When it comes to human rights violations, the cruelty of the action seems obvious, the enemy seems clear. That is often true, no doubt. But what makes me sure that it is what the victim sees? What if I consider something as cruel, but the victim does not regard it as such? What if I don't see something as being as painful as the victim does?

I am thinking of a story I was told in the Philippines. The Filipina who told it to me had joined the Resistance Movement and had been arrested by the military together with some others, including her husband. When she told me the story of her arrest, the fear of being raped was mentioned again and again. The fear was there—when she got caught in the mountains, when the soldiers brought her down, while she was being interrogated, in detention, even when she was already released while she was making love to her husband. She told me: “Sometimes, during our sex life, sometimes in the middle of it I would say: what if the military was doing it to me?” She described her time in detention, how the group of political prisoners developed a “project.” She said, “The project is, you have to be pregnant.” During Marcos' time, being pregnant was considered a humanitarian reason to be released.

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.

In moments such as these, if we be honest, we are brought to awareness more than ordinarily of the thick interdependency of our lives. We cannot be what we are, we cannot do what we do, we cannot accomplish what we accomplish apart from one another. Perhaps more than we can ever fully discern, our lives are but expressions, albeit creative expressions, of a communal matrix that sustains us, inspires us, and constitutes the origin of our dreams and yearnings, our obligations and our rights. We are members of each other. We belong together. That is the source of our joy in life, although that is, as well, the source of the tragedies of life, the dark side of our history that, on all too many occasions, makes us shudder. I do not mean this initial comment, please understand, as sheer sentimentality. It is, instead, both a political affirmation and a religious declaration, and it provides an opening for further reflections on the major theme of my remarks: a vision of justice as solidarity.

The Evolution of Religious Freedom in the European Court of Human Rights

Article 9 of the European Convention on Human Rights, which protects religious freedom, looked for many decades as though it was going to be effectively a dead letter. The European Court of Human Rights (“the Court”) did not find a violation of Article 9 until the case of Kokkinakis v. Greece which was decided only seventeen years ago, in 1993. Even after that seminal decision, religious freedom cases were still relatively rare for several years; in 2001, there had been fewer than thirty Court cases on Article 9. However, in the last decade the case law has expanded significantly; and from 2001 to 2010 there have been more than sixty additional cases. Thus, in a relatively short period, the Court has been pushed to develop a jurisprudence of religious freedom to deal with increasingly complex and controversial cases. As the case law has multiplied and the issues have diversified, however, it has become clear that the Court has not yet developed a sufficiently coherent and principled approach to this area. So far, its approach has proved of very limited utility to individuals making claims of religious freedom.

This is not to suggest that the Court has played no role in the protection of religious freedom in Europe. Indeed, in recent years, it has arguably played an increasingly positive role, particularly in cases involving group religious rights. However, this jurisprudence has not translated into greater protection for religious individuals in many instances.

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.”

Several years ago, I worked on a study of gambling for the Evangelical Lutheran Church in America. I expected to find, and did find, substantial opposition to gambling. But in talking with various church groups, I heard a recurrent theme, one that often dominated the conversations: gambling may be a problem, even a serious problem, but our response must avoid “legalism” at all costs. One might explain this fear of “legalism” in sociological terms, as the response of people who were embarrassed by parochial moralisms in the past—prohibitions on drinking, dancing, and card playing. People who left Garrison Keillor's “Lake Wobegon” and moved to the Twin Cities (or worse yet, Chicago) want to be urbane. Or perhaps they simply want to enjoy their weekly lottery ticket or their annual trip to the casino without church-sponsored guilt. But more seems at stake in their hostility toward “legalism.”

The story would recapture the trace of Judaism, particularly the mystical Jew, in the early literature of international law—I think most readily of Gentilis' obsession with Judaism—a Judaism that seems at once the law that revelation and redemption replace and the mysticism that law and state refuse. Paradoxically enough, we find here our own complex relationship between law and religion exactly mirrored in the relationship between Christianity and Judaism.

This article examines the relationship between the Jewish laws of war and international law. As Kennedy notes in the opening quote, one way of understanding the relationship between Jewish laws of war and international law is as part of the relationship between international law and its “other.” Kennedy defines Jewish law as mystical, and in so doing he asserts that Jewish law is different in form than state law/international law. Kennedy's opposition of Jewish law and international law is not accidental. It is a direct consequence of the history of international law. As Mutua has noted “[i]nternational law claims to be universal, although its creators have unambiguously asserted its European and Christian origins.”From this point of view, international law has “universalized” its particular originswith the consequence that any non-European or non-Christian tradition is not universal and is the “other.” This fact leads Kennedy to argue that international law has ignored (among many other things) the traces of religion, mysticism and Judaism in its history in its quest to claim secular universality.

Professor Gamwell's book presents an ambitious and sophisticated argument, and I have to say at the outset that it is a daunting assignment for me to comment on the book. My difficulty is eased somewhat, though, by the fact that this conference has a separate panel with the expertise, and the assignment, to address the philosophical questions raised by the book. The job I've been given is a little easier—it is to talk about the significance of the book for constitutional jurisprudence—and so I can leave the very tough philosophical problems to those better equipped to deal with them. Of course, my job would be easier still if I'd been asked to comment on the book from the perspective of gardening, say, or perhaps tennis; then I could report that this is an admirable book but it isn't about gardening or tennis, and leave it at that. Well, as it turns out, I want to respond to my actual assignment by making a similar sort of claim: Professor Gamwell has written an admirable book, but it isn't about constitutional jurisprudence. Gamwell is not really concerned, in other words, with the same problems that provoke debates among judges, lawyers, and litigants.

From the landing of the seventeenth century Pilgrims, who wanted to establish in the colony of Massachusetts Bay a commonwealth that was distinctive precisely because of its fidelity to biblical commands, down to the present moment in American politics, when the Rev. Jesse Jackson continues to organize a “rainbow coalition” by the use of biblical rhetoric and when the Rev. Pat Robertson is considering a run for the Presidency to reassert the need for “biblical values” in America, the Bible has been inextricably interwoven into the fabric of American life, including the formation of American public policy.

In 1982, the centennial year of the Society for Biblical Literature, this reality was explored thoughtfully in series of essays that filled six volumes. More recently, Pastor Richard John Neuhaus has differentiated between the constitutional separation of the institutions of the state and the church and an extraconstitutional separation of religiously based morality from the realm of public policy choices.