We often talk about law and religion as though law is dynamic and religion is static. Religious believers are inclined to see their faith in terms of eternal and unchangeable truths. Non-believers have nothing invested in seeing religion in eternal or unchanging terms, but they often lack the interest and sophistication to understand how the mechanisms of religious change actually work. Hence, we get narratives in which law regulates religious believers or in which law accommodates religious believers and the like. Religion is taken as given, and we make deliberate choices about law.

In my own research one of the questions that has interested me is the way in which the law can drive religious change. Religious traditions are in a constant process of self-interpretation and adaptation to the world around them. The law is often an important part of that world and can drive religious change.

In an admirably irenic column in Sunday’s NYT, William Eskridge touches on this issue, highlighting the way in which a number of mainline Protestant religions have reinterpreted their theology to bless same-sex unions, suggesting that religion is not necessarily the implacable foe of LGBT rights. The Supreme Court will hear oral arguments on same-sex marriage on Tuesday, and if, as I think is very likely, the justices find a constitutional right to same-sex marriage, what will be the effect on religious beliefs?

Eskridge uses the example of race, pointing toward the way in which racist theologies were deployed to justify slavery and segregation. He gets some of the historical details wrong, but his basic point is valid. He then draws the analogy to teachings against miscegenation Read more