The Pledge of Allegiance, Part IV–Legal Dangers

OK, this is going to get a little musty with legal mumbo-jumbo, but try to stay with it if you can because what’s going on with the Pledge is symptomatic of what I think is dangerous in the course the courts have chosen concerning the relationship of religion and govt–not dangerous because it’s necessarily the wrong moral course, it isn’t, but because it’s moving toward a legal pothole big enough to swallow a whale.

First let’s tackle the SCOTUS. The Supreme Court is the final word in US jurispridence but that doesn’t mean its decisions are final. They aren’t. The SCOTUS reverses itself fairly regularly, and so it should. How can it do that if its decisions are final? Because it isn’t the decisions that change, it’s the interpretation of the issues underlying the decision. That may seem obvious, but remember that we’re talking legally here, not logically. Legal logic and ordinary logic are two different things, often poles apart. Here’s an example from precedent around the Pledge, though not directly related to it.

In Lynch v Donnelly, the Court held that a religious Christmas display owned for many years by a city government, a creche, was allowable because it served a “secular purpose”–celebrating a national holiday.

The display is sponsored by the city to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes. The District Court’s inference, drawn from the religious nature of the creche, that the city has no secular purpose was, on this record, clearly erroneous.

In effect, the display had become over the years a community institution like a Thanksgiving Day Parade or a county fair, and city ownership was considered to be a community convenience, conferring nothing in the way of “endorsement” of the religion involved. The Court considered “the benefit to religion” to be “indirect, remote, and incidental.” Now, Phaedrus is going to say that’s BS, rationalization, and a clearly unConstitutional decision, but that’s the kind of hair-splitting legal insitutions do.

It may have been–probably was–a bad decision, but it was based on a “grandfather-clause” mentality in law that protects legal decisions from being blown by every prevailing wind of public opinion that comes along, and a fear of throwing the baby out with the bathwater. Now look at the basis of Justice O’Connor’s concurring opinion in the same case:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions …The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

Doesn’t sound like she “concurs” at all, does it? Yet the facts haven’t changed and she isn’t dissenting from the majority opinion, she’s supporting it. She’s saying that the city-owned creche doesn’t “send a message to nonadherents that they are outsiders”, yet it would be very easy to use her interpretation to support the dissenters rather than the majority, and in a future case that’s very likely to happen. Of such contradiction is High Law made.

Before we return to the Pledge, let’s look briefly at one more case. In Lee v Weisman, two Jews brought suit over a supposedly non-sectarian prayer given by a Rabbi at a school graduation, arguing that “the state[‘s] participation [is] co-ercive” given that it “not only determined that an invocation and benediction should be given, but also selected the religious participant and provided him with guidelines for the content of nonsectarian prayers.” In his majority opinion, Justice Kennedy wrote:

What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. (emphasis added)

By using the word “appear” in this context, Justice Kennedy has done something the Lynch v Donnelly decision didn’t do–he has injected the amorphous, ever-changing quality of personal emotional response into a legal judgment, opening the door to arguments, for example, that removing the words “under god” from the Pledge could “appear” to a believer to be employing the machinery of the state to enforce a deliberate rejection of the public expression of religious belief, which would clearly be unConstitutional.

My point here is not that the majority opinion was morally wrong, it wasn’t. What’s significant are the grounds on which the opinion was based. Any argument that Constitutionality is dependent upon “appearances” or “offensiveness” or any other ill-defined and infinitely malleable generalization dependent entirely on a personal response–“the eye of the beholder”–can, if public opinion shifts, be used just as readily on the other side in the future. And I can promise you it will be if the opportunity arises.

This is a small example of the pitfalls inherent in law where, if you’re not very careful, you can wind up doing the opposite of what you think you’re doing. It’s also an argument for not appointing indifferent legal minds to the highest court in the land just because they happen to hold some views compatible with your political goals. Justice Kennedy’s decision was correct but the basis he used to reach it is exceedingly shaky and carries within it the seeds of its own reversal, fertile ground for an assault by religious groups who see any attempt to contravene their beliefs as “offensive” and “appearing” to make them second-class citizens because of those beliefs. It endlessly complicates and even endangers the separation-of-church-and-state doctrine with its introduction of what is at root an emotional appeal rather than a legal theory.

Look at the gay marriage issue and the arguments that have arisen against it from the religious right. What are they based on? That gay marriage “offends” their historical understanding of and religious dogma concerning what marriage is and is not according to their faith, and that it somehow impinges on their Constitutional right to worship as they see fit. It is the rationale in SCOTUS decisions like Justice Kennedy’s that could allow them to make those arguments successfully at some time in the future. And don’t think they won’t try.

Unfortunately, a number of recent Court cases involving the SOCAS doctrine contain the same flaw, including Newdow’s. He is contending that the words “under god” harmed his daughter because she was forced to “watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that our’s [sic] is ‘one nation under God.'” What harm? There is no physical injury involved so the harm has to be emotional–it makes her “feel bad”, makes her “feel like an outsider” (remember Justice O’Connor’s definition?), or it “offends” her, emotions that fundamentalist Christians claim to feel as well. They do not see themselves as the dominant religion but as a persecuted minority whose right to live by their religious values is constantly threatened by the pervasive secularism of the surrounding society. It isn’t true, of course, but the accuracy of the feeling isn’t the basis of the Court’s decisions–it is the feeling itself and the “appearance” of discrimination that mandated the rulings.

It wouldn’t take much to reverse the Lee v Weisman decision–a slightly different Court, an alternate interpretation of Justice Kennedy’s argument, and a bit more in the way of precedent that sanctions mental and/or emotional anguish as legitimate grounds for a case. The strongest way to turn back challenges to the SOCAS is to change the First Amendment so it clearly lays out the prohibition as being one against all connections between govt and religion, and forbids acknowledgement as well as establishment. Since that’s not terribly practical, the second-best way is to turn back SOCAS arguments that are based on personal emotional response. Otherwise, we could be hoisting ourselves on our own petard in the not-too-distant future.

The Pledge of Allegiance, Part III: Change the Constitution?

I had some idea that a discussion with Phaedrus about the Pledge might lead to a general discussion about the limits of religion in govt, an issue that is going to become increasingly important as the theocratic movement gets its legs under it and starts to roll. If Bush wins a second term that’s going to happen much earlier and much faster than if he doesn’t, but his loss isn’t going to stop them. They have been–and are–working on infiltrating religious beliefs from the local level. Their tactics revolve principally around an assault on school curricula a la the attempt to sneak creationism into science classrooms disguised as a “competing theory.” They have targeted school boards, forced legislatures and governors to appoint sympathizers to their state education depts, attacked colleges as “secularist” (well, duh…), and worked in if not controlled the campaigns of Christian-right candidates. But they have also targeted the courts–viz Roy Moore–in an attempt to force them to acknowledge the right of US courts to include consideration of Christian law in their deliberations. We need NOW to start figuring out where those limits are and reinforcing them. The Pledge seemed like as good a place to start as any.

I think a lot of people are confused about where the lines are. It seemed to me that a discussion like this might help eliminate some of the confusion, and even if it doesn’t, the give-and-take would at least help explicate the gulf between the two sides. Well, let’s see.

Just for your personal info, I was joking about Olson.

Just for your personal info, I was having some fun with your pretend contempt.

Does not even suggest the establishment of a religion? I would like for you to explain to me how that’s anything other than a statement of pure opinion. Buddhists, atheists, Taoists, and probably o[t]hers don’t believe in God. etc etc etc

It’s called “exaggeration for effect”. The point is that “god” is a generic religious term, not a specific religious term. *Lots* (that better?) of religions use it that have nothing else in common–Judaism and Ancient Rome, for example.

As for the “pure opinion”, it’s hardly that. “Establishment” is a legal term because the Constitution is a legal document. What I was trying to explain is how “establishment” has been defined legally up to now and giving you examples to show the difference between “establishment” and “expression” as it has been understood by the courts. That’s not “opinion”, that’s fact. Olson was right when he said the courts have historically drawn a line and right about, roughly, where he said they’d drawn it. Based on precedent–which is what he was arguing, of course–the phrase “under god” isn’t unConsitutional because it doesn’t violate the standard set by precedent. With me so far? We’ll come back to this later.

God is not a generic term. You’re arguing that the word God has no meaning.

No. I’m not. I’m saying the word “god” has a general meaning, not a specific one, like “mammal” has a general meaning. A dolphin and a dog have very little in common but they’re both mammals. I said, “Every religion in the world uses it.” Your reply:

That’s nonsense too. Atheists, Agnostics, Buddhists, and Taoist, that I know of off-hand, don’t use it.,

Well, they wouldn’t, would they? They’re not religions. After giving me a dictionary definition of “god” as a “supreme being” or “creator”:

Course, you can argue with the dictionary.

I don’t need to. It’s irrelevant. You’re missing the point.

There’s this weird belief, and apparently you hold it, that typically American expressions of religion are totally inoffensive. Well they’re not. I know, because I’m offended.

So what? Again, you’re missing the point. It doesn’t matter whether or not you’re offended. That’s not legal grounds for declaring “establishment”. And more importantly it must NEVER become legal grounds for doing so, or you would force the law to take the very step you claim to be trying to stop, for having once successfully argued in a court of law that being “offended” is grounds for limiting religious expression, you will have opened the door to the suppression of religious expression that people may find offensive. I don’t think that’s what you intend, but that could be the effect of your position, legally.

[I]f a Hindu or Buddhist or Atheist kid refuses to participate in the teacher led pledge, there’s a good chance he’ll have to account for it on the playground, and he’ll probably be outnumbered by a bunch of little fundamentalist bully lunatics.

That’s a reason to ban the Pledge from schools, not a reason to remove the words.

What [the Constitution] forbids is government acknowledging and fostering religion….

No, it doesn’t. That’s where you’re confused. Legally, going by precedent again, it allows acknowledgement but forbids fostering. You insist on combining the two but the law makes a distinction between them. One is OK, the other isn’t.

[A]rguing, “Oh, geez, it’s only tepid religion.” Doesn’t change a thing for me.

You get emotional about this, don’t you? Now you’re getting “tepid” confused with “generic”. We’re talking about the law. Think of “generic” as a scientific term like “species”

The vast majority of Americans have never thought “under God” means what you and Ted Olson say it does.

“The vast majority of Americans” aren’t lawyers. If they were, they would. They’d have to.

It establishes a limit on personal beliefs by telling people that their beliefs are wrong. Tell me this. Do you believe the government has the right to say atheism, or any other belief, is wrong? That’s exactly what the pledge does.

No, it doesn’t. Affirming one belief isn’t automatically or intrinsically a denigration of other beliefs. Does a Catholic affirming his belief in the Holy Mother Church mean he is saying that a Jew doesn’t have the right to go to Temple? Is a Jew affirming his belief in Jehovah claiming that a Muslim has no right to worship Allah? Of course not. Once again, the problem is not with the Pledge itself but with the insistence on making it compulsory. That’s what’s probably unConstitutional.

You do realize you’re playing right into the hands of the theocrats here, right?

No. I’m not. YOU are and I’m trying to stop you but you can’t see it because your emotional response is getting in the way. This is why I thought we should have this discussion in public–your misunderstanding of the Constitution as a legal document is shared by an awful lot of people who think it means things it doesn’t mean.

[A]ll you’re doing is proving to me that the Constitution is wrong, as it is on so many other things. I only care about the Constitution up to a point. I care about right and wrong a lot more.

Bingo. You finally got it. That’s exactly the problem. The Constitution is wrong. The Founders didn’t go far enough because, as I said before (twice, I think), the Founders were all religious men–so was everyone in the country at the time–and it would never have occurred to them that banning religious expression on the part of government would be desirable, let alone necessary. I told you, the only way you can get the First Amendment to mean what you want it to mean is to amend it.

I went through all your other arguments in an attempt to explain what the Constitution actually says, and why it doesn’t say what you think it says. I started this because your statement that the unConstitutionality of the phrase was “stunningly obvious” betrayed a level of legal ignorance that is standard for “the vast majority of Americans”, as you put it. I’m afraid the legal fact is that if Newdow wins his argument that the phrase “under god” should be removed because it’s “offensive”, he may be enabling the very discrimination he thinks he’s preventing, and Scalia, for one, is smart enough to see that. (Fortunately, he has recused himself.)

Why is it important to understand this apparently arcane bit of Constitutional law? The Christian Reconstructionists and the rest of the theocratic movement, that’s why.

Next: How theocrats can use the Constitution against us.