Church-state issues often involve fundamentally different understandings of the nature of religious faith. That fact became clear yesterday when the New York Law Journal reported on recent remarks by Cardozo Law School Dean David Rudenstine. Rudenstine’s remarks have prompted a lively debate in the blogosphere. Dean of the law school at religiously-affiliated Yeshiva University, Rudenstine was reported to have said in a speech to pre-law advisors:
"Faith challenges the underpinnings of legal education. Faith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have."
Mark Sargent, at Mirror of Justice blog, takes Rudenstine to task: “Many of us in the Catholic center and left are deeply frustrated by the religious right's cooptation of the religious voice in public life. We believe that the Bush/DeLay/Frist type of "Christian nationalism" is deeply antagonistic to the Catholic Tradition. I believe that it even verges on a kind of blasphemy, as it wraps the cross in the flag. But for Rudenstine to argue that there is no place for faith in public discourse … [leads to] impoverishing the quality of debate within law schools and marginalizing (or excluding) those students who seek to integrate faith, reason and public responsibility in their lives. This constitutes a kind of secularist fundamentalism that is as unsophisticated, un-nuanced and dogmatic as any religious fundamentalism. In my opinion his statements are also unworthy of the great Jewish ethical and social traditions that is Yeshiva's legacy….”
It seems to me that Rudenstine commits a more fundamental error. He assumes that religious faith is about things for which the accumulation of evidence is possible. Faith should be about fundamental values, not about historical facts or scientific theories. The first true act of religious faith expressed in Genesis is not the blind acceptance of facts for which we have no evidence. It is Abraham’s decision to act as lawyer for the inhabitants of Sodom. Abraham invokes his values to challenge God over God’s own decision to destroy the innocent along with the wicked (Genesis 18). The abhorrence of “guilt by association” is a basic religious value. An evidentiary hearing is irrelevant to whether that proposition is one that should be at the basis of a legal system. It is that foundational value, and not the historical accuracy of the story of Sodom and Gomorrah, that is the lesson of religious faith.
Some of the responses that take issue with Dean Rudenstine’s remarks reflect the same misunderstanding that Rudenstine himself holds. On Prawf Blog, entering law teacher Kaimi Wegner argues that Rudenstine is wrong, by saying: “I'm going to teach my classes, go to conferences, write my articles. Hopefully I'll do well. In any case, the question of whether or not I believe in God is going to have as much relevance in my classroom discussions as the question of whether I cheer for the Yankees or the Red Sox. I'm not going to ask my students "do you believe in God?" on exams. I'm going to ask about law, and I'm going to teach about law. And hopefully, my students will do the same. It's not my job to quibble about theology with my students -- I'm there to teach them law, and they should be prepared to learn on the same terms.”
I hope that values inspired by faith are relevant to Prof. Wegner’s classroom discussions. The codes of ethics that have guided lawyers over the years have always recognized that lawyers need not limit their advice to their clients to technical legal issues. Model Rules of Professional Conduct 2.1 states: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.” The values of faith might well have impelled a lawyer in 1950 to urge his or her client to consider the moral implications of operating segregated facilities. In subsequent decades, faith might have impelled a lawyer to suggest to a client that a plant closing has social as well as economic implications. Faith could encourage a lawyer to suggest to a client that anti-pollution efforts need not be limited to the minimum required by law. And all of these might in the long run also have led to very good business decisions.
Of course, not everyone agrees with this conception of religious faith. And the challenge to courts is how to deal with claims that a religion requires one to believe facts that contradict scientific or historical evidence. The first step is for courts to understand the nature of the problem.
