Falwell: Not Necessarily The Person That You Think

Thu May 17 06:22:01 PDT 2007

Pace Paul and Susan, the question is whether such a discussion, which takes 
place over the body of the deceased, as it were, is likely to elicit any 
actual discussion of law and religion issues, even broadly construed, or 
whether it will devolve into a simple trading of barbs over whether Falwell 
himself was a good or bad man, or over the political views of the Moral 
Majority.  I confess that I thought that Jim Henderson's original email, 
although well-intended, was unlikely to lead to such a discussion, and 
should best have been passed over in respectful silence by the rest of the 
list.  Not much I have seen since on the list has led me to conclude 
otherwise.

Now, one could use the occasion to discuss matters of more moment to the 
list.  I could think of several such questions.  First, what was more 
relevant to the growth of the movement that Falwell spearheaded: the Court's 
rulings in cases such as Roe v. Wade, or its rulings in cases involving the 
application of antidiscrimination laws to private schools and universities?  
Was the broader moral component of the MM, including advocacy on issues like 
abortion, its wellspring, or was it simply part of a decision to focus on 
issues that best conduced to coalition-building among disparate religious 
and ideological groups?

Second, and I think related to the first question, is this: For a time in 
the 1970s, Falwell advocated that evangelical Christians retire from the 
political fray and concentrate on prayer and the formation of a more perfect 
religious community.  That position has its roots as far back as Roger 
Williams' concern that the garden of religion would be corrupted by the 
wilderness of politics: not that separation (voluntary or legal) was 
necessary to protect politics from religion, but in order to protect 
religion from politics, in the sense that religious involvement in politics 
would corrupt the religious participants.  It continues to find occasional 
echoes in calls for religious retirement from active involvement in politics 
from folks like David Kuo.  Falwell obviously ultimately took a different 
route.  But which was the right route?  Were the MM and other such groups 
salutary for both religion and politics, or is there a genuine *spiritual* 
concern about the corrupting effects on religion of political involvement?  
And even so, is that longstanding concern one that has mandatory 
implications for the Establishment Clause, or is it merely a statement about 
the risks of voluntary participation in politics by religious individuals, 
and one that perforce is for religious individuals to decide for themselves 
without any threat of legal enforcement?  Even if that's so, is it not cause 
for deep reflection by the religious individuals themselves, and does one 
run any risks in the religious/political community for saying so?

Third, one might more provocatively note the parallel between the death of 
Falwell and the contemporaneous death of Yolanda King, daughter of Martin 
Luther King, Jr., whose own involvement in politics was both profound and 
profoundly motivated by religious concerns.  Aside from the possibility that 
many folks on this listserv might praise King's positions and condemn 
Falwell's positions, is it not the case that both deaths are reminders of 
the salutary, emancipating effect of two leaders who gave voice to, and 
helped others find a voice for, the view that religious individuals can be 
paradigm-shifters when they are fully entitled to participate in political 
discussion?  And is it a meaningful or relevant distinction, or even true, 
that the civil rights movement succeeded more deeply than the MM, in part 
because it found ways to translate its concerns into secular as well as 
religious language?  Whatever the answer to that question, is it fair to say 
that, however different their positions might have been, we can see deep 
linkages between Falwell's death and the death of a member of the King 
family?

Finally, although I'm not sure this is really a religionlaw discussion, one 
might note that Falwell was responsible for the rise of what might be a 
distinctly new and influential creature, although others might offer earlier 
examples: the genuinely and openly religious law school and, more to the 
point, the genuinely and openly religious lawyer, at least of the (speaking 
broadly) evangelical variety.  One might fairly ask what deep conflicts face 
the person who wishes to be both a good lawyer and a good Christian, or Jew, 
or what have you: what conflicts there are between serving one's client, or 
one's political mission, and serving a higher duty; whether all the tools 
available to cunning lawyers, in both the judicial and the political process 
are appropriate tools for the religious lawyer; or whether the deeply 
religious lawyer is bound by obligations of integrity and ethics that 
necessarily hobble him or her as a lawyer.  This, it seems to me, is the 
interesting question surrounding figures such as Monica Goodling, and I've 
written on my blog that while I have absolutely no problem with the mission 
of Regent Law School to place its graduates in positions of power, such 
schools, rather than boasting about the positions of influence its graduates 
have reached, ought to ask whether they are graduating enough 
whistle-blowers, enough individuals who were willing to sacrifice their 
influence for the higher good of demanding integrity in the performance of 
public office.

I think these are all useful questions, and am happy to offer them up to the 
list for discussion.  But I doubt they will occur in a context in which we 
are simply asking: Falwell -- good or bad?

Paul Horwitz
Visiting Associate Professor
Notre Dame Law School

>From: Susan Freiman <susan.freiman.law.65 at aya.yale.edu>
>Reply-To: Law & Religion issues for Law Academics 
><religionlaw at lists.ucla.edu>
>To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
>Subject: Re: Falwell:  Not Necessarily The Person That You Think
>Date: Thu, 17 May 2007 15:44:27 +0300
>
>I would appreciate a continuation of the discussion.  I lurk on this list 
>because I enjoy learning about this area of law.
>
>Susan
>
>Paul Finkelman wrote:
>>much of Falwell's life was dedicated to undermining the establishment
>>clause, and indeed quite openly working for the establishment of his
>>faith as the official faith of America; it seems to me that any
>>discussion of his career is in the end a discussion about constitutional
>>law, unless Eugene, Will, and Sandy somehow think that on law, and
>>especially con law, is only about legal cases. If that is so then we
>>should just discuss Hustler.
>>
>>I have always wondered why Falwell (or any of those in his church) were
>>reading Hustler in the first place.
>>
>>Paul Finkelman
>>President William McKinley Distinguished Professor of Law
>>      and Public Policy
>>Albany Law School
>>80 New Scotland Avenue
>>Albany, New York   12208-3494
>>
>>518-445-3386 pfink at albanylaw.edu
>>
>>>>>SLevinson at law.utexas.edu 05/16/07 10:28 PM >>>
>>>>>
>>On this one I tend to agree with Will (unless we want to get into a
>>discussion of Falwell v. Hustler, one of the shining lights of our
>>contemporary jurisprudence!).
>>  sandy
>>
>>________________________________
>>
>>From: religionlaw-bounces at lists.ucla.edu on behalf of Will Linden
>>Sent: Wed 5/16/2007 8:57 PM
>>To: Law & Religion issues for Law Academics
>>Subject: Re: Falwell: Not Necessarily The Person That You Think
>>
>>
>>
>>    OK, what are the LEGAL implications of Falwell's death? Or will the
>>list
>>just become all-argue-about-Fawell, all the time?
>>
>>
>>Will Linden  wlinden at panix.com
>>http://www.ecben.net/
>>Magic Code: MAS/GD S++ W++ N+ PWM++ Ds/r+ A-> a++ C+ G- QO++ 666 Y
>>_______________________________________________
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>>
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>
>
>_______________________________________________
>To post, send message to Religionlaw at lists.ucla.edu
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>wrongly) forward the messages to others.