A popular conception about the Religion Clauses of the First Amendment is that the Free Exercise Clause is in tension, or conflict, with the Establishment Clause. Accommodation under the Free Exercise Clause seems, in many cases, to conflict with the establishment clause principle that government must neither advance nor favor any religious practice or belief. In response to this seeming tension between the two mandates, Jonathan Nuechterlein, in a recent article, advances the theory that contrary to popular belief, the two clauses are not in conflict. Rather, the mandates of the two clauses fit together like “pieces in a jigsaw puzzle.” The traditional test of required accommodation under the Free Exercise clause5 employed by the courts define the outer limits of what is allowed under the Establishment Clause.

In what may at first seem to be only a marginally related work, Professor Douglas Laycock tackles the task of formulating a workable definition of governmental neutrality towards religion “neutrality” has under the clauses. Recognizing that the term been repeatedly used and “misused” by both courts and commentators, and recognizing the prevalence of a “formal” definition of neutrality that is at odds with religious liberty,” Laycock lays the groundwork for a systematic definition of that term, and proposes a certain “substantive” definition that best promotes religious liberty.

During the latter part of the twentieth century, Islamic law or shari'a has had an increasingly practical influence on the types of cases adjudicated in American courts. As the Muslim population continues to grow, the American legal system will inevitably face interesting, complex family law questions that are intertwined with Islamic law. While religious denominations have a genuine and continuing interest in marriage and its rights and obligations, religious laws are clearly subordinate to state secular law. A religious marriage is valid only to the extent that it complies with a state's statutory requirements. Likewise, state statutes regulate divorce and designate specific state courts as the forum for the divorce proceeding. Since marriage and divorce are controlled by secular state law, it is insufficient for Muslims to adhere solely to the shari'a on these matters. However, as the state continues to cede some of its traditional authority in favor of increased private ordering of the institution of marriage, religious adherents are looking to contracts as a means to abide by religious precepts and secular law. These contracts provide methods whereby “parties agree to internal (religious law) resolutions of marital disputes, but the agreement itself is enforceable by the external authorities.”

“[T]he estate of marriage has fallen into awful disrepute,” Martin Luther declared in 1522.

There are many pagan books which treat of nothing but the depravity of womankind and the unhappiness of the estate of marriage. … Every day one encounters parents who forget their former misery because, like the mouse, they have now had their fill. They deter their children from marriage and entice them into priesthood and nunnery, citing the trials and troubles of married life. Thus do they bring their own children home to the devil, as we daily observe; they provide them with ease for the body and hell for the soul.

Furthermore,

the shameful confusion wrought by the accursed papal law has occasioned so much distress, and the lax authority of both the spirituai and the temporal swords has given rise to so many dreadful abuses and false situations that I would much prefer neither to look into the matter nor to hear of it. But timidity is no help in an emergency.

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.