The venerable law of tort has emerged as an important legal weapon in the long history of church-state wars and religious persecution. Religious groups are being sued for millions of dollars in damages for intangible emotional injury and tens of millions more in punitive damages, all for what looks very much like their free exercise of religion. Unlike criminal sentences which are carefully circumscribed by statute, civil damages, particularly punitive damages, can pose an invitation to each jury to become both lawmaker and enforcer, free to impose a monetary sanction practically without limit.

Until recent years, no one imagined that these powers could or would be brought to bear upon churches for religious activities. Today, however, lawsuits are routinely filed that label as fraud, false imprisonment, or the intentional infliction of emotional distress, such fundamentally religious activities as conversion of new church members, the discipline and excommunication of wayward adherents, and pastoral counseling. Clerical scandals and debates over the application of church rules are brought before people wearing judicial robes, not clerical vestments.

If these once sacrosanct domains are being declared fair game for litigation against traditional religious institutions such as the Catholic Church and the major Protestant denominations, how much more have the imaginations of plaintiffs and their lawyers been active in dealing with the “new religions” or “cults,” such as Krishna Consciousness, the Unification Church, Scientology, The Way International, and Seventh-Day Adventists. Affiliation with those new religions has been called kidnapping and their most fundamental religious practices have been branded “coercive persuasion” and “brainwashing.”

This paper arises out of my experiences as a clinical law professor at Mercer University School of Law. From 1978, to 1983, in a course entitled “The Lawyering Process,” I tried to teach law students what it meant to be a good lawyer and how to be one using a wide variety of teaching methods. I designed the first semester of the course as a classroom study of models of various lawyering tasks, including interviewing, investigating, counseling, and negotiation. During the second semester, students tried the models in practice under the joint supervision of a local attorney and me. We met weekly in seminars and individual conferences to discuss the relative merits of the models and their effectiveness in practice.

Professor Derrick Bell's story, The Space Traders, posits that extraterrestrial beings arrive in the United States to propose a Trade: they will provide the means to enable the country to pay its debts, protect its environment, and ensure its energy supply, all in exchange for only one thing—to take all African Americans back to the aliens' home star. The story then recounts a frenzied sixteen days of politics, protests, and legal maneuvering, resulting in the forced deportation to an unknown fate of twenty million black men, women, and children: “Heads bowed, arms now linked by slender chains, black people left the New World as their forebears had arrived.”

This Article will consider several issues suggested by Bell's story. If one assumes that some readers would approve and others would disapprove of how the African Americans were treated, what might one say about the differing views? Are they simply different in the same way that one person might vacation in San Francisco while another person chooses New York City? Or is it possible to say that one view is wrong? And if one view is said to be wrong, is the meaning that the view actually is wrong or merely that it is wrong in the opinion of the person speaking? And even if every single person agrees as to whether or not the Trade should have been made, does this show that the consensus view is actually right? Are there any circumstances under which one could conclude that what was done was right or wrong in an absolute sense?

As his classmate and friend since our first year in law school more than forty years ago, I have admired John Noonan for his gentle personality, his keen intellect, and his strength of character. He is an exemplar of ethical conduct, as a person and as a judge.

Judge Noonan presented a significant part of his philosophy of law, lawyers, and judges in his Holmes Lecture at Harvard Law School in 1972. The lecture was later published as a book, Persons and Masks of the Law, and it stands as one of the most significant essays that has been written about the legal profession.

In Persons and Masks of the Law, Judge Noonan warns of the tendency of lawyers and judges to make a Golden Calf of abstract rules of law. He states, “Fascination with rules may mean obeisance to force or the delusion of having mastered force. It may also lead to a veritably religious veneration for the rules and their imagined author. The sovereign and his command may be deified.” When this scenario occurs, the rules become masks that disguise the humanity of those affected by the law. The effect of this occurrence is to permit lawyers and judges to engage more readily in conduct that is injurious to other persons—conduct that they would otherwise recognize as evil.

It gives me great pleasure to be here today and to give remarks on a subject in which I take considerable interest, the legal and social status of women. I would like to thank Ambassador Mejdoub, the Hannibal Club, and the President's Interagency Council on Women for providing this forum to discuss and promote women's issues.

Women from all countries have much to share with each other about their own cultures, experiences, successes, and failures. Today, as always, women are the primary caregivers worldwide. We bear and nurture the children, and we manage the household for our families. But we also work outside the home. We want and expect to have equal opportunities in business, in the professions, and in public service. We want and expect to be paid as much as men for the same work. While women have made tremendous advances in this century, the process of achieving gender equality is still an ongoing one, in this country and throughout the world. In many respects, we have traveled far, although we have a way yet to go. We remember the old adage that “[t]he test of every civilization is the position of women in the society.”

On August 6, 1824, William Lloyd Garrison, not yet twenty years old, penned a letter to the Salem Gazette opposing John Quincy Adams's bid for the presidency and endorsing the candidacy of a dedicated Georgian, United States Senator William Crawford. There is no mention in the document of the slavery issue and no hint that the young Garrison viewed the Constitution as anything less than a triumph of the founding fathers. The “high and exalted character” of the elections proved the Federalist Party “worthy of its great leader, the immortal WASHINGTON” and spread “vigor and strength throughout the political fabric of our constitution and government,” Garrison wrote. “It is peculiarly gratifying, too,” he declared,

to observe the dignified course pursued generally by the few sentinels of freedom, who advocate and uphold those principles, which were promulgated by the Father of his Country, and sanctioned by JAY and HAMILTON, and AMES, with a host of other distinguished patriots.

Garrison went on to stress the civic duty of voting, arguing that although no citizen was legally required to support any of the presidential candidates, reason “dictates that we should” so as not to upset “the peace of the Union.” Federalists should make pragmatic political choices, he wrote, and not squander their votes on ideal but unlikely candidates.

It is not uncommon in this country to hear someone say something like, “America is a country based on Judeo-Christian principles.” Many of us would accede to some such claim. It has the ring of truth about it, but I suspect that the ring of truth depends on the vagueness of each crucial term in the claim, including “based on,” “Judeo-Christian principles,” and “America.” “America,” for example, might stand in here for the Constitution, popular mores, governmental institutions, or extra-Constitutional fundamental political claims, etc. I intend to make this claim precise in a number of ways, and then to ask whether the ring of truth remains. Although I address a considerably narrower claim, that claim is not without interest. If nothing else, I hope the reader will see what an immense task awaits those who wish to defend the claim in its general form.