I had the pleasure last year of traveling to McAllen, Texas and speaking to a gathering of the clergy of the Diocese of Brownsville followed by lunch with their bishop, Daniel Flores. Bishop Flores has a wonderful blog post here reflecting on the Year of Faith and overcoming discouragement (an especially worthwhile lesson for those of us working in legal education today):
In this Year of Faith, we must strengthen our own sense of the victory of life and the power of Christ to break through the mesmerizing effect, this fascination the world has with the morose. Jesus says, “I have overcome the world.” Like lightning on a cloudy night, the victory that God wins through the passion, death and resurrection of Christ the Lord is the break-through of the power of life into a world darkened by the aggressive power of death. We must be reconfirmed in our faith because we do sometimes get discouraged. That too is part of the power of death, it's power to discourage. It is important to cultivate our faith in the victory of Christ and to invite the the light of the Lord’s life and his victory of life to take greater possession of each one of us.
This gift of faith we have received is the only hope of the world; it breaks through the culture of death. Out culture desperately needs an infusion of faith in the goodness of life. In this context, we can hear the Lord speak these words, “Take care little flock for I have overcome the world,” for we are often afraid. Sometimes we think we are outnumbered, but numbers never matter with God. What matters is the conviction of his grace working through those who do believe.
If you have occasion to visit Atlanta and have time, seize the opportunity to visit the exhibition described by Mark Engsberg, Director of Emory's Law Library, in this communication:
I am pleased to announce the Emory Law Archives’ first exhibition: "Love is the Cardinal Virtue for the Next Millennium: the Papers of Harold J. Berman.”
The
exhibition is curated by our archivist, Joanna Claire Rogers. It is
located in the library’s new display case across from the circulation
and reference desks,
just inside the Library’s main entrance.
The
materials in this collection document Professor Berman's activities as a
faculty member at Harvard University and Emory University; his work as a
writer, lecturer,
and consultant; and his intellectual development as an historian. A few
of the items on display include: a portrait of Berman, circa 1960; a
letter from Berman to his mentor, Eugen Rosenstock-Huessy, describing
Berman’s conversion to Christianity; a letter
from Ralph Nader, a former student of Berman’s; Berman’s response to a
critique of the manuscript of Law and Revolution, circa 1982; and a letter to Professor Leon Trakman describing Berman’s new life at Emory.
Summary written by Joanna Claire Rogers:
Harold
Joseph Berman (1918-2007) was a pioneer in the legal academy. Educated
at Dartmouth College, the London School of Economics, and Yale
University,
he cultivated from his earliest scholarly days an interest in Western
legal history that grew into the discipline of law and religion, now a
major field of study and inquiry. With his broad mind and linguistic
talent, he mastered several other fields, including
Soviet law and the law of international trade.
In
1948 Berman joined the faculty of Harvard Law School, where he
instructed several generations of law students and graduate liberal arts
students. He established
relationships with scholars in the U.S.S.R. and other eastern European
countries, and he traveled to the Soviet Union many times. In addition
to teaching and writing, Berman worked as a consultant to law firms and
businessmen on legal aspects of trade and
investment in Eastern Europe and the Soviet Union.
Later
in his career, Berman pursued his interest in the dialectics of law and
religion in Western history. In 1974, he published The Interaction of
Law and
Religion, a collection of lectures he had delivered at Boston University
in 1971. His major work, Law and Revolution: The Formation of the
Western Legal Tradition, was published in 1983, and won the American Bar
Association’s SCRIBES Book Award.
Berman
left Harvard in 1985 to become the first Robert W. Woodruff Professor
of Law at Emory University. He aided in the development of Emory’s
interdisciplinary
law and religion program, founded in 1982, now known as the Center for
the Study of Law and Religion (CSLR). He was also a Senior Fellow at
CSLR.
Professor
Berman wrote twenty-five books and more than 400 articles, and he
taught more than 10,000 students. He was widely admired for his
original thinking,
his facility for teaching, and his engaging personality.
Please visit the Law Library soon and see the wealth of Professor Berman’s materials on display.
Sherif Girgis, Ryan Anderson, and I recently presented our new book What is Marriage? Man and Woman: A Defense (website: www.whatismarriagebook.com) at the Heritage Foundation in Washington, DC. Here is a link to the video: http://www.heritage.org/events/2013/01/what-is-marriage The book explains and defends the idea---embraced to be sure by Judaism and Christianity, but also by other traditions and many of their leading thinkers---of marriage as a conjugal union. Although it is a philosophical book that does not make appeals to revelation or religious authority, we are honored and gratified that its endorsers include Cardinal Timothy Dolan, Rabbis Meir Soloveichik and David Novak, Shaykh Hamza Yusuf, and Evangelical Pastor Rick Warren.
Can it possibly be happening? After
years of relentless dialogue on the death penalty among Catholics in
the United States, are we at last beginning to see signs that Catholics
are becoming a significant moral force in efforts to abolish
state-sanctioned death? Yes! I see it and rejoice.
For the last 34 years I have been engaged in this dialogue—ever since
I walked out of Louisiana’s killing chamber in the early morning hours
of April 5, 1984, after seeing a man strapped down and killed in front
of my eyes.
Now, at last, there are signs of hope. As support for the death
penalty has steadily declined in the United States in recent years,
Catholic support has dropped even more significantly. According to the
Pew Research Center, 78 percent of Americans—and a higher proportion of
Catholics, 80 percent—supported the death penalty in 1996. By 2011,
however, those numbers had fallen to 62 percent and 59 percent,
respectively. Now Catholics support the death penalty at a lower rate
than the general population.
Yesterday was the one-year anniversary of the Court's (9-0) decision, vindicating the ministerial exception and (in my view) a crucial dimension of religious freedom, in Hosanna-Tabor. Nice job, Becket Fund. (For more on my "take" on the case, go here.)
University of St. Thomas law prof Churck Reid has a very interesting post here--a post that bears both on aspects of contemporary Christianity and aspects of contemporary politics.
Shortly before his death, Richard John Neuhaus, speaking at the annual convention of the National Right to Life Committee, delivered what I believe to be the greatest pro-life speech ever given. It will inspire the pro-life faithful of all traditions and stations until the field is finally won. It was, I believe, his final gift to the movement and to all men and women of goodwill. In this period of January between the anniversary of Fr. Neuhaus' death and the anniversary of the Supreme Court case that licensed the deaths of millions of our tiniest and most vulnerable brothers and sisters, it is worth recalling his words:
One of the happy byproducts of a recent exchange with my friend John Inazu was his reference to an essay by Martin Krygier from nearly thirty years ago, Law as Tradition, 5 Law & Philosophy 237 (1986). Because the essay is not publicly available, and at the risk of provoking the copyright goddess, I thought to post a few portions of it in this and subsequent posts. The essay is well worth reading in full. Krygier identifies and discusses three special features of law as tradition: law's pastness, law's authoritative presence, and law's transmission or continuity from past to present.
Here's the sense of Professor Krygier's discussion of law's pastness. As in every tradition, law records, preserves, and 'hands down' across the generations a composite of opinions and values. But unlike in other traditions, in law the maintenance and transmission of the past is itself institutionalized. And that institutionalization gives the past a particular kind of power, though the power is of course far from absolute (in part this is because the tradition itself is variegated and not univocal).
Judging, he writes,
that activity so favoured with jurisprudential attention and writings, is an archetypally traditional and tradition-referring practice. For however innovative judges are, their modes of justifying decisions, and therefore the sorts of arguments which must be addressed to them, in fact or hypothetically, differ systematically from those of other decision-makers such as, say, engineers or entrepreneurs, or workers in less self-consciously authority-filled traditions, such as novelists, artists or scientists, who themselves are in no way free from the traditions of their calling. Judging is a specific and characteristic mode of making and justifying practical decisions: a judicial decision is one which is justified publicly by reference to authorized institutional tradition. In those hard cases that lawyers and legal theorists so enjoy to contemplate, the need publicly to justify one's decision in terms of interpretations of the legal past which seem plausible to experts, remains important long after simple rule-application has ceased to be possible. Doing this involves neither application of a clear unequivocal rule, as in the perhaps mythical easy cases, nor invention ex nihilo, but inescapably (though not only) inter-pretation of authorized institutional tradition. (245)
At the recent Annual Meeting of the AALS in New Orleans, the Law and Religion Section -- so ably chaired by Paul Horwitz this past year -- put on a first-rate panel on "The Freedom of the Church." (About which more here.) Michael Moreland, Michael McConnell, Sarah Gordon, and Paul Horwitz each gave excellent presentations, and Jessie Hill moderated expertly.
Paul helpfully "set up" the issue, noting that the issue is timely in part because of events and controversies like the Hosanna-Tabor decision and the HHS-mandate litigation. He then presented, and reflected briefly on, the criticisms of "religious institutionalism" that have been developed by Micah Schwartzman and Rich Schragger (in this paper).
Sarah Gordon reminded the audience that, the First Amendment's free-exercise and no-establishment clauses notwithstanding, religious institutions and (especially) their property were pervasively and closely regulated in many places during the 19th century, and suggested that this fact complicates arguments that the founders and ratifiers constitutionalized a strong "freedom of the church" principle.
Michael Moreland's very thoughtful presentation noted, among other things, that the debate in the public square and in the legal academy about religious freedom generally, and the "freedom of the church" principle specifically, is shaped -- and perhaps distorted -- by the (contingent) fact that the principle so often is in play in debates about, well, "sex." As he reminded us, the conversation needs to be about "God" and "law," too.
Finally, Michael McConnell reflected on the (he thinks) strange fact that the Free Exercise, in Smith, was held to provide almost no protection to individuals, while Hosanna-Tabor, drawing on a principle of church-autonomy that might seem less textually grounded than individual "free exercise", provided strong protections to religious institutions. (In the Q & A, it was suggested that a number of the Court's decisions -- including Kedroff (more on that case here) -- and also the original meaning of the term "establishment" provide substantial support for the principle applied, and the result reached, in Hosanna-Tabor.
Anyway, thanks very much to the organizers, presenters, and moderators for a really good AALS program.
