Although Biblical law ordains the death penalty for some thirty-six offenses, and whipping is the punishment prescribed for many more, it would be rare in fact for such Biblical punishments to be inflicted under Jewish law. Strict procedural and substantive requirements limit these mandatory Biblical penalties to cases of the most willful and deliberate rebellion against God's rule in the universe. Thus, for example, one prerequisite of these Biblical punishments is that the offender be warned in advance—immediately before he commits the offense - that the act he is about to perform is a violation of God's law and that it will be punished by death or by whipping, as the case may be. Further, for the death penalty to be applied, it is not enough that the offender be warned or even acknowledge that he has heard the warning. Rather, he must also affirm his awareness that God has forbidden the intended conduct and has ordained the specified punishment and he must declare expressly that he will commit the offense nevertheless, thereby “surrendering himself unto death.”

When asked who she is, an individual may identify herself as Hispanic, a born-again Christian, Canadian, an accountant, a sister, a daughter, a friend. The various communities to which she belongs create a web of membership, strands of her individual identity. Her membership in a public legal community, her citizenship, stands out as a dominant strand, affecting her ability to maintain and enjoy other strands of membership and identity, be they religious, professional, familial or otherwise.

Stewart Macaulay's observation regarding public and private governments applies similarly to an individual's membership in her communities; rather than sharp distinctions there is “interpenetration, overlapping jurisdictions and opportunities for both harmony and conflict.… An individual's membership in various communities creates a web of reciprocal relationships, opportunities for harmony and conflict. The individual may influence the institutions of her various communities which in turn help define who she is. In some ways, this is a question of legal pluralism, the simultaneous operation of multiple legal systems.

We are contending for the free exercise of religion in a democratic and pluralistic society. We would not be contending for it if we thought the free exercise of religion is adequately understood and protected at present. Critical to this contention is rethinking the religion clause of the First Amendment, and the larger part of this article is devoted to that rethinking. I will then offer some observations on the forces shaping this contention in the public arena today, and comment on the goal of a religiously informed public philosophy for our society's democratic experiment in republican governance.