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.

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