Recent Scholarship

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 law."

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.


2001 The Federalist Society