As a lawyer, law teacher, dean, scholar, colleague and friend, you have lived what you have taught, that lawyering is a vocation most faithfully lived in friendship. A prodigious scholar, you have led us as a brilliant pioneer into our past, turning us again toward ethics as a way of life lived in reflection and discomfort, not a decision of the moment, and situating the good lawyer within her community of memory. You have told many of the old tales, making way for a return to story-telling as ethical conversation for law scholars. In your deceptively accessible writings, the daily tasks of the lawyer are honored and challenged within a rich texture of literature, religion and law.

Your life of professional service, proceeding from a major law firm to Dean of Notre Dame Law School to clinical teacher, bespeaks the courage and humility with which you explore the religiously committed lawyer's vocation. Your affirming presence as a listening, generous, humorous and insightful friend to those whom you love and those whom you hardly know, has brought strength to the lives of many others. We honor your willingness to speak of God in public places, to help us meditate on the work of the lawyer, and to affirm our halting efforts to live whole lives as faithfully religious and faithfully professional men and women.

It was a bad summer for lawyers. Just when we were getting used to the possibility that Tom Cruise might be a fine young JAG lawyer capable of ferreting out evil in high places in “A Few Good Men,” it seems that he's just another Harvard lawyer on the make and on the lamb both from the Mob and the FBI in “The Firm.” And who can forget the scene in “Jurassic Park” when a mouthy lawyer gets et alive by tyrannosaurus rex redivivus, to the cheers of the vulgar mobs in the theaters? The good news is that the consumption of the lawyer occurs off camera.

Last summer 6,321 new lawyer jokes were added to the genre. My favorite asks why lawyers are buried 20 feet down instead of 6, with the reply that deep down lawyers are really good.

It wasn't much better two summers ago, when one of the most famous of the lawyer jokers, J. Danforth Quayle, gave his “too many lawyers” speech at the summer meeting of the ABA. Actually I thought the Vice-President made some good points, but was quite unfocused, omitting any consideration, for example, of the maldistribution of lawyers in our society that causes many real needs for legal services to go unmet. Those of you with an empirical bent will be pleased to learn that shortly after Quayle's speech, his statistics were repudiated as wildly inaccurate.

Tom Porter, talking to me about the substance of what you might want to hear, mentioned a series of articles in The Christian Century, by prominent theologians, called “How I Changed My Mind.” I remember especially Karl Barth's three contributions to the series, over a period of thirty years.

Ed Gaffney, years ago, introduced me to Barth—and did it with a perfect reference: to the prison sermons Barth gave when he turned, at least a little bit, from being a theologian and returned to being a pastor. Barth said the jail was his favorite pulpit. “There are but few theology professors,” he said, “whose sermon listener one can become only after having committed a serious violation of the civil order.”

My own changes of mind are not unique. I am one of a small group of law teachers who have, over the last thirty years, become clearer in formulating an Hebraic legal ethic. We are a minority who have become bolder. We owe such courage as we have located for that to modern pioneers, most notably Harold Berman, and, more lately, Emily Hartigan. What has changed most for us has been the clarity of our public witness; the substance all along has been old-time religion. When I say “clarity” I mean that we have come to see this substance in our work, more than we did in, say, 1970.

Any reviewer of Tom Shaffer's biography and the list of his more than 250 articles, essays and books, is reminded of the way in which Tom distinguishes a hero from an everyday lawyer. His distinction perhaps fits Tom, but it more surely describes a major character of lawyer fiction with whose name Tom Shaffer's will be forever linked—the person of Atticus Finch in To Kill a Mockingbird.

The story of a hero, Tom says, has a compelling quality that we are struck by—“we like [heros] and, more than liking them, we find in them something that keeps us from leaving them alone.” Second, he claims, a hero has the virtue of prodigiousness: “The hero goes beyond himself. There is something extraordinary about his effort. There is more in what he does than we can see ourselves doing ….” Third, he notes the numinous: “The hero is in touch with something special, something awesome and fascinating, something that attracts us and repels us at the same time.” Fourth, a hero is useful—“[he]… becomes a hero because his story fits the moral needs of the times.” Finally, a hero “is a person of bravery and insight.” “He understands what is going on … and he acts in reference to what is going on in a relatively clear-sighted, skillful way.”

When Marie Failinger and I began to play with metaphors as we talked about the scroll to honor Tom Shaffer, well, we did consider and discard some. From that heap of castoffs, I want to begin big and tell you the clearest discard, the biggest miss: Tom as a peach of a man. The positive side of the image is roundness as an indicator of wholeness, of even feminine circularity, of integrity. The down side of roundness need not be spelled out in detail (and we certainly do not want to suggest fuzziness)… but there is that one lingering wild hare, the peach's suggestion of the Southern gentleman, that Atticus Finch or Walker Percy who never quite migrates into the contemporary scene. That Southern gentry anomaly is central to Tom, and the struggle with how he can almost redeem the notion of lawyer as gentleman is for me the story of Tom as round in the finest sense, like a magic circle cast by the best of the Spirit, gentle, true, deceptively radical, quietly if slowly revolutionary, and only just a little repetitious. (Consider the list of 274 of his publications we got in the conference materials—274! I certainly have not read all 274, but even within the ones I have, there is stuff I've seen more than once). Even that repetition becomes the mark of fidelity, however. For Tom is unwilling to leave even the anachronism, the gentleman lawyer, out of the circle into which he has invited a persistently motley crew of clients and friends and students and invisible rabbits (ask him about Elwood Dowd sometime).

I have met Tom Shaffer no more than two or three times in my life. Nonetheless, we have for several years been carrying on a conversation that has been of central and growing importance to me and to my work. He has spoken to me through his writing, about professional responsibility, about teaching, and about religion and law. Except for the ways in which he has influenced my teaching, I have responded mostly in my head. It is a unique opportunity to be able to acknowledge to him and others the gift of his work; I am proud to participate in this collective appreciation. I am grateful too for the chance to engage in this forum with some of what his writings have said to me.

To select, for a brief reflection, from a bibliography of Shafferiana that extends well up into the three-digit range is a daunting task. I have chosen two themes that have special salience for me: first, he celebrates the “particularity” of specific religious communities, while linking Judaism and Christianity to a common “Hebraic tradition”; second, he calls on those attracted to the use of “religious metaphors” to be clear about what beliefs underlie that use. I have found the first liberating and affirming, and the second profoundly challenging.

My assignment is to respond, from the perspective of the discipline of Christian ethics, to my broad and vague picture of the oeuvre of my old friend and cross-campus colleague Tom Shaffer. It is not easy to focus a pointed critique within a larger context of considerable agreement.

My assignment calls for me to pass by other important dimensions of Tom's work. I begin with a quite representative characterization, which happens to be in the words of Robert Coles.

The latest book entry in Thomas Shaffer's ongoing conversation with us, American Lawyers & Their Communities (1991) (with Mary Shaffer) (1991), takes the practice of community as its subject. In spirit, it appeals to us as members of communities to be and to do better, and it intimates how we can and why. This review of the book has turned out to be less a review than a response to that underlying appeal.

Each of the book's three parts focusses on a different form of communal practice: the ethics honored among lawyers, the rispetto observed by Italian-Americans, and the obligations laid upon religious believers.

In the first part Tom labors manfully with “the gentleman's ethic.” This is a real ethics and not the how-to-avoid-malpractice-suits instruction that passes for ethics in those continuing legal education programs lawyers are required to attend each year. Real ethics puts the questions of who we are and where we come from. In his view, we lawyers are gentlemen with gentlemanly virtues nurtured as habits of the heart by the republican and biblical traditions. The gentleman is our culture. The gentleman gazes down upon us from the walls of our courthouses, law firms and law schools and calls us to remember and to realize our traditional values. The gentleman who has gone before, the gentleman we now are and are to become furnishes us with guidance.

The subject of this essay is the developing work of Thomas Shaffer, the Notre Dame Law School legal ethicist. For over two decades, Shaffer has displayed a remarkable ability to bring to his area of specialization the influences of a rich variety of extra-legal sources. Readers encounter neo-orthodox and narrative theology; biblical studies; the nineteenth century novel of manners and sensibility (especially Trollope); material from film, stage and television; the deviance theory of Kai Erikson; the history and sociology of later immigrant cultures in America; C.P. Snow and C.S. Lewis; Martin Buber's understanding of I-Thou relations; the history of British and American legal-ethical concepts. Yet the very interdisciplinary scope of Shaffer's writing places it at risk. When technically impressive micro-studies carry the day, magistrally broad efforts like his often receive scant attention. To encourage the opposite result—a thorough engagement by legal scholars and ethicists—this analysis is offered.

One of the more controversial decisions handed down by the Supreme Court in recent years was its decision in the case of Employment Division, Oregon v. Smith, which raised the basic issue of whether the free exercise clause of the First Amendment guarantees a right to religion-based exemptions, i.e., whether it gives persons and groups a prima facie right to be exempt from having to obey valid laws when they have religious reasons for noncompliance. More specifically, in Smith, two Native Americans claimed that their prosecution for using an illegal drug, peyote, was precluded by the free exercise clause because they had taken the drug as part of a religious ceremony of their church.

To the surprise of many, the Supreme Court rejected both the Native Americans' claim (by a vote of six to three) and the general proposition that the free exercise clause gives persons a right to religion-based exemptions (by five to four). Writing for the Court, Justice Scalia said, “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Moreover, in order to preclude such a holding in the future, the Court discarded the “strict scrutiny” test, adopted in its 1963 Sherbert v. Verner decision according to which any burden on any religious practice imposed by any law, even one that is religion-neutral and generally applicable, is unconstitutional unless it can be justified by a “compelling” government interest and is the least restrictive means of protecting that interest.

Dr. Josef Mengele injected Sara Vigorito with unidentified substances as part of his infamous “twin experiments,” causing her to remain ill for seven years after being liberated from Auschwitz. Having survived that ordeal, she is now opposed to the scientific use of data from experiments conducted on concentration camp prisoners. In her mind, using the data today would be “like building on top of Auschwitz.”

This Article will argue for the symbolic value of not using the Nazi data. Although symbolic value arguments have been recognized in the expansive literature on this question, they have not occupied center stage. Rather, argument concerning the use of the data has largely been conducted in two discourses, morality and pragmatism, which tend in our culture to have a more universal legitimacy. Putting the issue in these terms, however, misses the point. The question raised by the Nazi data cannot be answered satisfactorily by testing the strength of competing moral maxims or by weighing costs and benefits. We should ponder instead what the use or non-use of the data would say about us as a society. This in turn requires both that we evoke some idea about what we want to be (a substantive conception of good), and that we argue about what use or non-use would mean for that self-image (a theory of how symbols get their meanings).

Recent writings have uncovered a robust interaction between the spheres and sciences of law and religion. Law and religion are conceptually related. They embrace closely analogous concepts of sin and crime, covenant and contract, righteousness and justice. Law and religion are formally related. They both have patterns of liturgy and ritual, concepts of tradition and precedent, sources of authority and power. Law and religion are methodologically related. They maintain analogous hermeneutical methods of interpreting texts, casuistic and rhetorical methods of argument and instruction, systematic methods of organizing their doctrines. Law and religion are professionally related. They both have officials charged with the formulation, implementation, and demonstration of the norms and habits of their respective fields. Law and religion are institutionally related, through the multiple relations between political and ecclesiastical officials and institutions.

A popular conception about the Religion Clauses of the First Amendment is that the Free Exercise Clause is in tension, or conflict, with the Establishment Clause. Accommodation under the Free Exercise Clause seems, in many cases, to conflict with the establishment clause principle that government must neither advance nor favor any religious practice or belief. In response to this seeming tension between the two mandates, Jonathan Nuechterlein, in a recent article, advances the theory that contrary to popular belief, the two clauses are not in conflict. Rather, the mandates of the two clauses fit together like “pieces in a jigsaw puzzle.” The traditional test of required accommodation under the Free Exercise clause5 employed by the courts define the outer limits of what is allowed under the Establishment Clause.

In what may at first seem to be only a marginally related work, Professor Douglas Laycock tackles the task of formulating a workable definition of governmental neutrality towards religion “neutrality” has under the clauses. Recognizing that the term been repeatedly used and “misused” by both courts and commentators, and recognizing the prevalence of a “formal” definition of neutrality that is at odds with religious liberty,” Laycock lays the groundwork for a systematic definition of that term, and proposes a certain “substantive” definition that best promotes religious liberty.

In the contemporary age, when we hear references to the First Amendment religion clauses, we may think of cases in which courts have addressed the legality of prayers in schools, the displays of religious symbols during the holiday seasons, or monetary and other tangible assistance provided by governments to parochial schools. Just this past semester, the United States Supreme Court addressed the question of animal sacrifice occuring in a religious ritual as protected conduct under the free exercise of religion clause. Important as these issues are, they are not the subject of this investigation. My proposal is to address the First Amendment religion clauses in a different context. The goal is to show that it is both Constitutionally permissible and helpful (and quite possibly essential) to American republican democracy that the church (and individuals holding religious beliefs) (can and ought to) participate in the public discourse involving a wide variety of political and social issues with which our local, state, and national communities are concerned.

The effects of Employment Division of Oregon v. Smith, the 1990 Supreme Court free exercise decision, were felt far beyond the members of the Native American Church who were denied the right to ingest peyote as part of a religious ritual. Smith held that as long as a statute was generally applicable and not directed at religion, it would be upheld, regardless of whether it infringed on a religious practice. This unexpectedly broad and severe opinion of the Court galvanized a large number of diverse religious groups as well as various civil rights organizations and the eventual result of their efforts was the Religious Freedom Restoration Act (RFRA), a bill designed to restore free exercise law to its pre-Smith state.

While the RFRA seemed initially to have almost universal backing, it eventually met resistance from various Catholic and anti-abortion groups which feared it could be used to argue for the right to a religiously-motivated abortion. More recently, concerns were expressed regarding the bill's effect on the rights of prisoners. However, despite the concerns, the bill passed both the House and Senate by wide margins and has been signed into law by President Clinton.

The purpose of this survey is to note important case law developments in the state and lower federal courts concerning religious liberty. Purposely omitted are the widely reported United States Supreme Court opinions, as well as cases where the Supreme Court has granted review during the 1993-94 term. The focus here is on significant or interesting cases that may otherwise escape broad attention. Only the facts and rationale of each decision is summarized. No editorial comment on the merits of these cases is intended.