John Witte

Religion and the American constitutional experiment : essential rights and liberties

The American Experiment in Historical Context The Theology and Politics of the Religion Clauses The Essential Rights and Liberties of Religion Forging the First Amendment Religion Clauses Religion and the States Before 1947 Religion and the Supreme Court, 1815-1947 Modern Free Exercise Law Modern Disestablishment Law Religious Liberty Doctrine in Miniature Toward an Integration of Religious Liberty Concluding Reflections

To have and to hold : marrying and its documentation in Western Christendom, 400-1600

1. Marrying and its documentation in pre-modern Europe: consent, celebration, and property Philip L. Reynolds 2. Marrying and its documentation in later Roman law Judith Evans-Grubbs 3. Marrying and the tabulae nuptiales in Roman North Africa from Tertullian to Augustine David G. Hunter 4. Dotal Charters in the Frankish tradition Philip L. Reynolds 5. Marriage and diplomatics: five Dower Charters from the regions of Laon and Soissons, 1163-81 Laurent Morelle 6. Marriage agreements from twelfth-century Southern France Cynthia Johnson 7. Marriage contracts in medieval England R. H. Helmholz 8. Marriage contracts and the church courts of fourteenth-century England Frederik Pedersen 9. Marrying and marriage litigation in medieval Ireland Art Cosgrove 10. Marriage contracts in medieval Iceland Agnes S. Arnorsdottir 11. Contracting marriage in Renaissance Florence Thomas J. Kuehn 12. Marital property law as sociocultural text: the case of late-medieval Douai Martha C. Howell 13. Marriage contracts, liturgies, and properties in Reformation Geneva John Witte, Jr Index.

SOUL WARS: NEW BATTLES, NEW NORMS

Abstract One of the most difficult concepts pertaining to religious freedom is proselytism. Because globalization causes more interaction between religious groups, religious beliefs must now compete in the open marketplace of ideas. Increased religious competition often causes resentment and ecumenism gives way to religious balkanization and conflict. The state struggles to balance one communitys right to exercise and expand its faith against anothers right to be left alone to its own traditions. While inter-religious dialogue is the often-cited remedy, it must be paired with guidelines of prudence and restraint on the part of the proselytizer.

Honor Thy Father (and Thy Mother): Child Marriage and Parental Consent in Calvin's Geneva

Parental consent to engagement and marriage was a major reform that the sixteenth-century Protestant Reformation introduced to stamp out the late medieval Catholic toleration of clandestine marriages. John Calvin introduced the doctrine of parental consent to Protestant Geneva both in statutes that he drafted and in cases that he adjudicated as a member of the Consistory court. Calvin and his fellow reformers insisted on the priority of the fathers consent over the mothers consent, but also insisted that even the father could not override his childs own consent to an engagement or marriage contract. Parents and guardians who neglected their duties or abused their authority at this fateful stage of their childs lives were severely punished and often forfeited their right to have their childs secret marriage annulled.

The Civic Seminary: Sources of Modern Public Education in the Lutheran Reformation of Germany

This Article documents how and why the sixteenth-century Lutheran Reformation helped to build the modern public education system of the West. Rejecting the medieval tradition of church education primarily for and by the clergy, Martin Luther argued that all Christians need to be educated to be able to read the Bible on their own, to participate fully in the life of the church, state, and society, and to prepare for their distinct vocations. Lutheran Germany and Scandinavia thus set up public schools as “civic seminaries,” in Philip Melanchthon’s apt phrase, designed to offer general spiritual and civic education for all. In early modern Lutheran lands, the state replaced the church as the chief educator of the community, and free basic education with standard curricula was made compulsory for all children, boys and girls alike. The Article offers case studies of new German city and territorial laws on education on the books and in action, and it reflects on the enduring significance of this early experiment in education even in our day.

Ishmael's Bane

This essay offers a critical rereading of the western theological and legal doctrine of illegitimacy or bastardy. The author traces the western stigma against bastards to the Bible, particularly to the story of Ishamel, the illegitimate son of Abraham and Hagar. He then shows the systematic discrimination against bastards in classic canon law and in early modern Anglo-American common law, and the slow amelioration of their plight in legal reforms in the United States in the past century. The author concludes that the western doctrine of illegitimacy is theologically illegitimate and suggests a few historically-informed legal remedies, notably adoption, that would help mitigate the plight of illegitimates today.

The Study of Law and Religion in the United States: An Interim Report

The study of law and religion has exploded around the world. This article, prepared in celebration of the silver anniversary of the Ecclesiastical Law Society, traces the development of law and religion study in the United States. Despite its long tradition of strict separation of church and state and despite its long allegiance to legal positivism and intellectual secularization, the United States has emerged as a world leader of the new interdisciplinary field of law and religion. Hundreds of American scholars, from different confessions and professions, are now at work in this field, and two dozen major research centers and journals have been established at American law schools. After canvassing some of the main themes and trends in American law and religion scholarship today, this article concludes with a brief reflection on some of the main challenges before Christian scholars who work in the field of ecclesiastical law.

The Reformation of Marriage Law in Martin Luther's Germany: Its Significance Then and Now

The sixteenth-century Lutheran Reformation rejected the Catholic sacramental theology and canon laws of marriage that had dominated the West for more than half a millennium. For Martin Luther and his colleagues, marriage was a social estate of the earthly kingdom of creation, not a sacred estate of the heavenly kingdom of redemption. Though divinely ordained and spiritual important, marriage was directed primarily to natural human ends of mutual love of husband and wife, mutual protection of both from sexual sin and temptation, and mutual procreation and nurture of children. Clergy and laity, widows and widowers should marry unless they have the rare gift of continence, Lutherans insisted. To reject God’s gift of marriage, or to require celibacy for priest and monastics, was to court the sins and crimes of destructive lust. As part of the earthly kingdom, marriage was subject to the civil law of the state, not to the canon law of the church. The Lutheran state authorities in Germany and Scandinavia retained many of the canon laws of the church and the classical Roman laws that the canon law had earlier absorbed. But changes in marriage theology also yielded changes in marriage law. Because the Lutheran reformers rejected the subordination of marriage to celibacy, they rejected laws that forbade clerical and monastic marriage, that denied remarriage to those who had married a cleric or monastic, and that permitted vows of chastity to annul promises of marriage. Because they rejected the sacramental nature of marriage, the reformers rejected impediments of crime and heresy and prohibitions against divorce in the modern sense. Marriage was for them the community of the couple in the present, not their sacramental union in the life to come. Where that community was broken, for one of a number of specific reasons, such as adultery, desertion, or habitual abuse of spouse or children, the couple could sue for divorce, leaving at least the innocent party with the right to remarry. Because persons by their lustful nature were in need of Gods remedy of marriage, the reformers removed numerous impediments to marriage not countenanced by Scripture. Because of their emphasis on the Godly responsibility of the prince, the pedagogical role of the church and the family, and the priestly calling of all believers, the reformers insisted that both marriage and divorce be public. The validity of marriage promises depended upon parental consent, witnesses, church consecration and registration, and priestly instruction. Couples who wished to divorce had to announce their intentions in the church and community and to petition a civil judge to dissolve the bond.

Rights, Resistance, and Revolution in the Western Tradition: Early Protestant Foundations

This article discusses the development of rights talk in the pre-Enlightenment Protestant tradition, especially as formulated by the sixteenth-century Calvinist theologian and jurist, Theodore Beza. Responding to the horrific persecution born of the St. Bartholomews Day Massacre of 1572, Beza mobilized classical, Catholic, and Protestant sources alike to develop a coherent Calvinist theory of rights, resistance, and revolution against tyrants. This article details Bezas arguments, places his work in its historical and intellectual context, and highlights the innovations Beza contributed to the intersection of legal, political, and theological teachings. It concludes by showing how Bezas theory of subjective rights and resistance to tyranny helped to plot the course of modern democratic and constitutional theory.

The Archbishop and marital pluralism: an american perspective

The Archbishop of Canterbury, Dr Rowan Williams (head of the worldwide Anglican Communion), set off an international firestorm on 7 February 2008 by suggesting that some accommodation of Muslim family law was �unavoidable� in England. His suggestion, though tentative, prompted more than 250 articles in the world press within a month, the vast majority denouncing it. England will be beset by �licensed polygamy�, �barbaric procedures� and �brutal violence� against women and children, his critics argued, all administered by �legally ghettoized� Muslim courts immune from civil appeal or constitutional challenge. Consider Nigeria, Pakistan and other former English colonies that have sought to balance Muslim sharia with the common law, other critics added. The horrific excesses of their religious courts � even calling the faithful to stone innocent rape victims for dishonouring their families � prove that religious laws and state laws on the family simply cannot coexist. Case closed.