Losing Jerusalem - RFRA and the vocation of legal crusader.

AuthorSmith, Steven D.
PositionReligious Freedom Restoration Act of 1993 - Symposium: Reflections on City of Boerne v. Flores

Even the mere sound of the name Jerusalem must have

had a glittering and magical splendour for the men of the

eleventh century which we are no longer capable of feeling. It

was a keyword which produced particular psychological reactions

and conjured up particular eschatological notions. Men

thought, of course, of the town in Palestine where Jesus

Christ had suffered, died, been buried, and then had risen

again. But, more than this, they saw in their minds' eye the

heavenly city of Jerusalem with its gates of sapphire, its

walls and squares bright with precious stones.... It was the

centre of a spiritual world.... It was a meeting place for

those who had been scattered, the goal of the great pilgrimage

of peoples, where God resides among his people; the place

at the end of time to which the elect ascend; the resting place

of the righteous; city of paradise and of the tree of life which

heals all men.(1)

As a first-year law student, I quickly noticed that the third-year students spent most of their spare conversational time talking about jobs. The late 1970s were relatively prosperous times for legal employment, and most graduates of Yale Law School had the luxury of choosing among an assortment of employers in a variety of places. The recruitment efforts of these employers were calculated, naturally, to make the soon-to-be lawyers feel like honored dignitaries (although of course, their status would change radically immediately upon commencing permanent, as opposed to summer, employment). So the third-years whiled away many pleasant or sometimes anxious hours reflecting on whether to confer their valuable services on Sullivan & Cromwell in New York, or Gibson, Dunn in L.A., or perhaps an appeals court judge in Dallas.

Not everyone was content with this mundane prosperity, though. I recall overhearing a conversation between two third-years who were having lunch at a nearby table. One--I didn't know him, but we can call him Miniver--was complaining that he had not been born a generation earlier. "I decided to go into law because I wanted to fight injustice," Miniver said. (Of course I can't remember his precise words, especially after two decades, but as Dave Barry says, I am not making this up). "Back in the '60s there were jobs where you could do that. But there just isn't much injustice left to fight."

Miniver's comment was foolish on more than one level, no doubt, but I think it was also natural, understandable, laudable in a way, maybe even inadvertently profound. Natural, in that Miniver's comment reflected a common desire, as the judge I later clerked for liked to put it, to "do well while doing good." Understandable, given the contrast between the generally unromantic ethos of the 1970s--quite a letdown from the revolutionary '60s--and the more idealistic spirit that still prevailed within the law school. (The contrast was most clearly manifest, I think, in the fact that Professor Owen Fiss and a few of his proteges managed to devote literally weeks of the class in Injunctions to what I could only understand as a sort of reverential collective meditation on the meaning of the events from days of yore memorialized in the casebook under the heading of Walker v. City of Birmingham.(2)) Laudable, in that the comment revealed an aspiration for a life devoted to something beyond mere survival and self-gratification: As Geoffrey Hazard, another of my first-year professors, told us (only in part ironically, I think): "You all have a conscience. That's why you're here, and not in business school." And profound, because ... but this is not the place to investigate whether evil is a necessary condition for the existence of good, so that the eradication of evil would actually be a grave misfortune.

In any event, Hazard was right: Most of us did have a conscience (if that is the right word for what we had), and we hoped to use law to improve the world. And not all of us were as despondently sanguine about the world's achieved goodness as Miniver. The causes that might attract our reforming zeal differed, of course. For some, the cause might be civil rights or gender equality; for others it was ending the death penalty, which our constitutional law professor Charles Black thunderously denounced with a crusading eloquence worthy of Peter the Hermit.(3) Environmentalism, though not as popular at Yale as it is at Colorado where I work now, was a possible commitment. Discussions of animal rights were beginning, though they still had an air of novelty. And for a few of us, something we might generically and amorphously call "religion" was the cause of choice (although our commitment was pretty much invisible, because the law curriculum at Yale paid no attention whatsoever to this particular concern).

For many graduates, of course, the zeal for justice would soon be snuffed out by the mercenary rigors of the corporate law firm. But not everyone gave up the faith. And I suspect that the reforming impulse survived in greater purity in those who chose to leave behind the lucrative rewards of law practice for the--let us be honest, still far from ascetic--life of teaching and scholarship.

Indeed, without appreciating this common motivation, I think, you cannot really understand the work that over the last generation or so has been offered under the description of "legal scholarship," either in general or with specific reference to the religion clauses. A good deal of that scholarship, I believe, can only be viewed as the work of what we might call "legal crusaders." In particular, you cannot otherwise understand the indignant scholarly reaction to Employment Division v. Smith,(4) or the fervor of support for the Religious Freedom Restoration Act (RFRA),(5) or the likely reaction to City of Boerne v. Flores.(6)

  1. LAW AS CRUSADE

    The allusion to crusaders is meant to be more than a passing flourish; I believe the analogy is more fruitful than that. The original crusader, after all, was typically a man whose principal talents were not of a particularly spiritual nature, and the crusade was a way of turning these dubious skills to a higher purpose. Someone who might otherwise have been little more than a hired sword, or perhaps even a petty cutthroat, was thereby promoted to a sort of holy warrior.

    In the same way, the litigator or legal scholar is a person trained mostly in the skills of arguing, framing issues in a tendentious way, and making verbal distinctions and deductions within a highly abstract and artificial conceptual system. It is a necessary kind of work, probably, perhaps even a socially valuable work; but it is not an especially ennobling one. Most of the people engaged in this sort of work are probably dedicated to nothing more lofty than, as a disapproving relative once put it to me while I was still in a business litigation practice, fighting over "who gets the money?" But in the legal crusade these argumentative or rhetorical talents are redeemed by being devoted to advancing righteous causes.

    Other parallels are less pleasant to contemplate. Although the medieval crusader thought to elevate what otherwise would be at best practical and at worst vicious pursuits, there was also something incongruous in his calling. In the first place, the gains for which the crusader traveled, bled, and killed were mostly symbolic. Jerusalem itself was not so much a place as a symbol.(7) Indeed, the situation could hardly have been otherwise, because the crusader's means were wholly out of line with his ostensible ends: You just cannot save souls by bashing in heads with a mace, or by plundering the capital of a rival Christian tradition, or by making Jerusalem flow with the infidels' blood.(8) And symbolic victories may well have been accompanied by real losses: The exhilaration of the crusade may have caused people to overlook the grotesque incommensurability between means and ends, and hence to neglect the sorts of more quiet, patient efforts that could produce real spiritual gains.

    So if there was something daunting or inspiring in the image of the knight on horseback and in polished armor with the sign of the cross emblazoned on his shield, there is also, from our perspective at least, something absurd and even contemptible in the spectacle. How in heaven's name, we may wonder in retrospect, could so many people have been so deluded? How could they have believed that they were actually serving God? Why couldn't they understand that if they were really determined to follow Christ, the way to do so was to devote themselves to understanding his teachings and cultivating the virtues he taught--such as turning the other cheek(9) or loving one's enemies,(10) not killing them?

    Less dramatic but still similar questions might be raised about the legal crusader, especially the crusader who fights for justice in the guise of legal scholar. Realistically, the legal scholar, like the medieval holy warrior, must be viewed as someone who fights mostly for symbolic victories. That is because the causal connection between scholarly articles and real world conditions is interrupted by two large gaps, which taken together make the scholar's means--writing law review articles, principally--an especially problematic way of achieving her ostensible ends.(11)

    One gap separates the scholar and her writings from the judge. Considerable evidence suggests, I think, that judges rarely read legal scholarship, or that they are not much influenced by it even if...

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