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The chapter examines the most ambitious attempt in the United States to draft a systematic criminal code—the influential Model Penal Code, and its commentaries—to see what mention is made of, and what room might exist for, cultural factors within it. The Code pays little attention to cultural factors. However, there is room for such factors; the question is how best to accommodate them. The chapter considers both the idea of a general privilege for cultural practice along the lines of the Religious Freedom Restoration Act, and the clarification and expansion of existing defenses. It concludes that the latter is more promising as it does not require judges to evaluate the authenticity of cultural claims.

“Five Questions About Religion Judges Are Afraid to Ask” explores various matters that judges often avoid, partly because their involvement would constitute an inappropriate connection between state and religion. Judges cannot determine whether a claim is accurate, or whether it conforms to the doctrines of a religious organization. They hesitate to inquire deeply into sincerity and to judge the substantiality of a burden. Although they must often treat a claim as “religious” or not, judges hesitate to define religion. The essay defends the position that “religion” is not susceptible to a clear definition, but depends on multiple factors. Many of the subjects in this essay also arise under the Religious Freedom Restoration Act. The recent Hobby Lobby case interpreting that statute reveals how difficult it can be to discern genuine a “substantial burden” and how, with extended exemptions, sincerity can also often become a problem in some settings.

This chapter begins with a discussion of the religious protections offered by the First Amendment, followed by Title VII’s provisions against religious discrimination. The authors summarize some Title VII exemptions based on religion—those given to religious organizations and the ministerial exception. The coverage of basic types of religious discrimination is divided into four sections: (1) the failure to accommodate sincerely held religious beliefs/practices, (2) disparate treatment, (3) harassment based on religion, and (4) retaliation. Finally, the Religious Freedom Restoration Act is discussed in some detail along with the implications it may have for employment discrimination law. A summary of representative settlements, supplemental readings, recommendations/best practices, and a chapter summary are included at the end of the chapter.

This chapter examines Supreme Court cases that were filed over the issue of freedom of and from religion in Texas. In 2011, Governor Rick Perry designated April 22–24 as official days of prayer for rain. Periodical subscriptions were exempted from sales tax. Then in a clear example of a preference for religion, the law was changed to exempt only “periodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of that faith.” Texas Monthly paid the tax but sued for a refund. The chapter first considers the Texas Monthly lawsuit before discussing cases involving Alfred Smith and Galen Black, the Religious Freedom Restoration Act (RFRA), Thomas Van Orden, and the Establishment Clause of the First Amendment. It also analyzes City of Boerne v. Flores involving historic zoning and a case involving prayer at a football game.

This essay argues that the decision in Employment Division v. Smith has shaped the contemporary politics of religious freedom in the United States. Sullivan describes the diversity of religious communities and organizations that came together in opposition to the Smith decision, which was widely perceived as a threat to religion. Post-Smith, a new accommodation between the religion clauses of the First Amendment favors the rights of religions communities over those of individuals.

Beginning with the first wave of invasion, Christian Europeans sought to destroy Indigenous spiritualities. From 1819 on, forced assimilation was US governmental policy, heavily implemented when the Grant Administration (1869–77) parceled out reservations to various Christian sects, which banned Indian spiritualities. Crushing Sun Dances and Ghost Dances, from 1881 to 1991, the US Bureau of Indian Affairs (BIA) governmentally forced assimilation on Indian children through its criminally run “boarding schools.” Meantime, Western scholars misrepresented Indian spiritualities through the twentieth century. The unconstitutional ban on Indian spiritualities continued until outlawed by the American Indian Freedom of Religion Act of 1978, which to be enforced had to be clarified by the Religious Freedom Restoration Act of 1993. Although early Indian writers including George Eastman gingerly corrected the record, it was not until the 1980s that open repudiation of Western impositions began, with beginnings by Vine Deloria, Jr., and Paula Gunn Allen.