We are in the midst of a continuing debate about the role of religion in American politics and law. Advocates of a greater role for religion in public life—and I count myself among them—lament the privatization of religion and the secularization of public debate. Although some of the claims about privatization and secularization may be exaggerated, it seems undeniable that religion, despite its apparently robust private health, plays a relatively modest role in the public life of modern America. The public role that it does play, moreover, is under a hovering cloud of suspicion, with critics constantly suggesting that the separation of church and state is being threatened.

In this essay, I advance a radical proposition: that privatization and secularization are the product, in part, of religious freedom run amuck. In particular, the concept of religious freedom has evolved to include not merely legal toleration, but also a strong commitment to religious equality. This principle of religious equality supports the protection and nurturing of religious diversity in the private realm. Ironically, however, it also suggests that the diversity among religions is irrelevant in determining the proper role for religion in the public sphere, for the equality principle implies that what is right for one is right for all. On this view, whatever the proper role for religion in politics and law, it must be no different for one religion than another. This public leveling of religion, moreover, tends to ensure that the “equal” role that religions play in American public life will be modest, if not inconsequential. Even as we continue to extol its private diversity, religion has become publicly generic and thereby largely insignificant.

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.

Technological consciousness and libertarian doctrine reduce the material world to an instrument—or better, to an amorphous resource existing solely for those ends which we freely choose. We are trapped in matter without true form or meaning.

Even for the Christian, such reduction has grave consequences. God resides in a distant heaven or in a distant time. Only after years of exile in a nature bereft of divinity can we hope, perhaps, to be rewarded with bodily salvation in a different universe. In the meantime, any spirituality we hold to must be necessarily non-material— founded in a dualistic belief in the presence of the intangible Deity whispering to our own intangible selves. We are put asunder, into godless brains and disembodied souls.

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.

Husband and Wife have a fight. It is the culmination of many such fights. In a rage, Husband packs his bags and leaves home. He never returns.

Husband is a reservist in the army. A war breaks out and he is called up to serve. He is sent abroad, never to return.

Husband is the captain of a ship. He leaves home for a long journey at sea. Wife does not join him. The ship sinks and nobody aboard survives.

Husband goes on a business trip abroad. Wife stays at home. Husband does not return when he is scheduled to. Nobody hears from him again.

Husband and Wife are separated during the Holocaust. Wife survives but is unable to locate Husband.

Years pass. Wife gets on with her life. She meets a man who proposes marriage to her. She wants to accept, but may she?

The answer to that question, if she is a traditional Jew who wishes to abide by the halakhah is no. According to the halakhah, Wife is still a married woman. If she remarries without unequivocally ascertaining Husband's death, she will have committed adultery, an act which is absolutely prohibited by Jewish law.

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.”

In law, as elsewhere, the role of symbolism is of more than symbolic importance. Religious symbols of women help to reinforce prevailing gender ideologies about the proper place of men and women and women's appropriate roles and status in society. In American society, religious symbols of women and the feminine have functioned to shape legal views of women. These views essentialize women's role and status to that of reproductive vessels, or what I will here refer to as “fetal containers.” This view of women as fetal containers has hindered the ability of women to secure either equal rights or equitable treatment under law.

Despite the general secularization of the law over the last century, the religiously-grounded image of woman as fetal container has persisted in legal doctrine, especially in laws concerning employment discrimination, abortion, and, most recently, fetal protection policies and surrogate motherhood contracts. Because such imagery of women has become a “naturalized” part of our secular cultural symbolism, its religious derivations are not always evident. Yet, law reform efforts need to address not only the more obvious forms of sex and gender discrimination, but also the pervasive influence of such religious symbols and their influence on the status of women.

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).

In our time there has occurred a plague of claims and law suits against clergy and churches as a result of alleged clergy wrongdoing. Many of these cases have to do with sexual misconduct. Knowing that the individual clergy are likely to have very limited financial resources, claimants have joined churches and church officials in their lawsuits under theories of negligent selection, negligent assignment, or negligent supervision of clergy. These negligence theories have led to pre-trial discovery requests for confidential church records and clergy personnel files. This has created a serious dilemma for the churches involved, and in particular for the Roman Catholic Church whose canon law mandates the non-disclosure of records kept in the church's secret archives. This article will focus on the conflict between the civil procedural rules creating a right to pre-trial discovery and the free exercise rights of a church to select, evaluate and assign clergy without fear of disclosure of confidential information relied upon in the process.

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.

This topic is more complicated than one might suspect from reading typical annotations and bible dictionary articles. There are some hundred or so relevant biblical texts, but they do not present an entirely coherent picture. To take these texts seriously requires leaving open a number of questions. Too often commentators and annotators have attempted to resolve such questions by making assertions grounded upon highly problematic evidence. This article does not consider texts pertaining exclusively to the “inheritance” of the land of promise by the various tribes of Israel such as Joshua 11:23; 13:1—19:51; and Ezekiel 47:13—48:29. Concern with preserving tribal inheritances is in the background of some texts that are considered; but here attention is limited to laws and traditions concerning transfer of property from persons in one generation to those of another, or, in a few instances, to other persons within the same generation in accordance with what, in modern legal terms, would be called the laws of intestate succession and bequest.

Modern consumer credit law is a large and complex body of law. Underneath the complexity, however, is a simple goal: to ensure that consumers are treated fairly and to prevent, or at least to redress, overreaching and abuse by creditors. To this extent, modern consumer law can be said to reflect a felt sense of societal responsibility to a particularly vulnerable group.

We tend to think of consumer credit law as a modern phenomenon; and indeed, the vast majority of consumer credit laws in this country have appeared since the late 1960s. But our generation did not invent consumer protection law; many of our modern rules have antecedents which date back for centuries. Indeed, consumer credit transactions are as old as civilization, and even the earliest societies regulated at least some lending and credit practices.

Ancient Israel was no exception; its legal codes contained many rules on lending practices. While these rules were not nearly as complex as our modern rules, they did address a remarkably wide range of issues which we would identify today as consumer protection issues. As part of a larger body of humanitarian laws and customs designed to protect against undue hardship, the rules on credit practices were similar in principle to our modern consumer laws in that they reflected a sense of responsibility toward the poor and most vulnerable members of society.

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 perspectives of Jewish law and Anglo-American law are compared with regard to good Samaritan responses to difficulty in three areas: a) return of lost property, b) rendering aid, and c) coming to the rescue of someone in danger. With regard to good Samaritan expectations for return of lost property, the two systems seem similar. However, a comparison of Jewish and American law with respect to rendering aid and coming to the rescue of someone in danger demonstrates that Jewish law encourages a duty to help in a manner unusual under Anglo-American common law. Exceptions in case law and statutory developments are discussed.

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.

In 1986, eight years after he had published his Luther's House of Learning, Gerald Strauss published his Law, Resistance, and the State, his second major attempt to deal with the emergence, nature, and functioning of the early modern territorial state in the Holy Roman Empire. This significant contribution to the interconnection of law and the Reformation deserves the attention of all who are committed to the study of both subjects. As far as I know, the book has not been examined in terms of these two subjects, though it is now available for some time. The following observations deal, therefore, with the book as a whole, especially problems of method, and in this connection the emphasis is on the opposition to Roman law. And then Strauss's view of the Reformation and its connection with the opposition to Roman law will be discussed. But first a brief view of the book.