Hostname: page-component-cd9895bd7-fscjk Total loading time: 0 Render date: 2024-12-25T02:19:39.620Z Has data issue: false hasContentIssue false
  • English
  • Français

“The Religious Foundations of Civil Rights Law” and the Study of Law and Religion in an Interdisciplinary Framework*

Published online by Cambridge University Press:  24 April 2015

Robert A. Destro
Get access Rights & Permissions [Opens in a new window]

Extract

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports … let it simply be asked where is the security for prosperity, for reputation, for life— if the sense of religious obligation desert … and let us with caution indulge the proposition that morality can be maintained without religion. George Washington—Farewell Address

There is often a message in a title. The title chosen for the Symposium, “The Religious Foundations of Civil Rights Law,” is no exception. Though the initial impression of its meaning will vary in accordance with the interests of the individual reader, the basic message of the Symposium is a simple one: law and religion are fundamentally related.

Type
Articles
Information
Journal of Law and Religion , Volume 5 , Issue 1 , 1987 , pp. 39 - 52
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1987

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

© 1988 The Catholic University of America.

References

1. Matheson, D.H., History of the Formation of the Union Under the Constitution 569–70 (1941)Google Scholar, quoted in Antineau, C.J., Downey, A.T., Roberts, E.C., Freedom from Federal Establishment 188 (1964)Google Scholar.

2. See generally Neuhaus, R.J., The Naked Public Square (1984)Google Scholar. See also sources cited note 14 infra.

3. See, e.g., Bowers v. Hardwick, 106 S. Ct. 2841, 2854 (1986) (Blackmun, J., dissenting) (“[F]ar from buttressing his case, petitioner's invocation of Leviticus, Romans, St. Thomas Aquinas, and sodomy's heretical status during the Middle Ages undermines his suggestion that [the law] represents a legitimate use of secular coercive power.”); Marsh v. Chambers, 463 U.S. 783 (1983) (justification of legislative prayer as “deeply embedded in the history and tradition of this country“); Stone v. Graham, 449 U.S. 39 (1980) (per curiam) (posting the Ten Commandments on the walls of public schools serves no educational function); Walz v. Tax Comm'n, 397 U.S. 664, 680, 687, 692-94 (1970) (Brennan, J., concurring) (justification of religious tax exemption on grounds that religious organizations “contribute to the community in a variety of nonreligious ways”); Mcgowan v. Maryland, 366 U.S. 420 (1961) (justification of Sunday closing laws on secular grounds). See also text at note 28 infra.

4. Bellah, R.N., The Broken Covenant: American Civil Religion in Time of Trial (1975)Google Scholar. Bellah has noted that “the question, and it is the most delicate issue of all, is how the civil and noncivil religions are to be related.” Bellah, , Response in The Religious Situation: 1968 389 (Cutler, D.R. ed. 1968)Google Scholarquoted in Cuddihy, J.L., No Offense: Civil Religion and Protestant Taste 27 (1978)Google Scholar.

5. Although “religion,” “morality,” and “private morality” are not conceptually the same, the terms are used interchangeably in this paper to describe that which is, for legal purposes, “nonsecular.” For present purposes, however, it is sufficient to note that the courts appear to use the terms interchangeably in some cases, and to differentiate them in others. The treatment of these terms and concepts in the cases has provoked considerable commentary in the legal literature, and would be an appropriate subject for another symposium. Choper, , Defining “Religion” in the First Amendment, 1982 U. L. Rev. 579Google Scholar; Freeman, , The Misguided Search for the Constitutional Definition of “Religion”, 71 Geo. L.J. 1519 (1983)Google ScholarGreen-wait, , Religion as a Concept in Constitutional Law, 72 Calif. L. Rev. 753Google Scholar; Johnson, , Concepts and Compromise in First Amendment Religious Doctrine, 72 Calif. L. Rev. 817 (1984)CrossRefGoogle Scholar.

6. Church-state controversies arising under the Religion Clauses of the first amendment, U.S. Const., Amend. I., are generally litigated under federal civil rights laws prohibiting deprivation of rights “under color of any [state] statute, ordinance, regulation custom or usage,” 42 U.S.C. §1983, as are more general assertions that governmental action has deprived an individual “of any rights’ privileges, or immunities secured by the Constitution and law [of the United States].” Id.

7. Statutes of 1789, c.8 (August 7,1789). In full, the Congressional sentiment was expressed as follows: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, and the means of education shall be forever encouraged.”

8. Id. Given this history, it is ironic that the primary area of legal conflict in matters of law and religion has been over the role of religion in education. See, e.g., Edwards v. Aguillard, 107 S. Ct. 2573 (1987); Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619 (1986), rev'g and remanding, 766 F. 2d 932 (6th Cir. 1985), vacated on remand 802 F.2d 457 (6th Cir. 1986); Witters v. Washington Department of Services for the Blind, 474 U.S. 481(1984); rev'g,102 Wash. 2d 624, 689 P.2d 53 (1984); Bender v. Williamsport Area School District, 475 U.S. 534 (1986), vacating and remanding, 741F.2d 538 (3d Cir. 1984); Ball v. School District of Grand Rapids, 473 U.S. 373 (1985); Wisconsin v. Yoder, 406 U.S. 205 (1972); West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).

9. Cf., Abington School Dist. v. Schempp, 374 U.S. 203, 294-95 (1963) (Brennan, J., concurring). But cf., Bellah, supra note 4 at 153-53 (arguing that the decoupling of technical reason “from a larger religious and moral context” makes it impossible to stake out a sense of direction). See generally Neuhaus, R., The Naked Public Square (1984)Google Scholar; Louisell, “Does the Constitution Require a Purely Secular Society?” in Symposium, The Interaction of Law and Religion in the United States, 26 Cath. U.L. Rev. 17, 20 (1976)Google Scholar. Professors Gewirth and Dougherty indirectly addressed the point made in the text in their description of the respective roles of moral philosophers and religious leaders in influencing the direction of social thought and policy. See Panel Discussion: Phiiogophical Perspectives, 5 J. Law & Relig. 149, 153–159 (1988)Google Scholar.

10. Zorach v. Clauson, 343 U.S. 312-13 (1952). It should also be noted that Justice Douglas' views concerning people who take their religion seriously appeared to change by the time he penned the following line in his concurring opinion in Lemon v. Kurtzman, 403 U.S. 602, 635-36 (1971): “One can imagine what a religious zealot, as contrasted to a civil libertarian, can do [as a teacher] with the Reformation or with the Inquisition.” Since there was no evidence in Lemon that even one “religious zealot” was involved in the challenged program of educational assistance, the use of the term “religious zealot” to describe a teacher in a religiously-affiliated school says much about Justice Douglas' view of the relationship of religion, education, and civil rights. Although one historian has drawn the conclusion that “[o]nly civil libertarians, apparently, are fit teachers to be paid from the common treasury,” Morgan, , The Supreme Court and Religion 111 (1972)Google Scholarquoted in Louisell, supra note 10, at 23, the implicit assumption is that commitment to strong religious beliefs is inconsistent with commitment to civil liberties.

11. See, e.g., Cuddihy, J.L., No Offense: Civil Religion and Protestant Taste (1978)Google Scholar. Judge John Noonan's remarks contrasting the respective approaches of Justices Joseph Story and Oliver Wendell Holmes also casts light on some of the reasons for this development. Concluding Panel Discussion, 5 J. Law & Relig. 240Google Scholar. See also sources cited at note 14, infra.

12. See generally Berman, H., The Interaction of Law and Religion (1974)Google Scholar.

13. See, e.g., Dougherty, , Puritan Aspirations, Puritan Legacy, 5 J. Law & Relig. 109 (1988)CrossRefGoogle Scholar; Neuhaus, , Nihilism Without the Abyss: Law, Rights, and Transcendent Good, 5 J. Law & Relig 53 (1988)CrossRefGoogle Scholar and Noonan, , Principled or Pragmatic Foundation for the Freedom of Conscience, 5 J. Law & Relig. 203 (1988)CrossRefGoogle Scholar. See also Sturm, The “Path of the Law” and the Via Salutis: A Naturalistic Perspective, in Symposium, The Interaction of Law and Religion in the United States, 26 Cath. U.L. Rev. 17, 35 (1976)Google Scholar.

14. On the role of religion and private morality in forming the attitudes of public leaders, cf. Berman, , Conscience and the Law: The Lutheran Reformation and the Western Legal Tradition, 5 J. Law & Relig. 177 (1988)CrossRefGoogle Scholar and Tierney, , Religion and Rights: A Medieval Perspective in 5 J. Law & Relig. 163 (1988)CrossRefGoogle Scholarwith, e.g., Remarks of President Ronald W. Reagan to the Ecumenical Prayer Breakfast, Dallas, Texas, August 23, 1984; Remarks of Walter F. Mondale to the International Convention of B,nai B'rith, Washington, D.C., September 6,1984; Governor Mario M. Cuomo, “Religious Belief and Public Morality: A Catholic Governor's Perspective” delivered to the Department of Theology, University of Notre Dame, South Bend, Indiana, September 13,1984; Representative Henry J. Hyde, “Keeping God in the Closet: Some Thoughts on the Exorcism of Religious Values from Public Life,” delivered at the Thomas J. White Center on Law & Government, School of Law, University of Notre Dame, South Bend, Indiana, September 24,1984; Senator Edward M. Kennedy, “Faith and Freedom,” delivered at Tavern on the Green, New York City, before the Coalition of Conscience, September 10, 1984.

15. Cf. Cahili, , The Catholic Tradition: Religion, Morality, and the Common Good, 5 J. Law & Relig. 75 (1988)CrossRefGoogle Scholar and Cover, , Obligation: A Jewish Jurisprudence of the Social Order, 5 J. Law & Relig. 65 (1988)CrossRefGoogle Scholarwith, e.g., Remarks of Prof. T. Schaeffer, “Legal Ethics and the Good Client,” Brendan Brown Lecture Series, Catholic University of America, Washington, D.C., October 3,1986 (legal ethics); Destro, The Family and Public Policy in The Pope John XXIII Medical-Moral Research and Education Center, The Family Today and Tomorrow 113–129 (1985)Google Scholar; Caplow, , The Loco Parent: Federal Policy and Family Life, 1976 B.Y.U.L. Rev. 709, 712Google Scholar.

16. See Gewirth, , Moral Foundations of Civil Rights Law, 5 J. Law & Relig. 125 (1988)CrossRefGoogle Scholar, and Neuhaus, , Nihilism Without the Abyss: Law, Rights, and Transcendent Good, 5 J. Law & Relig. 53 (1988)CrossRefGoogle Scholar.

17. Johnson, , Concepts and Compromise in First Amendment Religious Doctrine, 72 Calif. L. Rev. 817 (1984)CrossRefGoogle Scholar.

18. See, e.g., Hart, Lock, Kamisar, , Choper, & Shiffrin, , Constitutional Law 629 (6th ed. West 1986)Google Scholar. ['The task is to formulate principles that separate the protected from the unprotected. But speech interacts with too many other values in too many complicated ways to expect that a single formula will prove productive.”]

19. Cf. id. at 1027. [“This chapter concerns the ‘religion clauses’ of the first amendment … [and] attempts to accommodate [their] seemingly opposing demands …”]. It should be noted in passing that most of the Courtes jurisprudence in the area of law and religion has been directed to explicating a “single formula” for resolving cases arising under the Religion Clauses: “separation of church and state.” Cf. note 17.

20. Seet e.g., Destro, , Pastoral Politics and Public Policy: Reflections on the Legal Aspects of the Catholic Bishops' Pastoral Letter on War and Peace, in Peace in a Nuclear Age 356 (Reid, C. ed. 1986)Google Scholarreprinted, 4 J. Law & Relig. 25 (1987)Google Scholar; Destro, , Religious Freedom in the 1985 Supreme Court Term: Adrift on Troubled Waters, 6 Religious Freedom Reporter 481 (1986)Google Scholar. See also Johnson, supra note 17.

21. See generally Berman, H., The Interaction of Law and Religion (1974)Google Scholar; Symposium, The Interaction of Law and Religion in the United States, 26 Cath. U.L. Rev. 17 (1976)Google Scholar. See also Wagner, W. J., Reflections on the Symposium: An Ordered Inquiry Into the Relation of Civil Rights Law and Religion, 5 J. Law & Relig. 3 (1988)Google Scholar.

22. A. Meiklejohn, Free Speech and its Relation to Self-Government, reprinted in part in Lockhart, , Kamisar, , Choper, & Shiffrin, , Constitutional Law 684–6) 6th ed. West 1986)Google Scholar.

23. In fact, it can be argued that a majority of the justices consider religious concepts of the common good to be illegitimate bases on which to rest public policy, especially where the result would conflict with their own opinions concerning the common good. Ever since the Supreme Court decided Walz v. Tax Comm'n, 397 U.S. 664 (1970), various members of the Court have been struggling to set out the boundaries of what they consider to be legitimate religious involvement in public affairs. In Lemon v. Kurtzman, 403 U.S. 602 (1971), for example, the argument that religious involvement in political debates was of questionable legitimacy had become what appeared to be an additional factor to be considered in judging the constitutionality of legislation challenged under the Religion Clauses of the first amendment. See id., 403 U.S. at 622-24. Although the decision in Mcdaniel v. Paty, 435 U.S. 618 (1978), rev'g, Paty v. Mcdaniel, 547 S.W.2d 897 (Tenn., 1977), and Harris v. Mcrae, 448 U.S. 297 (1980) constitute a rejection of the most extreme applications of that argument, the theme that religion as an influence on the development of public policy is politically divisive and constitutional suspect runs like a strong undercurrent through the writings of Justices Brennan, Marshall, Powell, Stevens, and Blackmun. See, e.g., Bowers v. Hardmck, 106 S. Ct. 2841, 2854 (1986) (Blackmun, J., dissenting); Thornburgh v. American College of Obstetricians and Gynecologists, 106 S. Ct. 2169, 2187-88 (1986) (Stevens, J., concurring); Aguilar v. Felton, 105 S. Ct. 3232, 3239 (1985) (Powell, J., concurring); Harris v. McRae, 448 U.S. 297, 348 (1980) (Blackmun, J,, dissenting); id. at 329 (Brennan and Marshall, J., dissenting). See also Choper, , The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt.L.Rev. 673 (1980)Google Scholar; Gaffney, , Political Divisiveness Along Religious Lines: The Entanglement of the Court in Sloppy History and Bad Public Policy, 24 St. Louis U.L. Rev. 205 (1980)Google Scholar; Ripple, , The Entanglement Test of the Religion Clauses—A Ten Year Assessment, 27 U.C.L.A.L.Rev. 1995 (1980)Google Scholar.

24. See, e.g., Bender v. Williamsport Area School District, 475 U.S. 534 (1986); vacating and remanding, 741 F.2d 538 (3d Cir. 1984); Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); Everson v. Board of Education, 330 U.S. 1 (1947); Lubbock Independent School District v. Lubbock Civil Liberties Union, 669 F.2d 1038 (5th Cir. 1982), cert, denied, 459 U.S. 1155 (1983); Brandon v. Board of Education of Guilderland Central School Dist., 635 F.2d 971(2d Cir. 1981), cert denied, 454 U.S. 1123 (1981). But see 20 U.S.C. § 4071(A) (Equal Access Act); Student Coalition for Peace v. Lower Merion School District Board of Directors, 776 F.2d 431(3d Cir. 1985). compare Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 2496, 2504 (O'Connor, J., concurring in the judgment) (“The solution to the conflict between the religion clauses lies not in ‘neutrality,’ but rather in identifying workable limits to the Government's license to promote the free exercise of religion.”)

25. See Kurland, P., Religion and the Law 18 (1962)Google Scholar: Gianella, , Religious Liberty, Nonestablishment and Doctrinal Development—Part I, The Religious Liberty Guarantee, 80 Harv. L. Rev. 1381 (1967)CrossRefGoogle Scholar.

26. Neuhaus, supra note 16 at 53.

27. Id. (emphasis in the original). See also Gewirth, supra note 16 at 129. (“[L]aws are presented as means to ends, including the stable regulation of social conflicts and the maintenance of social peace. Morality, on the other hand, determines which ends are ultimately justified and which modes of regulation and of peace are worthy of being established and maintained. … Hence, it is through moral critiques that the rightness of such regulations is determined.”). Cf. Faver, , Religion, Research and Social Work, 12 Social Thought 20, 22 (Summer, 1986)CrossRefGoogle Scholar:

Scientific research produces knowledge that can, in a limited sense, inform the means of reaching valued ends. It cannot, however, determine or define the ends which should be valued, nor, for that matter, can it determine the morality and appropriateness of the means themselves. Thus, the ‘master stories” produced by scientific research are incomplete pictures of reality, and social work needs knowledge beyond that which science can provide.

28. Bowers v. Hardwick, 106 S. Ct. 2841, 2854 (1986) (Blackmun, J., dissenting) (sodomy restrictions and the right to privacy). Justice Blackmun's views are a good example of the manner in which the terms “religion” and “religious” are equated with the concept of “private” morality in an attempt to distinguish them from that which is “secular” or “public•” See note 5 supra. See also Thornburgh v. American College of Obstetricians and Gynecologists, 106 S. Ct. 2169, 2187-88 (1986) (Stevens, J., concurring) (protection of unborn from abortion would be an illegitimate adoption of a religious view of prenatal life); Harris v. Mcrae, 448 U.S. 297, 348 (1980) (Blackmun, J., dissenting) (abortion funding; “the Government ‘punitively impresses upon a needy minority its own concepts of the socially desirable, the publicly acceptable, and the morally sound’”). See also Constitutional Aspects of the Right to Limit Childbearing, Report to the United States Commission on Civil Rights (04, 1975) at 28–29Google Scholar (arguing that “[a]n anti-abortion law or constitutional amendment would not pass [constitutional] muster” because of its basis in identifiable religious tradition).

29. See Dougherty, supra note 13 at 118-120 (discussing both religious values and the role of social contract theory); Gewirth, supra note 16 at 125-131; Panel Discussion (Phiiosophical Perspectives at 149 (Gewirth noting that “justice is primarily a moral, rather than alegal concept.”)

30. See Cahill, supra note 15 at 77-80 (Discussing the complementary relationship between individual rights and the common good); Cover, supra note 15 at 69-73 (the jurisprudence of obligation); Noonan, supra note 13 at 212 (values reflective of the human good); Tierney, supra note 14 at 170 (of the 12th Century's “awareness of the balance between individual and community”)• Cf. Letter of Thomas Jefferson to a Committee of the Danbury Baptist Association, (January 1, 1802), reprinted in Koch, A. & Reden, W., The Life and Selected Writings of Thomas Jefferson 332–33 (1944)Google Scholar (“[Man] has no natural right in opposition to his social duties”). See also Brown, , Individual Liberty and the Common Good—The Balance: Prayer, Capital Punishment and Abortion, 20 Cath. Law. 213, 220 (1974)Google Scholar. See generally Harris v. McRae, supra, 448 U.S. at 319-20 (law is not unconstitutional because it appears to be in conformity with one or more religious traditions).

31. Gewirth, , Moral Foundations of Civil Rights Law, 5 J. Law & Relig. 125 (1988)CrossRefGoogle Scholar.

32. Although discussed at great length in legal commentary, the concept of “absolute” separation is chimerical. The Jeffersonian metaphor of a “wall of separation between church and state,” which first appeared in his famous Letter to the Danbury Baptists, see note 30, suprat is, in the words of the Supreme Court, a “useful figure of speech,” but it does not provide “a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.” The “wall” is, in fact, only a “blurred indistinct and variable barrier depending on all the circumstances of a particular relationship.” Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 1362 (1984), quoting Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).

33. Cf. Kelsen, , The Pure Theory of Law (Knight, M. trans. 2d ed. 1967)Google Scholar (on law as a coercive order); Machiavelli, , Discourses Upon the First Ten Books of Titus Livy, Book One, XI-XII, in The Prince and Selected Discourses: Machiavelli 104 (Donno, D. trans. 1966)Google Scholar (“Where a fear of God is lacking, the state must either iail or be sustained by a fear of the ruler which may substitute for the lack of religion.”)

34. Tierney, supra note 14 at 167-168.

35. Noonan, supra note 13 at 208-210.

36. See, e.g., Larson v. Valente, 456 U.S. 228 (1982) (Unification Church); Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981) (Jehovah's Witnesses); Wisconsin v. Yoder, 406 U.S. 205 (1972) (Amish); Sherbert v. Verner, 374 U.S. 398 (1963) (Seventh-Day Adventists); Torcaso v. Watkins, 367 U.S. 488 (1961) (nonbelief); United States v. Ballard, 322 U.S. 78 (1944) (“I Am”); People ex rei Ring v. Board of Education of District 24, 245 Ill. 334, 92 N.W. 251(1910) (Catholic). See generally J. Madison, “Memorial and Remonstrance Against Religious Assessments” (1785) quoted in, Everson v. Board of Education, 330 U.S.1,63-72 (1947) (Rutledge, J., dissenting) (noting the need to accommodate more than the views of “Quakers and Mennonists”); Little, , Thomas Jefferson's Religious Views and Their Influence on the Supreme Court's Interpretation of the First Amendment, 26 Cath. U.L. Rev. 57 (1976)Google Scholar; Malbin, M., Religion and Politics (1978)Google Scholar.

37. Berman, supra at 196-199 (Oldendorp's view that the “magistrates are ministers [i.e. servants] of the laws” with a duty to do equity (Billigkeit) in every case); Cahill, supra at 77 (legally protected rights do not derive from government, but inhere in human nature and community; Cover, supra 67-69 (mitzvah; right follows obligation); Dougherty, supra at 119-120 (purpose of social contract theory was the grounding of rights and obligations); Gewirth, supra at 135 (the “Principle of Generic Consistency: Act in accord with the generic rights of your recipient as well as of yourself.”) and Panel, Discussion Philosophical Perspectives, at 157–158Google Scholar (differentiating between “strict” and “nonstrict” (supererogatory) duties); Neuhaus, supra at 62 (“Democracy becomes a political community worthy of moral actors only when we engage the question of the good.”); Noonan, supra at 210 (Williams' view that freedom of conscience is the manifestation of the duty of every Christian to follow the will of God as manifested by Jesus Christ); Tierney, supra at 174 (“a concern for the moral integrity of human personality led to the first stirrings of natural rights theories”).

38. Cover, supra at 67.

39. Professor Gewirth described this as a “strict” duty. Panel Discussion: Philosophical Perspectives, at 157-158.

40. Neuhaus at 57 (Referring to Roe v. Wade, 410 U.S.113 (1973). Cf. Prof. Gewirth's response to a question concerning the existence of duty to those who cannot benefit from it. Panel Discussion: Philosophical Perspectives, at 159-160. Cf. Bowen v. American Hosp. Ass'n, 476 U.S. 610 (1986); Brophy v. New England Sinai Hospital, 398 Mass. 417, 497 N.E.2d 626 (1986).

41. U.S. Const. Amend. XIV. By its terms, the equal protection clause applies only to the several states, but the Supreme court has construed the due process clause of the fifth amendment, U.S. Const. Amend. V, as including “an equal protection component.” See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975); Schlesinger v. Ballard, 419 U.S. 498, 500 n.3 (1975); Bolling v. Sharpe, 347 U.S. 497 (1954), See generally Karst, , The Fifth Amendment's Guarantee of Equal Protection, 55 N.C.L. Rev. 541 (1977)Google Scholar; Nowak, J., Rotunda, R. & Young, J., Handbook on Constitutional Law 516–19 (1978)Google Scholar.

42. The duty is also imposed by statute on certain classes of individuals for the benefit of others deemed to be in need of protection. See, e.g., Age Discrimination in Employment Act, 29 U.S.C. § 621 (1982); The Education for All Handicapped Children Act of 1975, 20 U.S.C §1400 (1982); Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982) (prohibiting discrimination in federally funded programs against those with disabilities); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (prohibiting discrimination in employment on the basis of race, sex, national origin, and religion).

43. Cover, supra at 67.

44. Family law, the law of estates and trusts, and social welfare policy are good examples.

45. See, e.g., Local No. 93 v. City of Cleveland, 106 S. Ct. 3063 (1986); Local 28 of the Sheet Metal Workers' International Ass'n v. Equal Employment Opportunity Comm'n, 106 S. Ct. 3019 (1986); Wygant v. Jackson Board of Education, 476 U.S. 267 (1986); Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561(1985).

46. Cahill, supra, at 76 quoting John XXIII, Pacem in Terris (Peace on Earth).

47. Id. Cf., Gewirth, supra at 144-147 (discussing the difficult problem of preferential treatment under the civil rights laws and its consistency with the Principle of Generic Consistency) and Panel Discussion: Philosophical Perspectives, at 151-52 (same, indicating that the civil rights laws are directed toward what is [sic] claimed to be submerged groups, especially but not restricted to blacks and women.”). See also Destro, , Equality, Social Welfare, and Equal Protection, 9 Harv. J.L. & Pub. Pol. 51 (1985)Google Scholar (arguing that the civil rights laws are focused on individuals rather than groups, and that a balance between the related, but distinct, concepts of “civil rights” and “social welfare” can be achieved through a proper interpretation of the duty of equal ‘protection” imposed on government by the fifth and fourteenth amendments to the Constitution of the United States).

48. See, e.g., Faver, Religion, Research and Social Work, supra note 27, at 22-23.

[I]f we are willing to go beyond the scientific method, to give up our faith in science alone, we will discover that the great religious traditions, though much abused, have within them the seeds of faith that is more adequate for our task. We will find alternative centers of value and images of power to guide our search for more adequate explanations of reality. Our religious traditions … force us to recognize our finite human condition and the limitations of human knowledge—realizations that free us to consider multiple types and sources of truth in our search for adequate “master stories” or explanations of reality (see Imre, , The Nature of Knowledge in Social Work, 29 Social Work 41–45 (1982)CrossRefGoogle Scholar). Such a faith—with a central value of justice, a reliance on the power of love rather than force or manipulation, and an openness to multiple ways of knowing—will affect every stage in the process of knowledge development for the profession. It will affect, more specifically, our formulation of problems for study, our methods of seeking answers to questions, and our interpretations of the findings from our search.

49. Cover, supra at 72-73 (discussing Estelle v. Williams, 425 U.S. 501, 504-05 (1976) and the “right” of a prisoner to appear in the courtroom without prison garb); Gewirth, supra at 144-147 (affirmative action and the Principle of Generic Consistency); Noonan, supra at 203-204 (discussing the trial of St. Joan of Arc).

50. See, e.g., Brown v. Board of Education, 347 U.S. 483, n.11 (1954) (psychological evidence as basis for constitutional holding that “separate is inherently unequal”).