Talk About: Law and Religion

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In the video, Thomas Berg, the author of Religious Liberty in a Polarized Age and professor of law at University of St. Thomas School of Law, explains his evolution of opinion on same-sex marriage. While initially he supported same-sex marriage as a matter of policy important for both conservatives and liberals, he eventually began viewing it as a constitutional right—the recognition of which is important not only for same-sex couples but also for symmetrical religious freedom protection.

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… At the highest jurisprudential level, an integralist vision of the legal order gives way to a legalist or positivist vision. For legalists, legislation is the paradigmatic form of law. In this view, granting exceptions for conscientious objection or other religiously motivated concerns undermines the authority of law, makes individuals and groups a law unto themselves, and pulverizes law into anarchy. The alternative is an integralist view in which the legal system includes legislation as adjusted to take constitutional norms into account. So, conscientious objection and religious autonomy are not an exception to a general rule, but instead an integral part of the structure itself. The law is not legislation subject to exceptions, but legislation as contorted by the requirements of constitutional and international human rights law. This integralist view has obvious affinities to the idea that law rests on deeper principles that ground constitutional axiology—principles that the positive norms of constitutions and statutes alone cannot fully capture.

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Michalyn Steele (BYU Law School) discusses Bowen v. Roy (1986) and other SCOTUS decisions regarding Native American spirituality. While she initially accepted the “neutral and uniformly applicable” rationale behind the 1986 case, Steele now questions the Court’s adherence to First Amendment values in this line of cases.

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On 30 March 2026, in the midst of Israel’s latest war with Iran, the Knesset, Israel’s parliament, passed the “Death Penalty for Terrorists Law.” The new Law imposes the death penalty on terrorists tried in either Israeli civilian courts or military courts in the West Bank, and it stipulates new rules as to the carrying out of a sentence of execution. The Law breaks with Israel’s longstanding rejection, both de jure and de facto, of the death penalty, an exceptional punishment used only once ever in the state’s history, against a Nazi criminal. The Law signifies the ascent of nationalist and populist politics in Israel in the aftermath of the 7 October 2023 attacks and the traumatic hostage crisis that ensued. It is a troubling retrenchment from Israel’s commitment to Jewish and democratic values and is likely to invoke a contested constitutional debate as its validity now goes before the Supreme Court.

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Human Dignity Initiative

Celebrating the 70th anniversary of the Universal Declaration of Human Rights with an invitation to a global conversation about preserving and protecting human dignity for everyone everywhere.

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