John Witte, Jr. is Woodruff University Professor, McDonald Distinguished Professor, and Director of the Center for the Study of Law and Religion at Emory University. A leading scholar of legal history, human rights, and law and religion, he has published 300 articles and 40 books, in 15 languages, including The Reformation of Rights; Christianity and Human Rights; Religion and Human Rights; No Establishment of Religion; Church, State, and Family; Faith, Freedom, and Family; and The Blessings of Liberty.

Joel A. Nichols is Interim Dean and Mengler Chair in Law at the University of St. Thomas (MN). His work draws upon his degrees and expertise in both law and theology. He has published three books and more than two dozen articles, typically on the intersection of law and religion.

Richard W. Garnett is Paul J. Schierl/Fort Howard Corporation Professor of Law, Concurrent Professor of Political Science, and Director of the Program on Church, State, and Society at the University of Notre Dame, where he teaches and writes about religious freedom, constitutional and criminal law, and other matters.

• List of Tables ix


• Preface xi


• Introduction


• 1: The American Experiment in Historical Context


• The First Millennium


• The Papal Revolution


• The Protestant Reformation


• Religious Establishment versus Religious Freedom in Europe


• Colonization and Experimentation


• 2: The Theology and Politics of the Religion Clauses


• Puritan Views


• Evangelical Views


• Enlightenment Views


• Civic Republican Views


• Summary and Conclusions


• 3: The Essential Rights and Liberties of Religion


• Liberty of Conscience


• Free Exercise of Religion


• Religious Pluralism


• Religious Equality


• Separation of Church and State


• Disestablishment of Religion


• Summary and Conclusions


• 4: Forging the First Amendment Religion Clauses


• Religion and the Continental Congress


• The 1787 Constitutional Convention


• Ratification and Proposed Amendments


• Drafting the First Amendment Religion Clauses


• "Original Intent": Interpreting the Final Text


• Summary and Conclusions


• 5: The Free Exercise of Religion: Mapping the Doctrinal Terrain


• Bringing a Free Exercise Case


• Factual Clusters of Free Exercise Cases


• Shifting Standards of Review in Free Exercise Cases


• vi Contents


• 6: First Amendment Religious Exercise, Expression, and Exemption


• Free Exercise and Polygamy (1879- 1890)


• Free Exercise and Conscientious Objection (1918- 1971)


• Freedom and Equality of Religious Expression (1940- 2015)


• Liberty of Conscience and Free Exercise Exemptions (1943- 1989)


• Summary and Conclusions


• 7: The Free Exercise of Religion: Neutrality, Nondiscrimination, and Statutory Rights


• Neutralizing the Free Exercise Clause (1982- 1990)


• Neutrality and No State Discrimination Against Religion (1993- )


• Neutrality and Nondiscrimination in State Aid to Religious Education


• Neutrality and Nondiscrimination in the Time of Covid


• State Neutrality in Balancing Religious Liberty and Sexual Liberty


• Free Exercise of Religion as a Statutory Right (1993- )


• RFRA Cases in the Supreme Court


• RLUIPA Cases in the Supreme Court


• Summary and Conclusions


• 8: Modern Establishment Law: Mapping the Doctrinal Terrain


• Bringing an Establishment Clause Case


• Mapping the Establishment Clause Cases


• Separationism


• Accommodationism


• Neutrality and the Lemon Test


• Endorsement


• No Coercion


• Equal Treatment/ Equal Access


• History and Tradition


• Summary and Conclusions


• 9: Religion and Public Education: No Establishment of Religion, But Equal Access for Religion


• Separationist Cases (1948- 2000)


• Equal Access Cases (1981- )


• Limits on Equal Access?


• Summary and Conclusions


• 10: Government and Religious Education: From Accommodation to Separation to Equality


• Accommodationist Cases (1908- 1977)


• Separationist Cases (1971- 1985)


• Equal Treatment Cases (1983- 2002)


• Statutes, Free Exercise, and Equal Access Rights (2004- )


• Summary and Conclusions


• 11: Religion and Public Life


• Sabbath Day Rules 282


• Legislative Chaplains and Prayers


• Religious Symbols


• Patterns and Principles


• Summary and Conclusions


• 12: The Freedoms of Religious Organizations


• Religious Polity and Structures


• Religious Structures


• Legal Structures


• Religious Property Disputes


• Standard Legal Principles (1815- 1914)


• Deference (1872- 1976)


• Neutral Principles (1979- )


• Labor and Employment


• Social Services and Taxation


• Social Services


• Taxation


• Summary and Conclusions


• Concluding Reflections


• Signs of Trouble


• Enduring Principles, New Applications


• Appendix 1: Drafts of Federal Religion Clauses (1787- 1789)


• Appendix 2: United States Supreme Court Decisions Relating to Religious Liberty (1815- 2021)


• Index