the editors' suggestions in light of the shorthand. This work yielded the transcribed lecture, The Slavery in the Bible that indeed spoke about slavery in the time of the Bible, but not about American slavery. Morais's focus was on a humane form of slavery in contrast to slavery in Sparta and Rome. Unlike Rabbi Morris Raphall's discourse on The Bible View of Slavery January 15, 1861 that was used by Southerners as a defense of slavery, Morais's lecture provided little material to fuel the conflagration then raging. The editors have concluded that Morais's lecture was likely delivered as a response to Raphall's widely publicized discourse. The Slavery of the Bible is included with the four transcribed Sabbath sermons published here.

Religious issues and clergy played a prominent and now largely forgotten role in the defeat of President Franklin D. Roosevelt's controversial 1937 proposal to add six Justices to the U.S. Supreme Court. Although many prominent Protestant, Roman Catholic, and Jewish clergy and lay persons shared Roosevelt's frustration with the Court's obstruction of legislation to ameliorate the ravages of the Great Depression and reform the nation's economic system, many of the New Deal's most ardent supporters feared that Roosevelt's plan threatened religious liberty by making the Court vulnerable to political pressure. Opposition to Court-packing among clerics and lay persons, who warned that it could subject religious minorities to majoritarian tyranny, may have contributed heavily to the plan's defeat. The prevalence of these fears that diminution of judicial independence would threaten religious freedom helps to demonstrate that the Supreme Court already was widely regarded as an important guardian of personal liberty on the eve of the Court's transition from its long-time role as a defender of property rights to its modern role as a protector of personal rights.

“[T]he fulness of the earth is yours, the beasts of the field and the fowls of the air … and the herb, and the good things which come of the earth … [a]nd it pleaseth God that he hath given all these things unto man; for unto this end were they made to be used, with judgment, not to excess, neither by extortion.”

The Church of Jesus Christ of Latter-day Saints (the “Church”) is the great success story of American religion. Members of the Church (“Mormons”) now constitute more than five percent of the populations of Arizona, Hawaii, Nevada, and Wyoming, a far higher percentage of Idaho and Utah, and nearly two percent of the United States as a whole. Mormons fill five seats in the United States Senate (including the majority-leader chair) and about a dozen in the House. A Mormon recently completed a serious bid for the United States presidency. And their numbers are growing worldwide.

The “[Torah] scholar” and the “scientist” thus part ways

The Torah scholar and the Jurist both supplement each other's work

At the beginning of the 1950s (or thereabouts) Rabbi Yitzhak (Isaac) ha-Levi Herzog, Ashkenazi Rabbi of the State of Israel and a researcher of Jewish law, delivered a lecture to a group of lawyers. He opened with the following comments: