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Law & Literature Volume 8, 1996 - Issue 1: A Commemorative Volume for Robert M. Cover
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Original Articles

The Public, the Private, and the Sacred: Variations on a Theme of Nomos and Narrative

Perry Dane
Pages 15-64 | Published online: 11 Nov 2014

  • Robert M. Cover, “The Supreme Court, 1982 Term—Foreword: Nomos and Narrative? 97 Harvard Law Review 4 (1983)
  • See, e.g., Perry Dane, “The Maps of Sovereignty: A Meditation,” 12 Cardozo Law Review 959, 964 n. 17 (1991); Perry Dane, “Vested Rights, ‘Vestedness,’ and Choice of Law,” 96 Yak Law Journal 1191, 1241 n.189 (1987) [hereinafter Dane, “Vestedness”]; Perry Dane, “The Corporation Sole and the Encounter of Law and Church,” Sacred Companies: New Perspectives on Religious Organizations (Jay Demerath, ed., forthcoming 1996) [hereinafter “Corporation Sole”]. The piece on vestedness appeared not long after Bob's death. I was one of many of his friends and colleagues who felt moved, indeed morally bound, to dedicate their work explicidy to his memory. Id., at 959 n.*.
  • See, e.g., Perry Dane, “Conflict of Laws,” A Companion to the Philosophy of Law and Legal Theory (Dennis Patterson, ed., forthcoming 1996) [hereinafter Companion]; Perry Dane, “Law and Religion,” Companion, supra; Perry Dane, “Jurisdictionality, Time, and the Legal Imagination,” 23 Hofstra Law Review 1, 28 & n.69, 51 n.145 (1994) [hereinafter Dane, “Jurisdictionality”]; Dane, “Vestedness,” supra note 2, at 1271 n.253; Perry Dane, “The Yoke of Heaven, The Question of Sinai, and the Life of Law,” 44 University of Toronto Law Journal 353, 393 & n.69 (1994).
  • See, e.g., Dane, “Jurisdictionality,” supra note 3 at 44 & n.121.
  • Cover, supra note 1 at 11.
  • 461 U.S. 574 (1983).
  • In the interests of full disclosure, I should mention that I clerked for Justice Brennan the year that Bob Jones was heard and decided. I helped prepare the case in our chambers, but had no direct hand in any of the opinions.
  • Others have responded to Bob's discussion of Bob Jones. See, e.g., Charles W. Collier, “The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship,” 1991 Duke Law Journal 191 (1991); Martha Minow, “Introduction: Robert Cover and Law, Judging, and Violence,” Narrative, Violence, and the Law: The Essays of Robert Cover, Martha Minow, Michael Ryan and Austin Sarat eds. (Ann Arbor: University of Michigan Press, 1992), p. 1; Naomi M. Stolzenberg, “Un-Covering the Tradition of Jewish ‘Dissimilation’: Frankfurter, Bickel, and Cover on Judicial Review,” 3 Southern California interdisciplinary Law Journal 809 (1994); Suzanne Last Stone, “In Pursuit of the Counter-Text: the Turn to the Jewish Legal Model in Contemporary American Legal Theory,” 106 Harvard Law Review 813 (1993). My contribution to the conversation is incremental and complementary to theirs.
  • Cover, supra note 1 at 5.
  • Cover, supra note 1 at 5.
  • I.R.C. §§ 170(c)(2)(B), 501(c)(3).
  • Specifically, I.R.C. § 170(c)(2)(B) defines charitable contributions to include gifts to or for the use of a range of organizations “organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or to foster national or international amateur sports competition,…or for the prevention of cruelty to animals.” Other provisions in section 170(c) extend the same status to a small class of other entities, including the federal and state governments, war veteran organizations, and not-for-profit cemeteries.
  • I.R.C. § 501(c)(3), meanwhile, provides exemption from income taxation for a range of organizations only marginally broader than those listed in the charitable deduction provision of the Code. Other subdivisions of section 501(c), however, extend the same exemption to a much wider variety of governmental, civic, mutual benefit, and umbrella organizations.
  • I will, in this essay, generally refer collectively to tax exemption and tax deduction as “tax-exempt status” or the like.
  • As then-Justice Rehnquist pointed out, the Code does expressly deny tax exemption to otherwise qualified entities that engage in substantial lobbying or political campaigning. I.R.C. § 501(c)(3). See also I.R.C. § 170(c)(2)(D).
  • Bob Jones University v. United States, 461 U.S. 574, 604 (1983) (footnotes omitted).
  • 461 U.S., at 599, n.24. Cf., Id., at 622, n.4 (Rehnquist, J., dissenting) (concluding that it would not violate the equal protection component of the 5th Amendment for Congress to grant tax-exempt status to organizations that discriminate on the basis of race).
  • For accounts of the political background of the case, see, e.g., Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law (New York: Random House, 1987), pp. 51–64; Neal Devins, “Bob Jones University v. United Stater: A Political Analysis,” 1 Journal of Law and Politics 403 (1984). The story has numerous subplots, which I make no effort to recount here.
  • 456 U.S. 922 (1982) (inter alia, inviting William T. Coleman to “brief and argue these cases as amicus curiae in support of the judgments below”).
  • Oddly enough, the coincidence that I had clerked on the Court during the Term in which it decided Bob Jones, see note 7 supra, only exaggerated in my mind this sense of anticlimax.
  • Cover, supra note 1 at 26–29, 51.
  • See also, e.g., Robert Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975); Robert Cover, “Violence and the Word,” 95 Yale Law Journal 1601, 1601 (1986) [hereinafter “Violence and the Word”]. For reactions to and elaborations of this theme in Bobs work, see, e.g., Austin Sarat and Thomas R. Kearns, “Making Peace with Violence: Robert Cover on Law and Legal Theory,” Law's Violence, Austin Sarat and Thomas R. Kearns, eds. (Ann Arbor: University of Michigan Press, 1993), p. 211; Anthony V. Alfieri, “Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative,” 100 Yale Law Journal 2107 (1991); Richard K. Sherwin, “Law, Violence, and Illiberal Belief,” 78 Georgetown Law Journal 1785 (1990);
  • Robert M. Cover, “Bringing the Messiah Through the Law: A Case Study, “ Religion, Morality and the Law: Nomos XXX, J. Roland Pennock & John W. Chapman, eds. (New York: New York University Press, 1988), p. 201 [volume hereinafter cited as Nomos XXX].
  • Cover, supra note 1 at 66–67 (footnote omitted).
  • See Alexander M. Bickel, “The Supreme Court, 1960 Term—Foreword: The Passive Virtues,” 75 Harvard Law Review Ad (1961), reprinted'm Alexander M. Bickel, The Least Dangerous Branch: the Supreme Court at the Bar of Politics (New Haven: Yale University Press, 1962).
  • For an explicit comparison of Covers and Bickel's views, drawing on Bob's account of Bob Jones, see, Stolzenberg, supra note 8.
  • Stone, supra note 8 at 825.
  • Collier, supra note 8 at 270. Suzanne Last Stone expresses similar hesitations in her critique of Bob's efforts to draw on Jewish legal models in drawing his picture of secular constitutionalism. see Stone, supra note 8.
  • Philip Bobbin, Constitutional Fate: Theory of the Constitution (Oxford: Oxford University Press, 1982).
  • Sanford Levinson, Constitutional Faith (Princeton: Princeton University Press, 1988). Cf., Hugo Black, A Constitutional Faith (New York: Alfred A. Knopf, 1968).
  • Gerald Garvey, Constitutional Bricolage (Princeton: Princeton University Press, 1971). “Bricolage,” if you want to know, “is a process of fabricating ‘make-do’ solutions to problems as they arise, using a limited and often severely limiting store of doctrines, materials, and tools….” Id., at 5.
  • A cursory list of recent partial efforts, of very different ideological and methodological stripes, at resisting this tendency would include, e.g., Hadley Arkes, Beyond the Constitution (Princeton: Princeton University Press, 1990); Charles M. Haar & Daniel W. Fessier, The Wrong Side of the Tracks (New York: Sand Strade, 1986); Ernest Weinrib, The Idea of Private Law (Cambridge: Harvard University Press, 1995); Lori P. Andrews, “Beyond Doctrinal Boundaries: A Legal Framework for Surrogate Motherhood,” 81 Virgina Law Review 2343 (1995); Akhil Reed Amar, “Fourth Amendment First Principles,” 107 Harvard Law Review 757 (1994); Richard A. Epstein, “The Ubiquity of the Benefit Principle,” 67 Southern California Law Review 1369 (1994); Morton J. Horwitz, “Republicanism and Liberalism in American Constitutional Thought,” 29 William and Mary Law Review 57 (1987); John C. Jeffries, “Compensation for Constitutional Torts: Reflections on the Significance of Fault,” 88 Michigan Law Review 82 (1989); Bernard Roberts, Note, “The Common Law Sovereignty of Religious Lawfinders and the Free Exercise Clause,” 101 Yale Law Journal 211 (1991); Note, “The Antidiscrimination Principle in the Common Law,” 102 Harvard Law Review 1993 (1989) [hereinafter “Antidiscrimination Principle”].
  • Cover, supra note 1 at 67.
  • See Collier, supra note 8 at 268–269.
  • We are bound to approach these questions with full awareness that determinations of public benefit and public policy are sensitive matters with serious implications for the institutions affected; a declaration that a given institution is not “charitable” should be made only where there can be no doubt that the activity involved is contrary to a fundamental public policy. But there can no longer be any doubt that racial discrimination in education violates deeply and widely accepted views of elementary justice. Prior to 1954, public education in many places still was conducted under the pall of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896); racial segregation in primary and secondary education prevailed in many parts of the country. See, e.g., Segregation and the Fourteenth Amendment in the States, B. Reams & P. Wilson, eds. 1975. This Court's decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), signalled an end to that era….
  • Given the stress and anguish of the history of efforts to escape from the shackles of the “separate but equal” doctrine of Plessy v. Ferguson, supra, it cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising “beneficial and stabilizing influences in community life,” Walz v. Tax Comm'n, 397 U.S. 664, 673 (1970), or should be encouraged by having all taxpayers share in their support by way of special tax status.
  • Bob Jones University v. United States, 461 U.S. 574, 593–95 (1983). The Court also drew on Executive and Legislative expressions of the national policy against school segregation. Id.
  • The governmental interest at stake here is compelling. As discussed in Part II(B), supra, the Government has a fundamental, overriding interest in eradicating racial discrimination in education discrimination that prevailed, with official approval, for the first 165 years of this Nation's history. That governmental interest substantially outweighs whatever burden denial of tax benefits places on petitioners' exercise of their religious beliefs.
  • Bob Jones University v. United States, 461 U.S. 574, 604 (1983).
  • See Collier, supra note 8 at 269; cf. Minow, supra note 8 at 9 n.26 (“It is not clear how a pronouncement in a constitutional register but dependent on the force of the state would avoid the ‘jurispathic’ effects of state law. Perhaps Cover would not be worried about that, and would argue that, at least, if posed in constitutional terms the normative clash could be debated while a mere declaration of public policy seems more like a preclusive assertion of raison d'etat”).
  • Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void….
  • It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
  • So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
  • Marbury V. Madison, 5 U.S. 137, 177–78 (1803).
  • 80 U.S. (13 Wall.) 679 (1871).
  • For an eloquent account of that common law history, and its absorption into constitutional discourse, see Roberts, supra note 30.
  • 163 U.S. 537 (1896).
  • See Michael W. McConnell, “Originalism and the Desegregation Decisions,” 81 Virginia Law Review 947 (1995); Earl M. Maltz, “‘Separate But Equal’ and the Law of Common Carriers in the Era of the Fourteenth Amendment,” 17 Rutgers Law Journal 553 (1986). For a more general account of the sub-constitutional dimensions of the principle of racial equality, see “Antidiscrimination Principle,” supra note 30. See also Haar and Fessier, supra note 30.
  • See supra notes 32–34 and accompanying text.
  • The classic references are Paul Brest, “The Conscientious Legislator's Guide to Constitutional Interpretation,” 27 Stanford Law Review 585 (1975) and Lawrence G. Sager, “Fair Measure: The Legal Status of Underenforced Constitutional Norms,” 91 Harvard Law Review 1212 (1978). The blurring of duty and will is, in fact, particularly obvious in the constitution's treatment of religious communities. When the Supreme Court, in Employment Division v. Smith, 494 U.S. 872 (1990), retreated from an expansive reading of the free exercise clause, and Congress responded by enacting the Religious Freedom Restoration Act, Pub L No. 103–141, 107 Stat 1488 (1993), codified at 42 U.S.C. § 2000bb (Supp 1994), was that mere whim or also, in some sense, a claim of duty? see Douglas Laycock, “RFRA, Congress, and the Ratchet,” 56 Montana Law Review 145 (1995). But cf., Christopher L. Eisgruber and Lawrence G. Sager, “Why the Religious Freedom Restoration Act is Unconstitutional,” 69 New York University Law Review 437 (1994). More to the point, perhaps, when the state navigates between the sometimes apparently conflicting demands of the establishment clause and the free exercise or free speech clause, does the court's marking of the channel leave any room for the legislature's or executive's own sense of constitutional compulsion? See Widmar V. Vincent, 454 U.S. 263, 289 (White, J., dissenting).
  • See supra notes 36–40 and accompanying text.
  • Cover, supra note 1 at 66.
  • It should come as no surprise that, as part of its tax reform efforts in 1984, Congress added a provision to the Internal Revenue Code strictly limiting the IRS's ability to investigate and audit churches. Pub. L. No. 98–369, § 1033, 98 Stat. 494, 1034–39 (1984). The provision, as since amended, is codified at I.R.C. § 7611. Later in this essay, I discuss some of the implications of § 7611 and related provisions. See infra notes 149151 and accompanying text.
  • See Charles O. Galvin and Neal Devins, “A Tax Policy Analysis of Bob Jones University v. United States,” 36 Vanderbilt Law Review 1353 (1983). Whether the tax laws themselves are an appropriate and politically sensible vehicle for advancing various social policies is a larger question well beyond the scope of this essay. See, generally, Edward A. Zelinsky, “James Madison and Public Choice at Gucci Gulch: A Procedural Defense of Tax Expenditures and Tax Institutions,” 102 Yale Law Journal 1165 (1993).
  • Bob Jones University v. United States, 461 U.S. 574, 598 (1983) (“We emphasize, however, that these sensitive determinations should be made only where there is no doubt that the organizations activities violate fundamental public policy”). See also id., at 598 n.23 (responding to Justice Powell's concurrence).
  • It bears note that, whether due to this warning from the Court, or its own administrative caution, the IRS has not threatened loss of tax exempt status for organizations that discriminate on bases other than race, such as sex, age, or religion. see 4 Boris Bittker and Lawrence Lokken ¶ 100.1.3, at p. 100–12 (1992); Frances R. Hill and Barbara L. Kirschten, Federal and State Taxation of Exempt Organizations ¶ 2.03[6][a] (1994). On the other hand, it has not foresworn such action. see Priv. Ltr. Rul. 8910001. One practitioner's guide urges tax advisors to “proceed with extreme caution and…carefully distinguish the relative lack of guidance from the relative importance of the issue.” Hill and Kirschten, supra, at ¶ 2.03[6][a], at p. 2–134.
  • “A legal world,” Bob wrote, “is built only to the extent that there are commitments that place bodies on the line.” Cover, “Violence and the Word,” supra note 20 at 1605. “Martyrdom, for all its strangeness to the secular world of contemporary American Law, is a proper starting place for understanding interpretation.” Id., at 1604. Consider also Bob's fascination with the “courageous resistance” of several Ghanian judges to a military coup in 1979. Cover, supra note 1 at 59 & n.164. By 1981, three of the judges had been killed. Id.
  • Cover, supra note 1 at 67 n.195.
  • Allen V. Wright, 468 U.S. 737 (1984).
  • See Bittker and Lokken, supra note 48, ¶ 100.1.3, at p. 100–14 (“A major reason for the paucity of challenges to tax benefits is that persons whose taxes are not directly affected by a Code provision or the IRS' application of it rarely have standing in the federal courts to challenge the tax allowance claimed by others”).
  • 347 U.S. 483 (1954).
  • Compare Norwood V. Harrison, 413 U.S. 455 (1973) (striking down, as unconstitutional state action, state program lending textbooks to private school students, when state made no efforts to exclude from the program racially discriminatory private schools established in the context of efforts to resist judicially-mandated desegregation of public schools) with Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (refusing to find state action in private school's discharge of an employee, even though government provided at least 90% of the school's operating budget).
  • Whether particular tax exemptions or deductions are “state action” arguably turns on whether they are better characterized as normatively neutral efforts to define taxable income or as the functional equivalent of direct government expenditures. see Boris Bittker and Kenneth M. Kaufman, “Taxes and Civil Rights: “Constitutionalizing” the Internal Revenue Code,” 82 Yale Law Journal 51 (1972); Comment, “Tax Incentives as State Action,” 122 University of Pennsylvania Law Review 414 (1973); John K. McNulty, “Public Policy and Private Charity: A Tax Policy Perspective,” 3 Virgina Tax Review 229 (1984); cf., Wright V. Regan, 656 F.2d 820 (D.C. Cir. 1981), rev'd Allen v. Wright, 468 U.S. 737 (1984). This is of course part of the larger debate about the character of “tax expenditures.” See, generally, Bernard Wolfman, “Tax Expenditures: From Idea to Ideology,” 99 Harvard Law Review 491, 492 (1985); Zelinski, supra note 47.
  • Washington V. Davis, 426 U.S. 229, 241–44 (1976). Justice Rehnquist's dissent in Bob Jones rested entirely on this principle in summarily rejecting the argument that a grant of tax exemption could violate the equal protection component of the Fifth Amendment. Bob Jones University v. United States, 461 U.S. 574, 622 n.4 (1983) (Rehnquist, J., dissenting).
  • Nor, for that matter, is Congress in the habit of writing such directions into the code. But, cf., I.R.C. § 501 (i) (denying tax-exempt status to social clubs with official discriminatory policies).
  • Cover, supra note 1 at 67 n.195.
  • See note 12 supra.
  • Bob Jones University v. United States, 461 U.S. 574, 585–86 (1983).
  • See, infra, text accompanying notes 89–91.
  • 461 U.S., at 586.
  • General accounts of the history and doctrine of the law of charities include Edith L. Fisch, Doris J. Freed, and Esther R. Schachter, Charities and Charitable foundations (San Francisco: London born Publications, 1974 & Supp.); Gareth Jones, History of the Law of Charity (London: Cambridge University Press, 1969); Carl Zollmann, American Law of Charities (Milwaukee: Bruce Publishing Co., 1924); James J. Fishman, The Development of the Nonprofit Corporation and an Agenda for Reform (New York: Foundation Press, 1985); Kenneth Karst, “The Efficiency of the Charitable Dollar: An Unfulfilled State Responsibility,” 73 Harvard Law Review 433 (1960); Mary Kay Lundwall, “Inconsistency and Uncertainty in the Charitable Purposes Doctrine,” 41 Wayne Law Review 1341 (1995).
  • See, generally, Fishman, supra note 61.
  • Bob Jones, 461 U.S., at 588–90.
  • Bob Jones, 461 U.S., at 598.
  • Bob Jones, 461 U.S., at 592.
  • Id., at 605 (discussing Goldsboro Christian Schools).
  • Id. (rejecting Bob Jones's argument that, because it allowed all races to enroll, though subject to its restriction on interracial dating and marriage, it was not actually engaged in “racially discriminatory” conduct).
  • Bob Jones, 461 U.S., at 592–95, 598–99.
  • Bob Jones, 461 U.S., at 602–604.
  • See Bob Jones, 461 U.S. at 612–17 (Rehnquist, J., dissenting); For discussions of Bob Jones in the context of debates about theories of statutory interpretation, see, e.g., William Eskridge, “Dynamic Statutory Interpretation,” 135 University of Pennsylvania Law Review 1479, 1546–49 (1987); Michael Livingston, “Congress, the Courts, and the Code: Legislative History and the Interpretation of Tax Statutes,” 69 Texas Law Review 819 (1991); Lawrence Zelenak, “Thinking About Nonliteral Interpretations of the Internal Revenue Code,” 64 North Carolina Law Review 623 (1986).
  • See, e.g., Boris Bittker and Mark C. Rahdert, “The Exemption of Nonprofit Organizations from Federal Income Taxation,” 85 Yale Law Journal 299 (1976); Ira M. Ellman, “Another Theory of Nonprofit Corporations,” 80 Michigan Law Review 999 (1982); Mark A. Hall and John D. Colombo, “The Donative Theory of the Charitable Tax Exemption,” 52 Ohio State Law Journal 1379 (1991); Henry Hansmann, “The Rationale for Exempting Nonprofit Organizations from Corporate Income Taxation,” 91 Yale Law Journal 54 (1981); Henry Hansmann, “The Role of Nonprofit Enterprise,” 89 Yale Law Journal 835 (1980).
  • See, e.g., “Symposium on The Public/Private Distinction,” 130 University of Pennsylvania Law Review 1289 (1982); Anthony V. Alfieri, “Defending Racial Violence,” 95 Columbia Law Review 1301 (1995); Kenneth M. Casebeer, “Toward a Critical Jurisprudence—A First Step by Way of the Public-Private Distinction in Constitutional Law,” 37 University of Miami Law Review 379 (1983); Alan Freeman and Elizabeth Mensch, “The Public-Private Distinction in American Law and Life,” 36 Buffalo Law Review 237 (1987); Ruth Gavison, “Feminism and the Public/Private Distinction,” 45 Stanford Law Review 1 (1993); Robert W. Gordon, “Critical Legal Histories,” 36 Stanford Law Review 57 (1984).
  • See, e.g., Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993); Richard John Neuhaus, The Naked Public Square (1986); Frederick M. Gedicks & Roger Hendrix, Choosing the Dream: The Future of Religion in American Public Life (1991).
  • For other normative discussions of “public” and “private” as relevant categories in a general vision of religion in American society, see, e.g., Kent Greenwalt, Religious Convictions and Political Choice (Oxford: Oxford University Press, 1988); Michael J. Perry, Love and Power: the Role of Religion and Morality in American Politics (Oxford: Oxford University Press, 1991); Laurence H. Tribe, American Constitutional Law (New York: Foundation Press, 2d ed. 1988), pp. 1154–1301; Richard S. Myers, “The Supreme Court and the Privatization of Religion,” 41 Catholic University Law Review 19 (1991); Stephen D. Smith, “The Rise and Fall of Religious Freedom in Constitutional Discourse,” 140 University of Pennsylvania Law Review 149 (1991).
  • Debates about the “privatization” thesis have also formed a major current in contemporary sociological studies of religion in American life. See, e.g., Mary Douglas and Steven Tipton, eds., Religion and America: Spiritual Life in a Secular Age (Boston: Beacon Press, 1983); Jeffrey Hadden and Theodore E. Long, eds., Religion and Religiosity in America: Studies in Honor of Joseph H. Fichter (New York: Crossroad, 1983); Robert N. Bellah, et. al., Habits of the Heart: Individualism and Commitment in American Life (New York: Harper and Row, 1985); Peter Berger, Modernization and Religion (Dublin: Economic and Social Research Institute, 1981); Stephen Hart, “Privatization in American Religion and Society,” 47 Sociological Analysis: A Journal in the Sociology of Religion 319 (1987). Cf., Stephen Holmes, “Jean Bodin: The Paradox of Sovereignty and the Privatization of Religion,” in Nomos XXX, supra note 21 at 5.
  • For general sources on the doctrine and history of the common law of charities, see supra note 61. For sources discussing the law of charities in the larger context of theories of nonprofit organization, see supra note 71 and infra notes 146, 147.
  • See, generally, Fishman, supra note 62.
  • Cf., Walz V. Tax Commissioner, 397 U.S. 664 (1970); note 53 supra (discussing state action problem in tax benefit context).
  • Independent Sector, A Portrait of the Independent Sector: The Activities and Finances of Charitable Organizations (1993); Virginia Hodgkinson and Murray Weitzman, Dimensions of the Independent Sector (3d ed. 1989), p. 1. See also Peter Dobkin Hall, Inventing the Nonprofit Sector (Baltimore: Johns Hopkins, 1992).
  • See Alexis de Tocqueville, Democracy in America, J.P. Mayer ed., George Lawrence, trans. (New York: Harper & Row, 1966); Jean L. Cohen and Andrew Arato, Civil Society and Political Theory (Cambridge: MIT Press, 1992); Vaclav Havel, “New Year's Day Address,” Foreign Broadcasting Information Service, Eastern Europe, 90–001, January 2, 1990; Mary Ann Glendon, “Individualism and Communitarianism in Contemporary Legal Systems: Tensions and Accommodations,” 1993 Brigham Young University Lau Review 385;
  • See, e.g., H.R. Rep. No. 1860, 75th Cong. 3d Sess. 19 (1938) (“The exemption from taxation of money or property devoted to charitable and other purposes is based upon the theory the Government is compensated for the loss of revenue by its relief from the financial burden which would otherwise have to be met by appropriations from other public funds….”); Bob Jones University v. United States, 461 U.S. 574 591 (1983) (“Charitable exemptions are justified on the basis that the exempt entity confers a public benefit—a benefit which the society or the community may not itself choose or be able to provide, or which supplements and advances the work of public institutions already supported by tax revenues”); McGlotten v. Connally, 338 F. Supp. 448, 456 (D.D.C. 1972) (“The rationale for allowing the deduction of charitable contributions has historically been that by doing so, the Government relieves itself of the burden of meeting public needs which in the absence of charitable activity would fall on the shoulders of Government”); In re Estate of Edwards, 88 Cal. App. 3d 383, 391, 151 Cal. Rptr. 770, 775–76 (1979); Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 487 A.2d 1306 (1985); YMCA of Germantown v. Philadelphia, 323 Pa. 401, 187 A. 204 (1936). See also John D. Colombo, “Why Is Harvard Tax-exempt? (And Other Mysteries of Tax Exemption for Private Educational Institutions,” 35 Arizona Law Review 841, 862–864 (1993) (discussing limitations of view that charities relief government of a burden it would otherwise have to bear).
  • Fisch, supra note 61, § 2, at 2.
  • Little v. Newburyport, 210 Mass. 414, 417, 96 N.E. 1032 (1912).
  • See Fisch, supra note 61 at § 397 (discussing difference between charitable organizations and mutual benefit societies).
  • See generally Hansmann, supra note 71; Bittker and Rahdert, supra note 71; Michael C. Hone, “Aristotle and Lyndon Baines Johnson: Thirteen Ways of Looking at Blackbirds and Nonprofit Corporations—The American Bar Association's Revised Model Nonprofit Corporation Act,” 39 Case Western Reserve Law Review 751 (1989); Ira Mark Ellman, “On Developing a Law of Nonprofit Corporations,” 1979 Arizona State Law Journal 153, 154–55; Harry G. Henn and Jeffery H. Boyd, “Statutory Trends in the Law Of Nonprofit Organizations: California, Here We Come!,” 66 Cornell Law Review 1103 (1981).
  • See, generally, Hansmann, supra note 71.
  • Classic sources on the law of common carriers and other occupations clothed with a “public interest” include Sir Matthew Hale, The Analysis of Law (1713); Oliver Wendell Holmes, “Common Carriers and the Common Law,” 13 American Law Review 611 (1879); Isaac Fletcher Redfield, The Law of Carriers of Goods and Passengers (1869). Historical accounts include Norman F. Arterburn, “The Origin and First Test of Public Callings,” 75 University of Pennsylvania Law Review 411 (1927); Walton H. Hamilton, “Affectation with Public Interest,” 39 Yale Law Journal 1089 (1930); Charles K. Burdick, “The Origin of the Peculiar Duties of Public Service Companies,” 11 Columbia Law Review 514 (1911). Contemporary theoretical and doctrinal treatments include Lars Gorton, The Concept of the Common Carrier in Anglo-American Law (Gothenburg, Akademifurlaget, 1971); Marshall S. Shapo, The Duty To Act (New York: Books Demand, 1977), pp. 7–60; Note, “The Duty of a Public Utility to Render Adequate Service: Its Scope and Enforcement,” 62 Columbia Law Review 312 (1962). The leading case upholding the regulation of such business, even in an era of general judicial hostility to economic regulation, was Munn v. Illinois, 94 U.S. 113 (1877). See also Chas. Wolff Packing Co. v. Court of Indus. Relations, 262 U.S. 522 (1923).
  • I am sure that someone has noticed this resemblance before, though I have not run across it explicitly. In certain limited legal contexts, charities and “businesses affected with a public interest” have been categorized together. See, e.g., Wisconsin Electric Power Co. v. United States, 336 U.S. 176, 182 (1949).
  • See, e.g, Texas Monthly v. Bullock, 489 U.S. 1, 13 (1989); Walz v. Tax Comm'n, 397 U.S. 664 (1970); Staples v. Commissioner of Internal Revenue, 821 F.2d 1324, 1326 (8th Cir. 1987), vacated and remanded on other grounds, 490 U.S. 1103 (1989); Dunn v. Chicago Indus. Sch. for Girls, 280 Ill. 613, 616, 117 N.E. 735, 736 (1917); State ex rel. Anshe Chesed Congregation v. Bruggemeier, 115 N.E.2d 65 (Ohio App. 1953); First Unitarian Soc. v. Hartford 34 A. 89 (Conn. 1895); Westchester Reform Temple v. Brown, 22 N.Y.2d 488, 496, 239 N.E.2d 891, 896, 293 N.Y.S.2d 297, 304 (1968); First United Methodist Church of Seattle v. Hearing Examiner, 1996 Wash. LEXIS 265 (May 9, 1996).
  • Walz v. Tax Comm'n, 397 U.S. 664 (1970).
  • Bob Jones University v. United States, 461 U.S. 574, 604 n.29 (1983)[emphasis in original].
  • See, e.g., NLRB v. Catholic Bishop, 440 U.S. 490 (1979) (construing National Labor Relations Act not to confer National Labor Relations Board jurisdiction over church-run schools, and holding that contrary construction would at least raise serious issues under the religion clauses of the 1st Amendment).
  • One need only look to the long line of establishment clauses cases limiting government aid to religious schools, particularly elementary and secondary schools. See, e.g., School District of Grand Rapids v. Ball 473 U.S. 373 (1985); Aguilar v. Felton, 473 U.S. 402 (1985); Lemon V. Kurtzman, 403 U.S. 602 (1971); Eversen v. Board of Education, 330 U.S. 1 (1947).
  • See, e.g., Church of Scientology v. Commissioner of Internal Revenue, 823 F.2d 1310, 1315 (9th Cir. 1987) (dictum); cert, denied 486 U.S. 1015 (1988); Church of Scientology of Cal v. Commissioner of Internal Revenue, 83 T.C. 381 (1984); Priv. Ltr. Rul. 8910001 (“The Courts opinion in Bob Jones leaves little doubt that discrimination on the basis of race, whether in an educational context or otherwise, violates a public policy so fundamental as to justify a denial of charitable status to any organization otherwise described in section 501(c)(3)”).
  • See generally Bittker & Lokken, supra note at § 100.1.3; Hill and Kirshcten,; supra note, at ¶ 2.03[6]; Cf., Mary Becker, “The Politics of Women's Wrongs and the Bill of “Rights”: A Bicentennial Perspective,” 59 University of Chicago Law Review 453, 484–86 (1992) (arguing that taking Bob Jones seriously would require denial of tax exempt status to churches that do not ordain women clergy).
  • See Albert B. Crenshaw, “IRS Revokes Church Tax Exemption for First Time,” The Washington Post, December 7, 1988, at p. F1. The Church challenged the revocation in Tax Court. Id. In 1989, the Tax Court announced in a stipulated decision that the Church and the agency had reached an agreement that provided that the Church was not tax exempt during 1983, 1984, and 1985. Second Baptist Church of Goldsboro v. Commissioner, T.C No. 03009–88 (July 11, 1989).
  • U.S. CONST., amend. 1 (“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”).
  • By “constitutional discourse,” I do not just mean discourse that is, in a technical sense, about the constitution. In a line of cases beginning with Sherbert v. Verner, 374 U.S. 398 (1963), the Supreme Court recognized that, when the faith of religious believers came into conflict with an otherwise-constitutional law, the free exercise clause sometimes mandated that they be exempted from the application of that law. The Court retreated from that doctrine in Employment Division v. Smith, 494 U.S. 872 (1990), and Congress responded by enacting the Religious Freedom Restoration Act, Pub L No. 103–141, 107 Stat 1488 (1993), codified at 42 U.S.C. § 2000bb (Supp 1994), which effectively reinstated the prior rule as a matter of statutory right. Thus, for the purposes in this essay, I treat the RFRA as an example of constitutional discourse not different in tone or thrust than the free exercise clause itself.
  • In Walz v. Tax Comm'n, 397 U.S. 664, 673 (1970), the majority opinion described churches as falling within a broad class of entities, “which include hospitals, libraries, playgrounds, scientific, professional, historical and patriotic groups” that the state could legitimately consider as “beneficial and stabilizing influences in community life.” See also id., at 687, 689 (Brennan, J., concurring) (churches among a “range of other private, nonprofit organizations that contribute to the well-being of the community in a variety of nonreligious ways”; in addition, they “uniquely contribute to the pluralism of American society by their religious activities”). Even older cases tend to speak in general, nonsectarian if not secular, terms of the benefits that religion provides to society. There is, of course, a long tradition of emphasizing the moral or instrumental, rather than purely “spiritual,” benefits of religion. This tendency was particularly pronounced in the founding period, see Peters Onuf, “State Politics and Republican Virtue: Religion, Education, and Morality in Early American Federalism,” Toward a Usable Past: Liberty under State Constitutions, Paul Finkelman and Stephen G. Gotlieb, eds. (Athens: University of Georgia Press, 1991), pp. 91–92 (“the interdependence of piety and virtue was virtually axiomatic in the political discourse of the founding period”), and in Enlightenment thought in general.
  • See note 53 supra.
  • 374 U.S. 398 (1963).
  • Id., at 404 (“Nor may the South Carolina courts construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellants ‘right’ but merely a ‘privilege.’ It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege”).
  • For the distinction between “direct” and “indirect” burdens, see Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 449 (1988); Braunfed V. Brown, 366 U.S. 599 (1961).
  • See, e.g., Seth Kreimer, “Allocational Sanctions: The Problem of Negative Rights in a Positive State,” 132 University of Pennsylvania Law Review 1293 (1984); Edward J. Fuhr, “The Doctrine of Unconstitutional Conditions and the First Amendment,” 39 Case Western Reserve Law Review 97 (1989); Robert L. Hale, “Unconstitutional Conditions and Constitutional Rights,” 35 Columbia Law Review 321 (1935); Kathleen M. Sullivan, “Unconstitutional Conditions,” 102 Harvard Law Review 1415 (1989); Lynn A Baker, “The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions,” 75 Cornell Law Review 1185 (1990).
  • See Hale, supra note 102; Kreimer, supra note 102. I do not mean to suggest that “germaneness” is the only test of the constitutionality of a condition on a benefit, or even a dispositive one. see Sullivan, supra note 103; Baker, supra note 103; Cass R. Sunstein, “Why the Unconstitutional Conditions Doctrine Is an Anachronism (With Particular Reference to Religion, Speech, and Abortion),” 70 Boston University Law Review 593 (1990). But at least when “germaneness” goes to the very logic of the benefit program itself, it seems hard to deny its relevance.
  • Bob Jones University v. United States, 461 U.S. 574, 604 (1983).
  • “A corollary to the public benefit principle is the requirement, long recognized in the law of trusts, that the purpose of a charitable trust may not be illegal or violate established public policy.” Id., at 591. “The [charitable] institution's purpose must not be so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred.” Id., at 592. “On the record before us, there can be no doubt as to the national policy [against racial discrimination in education]…. Clearly an educational institution engaging in practices affirmatively at odds with this declared position of the whole government cannot be seen as exercising a ‘beneficial and stabilizing influenc[e] in community life,’ and is not ‘charitable,’ within the meaning of § 170 and § 501(c)(3).” Id., at 598–99 (citation omitted). See also id., at 604 n.29.
  • “Denial of tax benefits will inevitably have a substantial impact on the operation of private religious schools, but will not prevent those schools from observing their religious tenets.” Id., at 603–604.
  • Revocation of its tax-exempt status did not force Bob Jones University to rescind its policy of prohibiting interracial dating remains in force, and that policy remains in force. see E-Mail from Jonathan Pait, President's Administrative Assistant, Bob Jones University, to Perry Dane (May 16, 1996) (on file with author). See also Ronald Brownstein, “Buchanan Tumbles Old Walls of Religion,” Los Angeles Times, March 2, 1996, pt. A, at 1.
  • 136 U.S. 1 (1890), modified, 140 U.S. 665 (1891).
  • See, generally, Leonard J. Arrington and Davis Bitton, The Mormon Experience: A History of the Latter-Day Saints (Urbana: University of Illinois Press, 2d ed. 1992), pp. 176–184.
  • 98 U.S. 145 (1878).
  • See, e.g., Miles v. United States, 103 U.S. 304 (1880) (holding, inter alia, that jurors could be interrogated about their religious beliefs and that defendant's admission could be used against him, but limiting prosecution's right to question alleged second wife); Clawson v. United States, 114 U.S. 477 (1885) (upholding various statutory and other devices that effectively excluded Mormons from juries in polygamy prosecutions); Cannon v. United States, 116 U.S. 55 (1885) (upholding prosecution for offense of “cohabiting with more than one woman” even in the absence of proof of either actual plural marriage or actual sexual intercourse).
  • Murphy V. Ramsey, 114 U.S. 15 (1885)(upholding statute barring polygamists from voting in federal elections); Davis V. Beason, 133 U.S. 333 (1890)(same).
  • 24 Stat. 635, ch. 397 (1887).
  • Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 64 (1890).
  • Id., at 67, 68 (Fuller, J., dissenting).
  • 136 U.S., at 47. Under this same rule, the personal property of the charity escheated to the state. Id.
  • Id. In this sense, the Court's analysis was basically consistent with general developments in the American law of charities. see Fisch, supra note 62, § 663. About half the states now have statutes providing for “the distribution of the assets of a dissolved charitable corporation to another charity engaged in” substantially similar activities. Many other jurisdictions apply the doctrine of cy pres rather than allow reversion of the charity's property. Id., § 663, at p. 513.
  • Id., at 48–49.
  • Id., at 51 (emphasis added).
  • The Court also suggested, in a sort of alternative holding, that the grantor of most of the Church's property was the United States in the first place. Id., at 47. But it explicitly chose to rely on the general, more powerful, argument grounded in the “charitable uses” to which the property was put. Id., at 48.
  • See Arrington and Bitton, supra note 110 at 183–184, 242–261, 284–307. For an important account of the place of that surrender in Mormon theology and religious sociology, see Jan Shipps, Mormonism: The Story of a New Religious Tradition (Champaign: University of Illinois Press, 1985), pp. 109–129.
  • It did include Reynolds in a string-cite. 461 U.S. 574, 603 (1983).
  • For sociological, as well as normative and legal, sources on the “privatization” thesis, see supra note 73.
  • 395 F.2d 381 (4th cir. 1968).
  • Id. at 383 (footnotes omitted).
  • Id., at 383.
  • Id., at 383–84. The court also suggested that, “if it be assumed that the church maintained an historic shrine, which the plaintiff was visiting at the time of her injuries, the same rule of immunity would be applicable.” Id., at 384 (footnote omitted).
  • Glaser v. Congregation Kehillath Israel, 263 Mass. 435, 439, 161 N.E. 619, 620 (1928), quoting Sears v. Attorney General, 193 Mass. 551, 555, 79 N.E. 772, 774 (1907). Interestingly, the Sears case explicitly overruled some earlier Massachusetts cases that had suggested that as long as there was a “body, or a definite number of persons, ascertained or ascertainable, clearly pointed out by the terms of the gift to receive, control and enjoy its benefits, it is not a public charity, however carefully and exclusively the trust may be restricted to religious uses alone.” Old South Society v. Crocker, 119 Mass. 1 (1875).
  • Some of the discussion here overlaps parts of Dane, “Corporation Sole,” supra note 2.
  • People ex rel Seminary of Our Lady of Angels v. Barber, 42 Hun. 27 (1886), aff'd 106 N.Y. 609, 13 N.E. 936 (1887).
  • Cf., Mark P. Gergen, “The Case for a Charitable Contributions Deduction,” 74 Virginia Law Review 1393, 1437 (1988) (“What data there is suggests that churches probably do not suffer greatly from freeriding, or at least do not suffer as much from freeriding as do most other charities. The club-like organization of churches mitigates the problem of freeriding”); Id., at 1434–42 (voicing general skepticism about tax deductibility of religious contributions, and about the public benefit rationale on which it is based); Hone, supra note 84 at 760 (describing long battle among framers of Model Non-Profits Corporation Act as to whether churches should be treated as public benefit or mutual benefit societies; resolution was to create a third, sui generis, category); Kenneth L. Karst, “Paths to Belonging: The Constitution and Cultural Identity,” 64 North Carolina Law Review 303, 339 (1986)(contrasting strong First Amendment associatonal rights shared by churches and private clubs with weaker rights held by schools and universities.); Henry H. Perritt, Jr., “Dispute Resolution in Electronic Network Communities,” 38 Villanova Law Review 349, 361 n.33 (1993)(“Private associations like fraternities, churches, athletic leagues, country clubs and trade associations are largely self-governing”). Cf., Catherine M. Knight, “Comment: Must God Regulate Religious Corporations? A Proposal for Reform of the Religious Corporation Provisions of the Revised Model Nonprofit Corporation Act,” 42 Emory Law Journal 721 (1993).
  • See Rev. Rul. 70–47 (1970)(“Pew rents, building fund assessments, and periodic dues paid to a church…are all methods of making contributions to the church, and such payments are deductible as charitable contributions within the limitations set out in section 170 of the Code”). “This is the only instance under current law in which dues paid to a service-providing organization in return for a benefit are presumed to be deductible. Dues paid to other organizations, such as museums or alumni associations, are deductible only to the extent they exceed the value of the related benefits.” Gergen, supra note 132 at 1436 n.145. The Supreme Court did, in Hernandez v. Commissioner, 490 U.S. 680 (1989), uphold the IRS's position that certain payments to the Church of Scientology were too much in the form of a quid pro quo to qualify as charitable gifts. But, particularly when contrasted with the IRS's treatment of church and synagogue dues and compulsory tithing, see id., at 2151–53 (O'Connor, J., dissenting), the Hernandez case is clearly, in both senses of the phrase, the exception that “proves” the rule. Cf., Hall and Colombo, supra note 71 at 1395 n. 39 & 1414 n. 96.
  • 397 U.S. 664 (1970).
  • Id., at 673.
  • Id..
  • Id., at 674.
  • Id., at 687 (Brennan, J., concurring).
  • Id., at 689 (Brennan, J., concurring).
  • Gilmour v. Coats, [1949] AC 426, [1949] 1 All ER 848.
  • Church of Jesus Christ of Latter-Day Saints v. Henning (Valuation Officer), [1964] AC 420, [1963] 2 All ER 733, [1963] 3 WLR 88 (House of Lords).
  • Walz v. Tax Commissioner, 397 U.S. 664, 697 (Harlan, J., concurring).
  • Id., at 697 (Harlan, J., concurring).
  • See, e.g. 42 U.S.C. § 2000e (Title VII) (exempting private clubs and religious employers from certain of its provisions); N.Y.C. ADMIN CODE § 8–102 (1986) (treating benevolent orders and religious groups as “in [their] nature distinctly private” for purposes of civil rights legislation that applies to public but not private clubs”).
  • See, e.g., Word of Faith Outreach Center Church v. Morales, 787 F. Supp. 689 (W.D. Tex. 1992).
  • See, e.g., Alaska Stat. §§ 10.40.010–10.40.150 (1995); Conn. Gen. Stat. §§ 33–264a—33–281a (1994); 13 Maine Rev. Stat. §§ 2861–3172 (1995); Mich. Stat. Ann. §§ 21. 1691–21.2021 (1994); Minn. Stat. §§ 315.01–315.50 (1995); N.J. Stat. §§ 16:1–1—16:20–7 (1994); N.Y. Relig. Corp. Law (McKineey 1995); Wise. Stat. §§ 187.01–187.33 (1994). See, generally, Dane, “Corporation Sole,” supra note 2.
  • ABA-ALI Revised Model Nonprofit Corporation Act § 3.01, official comment 1 (1987). see Hone, supra note 83, at 760–761.
  • See generally, Roberts, supra note 30; Dane, “Corporation Sole,” supra note 2.
  • 397 U.S., at 676. See also id., at 691–92 (Brennan, J., concurring).
  • See, e.g., I.R.C. § 7611 (imposing strict limitations on church tax inquiries); § 6033(a)(2)(A)(i)(exempting churches from duty to file information returns to Internal Revenue Service); § 508(c)(1) (prohibiting Commissioner of Internal Revenue from even requiring churches to give notice of their establishment). See supra note. See, generally, Wendy Gerzog Shaller, “Churches and their Enviable Tax Status,” 51 University of Pittsburgh Law Review 345 (1990).
  • See, e.g., I.R.C. § 170(b)(1)(A)(contributions to churches qualify for higher deduction limitation).
  • Foundation for Human Understanding v. Commissioner, 88 T.C. 1341, 1368 (1987) (Simpson, J., dissenting) [emphasis added]. In the case at bar, Judge Simpson concluded that the petitioner was not a sufficiently associational entity to qualify as a “church” rather than a mere “religious” organization.
  • See Wisconsin V. Yoder, 406 U.S. 205, 228–29 (1972); Callahan V. Woods, 736 F.2d 1269, 1272 (9th Cir. 1984); Swanner v. Anchorage Equal Rights Commission, 874 p.2d 274 (Alaska 1994); Thomas C. Berg, “What Hath Congress Wrought? An Interpretive Guide to the Religious Freedom Restoration Act,” 39 Villanova Law Review 1, 40–44 (1994); Stephen Pepper, “Taking the Free Exercise Clause Seriously,” 1986 Brigham Young University Law Review 299.
  • I first made this observation, without much success, when I looked at the case as a law clerk. I did not then realize, however, the paradox built into the argument.
  • Cf., Employment Division v. Smith, 494 U.S. 872, 910–11 (Blackmun, J., dissenting); Douglas Laycock and Oliver S. Thomas, “Interpreting the Religious Freedom Restoration Act,” 73 Texas Law Review 209, 223 (1994).
  • In particular, consider how the picture of “publicness” must take on a special texture when considered in the context of the American struggle for racial justice. Note, for example, how the current formulation of Bob Jones University's polices on dating and marriage, as they were recently interpreted to me by the University administration, so obviously turn in both the small orbit of an insular religious community and the enormous orbit of American destiny:
  • THE POLICY
  • “Interracial Dating—There is to be no interracial dating.
  • Students who become partners in an interracial marriage will be expelled.
  • Students who are members of or affiliated with any group or organization which holds interracial marriage as one of its goals or advocates interracial marriage will be expelled.
  • Students who date outside their own race will be expelled.”
  • THE SPIRIT
  • First of all this has nothing to do with superiority of any one race. To put our position very simply, God had a purpose for distinguishing between the races. To blur those lines is to go against that purpose. Do we wish this were not the case? Sure—it would make life much easier for us. We know that there are those who disagree with us—and we don't expect everyone to see it the same way.
  • In no way do we hold that any one race is better than another. We believe that all races should respect one another and work to live together in harmony. Interestingly enough a sure way to get yourself expelled from BJU is to haze or downgrade another race.
  • E-Mail, supra note 108.
  • He made this clear to anyone curious enough to ask. Cf., Michael J. Graetz, “Tribute to Robert M. Cover,” 96 Yale Law Journal 1700, 1702 (1987)(“For Bob the classroom was not a performance hall; conveying his knowledge or beliefs to others was only one, relatively small part of teaching. Teaching, to Bob, was a process of communal learning—the classroom a place where people with mutual respect learn together. Talmudic conversation was his model. He was willing to teach any subject, even taxation, as a way to learn it”).
  • Cover, supra note 1 at 51–52 (footnotes omitted).
  • 136 U.S. 1 (1890), modified, 140 U.S. 665 (1891).
  • 98 U.S. 145 (1878).

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