Marc O. DeGirolami (Catholic University; Google Scholar), The Death and New Life of Law and Religion, 13 Oxford J.L. & Relig. 16 (2024):

The year 2023 was an end and a beginning. It saw the passing or retirement of many giants in the field of law and religion—scholars who brought their formidable erudition and insight to bear on questions that transcended legal doctrine, venturing upward into the heady realms of political theory, philosophy, history, sociology, and theology.

These and other recent departures from the active world of law and religion are an occasion to reflect on the state of the field. This paper begins with a brief history of the field, highlighting the questions that motivated it to emerge in the 1970s and 1980s and the intellectual currents and legal developments against which it was reacting. It then argues that some of the central concerns and inquiries that occupied law and religion as a discrete field of academic study in what it calls the first wave heyday are now at an end. These include the nature of religion and the secular in the law, the division between these concepts, and the implications for law and religion as an independent academic discipline; the concept of state neutrality as to religion and the connected public-private divide as respects what is religious and what is non-religiously political; and the regime of religious exemption for everyone with a sincere objection to a law as the central feature of religious free exercise, in constitutional and statutory law.

This paper argues that these are now, or will soon become, dead issues. Of course, they may well continue to be important for lawyers making and opposing claims in litigation, and for judges deciding among them, since the operative textual and doctrinal categories relevant to such claims will continue to depend on clever argumentation concerning some or all of them. And scholars will, no doubt, continue to wrangle over them. But to the extent that they continue define the field or remain its signature issues, their growing irrelevance signals its death. Intellectual enterprises that survive over generations learn to adapt, and law and religion will need to do so as well. And, in fact, different issues, based on different premises and cultural circumstances, are beginning to emerge that may come to dominate the field and give it new life: the nature of political establishments and how they change; the use of ‘religion’ as a term for a category of political or ideological identity either to re-entrench or subvert political establishment; and the limits of what so-called religious dissenters (who are now, and in large measure thanks to the first wave, indistinguishable from political or ideological dissenters) from the political establishment may reasonably expect in the way of accommodation from it. If the field is to survive, it will need to reorient itself toward new problems that afflict a very different world from the one in which it came into being.

Anton Sorkin (Director of Law Student Ministries, Christian Legal Society), Podcast Episode 192: Marc DeGirolami:

[Mark] takes us into the first wave of this movement and its advent forces with those like Harold Berman and John Witte, Jr., who took on the critical mantle of reacting to “the deconstruction of the American Christian legal heritage proceeding apace in the courts and the academy.” De Girolami discusses the priorities that animated the early scholars of this movement and its eventual decline due not only to various forms of categorical capitulations and concept desuetude, but also the ravages of retirements and the changing landscape of legal discourse. As he writes, the “nature of religion, the plausibility of state neutrality, and the sustainability of religious exemption no longer merit the intellectual attention that they once did,” thus offering us a new vision for what this discipline might look like in the years to come (i.e., the “second wave”). We talk about all this and more!

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