Professor Brett G. Scharffs presented the Fifth Lecture in the Religious Freedom Discussion Series, sponsored by the International Center for Law and Religion Studies (ICLRS) at Brigham Young University and the Community Service Outreach Committee of the J. Reuben Clark Law Society (JRCLS). The topic of the 27 October 2011 lecture was “The Role of Judges in Determining the Meaning of Religious Symbols.”

• The PowerPoint presentation accompanying the lecture is available here in three parts:   Part 1    Part 2    Part 3. 
• Technical difficulties prevented a good recording of the lecture. We hope to be able to post a replacement soon.

In discussing what happens when courts get involved in interpreting the meaning of religious symbols, Professor Scharffs developed two primary themes: (1) The role of interpretive communities in creating the meaning of symbols, and (2) the role of courts in limiting or destroying the meaning of symbols. Illustrating the wide variety of religious symbols and the complexity of available interpretations, Professors Scharffs explained that “one of the functions of courts … is to decide among the multiplicity of meanings that are generated by interpretive communities.” Following the thought of legal scholar Robert Cover, Scharffs discussed the “world creating” and “world maintaining” functions of the law: “We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void.”

Following this model, courts may be “jurisgenerative,” undertaking the process of creating legal meaning, or they may be “jurispathic,” as when judges take upon themselves the power to decide among multiple meanings. When judges decide authoritatively what symbols mean, observed Professor Scharffs, they are acting in a paradigmatically jurispathic manner, often unnecessarily.

It was Scharffs’ primary purpose in this lecture, supported by analysis of cases from the United States and Europe, to suggest that “judges should avoid unnecessary exercises of their jurispathic office when confronted with religious symbols,” because “the very nature of symbols is to have multiple meanings.” These meanings may vary from community to community, may grow and change over time, and usually can peaceably coexist.

As one example of an unfortunate jurispathic approach Professor Scharffs noted the U.S. 9th Circuit opinion in the “Mount Soledad Cross Case” (Trunk v. City of San Diego), involving a decades-long dispute over a 43-foot tall cross, a national veterans memorial, atop a hill in San Diego. The majority opinion in the case insisted upon a single “reasonable observer” interpretation and concluded that the monument “primarily conveys a message of government endorsement of religion.” By declaring definitively what the monument means, said Scharffs, the court discounts and discredits other meanings, and converts the symbol into something even more divisive than before. Proponents of the monument have had something important to them removed based upon an interpretation of its meaning with which they may strongly disagree.

A contrasting and to Scharffs more useful notion was acknowledged by Judge Bea, writing in dissent when the 9th Circuit denied the motion for rehearing Trunk en banc:  “religious symbols can have multiple meanings.” This approach was taken in the judgment of the Grand Chamber of the European Court of Human Rights in the “Italian Crucifix Case” (Lautsi v. Italy).

In contrast to the finding of the Chamber Judgment that the religious purpose of the crucifixes displayed in public schools violated the rights of unbelievers, the Grand Chamber, taking a jurisgenerative approach, “stepped away from dictating a particular, legally binding conclusion about the meaning of the crucifix.” Noting that the “various parties and courts have differing views, and the Constitutional Court of Italy has not given a ruling,” the Grand Chamber declared, “It is not for this Court to take a position regarding a domestic debate among domestic courts.”

Such a posture Scharffs recommends for courts confronting interpretation of religious symbols. “Rather than taking sides about what contested symbols ‘really’ mean, courts can often recognize that they mean a great many different things to different people. By refraining from taking sides between those who insist upon imposing a single meaning upon those symbols, courts can allow differing jurisgenerative visions to coexist and compete with each other for our hearts and minds.  When courts give official sanction to a particular interpretation of a symbol, this has the jurispathic effect of killing other competing interpretations. Generally, this is not simply unnecessary violence, it is deeply antithetical to the very character and purpose of symbols.”

Brett Scharffs is Francis R. Kirkham Professor of Law at the J. Reuben Clark Law School and Associate Director of the International Center for Law and Religion Studies. His teaching and scholarly interests include comparative law and religion, philosophy of law, and international business law. Professor Scharffs is a graduate of Georgetown University, where he received a B.S.B.A in international business and an M.A. in philosophy. He was a Rhodes Scholar at Oxford University, where he earned a B.Phil in philosophy. He received his J.D. from Yale Law School, where he was Senior Editor of the Yale Law Journal.

Professor Scharffs was a law clerk on the U.S. Court of Appeals, D.C. Circuit, and worked as a legal assistant at the Iran-U.S. Claims Tribunal in The Hague. Before teaching at BYU, he worked as an attorney for the New York law firm, Sullivan & Cromwell. He has previously taught at Yale University and the George Washington University Law School, and is a visiting professor each year at Central European University in Budapest.

In his twelve-year academic career, Professor Scharffs has written more than 50 articles and book chapters, and has made over 150 scholarly presentations in 20 countries. His casebook, Law and Religion: U.S., International, and Comparative Perspectives, co-written with his colleague, W. Cole Durham, Jr. was published by Aspen/WoltersKluwer in early 2010. He is currently finishing work on another book, Law and the Limits of Logic, which will be published by Harvard University Press. He recently served as a program chair of the Law and Religion Section of the Association of American Law Schools (AALS). He is married to Deirdre Mason Crane Scharffs and has three children, Elliot, Sophelia, and Ella. He enjoys coaching his son’s baseball team, riding his mountain bike, and golf.