Aviam Soifer said that Robert Cover's death left many of us with the feeling that a vital conversation had been interrupted in mid-sentence. What follows are notes for an unfinished conversation on the metaphor of law as bridge and the prophetic function of the judge. They are only preparatory background material. Their focus is upon some tough biblical texts, the kind that leave the mark of their infectious truculence upon those whom they irresistibly engage.

And he said,

“Go and say to this people:

‘Hear and hear, but do not understand;

See and see, but do not perceive.’

Make the heart of this people fat,

and their ears heavy,

and shut their eyes;

lest they see with their eyes,

and hear with their ears,

and understand with their hearts,

and turn and be healed.

The essays that follow were originally presented at a conference held in connection with the bicentennial of Georgetown University. The topic, the constitutional status of claims for exemption based on religion from general legislation, fit well into the bicentennial's theme “Learning, Faith, Freedom.” The connection between claims based upon faith and the freedoms we exercise could be illuminated by a scholarly examination drawing upon the disciplines of law, history, and theology.

The historical studies provide an overview of the background of the religion clauses of the first amendment, and a case study of the implementation of the principles of those clauses in the nineteenth century. Father Curry's essay stresses the inconsistency between the articulated principles of nonestablishment and free exercise, and the actual practices in the colonies and early republic. By bringing the historian's sense of the complexity of experience to the subject, he provides a useful corrective to the lawyer's usual effort to rely too heavily on historical experience to justify contemporary positions about the meaning of the first amendment. At the same time, Father Curry does not hesitate to say that the inconsistencies between historical practice and principles should probably be resolved in favor of principles, on the ground that practices were unreflective and habitual, whereas principles were articulated in the midst of controversies that required Americans to think seriously about the nature of their most fundamental commitments.

Bob Cover's work was, at the end, explicitly concerned with the law as an instrument of violence. Unsurprisingly, then, he addressed himself to the question of capital punishment. Surprisingly, though, he said “I am not an abolitionist” — surprisingly, that is, to those who understood that Cover was a radical in politics and who believed that because one touchstone of contemporary liberalism is opposition to the death penalty, radicals (who are however not liberals, after all) should support abolition of the death penalty. As Avi Soifer said, “We all are the worse for being unable to argue about that issue with Cover, and therefore to learn from him.” In this essay I want to think about why someone who is drawn to Cover's legal thought, as I am, might be inclined to take a similar position to his on the death penalty. I hasten to add, though, that I do not pretend here to represent Cover's thought; I have no idea why he was not an abolitionist, only why I am ambivalent about the death penalty. Nor do I have any reason to believe that the lines of argument that I will sketch here are ones that Cover would have found acceptable or even interesting.

The history of Church-State relations in seventeenth and eighteenth century America is the account of the process by which the arguments of those who asked for exemptions from contemporary Church-State practices became the accepted norms for society at large.

There is an essential distinction, however, between the demand for exemptions in that period and modern claims for exemptions on account of religion. In our time, religious people ask for exemptions from laws that society generally sees as inherently secular; and they generally ask for exemptions for themselves or their group, but do not specifically attack the laws and usually have little difficulty with others being bound by them. In the seventeenth and eighteenth centuries, laws such as proclamations of days of prayer and fasting, or laws for the financial support of clergy, were essentially religious in nature but were passed for the secular purpose of bolstering the moral fabric of society. Moreover, although those opposing them were often willing to settle for exemptions only for themselves, they usually attacked the legislation as bad for society, as a violation of religious liberty.

Thomas Curry's synopsis of church-state practices in seventeenth and eighteenth century America is notable for its modesty and balance. When lawyers and judges paint the religious history of that period they picture events like cows on a hillside—all pointing in the same direction. (Of course the cows point different ways in different pictures; it depends on which way the wind is blowing.) The scene Curry describes is more disorderly. This makes it harder to identify trends that we might say were embodied in first amendment principles. But it prefigures, and helps explain, our messy first amendment practices.

Curry argues that two topics dominated church-state discussions from 1600 to 1800: (1) the government's power to legislate about religion, and (2) public financial support for ministers. As to the first issue, Americans gradually accepted the principle, espoused by Roger Williams, that government had no power over matters of religious worship and practice. But they did not live up to this principle. They passed laws about sabbath observance, blasphemy, days of prayer and fasting, and religious qualifications for office. In this, they followed the practice of John Cotton, who thought that the two tables of the Ten Commandments (religion and morals) must stand or fall together. “The principle was the principle of Williams, but the practice was the practice of Cotton.” As to the second issue, financial support for ministers, practice converged more with principle. But there were exceptions, as in New England. And those who opposed support often did so for no principle more lofty than the fear that it would go to the Church of England.

In 1968, a young Robert Cover wrote what he later called a “short polemic” against judicial complicity in the Vietnam War. “Polemic” is something of an understatement. Cover's short book review of an 1856 abolitionist broadside directed against judicial enforcement of the Fugitive Slave Act became the occasion for a powerful general indictment of morally blind “obedience to, let alone enforcement of, law which violates all that is worthwhile in human community”.

Drawing on the memory of the Holocaust and “the screaming silence of the German people,” Cover excoriated the federal judiciary for “re-main[ing] faithful to its long tradition as executors of immoral law,” in relation to enforcement of the draft laws in the Vietnam War era:

No judge has resigned in protest. No judge has availed himself of the opportunity presented by a draft case to instruct the public on the moral issues of the war. No judge has publicly engaged in creative judicial obstruction of the war effort.

The Mormon cases present a fascinating study of diversity and conformity in the United States in the nineteenth century. From their beginning the Mormons were a gathered people. Almost immediately, from their origins in New York, the Mormons challenged the legal systems in the nation and the states where they resided to protect or at least tolerate their idiosyncracies. Mormon belief and practice came to include communal economics, theocratic government, and most challenging and offensive of all to the larger national community, a radically different marital and social practice—polygamous marriage.

Mormon history began in New York and continued briefly in Ohio where Mormons first gathered. Mormons experienced their most savage suppression in Missouri, where the Governor, Lilburn Boggs, finally issued an extermination order and the “Mormon war” finally saw Mormons driven into Illinois to seek refuge and a new community. After the community initially welcomed Mormon refugees, the abrasiveness of a people who were so incapable of assimilation into the existing society led to conflict again, culminating in the murder of Joseph Smith, the founder of Mormonism, and his brother Hyrum. The Mormon exodus to the Great Basin of the American West followed, under the direction of Brigham Young, one of this nation's leading colonizers. But the story of free exercise of religion among the Mormons in nineteenth century America had just begun.

Imagine a strange and common experience—you reach for something concrete, immediately in front of you—only to find that the solid has evaporated. Accelerate towards a pool of water on the road, outline a column of light, cup your hand around smoke or fog. The reflection waits on the pavement before you, the column stands endlessly beside you. When you open your hand, it is empty. Only a residue, carbonate or cool, attests to the reality that was smoke or cloud.

Thus we create a curious category of realities undeniable but impossible to grasp. Older now, but still determined, we continue to fill the category: it grows more sophisticated, stranger and more various with our experience. It is fed each time we try to capture, this time in words or memory, a scent, a face, a motion that defies definition. It is fed by all the realities language cannot describe and by all that is known in the way of an old routine, with familiar and fading certainty. It is fed by everything eminently sensible and constantly elusive. Power perhaps.

Over the years, law has been denned variously as a “brooding omnipresence in the sky,” the decree of a sovereign, the mores of human experience, the practical realization of truth and justice, what operates when there is peace and order. From a societal perspective, all of these have a ring of truth. When one does not think in terms of “me” but in terms of “we,” then law as social order makes sense. But the individual does not comprehend the law so abstractly. Law is a world of violence, death, pain, and suffering imposed on those who are loved, hated, respected, feared, scorned, and pitied. For those who are forced to bend to the coercion of the law, law is not so vague a concept as ‘truth’, ‘justice’, ‘tradition’, ‘conventional morality’, ‘mores’. Law is pain. It is profound to the extent violence and death are profound. It is abstract to the extent pain is an abstraction. It is neutral as coercion and suffering strike us as neutral. Law, for those who make it and for those who are subject to it, is as objective and impartial an enterprise as law's violence allows. As violence is world destroying, law is deobjectified. It remains impersonal only for those who are removed from it. But for those who live it and are therefore touched by its coercion, the meaning of otherwise abstract impersonal principles is colored by the experience of law's violence.

This comment on the papers of Father Curry and Professor Firmage is an attempt first, to stress the importance of the history of religious exemptions in America, and second, to suggest some questions relating particularly to the group aspects of that history.

Father Curry argues that two topics “embraced the substance” of church-state discussions: the power of governments to legislate in matters of religion and, more specifically, financial support of clergy. “Through the discussion of these two topics Americans exhibited what they meant by religious freedom.” Father Curry also suggests that other problems existed and that these points (including sabbath legislation or conscientious objection) “became on occasion a hazard for some individuals and groups.” However, he concludes, “these subjects never became the subject of widespread dissent or discussion on church-state matters, nor did they contribute to the clarification of what Americans meant by religious freedom”.

“The completion of this project was greatly facilitated by the intellectual guidance and personal encouragement of Bob Cover. He was a man who practiced, but did not preach; a scholar, and a mensch.” So reads the final acknowledgement in my book First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform and Canadian Statecraft, which addresses the theory, law, and political practice concerning groups in Canada with special rights by virtue of their special history.

The law and life of traditional groups was a fundamental concern for Bob Cover. His Nomos and Narrative is a masterful word portrait of how the understanding of rights in a traditional group is influenced by its historical myths and by its encounters with the moral and legal standards of the larger world. The article is one of the very few law review articles that deserve the name “literature.” It could only have been written by an artist with an understanding and sympathy for the history and scriptures of a diverse array of traditional communities. It never degenerates into pedantic and empty abstractions. Its broad assertions are constantly illustrated, substantiated and vivified by reference to experiences and self-understanding of real human beings.

What is the role of the constitutional promise of freedom of religion in late twentieth century America? As we enter the third century of life under the Constitution, the answer to this question is not clear, for the place of religion in the American polity has yet to be clearly demarcated. Consider a seemingly simple case. Mrs. Frances Quaring, a Nebraska farm housewife, believes that the Second Commandment prohibits her from having her photograph taken or from carrying or using photographs. The state of Nebraska, however, requires that applicants for a driver's license have their photographs taken and affixed to the license. The state prohibits driving without a valid driver's license. Thus, by state law Mrs. Quaring is denied that primary instrument of freedom and mobility in modern America— use of the automobile—because of her religious beliefs. Is Mrs. Quaring's mobility protected by the Constitutional guaranty of freedom of religion? The Supreme Court doesn't know. Five years ago it split four to four, and was thus unable to decide the case.

Free exercise jurisprudence is unique in constitutional law. Because direct regulation of religious activity almost never occurs, the litigation surrounding free exercise addresses only incidental and inadvertent regulation of religious conduct. For this reason, the issue in a free exercise challenge typically is not whether a law is constitutional; the law under attack is usually constitutionally unassailable outside of its incidental effect on religious practice. Rather, the issue is whether certain individuals should be exempted from otherwise valid, neutral laws of general applicability solely because of their religious conviction. The jurisprudence of free exercise, in short, is the jurisprudence of the constitutionally compelled exemption.

There are a number of tensions underlying the notion of constitutionally compelled exemption and underlying the constitutional treatment of religion and religious belief, that make free exercise jurisprudence a particularly difficult subject for coherent analysis. First, because special exemptions of any kind raise concerns of undue favoritism, they are normally suspect as violating fundamental constitutional principles of equal treatment. Thus, as the Court noted recently, the conclusion that the Constitution may require the creation of an exemption directly contradicts the constitutional norm.

The fabric of life was torn in a way I could not comprehend on the summer afternoon in 1986 when I learned that Robert Cover had died. In the midst of the shock, I recalled the special presence he brought to us at Hamline during a week's residency in October 1985. There was something very special, and difficult to name, in his quiet manner and depth of commitment, as he worked with us in colloquia and classrooms. He invited dialogue in a way that brought students to speak out of their experience, not simply out of their heads. I had heard of Cover's special classroom manner, but the experience of it spoke to me in a way that words could not duplicate. I came to see his writings in a new light. My mind then turned to the provocative work Cover embarked on in his 1983 article entitled Nomos and Narrative. What would become of that? Where might it have led him— and us along with him? Silence was all I had to offer in response. And yet, a thought kept occurring to me: beyond the imaginative character and analytical brilliance of Nomos, something else of significant importance was emerging in that work and those that followed. Did others sense it, or was I simply projecting onto Cover's work my own yearning for some respite from what seemed to be the desperation in recent legal scholarship?

This issue of the Journal of Law and Religion, dedicated to the memory of Robert M. Cover, publishes a variety of work in his honor. Some of that work takes Cover's scholarship as its subject. Other pieces may stand in a less direct, but no less important, relation to Cover's interests. The following article on the trial of Charles Guiteau is in the second category. The direct citations to Cover seem less significant than the larger sense in which this piece is connected to fundamental themes in Cover's work.

The trial of Charles Guiteau for the assassination of James Garfield is used as the point of entry for a treatment of law and religion in 19th century America. A biblical text, Genesis 22, provides a focus for a discussion of a culture engaged in a debate over science and religion. This in itself would have interested Bob Cover, who was deeply concerned with the multiple meanings of religious and other normative texts as well as with problems of legal pluralism and the reality of competing normative orders. The relationship of official law and higher law, with an emphasis on the role of the judge, was the focus of Cover's Justice Accused. Problems of legal pluralism and of law and violence, were the subjects of much of the work that followed, including the discussion of conflict underlying the idea of “redundant jurisdiction” and the treatment of multiple ordering in “Nomos and Narrative.” Placed in this framework, the trial of Guiteau litigated the issue of individual antinomianism, the ultimate problem of pluralism.

My first reflex in the face of a good debate within a discipline other than my own is to try to find a way through the melee. One would like to stand so to speak outside the fray in order to adjudicate or mediate. In this case I cannot do that. The two players, Marshall and Pepper, seem to a layman to be playing on the same field, with some of the same landmarks on the skyline, but they seem to be playing by different rules, each team having brought along its own ball and its own referee. I see no way, and I am not sure there is a need, to stand between or above the two positions to adjudicate their difference.

I therefore must attempt to come at the conversation from two other perspectives, grateful to have been educated just a little by watching the expert jousting laid before us. I shall attempt, once as amateur historian of American culture, and once as simple “religious” citizen, to describe what seems to me to be at stake, giving attention especially to the gaps where the two papers — in what they agree about more than in their debate — leave this reader dangling.

What is more miserable than uncertainty!

Martin Luther, ON THE BONDAGE OF THE WILL

Accordingly, those who thus philosophize more subtly over these terms appear to be ridiculous

John Calvin, INSTITUTES OF THE CHRISTIAN RELIGION

Commentators agree about two things concerning the free exercise clause of the first amendment: first, that its primary purpose is to protect religious liberty; and second, that its jurisprudence seems unguided and incomprehensible. Scholars and courts have proposed various free exercise tests, none of which has proven satisfactory in producing consistency and predictability. Moreover, such tests invariably require judges to make subjective inquiries into beliefs; such inquires are harmful to religious freedom. This article proposes a clear, practical and objective free exercise test for granting judicial exemptions to individuals, based on the underlying value of safeguarding religious liberty.