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Heretics in the Temple of Law: The Promise and Peril of the Religious Lawyering Movement

Published online by Cambridge University Press:  24 April 2015

Robert K. Vischer
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Extract

From the nineteenth-century exhortations of legal ethics pioneer David Hoffman to the current pop culture provocations of Al Pacino, the story of the legal profession has been told through the religious imagery of the priesthood. While this analogy certainly has a bit of rhetorical flourish at its core, it reflects the widespread perception of the unifying, central role that the law plays in modern American society. Past eras may have looked to religion as the common framework under which everyday existence proceeds, but the law has long since usurped it. So while priests, as administrators providing access to that unifying framework in their role as mediators between God and man. were once essential figures in the collective life of society, today their place has been taken by lawyers, who provide access to our common framework of legal rights and privileges.

Type
Articles
Information
Journal of Law and Religion , Volume 19 , Issue 2 , 2004 , pp. 427 - 490
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2003

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References

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[T]heological reasons are acceptable motivations for the individual attorney …. When individual believers consult their conscience, they may object to the profession's norms for theological reasons and, if they translate their convictions into public reason, then seek to reform the profession's standards.

and Lesnick, Howard, The Religious Lawyer in a Pluralist Society, 66 Fordham L. Rev. 1469, 1471 (1998)Google Scholar (objectine to case wiihin paradigm that “manifesis an inhospilability to the ‘personal’ norms of individual lawyers that I can most accurately describe as statist”). But see Shaffer, Thomas L. & Shaffer, Mary, American Lawyers and Their Communities (U. Notre Dame Press 1991) (exploring communal aspects of legal practice)Google Scholar.

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26. For example. Karamah: Muslim Women Lawyers for Human Rights is “an organization of lawyers focused on legal education and activities on Muslim issues, especially those relating to Muslim women.” with an email discussion group of almost 150. Quraishi, Asifa, Remarks at the Panel Discussion: Models of Successful Religion and Lawyering Programs, 26 Fordham Urb.L. J. 917, 931–934 (1998)Google Scholar.

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34. Id. at 6-7.

35. Id. at 7.

36. Id. at 79.

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38. Id.

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40. Id.

41. Wendel, supra n. 37. at 95.

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44. Id. at 182.

45. Id. at 201-203.

46. Id.

47. Id.

48. Id. at 201-203.

49. Id. at 118.

50. Id.

51. Id. As Wendel concedes, we still need to know what happens “when the community is imernally divided over the proper course of action.” Id.

52. Wendel, supra n. 37. at 5.

53. Id. at 6.

54. Id. at 26-27.

55. See Griffin, supra n.18, at 1262; and see Lesnick, supra n.18. at 1471 (objecting to case law that “sees the pluralist quality of our society as calling on the lawyer to accommodate his or her religion to the official norms of the legal profession, rather than the reverse”).

56. See Wilkins, David B., Everyday Practice is the Troubling Case: Confroniing Context in Legal Ethics, in Everyday Practices and Trouble Cases 68, 70–75 (Garth, Bryant G. & Sarat, Austin eds., Nw. U. Press 1998)Google Scholar. This individualistic orienlation is not unique to legal practice, of course, as it is found in much of the ethical discourse that occurs in modern democratic society.

57. Model Code Prof. Resp. Preamble (1983). Similarly, the 1908 ABA Canons of Professional Ethics (Canon 15) directed a lawyer to “obey his own conscience.”

58. Shaffer, supra n.1, at 20.

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61. Id. at 113-114.

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76. Id.

77. Id. at 735.

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82. Id. cmt. 2 (explaining that “lawyers usually defer to the client regarding such questions as …concern for third persons who might be adversely affected”).

83. Camus, Albert, An Absurd Reasoning, in The Myth of Sisyphus and Other Essays 5 (O'Brien, Justin trans.; Vintage Books 1955)Google Scholar.

84. Perry, Michael J., Love and Power 53 (Oxford U. Press 1991)Google Scholar.

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86. Id. at 8-9.

87. Taylor, Charles, Human Agency and Language (Cambridge U. Press 1985)CrossRefGoogle Scholar. cited in Smith, supra n. 85, at 9.

88. Smith, supra n. 85, at 10.

89. See e.g. Azizah Y. al-Hibri; supra n. 10. at 1131, 1136:

Because a Muslim is committed to an integrated worldview. 3 Muslim attorney is committed in her practice to advancing the cause of justice in society. This may be quite hard to do in a legal system where the lawyer's loyalty is viewed as belonging to the client.

90. Perry, supra n. 84. at 53.

91. Wendel, supra n. 39, at 120.

92. Perry, supra n. 84: at 60-61.

93. Id.: and see id. at 131:

Epistemological coherentism does not entail that any belief comfortably nested in a coherent system of beliefs is true. Rather, it holds merely that any belief about the truth/falsity of another belief—including another person's belief, however comfortably nested in a coherent system of beliefs—is itself true (or false), in the sense of rationally acceptable (or unacceptable), only “relative to” a particular web of beliefs. There is no inconsistency in adhering to epistemological coherentism and. at the same time, insisting that a particular moral belief of another person, even if comfortably nested in a coherent moral system, is false ….

94. Smith, supra n. 86. at 65 (“Narrative is a form of communication that arranges human actions and events into organized wholes in a way that bestows meaning on the actions and events by specifying their interactive or cause-and-effect relations to the whole.”).

95. MacIntyre, Alasdair, Plain Persons and Moral Philosophy, in Ethics and Character: The Pursuit of Democratic Virtues 47, 53 (Richardson, William D.et al. eds., Carolina Academic Press 1998)Google Scholar.

96. Smith, supra n. 85, at 76.

97. See Wilkins, supra n. 28. at 1505 (“[T]he universalizing claims made on behalf of the professional self suggest that differences among lawyers that might matter outside the professional sphere are irrelevant when evaluating the professional practices of lawyers.”).

98. MacIntyre. supra n. 95. at 53-54.

99. Id.

100. Postema, Gerald J., Moral Responsibility in Professional Ethics, 55 N.Y.U. L. Rev. 63, 64 (1980)Google Scholar; and cf. Wendel, supra 39, at 119-120 (recognizing that “[f]idelity to one's past, a narrative unity maintained over one's lifetime, is itself a resource for making hard choices,” though he cautions that “an agent acting as a lawyer is free only to choose among authentic professional traditions, not to act in any way she believes appropriate”).

101. MacIntyre, supra n. 95. at 64.

102. Id. Or as Jeffrey Stout puts it. “the best account of ethical wrongness cannot be determined in isolation from other matters—including what independent grounds we may have for believing or disbelieving in aloving God.” Stout, Jeffrey, Ethics After Babel 122 (Beacon Press 1988)Google Scholar. Stout does, however, caution that no one is likely to accept a theistic theory of ethical wrongness “unless they already find good reason, outside ethical theory, for believing in aloving, command-issuing, knowable God.” Id. at 122-123.

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104. See Perry, supra n. 84; at 130.

105. Smith, supra n. 85, at 67.

106. Id. at 69.

107. Hazard, supra n. 72. at 1243.

108. Id. at 1244 (quoting Trial of Queen Caroline, quoted in Frankel, Search for Truth): and see Jones, James W., Future Structure and Regulation of Legal Practice: An Iconoclast's Perspective, Ariz. L.J. 537, 541 (2002)Google Scholar (noting that profession's paradigm forces “our clients to define every problem in legal terms, and then we impose on ourselves the ethical obligation to maximize every legal advantage”).

109. See MacIntyre. supra n. 95. at 55:

It has to be of the nature of whatever is genuinely the supreme good that it makes no sense to think of weighing it against other goods. The supreme good is not a good that just happens on some particular occasions, or even on every particular occasion, to outweigh other goods. It must be that it cannot be outweighed.

110. See Levine, Samuel J., Introductory Note: Symposium on Lawyering and Personal Values—Responding to the Problems of Ethical Schizophrenia, 38 Cath. Law. 145, 146 (1998)Google Scholar (“Forced to choose between the two selves, and the corresponding competing ethical systems, most individuals can be expected to allow the professional self to prevail.”).

111. Postema, Gerald J., Self-Image, Integrity, and Professional Responsibility, in The Good Lawyer 286, 291–292 (Luban, David ed., Rowman & Allanheld 1983)Google Scholar.

112. Id. at 295.

113. Id. at 299.

114. Id. at 302.

115. Postema, supra n.111. at 289.

116. Fried, Charles, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Reunion, 85 Yale L.J. 1060 (1976)CrossRefGoogle Scholar.

117. Id.

118. Id.

119. Postema, supra n. 100, at 81 (“The impersonalism and detachment characteristic of the lawyer's role under the standard conception are not found in relations between friends. Loyalty to one's friend does not call for disengagement of one's moral personality.”).

120. Fried, supra n. 116.

121. For a sharply contrasting, theologically shaped vision of friendship, see Lewis, C.S., The Four Loves (Harcourt Brace Jovanovich 1960)Google Scholar.

122. Only one-quarter of lawyers believe that their work contributes to the social good, and the sense that they have not been able to pursue justice is “the greatest source of career dissatisfaction.” Rhode, Deborah, Law, Lawyers, and the Pursuit of Justice, 70 Fordham L. Rev. 1543, 1545 (2002)Google Scholar; and see Schillz, Patrick J., On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unheaifhy, and Unefhical Profession, 52 Vand. L. Rev. 871, 886 (1999)Google Scholar (reporting that, “among young associates at a big firms, only about 1% were strongly committed to remaining at their firms for at least two more years, while almost 40% had a strong interest in working elsewhere”).

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124. Pearce, Russell G., Remarks at the Panel Discussion: Does Professionalism Leave Room for Religions Commitment?, 26 Fordham Urb. L.J. 875, 877 (1998)Google Scholar (“[P]rofessionalism as an ideology is in a paradigm crisis” due in part to “the absence of a generally accepted understanding of the paradigm.”); and Wendel, supra n. 37. at 36-37 (“The goal of a theory of professional responsibility should be to provide a normalively satisfying story of why the legal profession deserves our respect.”).

125. Pearce, Russell G., The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U.L.L. Rev. 1229, 1276 (1996)Google Scholar; and see Pearce, Russell G., Lawyers as America's Governing Class: The Formation and Dissolution of the Original Underslanding of the American Lawyer's Role, 8 U. Chi. L. Sch. Roundtable 381, 421 (2001)Google Scholar.

126. Hazard, supra n. 72. at 1241-1242.

127. Id.

128. Shaffer, supra n. 123. at 993.

129. Id.

130. Abel, Richard L., Why Does the ABA Promulgate Ethical Rules?, 59 Tex. L. Rev. 639, 642 (1981)Google Scholar. But see Levine, Samuel J.Taking Ethics Codes Seriously: Broad Eihics Provisions and Unemumerated Ethical Obligations in a Comparative Hermeneutic Framework, 77 Tul. L. Rev. 527 (2003)Google Scholar (arguing that broad eihics principles should be inlerpreted so as to derive unenumeraied principles).

131. Shaffer, supra n. 123. at 993; and see Model Rules Scope ¶ 16 (“The Rules do not … exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the etnical practice of law.”).

132. DiPippa, John M. A., Lon Fuller, The Model Code, and The Model Rules, 37 S. Tex. L. Rev. 303, 330 (1996)Google Scholar.

133. Id. at 345.

134. Hazard, supra n. 72, at 1255.

135. Even under the old Canons: critics said they “mandate conformity, not goodness or right behavior. They look like a moral code, but are really the descriptive ethic of never-never land. Schuchman, Philip, Ethics and Legal Ethics: The Propriety of the Cenons as a Group Moral Code, 37 Geo. Wash. U. L. Rev. 244, 249 (1968)Google Scholar.

136. Wendel, supra n. 37. at 16 (“Lawyers do not rely on rules when making decisions …. It is worth asking whether the law of lawyering has much of an impact on most of the ethical decisions made by lawyers in the ordinary course of their practice.”).

137. See Abel, supra n. 130, at 648-649:

[S]tudy after study has shown that the current rules of professional conduct are noi enforced. Misconduct is rarely perceived. If perceived, if is not reported. If reported, it is not investigated. If investigated, violations are not found. If found, they are excused. If they are not excused, penalties are light. And if significant penalties are imposed, the lawyer soon returns to practice, in that state or another.

138. Id. at 646.

139. Wendel, supra n. 37, at 22.

40. id.

141. Wendel, W. Bradley, Morality, Motivation, and the Professionalism Movement, 52 S.C. L. Rev. 557, 559 (2001)Google Scholar.

142. Schuchman. supra n. 135. at 258 (“Application of the canons to all members of the bar can only be the result of ignoring the social, economic and occupational differences between the rulemakers and others subject to the rules and of refusing to concede that legal ethics should be a function of the social order.”).

143. Wendel, supra n. 141. at 588; and cf. Abel, supra n. 130, at 646 (noting that “Lawyers are subject to colleague pressure, which often exerts more influence over their behavior than any other factor, but such pressure frequently encourages violation of, rather than conformity to, ethical rules.”).

144. See Griffin, supra n. 18. at 1265 (“The profession has a stake in encouraging religious as well as non-religious convictions that provide compelling personal reasons for lawyers to uphold the norms of their profession.”).

145. See Wendel, supra n. 141. at 588 (“The task for ethics education, then, is to identify what people care about and determine how morality is related to those things.”).

146. See Koritansky, John C., Temperance, Passions and Lawyers in ihe American Democratic Regime, in Eihics and Character: The Pursuit of Democratic Virtues 141, 167 (Richardson, William D.et al. eds., Carolina Academic Press 1998)Google Scholar:

As democracy has continued to develop, contemporary lawyers tend more to feel and act as the egalitarian conscience of their nation …. This vague morality, however, may now itself operate in the service of what Tocqueville feared most, a tyranny of the lowest common denominator.

147. See Stout, supra n. 102, at 191(“The moral concepts we use. deprived of the contexts in which they formerly made sense, have become merely means of expressing our feelings and manipulating others.”).

148. Cf. Allegretti, Joseph G., Lawyers, Clients & Covenant, 66 Fordham L. Rev. 1011, 1105 (1998)Google Scholar (“When religion and the deep wellsprings of the human spirit are excluded from legal ethics, law fills the void.”).

149. See Bellah, Robert N.et al., Habits of the Heart 163 (U. Cal. Press 1996)Google Scholar (arguing for reclaiming language of Biblical and civic republican traditions in order to overcome individualist quest for “purely private fulfillment” that “often ends in emptiness”).

150. Conkle, Daniel O., Secular Fundamentalism, Religions Fundamentalism, and the Search for Truth in Contemporary America, 12 J. L. & Relig. 337, 366 (1995–1996)Google Scholar (“Religious language, for example, can convey a communitarian impulse that is not easily captured in secular terms,”).

151. See § III (A), supra.

152. Smith, supra n. 85. at 57:

[Because our] moral determinations are rooted in the kind of presuppositional, life-constituting beliefs and assumptions … we do not and cannot relate to them finally as simply the products or reflections of our own opinions, preferences, inclinations or desires. They come to stand in relation to us, rather, as above and beyond, objectively independent standards positioned to render judgment on our opinions, preferences, and desires.

153. See Chesterton, G.K., The Twelve Men, in Tremendous Trifles 57–58 (Sheed & Ward 1955)Google Scholar (quoted in Postema, supra n. 100, at 69 n. 22):

The horrible thing about all legal officials, even the best … is not that they are wicked (some of them are good), not that they are stupid (some of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; the only see their workshop.

154. See Griffin, supra n. 18, at 1275:

An ethics of self-interest does not embody the “moral point of view.” Nor can it pretend to be a standard of public reason. If legal ethics is deficient as an ethics, then religion and philosophy have a corrective role to play in the profession. They are “outsiders” to a professional ethics that has not had an outside presence.

155. Lesnick. supra n. 18. at 1489; and Spinner-Halev, Jeff, Surviving Diversity 90 (John Hopkins U. Press 2000)Google Scholar. (“People are driven toward self-interest at the expense of others, and so they need a belief in God to restrain their appetites.”).

156. See Cochran, Robert F. Jr., Professionalism in the Postmodern Age: Its Death, Attempis at Resusciiation, and Alternare Sources of Virtue, 14 Notre Dame J.L. Ethics & Pub. Policy 305, 314–315 (2000)Google Scholar:

If Alasdair Maclntyre is correct that moral development comes primarily from within communities, we should encourage these communities to develop moralities (and theologies) of lawyering. It may be that from the particular traditions of those within the profession will emerge ways of lawyering that will transform not necessarily the whole profession, but the way lhal significant groups of lawyers practice.

157. See Sarat, Austin & Scheingold, Stuart, Cause Lawyering and the Reproduction of Professional Authority, in Cause Lawyering 10 (Sarat, Austin & Scheingold, Stuart eds., Oxford U. Press 1998)Google Scholar:

[W]hile the bar emphasizes the underlying unity of lawyers, critics highlight stratification and conflict. They argue that professionalism is a tool used by particular segments of the bar to assert and protect their own privileged positions against the challenges of outside groups …. Instead of building consensus, enhancing ethical standards, and raising levels of competence, professionalism is seen as part of a top-down project of social control.

158. Cf. Allegretti, supra n. 148. at 1108 (“When we exclude religion from legal ethics, we are tempted to delude ourselves into thinking that we are not members of particular communities,” and “we are encouraged to keep our private values to ourselves or to hide them beneath a veneer of detached and impartial rationality.”).

159. Wendel, supra n. 39, at 183 (“The bar is markedly stratified by social prestige, with lawyers who serve business clients at one end, and lawyers who serve individuals at the other.”); see Heinz, John P.et al., The Changing Character of Lawyers' Work: Chicago in 1975 and 1995, 32, L. & Socy. Rev. 751 (1998)CrossRefGoogle Scholar; and Heinz, John P. & Laumann, Edward O., Chicago Lawyers: The Social Structure of the Bar (Russel Sage Found. 1982)Google Scholar.

160. See Perry, supra n. 84. at 98 (“To discoum the affective dimension of dialogue is to miss much of the transformative potential of dialogue—a potential crucially relevant to the challenge of strengthening and extending the bonds of human community.”).

161. Id. at 49.

162. Id.

163. Id. at 85.

164. Wendel, supra n. 39: at 204.

165. Conkle. supra n. 150, at 368-369 (quoting Thomas Berg in 73 N.C.L.Rev. 1567, 1624 (1995)):

The Niebuhrian view asks the political activist (religious or secular) not to renounce his most basic views, but to be aware of several complicating factors: his own limits, the difficulty in applying general religious truths to complex real-world problems, and the potential good and truth in the views of his opponents.

166. See § IV. infra.

167. Habermas, Jürgen, Moral Consciousness and Communicative Action 68 (Lenhardt, Christianet al. trans., Mass. Inst. Tech. 1990)Google Scholar.

168. Id. at 197.

169. Id. at 103.

170. Id.

171. Id. at 195.

172. Id. at 103.

173. Id. at 108-109 (“Within the horizon of the lifeworld. practical judgments derive both their concreteness and their power to motivate action from their inner connection to unquestionably accepted ideas of the good life, in short, from their connection to ethical life and its institutions.”).

174. Id. at 109.

175. id.

176. Id. at xvi (W. Rehg introd.).

177. id.: see Rosenfeld, Michael, Law as Discourse: Bridging the Gap Between Democracy and Rights, 108 Harv. L. Rev. 1163, 1169 (1995)CrossRefGoogle Scholar (review of Habermas. Between Facts and Norms) (“[I]n discussions concerning legal or moral norms, communicative action envisions a dialogue between actors who are oriented toward reaching an understanding concerning the rightness of the norms under consideration.”); and Modak-Truran, Mark, Habermas's Discourse Theory of Law and the Relationship Between Law and Religion, 26 Cap. U. L. Rev. 461, 474 (1997)Google Scholar (discussing communicative action).

178. Compliance with the norms, of course, could not be tied to alawyer's standing within the profession: nor could enforcement be facilitated directly by the profession itself in light of the Establishment Clause.

179. Habermas, supra n. 167.

180. Id. at 104.

181. See § IV(A), infra.

182. Habermas, supra n. 167. at xviii (W. Rehg. introd.)

183. Rosenfeld; supra n. 177. at 1173 (“In other words, strangers, who do not share the deep bonds of common ethical roots, can still legitimately interact through the more extensive, though admittedly more superficial, links forged by consensually validated law.”).

184. Id. at 1175-1176.

185. Cf. Wendel, supra n. 39. at 185 (“If the bar is stratified into subcommunilies that correspond to the interests and social prestige of clients, it seems only reasonable that these subcommunities would evolve different normative understandings of what it means to be an ethical lawyer.”).

186. Such inter-community conversations have the potential to bring about inter-community consensus on particular conceptions of, or avenues toward, the good, a process that the philosopher Hans-Georg Gadamer refers to as the “fusion of horizons.” See Gadamer, Hans-Georg, Truth and Method 273 (The Seabury Press 1975)Google Scholar.

187. See Perry, supra n. 84. at 95 (“[T]he sharing of values, even relatively indeterminale ones, serves to ground and focus dialogic efforts that would otherwise stand little chance even of getting started.”).

188. See e.g. Graham, Bradley, Pentagon to Probe Renuirks Made by General: Boykin Angered Muslims, Lawmakers, Wash. Post A2 (10 22, 2003)Google Scholar.

189. Greenawalt, Kent, Private Consciences and Public Reasons 50 (Oxford U. Press 1995)CrossRefGoogle Scholar.

190. Id. at 7 (regarding “the problem of public discourse as significantly different from the problem of appropriate bases for judgment”).

191. Id. at 57-58.

192. See e.g. Griffin, supra n.18. at 1266, discussing Rawls, John, Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997)CrossRefGoogle Scholar and arguing that

all citizens, whether utilitarians or Kantians, Jews or Muslims, find reasons in their comprehensive doctrines to join the overlapping consensus and then to translate their comprehensive doctrines into public reason when they discuss constitutional essentials and matters of basic justice.

193. Id. at 1263.

194. See Perry, supra n. 84. at 107 (arguing that the failure to honor accessibility dooms religious argument in the public square “to play at best a marginal and ineffective, and sometimes even divisive, role”).

195. See id. at 90:

[T]he great religious traditions … tend to converge with one another in affirming that an essential part of what it means to be (truly, fully) human, an essential requirement of the meaningful life for everyone, is to accept (some) responsibility for the basic well-being of the Other (the outsider, ihe stranger, the alien).

Pearce. supra n. 125. at 877 (noting that “some substantive religious and professional values are similar, and therefore do not conflict on a substantive level”); and Allegretti, Joseph P., Remarks at the Panel Discussion: Models of Successful Religion and Lawyering Programs, 26 Fordham Urb. L.J. 917, 926 (1998)Google Scholar (“[W]hat unites these lawyers [participating in faith and lawyering programs] is the desire to rekindle a sense of meaning and purpose,” which “cuts across all religious differences.”).

196. Levinson, Sanford, Religious Language and The Public Square, 105 Harv. L. Rev. 2061, 2077 (1992)CrossRefGoogle Scholar (reviewing Perry, Michael J., Love and Power: The Role of Religion and Morality in American Politics (Oxford U. Press 1992))Google Scholar.

197. Id.

198. Of course, the reason why most religious lawyers have not been pressing for a greater reflection of faith within professional norms is open to debate. Some insight may be gained by Isaiah Berlin's discussion of an individual who suffers a wounded leg. Once the individual decides that it is too difficult to heal the wound, he may simply cut off the leg. reasoning that “[i]f I train myself to want nothing to which the possession of my leg is indispensable. I shall not feel the lack of it.” Berlin, Isaiah, Two Concepts of Liberty, in Four Essays on Liberty 135 (Oxford U. Press 1970)Google Scholar.

199. Campos, Paul F., Secular Fundamentalism, 94 Colum. L. Rev. 1814, 1824–1825 (1994)CrossRefGoogle Scholar.

200. See Perry, supra n. 84. at 136-137.

201. Id. at 106, 136-137.

202. Id. at 106.

203. Greenawalt. supra n. 189. at 94.

204. See Perry, supra n. 84. at 139-140 (responding to objections of David Smolin).

205. Conkle: supra n. 150. at 350.

206. Kierkegaard, Spren, Fear and Trembling, in Ethics: Hisioiy, Theory and Coniemporaiy Issues 382, 384–385 (Cahn, Steven M. & Markie, Peter eds., Oxford U. Press 1998)Google Scholar.

207. Id. at 385.

208. Id. at 386.

209. Id. at 391.

210. Id.

211. Cf. Wolfe, Alan, The Trans formation of American Religion: How We Aciually Live our Fairh (Free Press 2003)Google Scholar (arguing that religious Americans have embraced a mode of religion that is largely compatible with modern liberalism).

212. Nisbet. supra n. 67. at 242-243 (1976) (discussing Kierkegaard).

213. Id. at 242.

214. Kierkegaard, supra n. 206, at 395.

A dozen sectarians go arm in arm with one another; they are totally ignorant of the solitary spiritual trials that are in store for the knight of faith …. The sectarians deafen one another with their noise and clamor, keep anxiety away with their screeching. A hooting carnival crowd like that thinks it is assaulting heaven, believes it is going along the same path as the knight of faith, who in the loneliness of the universe never hears another human voice but walks alone with his dreadful responsibility.

215. Obviously, such an arrangement would pose a host of problems, not the least of which would emanate from the Establishment Clause.

216. See Vischer, Robert K., Catholic Social Thought and the Ethical Formotion of Lawyers: A Call for Community,1 J. Cath. Soc. Thought 417, 428–438 (2004)Google Scholar.

217. See Stout, supra n. 102, at 188:

the secularization of public moral discourse—which has meant that most attempts at moral persuasion presented under the aegis of certain public institutions do not presuppose the truth of specific theological beliefs: given the religiously plural nature of the audience being addressed—does not mean that religious assumptions and categories play no essential role either in what people actually say as participants in public discourse or in the moral deliberations of many people in our society. If we want to understand our fellow citizens—whether they be Dorothy Day. Martin Luther King Jr., Jerry Falwell, the Roman Catholic Bishops. Mario Cuomo, or Elie Wiesel—we had better develop the means for understanding the moral languages, including the theological ones, in which they occasionally address us and in which their deliberation is couched.

and Allegretti, supra n. 148. at 1104 (“An exaggerated secularization deprives us of the accumulated wisdom of the religious traditions, which have wrestled for thousands of years with the perennial questions of the moral life.”).

218. Luban, David, Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellmatu, 90 Colum.L. Rev. 1004, 1024 (1990)CrossRefGoogle Scholar.

219. James, William, The Moral Philosopher and the Moral Life, in Ethics: History, Theory and Contemporary Issues 423, 433 (Cahn, Steven M. & Markie, Peter eds., Oxford U. Press 1998)Google Scholar.

220. Wendel, supra n. 37, at 108.

221. Tremblay, Paul R., The New Casuistry, 12 Geo. J. Leg. Ethics 489, 513 (1999)Google Scholar.

222. Id.

223. Wendel, supra n. 37, at 107 (quoting Jonsen & Toulmin); see id. at 113 (“Casuistry is useful for making ethical choices among plural values because it regards conflicting values not as rivals, but as complementary theories for resolving practical problems.”).

224. Morgan, Thomas D. & Tuttle, Robert W.. Legal Representation in a Pluralist Society, 63 Geo. Wash. L. Rev. 984, 993 (1995)Google Scholar.

225. Id.

226. Wilkins: supra n. 28, at 1505.

227. Spaulding. supra n. 32. at 75.

228. See Allegretti, supra n. 15. at 9 (noting standard approach to lawyering is where the “lawyer brackets his own moral values and serves as the amoral instrument of his client”).

229. By way of illustration, in 1908, the ABA adopted an oath to be taken by lawyers upon admission to the bar binding them not to maintain any action, proceeding or defense that appeared to the lawyer ro be unjust. This prohibition was dropped by the ABA in 1977, although it still appears in the ethics codes of some slates. See Rodes, Robert E. Jr., Forming An Agenda—Ethics and Legal Ethics, 77 Notre Dame L. Rev. 977, 986 (2002)Google Scholar.

230. Schneyer, Ted, Reforming Law Practice in ihe Pursuit of Justice: The Perils of Privileging “Public” over Processionil Values, 70 Fordham L. Rev. 1831, 1841–1842 (2002)Google Scholar.

231. Wendel: supra n. 37, at 31.

232. Id. at 32. Raz also cautions against paternalism in light of the “multiplicity of valuable options to choose from.” Raz. supra n. 30. at 412.

233. Wendel, supra n. 37. at 9.

234. Wendel, supra n. 39, at 141.

235. Wendel, supra n. 37. at 54 (Wendel concedes that client autonomy is not unfettered: “some restrictions on lawyers' activities may be justified, even though they reduce client autonomy, on the ground that the restrictions enhance the ability of the legal system to channel societal disputes into an orderly process of resolution.”).

236. Shaffer, supra n. 123, at 997-998.

237. Raz, supra n. 30. at 412.

238. Luban: supra n. 218, at 1037-1038:

Free choice … has value only to the extent that it promotes responsibility, creativity, or authenticity; thus, when a person's choice would promote none of those, we have no reason whatever to regret the fact that she must refrain from that choice …. To believe otherwise is to mistake a means to valuable ends for the ends themselves.

239. Wilkins, David B.. Everyday Practice is f he Troubling Case: Confronting Conext in Legal Ethics, in Eveiyday Practices and Trouble Cases 68, 70–72 (Sarat, et al. eds., Nw. U. Press 1998)Google Scholar (criticizing assumption that clients are “autonomous” in that “they formulate their interests and objectives independent of the lawyer's intervention”).

240. Kronman, Anthony T., The Lost Lawyer 288 (Harv. U. Press 1993)Google Scholar.

241. Luban, David, Lawyers and Justice: An Ethical Study 160 (Princeton U. Press 1989)Google Scholar.

242. See e.g. Collett, Teresa Stanton, The Common Good and the Duty to Represem: Must the Last Lawyer in Town Take Any Case?, 40 S. Tex. L. Rev. 137, 179 (1999)Google Scholar (“[R]espect of another does not require cooperation with immoral acts, since such acts harm both the actor and those who assist him?”).

243. For example, alawyer who concludes, based on Christian teaching, that litigation is an evil to be tolerated only as a last resort, might feel justified presenting conciliation to the client as the only feasible alternative, when in fact litigation remains a viable option. See Minow, Martha, On Being a Religions Professional: The Religious Turn in Professional Eihics, 150 U. Pa. L. Rev. 661, 678 (2001)CrossRefGoogle Scholar (worrying that, if a faith-informed conciliation approach is followed by all lawyers, there would be “so truncated a range of lawyering styles for a client who seeks to vindicate a right, not reconcile with an opponent, or whose sense of violation would be compounded, not assisted, by efforts to seek reconciliation.” and about “the lawyer who is so intent on conciliation that he or she does not explore with the client all the litigation options”).

244. See e.g. id.

245. See Model R. Prof. Conduct 4.1 cmt. 2 (ABA 2003).

246. Hollinger, Dennis P., Choosing the Good: Christian Ethics in a Complex World 38–43 (Baker Academic 2002)Google Scholar.

247. Allegretti, Joseph, The Role of a Lawyer's Morals and Religion When Counseling Clients in Bioeihics, 30 Fordham Urb. L.J. 9, 26 (2002)Google Scholar (offering as example where “a lawyer believes that removal of life-supports from a comatose patient is murder, this belief can shape how the lawyer approaches the case, explains the law to her client, and evaluates the pros and cons of each option”).

248. Martha Minow proposes that lawyers should “give notice to clients ahead of time that religious ministry or counsel is part of their practice, either to make it less embarrassing and less expensive for the client who does not want this pan of the relationship to change lawyers or to opt out of this portion of the lawyer's services.” Minow. supra n. 243. at 679.

249. See Model R. Prof. Conduct 1.16 (ABA 2003).

250. See Model R. Prof. Conduct 2.1 (ABA 2003) (“In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the clientes situation.”).

251. See Vischer. supra n. 79.

252. In re Hale, 723 N.E.2d 206 (S. Ct. III, 1999).

253. Wendel, supra n. 70, at 1968:

In addition to the tendency of communities to relativize truth to power, to disable moral criticism of the community's values, and to be applied in a discriminatory manner, informal social norms may also be criticized for their tendency to spawn multiple iterations of revenge-taking, which can spiral out of control into full-blown feuds.

254. Habermas, Jurgen. Religion and Rationality 151 (Mendieta, Eduardo ed., Mass. Inst. Tech 2002)Google Scholar.

255. See Stout, supra n. 102, at 22.

256. Id.

257. See id. at 97; see id. (Moral diversity means “different groups often speak different moral languages. They not only disagree about moral propositions, they entertain different candidates for truth and falsehood.”).

258. See Perry, supra n. 84, at 137.

259. See id., 100.

260. See id., at 130 (arguing that, just because religious moralities are morally cognitivist does not justify misconception that “moral cognitivism entails … intolerance both of moral beliefs judged false and of the behavior such beliefs animate—and that moral skepticism entails … tolerance of moral behavior different from one's own”).

261. Putnam, Hilary, Reason, Truth and History 148–149 (Cambridge U. Press 1981)CrossRefGoogle Scholar (quoted in Perry, supra n. 84, at 130) (“Commitment to ethical objectivity [should not] be confused with what is a very different matter, commitment to ethical or moral authoritarianism.”).

262. Spinner-Halev. supra n. 155, at 25.

263. See id. at 70:

A parent who tells his son that if he doesn't attend church each week he will end up in Hell is also manipulating his child. I am uncomfortable with such manipulation, because I think the threat is false. Yet if I thought the premise was true I would cenainly think differently about the threat.

264. Smolin, David, Regulating Religious and Cultural Conflict in Postmodern America: A Response to Professor Perry, 76 Iowa L. Rev. 1067, 1067–1068 (1991)Google Scholar.

265. See e.g. Ostling, Richard, Christian Group, Some Colleges at Odds: InterVarsity Ban on Gay Leaders Faces Challenges. Chi. Trib. 6 (01 17, 2003)Google Scholar.

266. See § IV(A): supra.

267. See e.g. Matt 19:24 (New King James Version) (“And again I say to you. it is easier for a camel to go through the eye of a needle, than for a rich man to enter the kingdom of God.”).

268. See Model R. Prof. Conduct 8.4 cmt. 3 (ABA 2003) (prohibiting lawyers from manifesting bias or prejudice “based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status … when such actions are prejudicial to the administration of justice”).

269. See Pearce, Russell G., The Jewish Lawyer's Question, 27 Tex. Tech L. Rev. 1259, 1262 (1996)Google Scholar (“In alegal system where the participants acted on their personal affiliations, rather than their duty to the legal system, we [speaking as a Jew] …. would only obtain justice at the majority's sufferance, not as a matter of right.”).

270. See § IV(B) supra.

271. Of course, some religious believers should not become lawyers in the first place.

272. Upholding the law in this sense means not violating the law. It does not mean that every lawyer must represent any cause that is legal or take action to support the exercise of every recognized legal right.

273. See Griffin, supra n. 18.

274. Luban. supra n. 218, at 1005.

275. Menkel-Meadow, Carrie, The Causes of Cause Lawyering, in Cause Lowyering 31, 37 (Sarat, A. & Scheingold, S. eds., Oxford U. Press 1998)Google Scholar.

276. Levinson, supra n. 14. at 1578.

277. Wilkins, supra n. 28, at 1506.

278. Rubenstein, William B., In Communities Begin Responsibilities: Obligations at the Gov Bar, 48 Hastings L.J. 1101, 1102 (1997)Google Scholar.

279. Id. at 1118.

280. See supra n. 12.

281. See §§ III (C): IV(A); supra.

282. See Model R. Prof. Conduct 1.8(e) (ABA 2003).

283. See Griffin, supra n. 18, at 1261 (“Self-discipline has been difficult enough for the profession without adding to the Bar's task the determination of which believers are not bound by the profession's ailes.”). (9Civil disobedience expresses a dual commitment: to the rule of law and to change the law when it is unjust …. Although they pay the penalty for their conduct, objectors are sometimes right to criticize the law.”).

284. See Hauerwas, supro n. 62. at 16 (“But Christians do have a church, whose task is not to save the liberal project but to be the church. Of course, I am not trying to save the liberal project; I am trying to save the church from the liberal project.”).

285. “As H. Richard Niebuhr wrote, ‘The instrumental value of faith for society is dependent upon faith's conviction that it has more than instrumental value. Faith could not defend us if it believed that defense was its meaning.’” Reichley, A. James, The Values Connection 8 (Rowman & Liitlefield Publishers, Inc. 2001)Google Scholar.