Gerard V. Bradley*
This marks the inaugural installment of a new feature, a select
review of recent church-state legal scholarship. The selections
will mainly be from law reviews, with the occasional book or popular
article as the occasion warrants. Starting pretty shortly the most
notable pieces of all kinds will undoubtedly have to do with the
demise of the Religious Freedom Restoration Act, delivered the death
blow in City of Boerne v. Flores (see editor's note).
Readers may jump-start their RFRA retrospective with Lino Graglia's,
"Church of Lukumi Bablu Aye: Of Animal Sacrifice and Religious
Persecution," 85 Georgetown L.J. 1 (1996). The A. Dalton Cross
Professor at Texas Law School critically examines the Supreme Court's
only Free Exercise decision between Oregon v. Smith (1990) and the
enactment of RFRA in late 1993. In this provocative, well-researched
article Graglia opines that the result in Hialeah, where the Court
struck down as an attack upon religion a municipal ban on animal
sacrifice, is implausible except "on the basis of a degree
of distrust of the American people that is unusual even in constitutional
Thomas C. Berg, Associate Professor at the Cumberland School of
Law, argues forcefully for a more familiar thesis in "Religion
Clause Anti-Theories," 72 Notre Dame L. Rev. 693 (1997). Berg
notes that "most everyone" agrees that the Supreme Court
"has made a mess" of Religion Clause law. Is the mess
inevitable? Berg examines the work of several who say it is, including
the "Two Stans"-Haurwas and Fisk-as well as law professors
Fred Gedicks and Steven Smith. Berg argues that these "anti-theorists"
are wrong in thinking that "no coherent account of religious
freedom is possible or even desirable under the conditions of American
religious and political life." He recommends instead a theory
he calls "substantive neutrality."
Volume 47, Number 1 of the Journal of Legal Education contains
a symposium titled, "Christian Perspectives on Law and Legal
Scholarship." The contributors are: David S. Caudill, Washington
and Lee Law School, "A Calvinist Perspective on Faith in Legal
Scholarship"; David M. Smolin, Cumberland School of Law, "A
House Divided? Anabaptist and Lutheran Perspectives on the Sword";
and yours truly (of Notre Dame Law School), "Catholic Faith
and Legal Scholarship." These were given as talks at a January
1995 conference, "Following Christ in the Legal Academy."
Robert F. Cochran, Jr., Pepperdine Law School, has added a very
useful and perceptive introduction.
Finally, Jeffrey I. Roth, Associate Professor at Touro College
Law Center, has published, "Three Aspects of the Rabbinate:
Compensation, Competition and Tenure," 45 Drake L. Rev. 569
(1997). In this very learned article Roth traces the history of
a principle of Jewish law-that teachers of the Torah received no
compensation-and documents a "striking departure" from
this classic ideal.
*Gerard V. Bradley is a professor at Notre Dame Law School. He
also serves as Vice Chairman for Programs.