Coercing Virtue
Page 4
Now we are treated to the preposterous spectacle of lawsuits by persons whose only complaint is that they are “offended” by seeing a religious symbol, such as a creche or a menorah, on public property during a holiday season or even by the sight of the Ten Commandments on a plaque on a high school wall. Apparently those who do not like religion are exquisitely sensitive to the pain of being reminded of it, but the religious are assumed to have no right to such feelings about the banishment of religion from the public arena.
The distance between the Court’s position on religion and the framers’ and ratifiers’ understanding of the First Amendment was revealed, though not for the first time, in Lemon v. Kurtzman (1971). The case created a three-part test which, if applied consistently, would erase all hints of religion in any public context. In order to survive judicial scrutiny a statute or practice must have a secular legislative purpose; its principal or primary effect must be one that neither advances nor inhibits religion; and it must not foster an excessive government entanglement with religion. Few statutes or governmental practices that brush anywhere in the vicinity of religion can pass all those tests.
Yet the Supreme Court narrowly approved Nebraska’s employment of a chaplain for its legislature in Marsh v. Chambers (1983). Though the dissent correctly pointed out that the Lemon test was violated, as it was in each of its three criteria, the majority relied on the fact that employing chaplains to open legislative sessions with prayers conformed to historic precedent: not only did the Continental Congress employ a chaplain but so did both houses of the first Congress, which also proposed the First Amendment. That same Congress also provided paid chaplains for the Army and the Navy. The Court often pays little attention to the historic meaning of the Constitution, but it would be particularly egregious to hold that those who sent the amendment to the states for ratification intended to prohibit what they had just done themselves. That Lemon fails when specific historical evidence is available necessarily means that, in cases where specific history is not discoverable, Lemon destroys laws and practices that were meant to be allowable.
There is no lack of other evidence to show that no absolute barrier to any interaction between government and religion was intended. From the beginning of the Republic, Congress called upon presidents to issue Thanksgiving Day proclamations in the name of God. All the presidents complied, with the sole exception of Jefferson, who thought such proclamations at odds with the principle of the Establishment Clause. Jefferson’s tossed-off metaphor in a letter about the “wall” between church and state has become the modern law, despite the fact that it was idiosyncratic and not at all what Congress and the ratifying states understood themselves to be saying. The first Congress readopted the Northwest Ordinance, initially passed by the Continental Congress, which stated that “religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of learning shall forever be encouraged.” The ordinance required that specified amounts of land be set aside for churches.
Yet in Lee v. Weisman (1992) a six-Justice majority held that a short, bland, nonsectarian prayer at a public school commencement amounted to an establishment of religion. The Court saw government interference with religion in the very fact that the school principal asked the rabbi to offer a nonsectarian prayer. Coercion of Deborah Weisman was detected in the possibility that she might feel “peer pressure” to stand or at least to maintain respectful silence during the prayer. She would, of course, have had no constitutional case had the commencement speaker read from the Communist Manifesto or Mein Kampf and both peer pressure and school authorities required her to maintain a “respectful silence.” Only religion is beyond the judge-erected pale. In this way a long tradition across the entire nation of prayer at public school graduation ceremonies came to an end.
One more example will suffice. In Santa Fe Independent School Dist. v. Doe (2000) the school district arranged student elections to determine whether invocations should be delivered before high school football games and, if so, to select the students to deliver them. The student chosen could make a statement or read a nonsectarian, nonproselytizing prayer. The Supreme Court majority held that “school sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are 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.’” The nonadherent was put to “the choice between whether to attend these games or to risk facing a personally offensive religious ritual.” The incredibly thin skin of nonadherents is constitutional dogma. The Court repeatedly referred to the elections as “majoritarian,” as though that made them all the more threatening. The opinion is remarkable for a tone that “bristles with hostility to all things religious in public life,” Chief Justice Rehnquist noted in dissent. The majority opinion, it might be said, also bristles with hostility to majoritarian (i.e., democratic) processes. Still more remarkable, and sadly ironic, is the majority’s statement that “one of the purposes served by the Establishment Clause is to remove debate over this kind of issue from governmental supervision or control.” That is precisely what the decision does not do. The Court’s pronounced antireligious animus, displayed in decades of decisions, has itself produced angry debate that is under the control of the Supreme Court, a branch of government.
At some point, parody is the only appropriate response. Nude dancing is entitled to considerable protection as “expressive” behavior, according to Erie v. Pap’s A.M. (2000). Theodore Olson, a leading Supreme Court advocate and now solicitor general of the United States, was prompted to suggest that high school students should dance nude before football games because naked dancing is preferred to prayer as a form of expression. He might have noted, of course, that nudity must not be achieved through the Dance of the Seven Veils because that has biblical connotations!
Lower courts have found a forbidden “establishment of religion” in the most innocuous practices: a high school football team praying before a game that nobody be injured; a local ordinance forbidding the sale of nonkosher foods as kosher; a small child trying to read a child’s version of a religious story when told that each student must read a favorite story before the class; a teacher reading the Bible silently for his own purposes during a reading period because students, who were not shown to know what the teacher was reading, might, if they found out, be influenced by his choice of reading material. The Court’s Establishment Clause decisions show the same devotion to radical individual autonomy as do the speech cases. The words “Congress shall make no law respecting an establishment of religion” might have been read, as common understanding would suggest, merely to preclude government recognition of an official church or to prohibit discriminatory aid to one or a few religions. No one reading the Establishment Clause when it was ratified in 1791 could have anticipated the unhistorical sweep it would develop under the sway of modern liberalism to produce, as Richard John Neuhaus put it, a “public square naked of religious symbol and substance.”
The Court has brought law and religion into opposition. The results are damaging to both fields. All law rests upon choices guided by moral assumptions and beliefs. There is no reason to prohibit any conduct, except on the understanding that some moral good is thereby served. Though the proposition is certainly not undisputed, there is an excellent case to be made that religion, though not the original source of moral understanding, is an indispensable reinforcement of that understanding. It is surely significant that, as religious belief has declined, moral behavior has worsened as well. When law becomes antagonistic to religion, it undermines its own main support.
Christopher Lasch, who was by no means a conservative, asked: “What accounts for [our society’s] wholesale defection from the standards of personal conduct – civility, industry, self-restraint – that were once considered indispensable to democracy?” He answered
that a major reason is the “gradual decay of religion.” Our liberal elites, whose “attitude to religion,” Lasch said, “ranges from indifference to active hostility,” have succeeded in removing religion from public recognition and debate. Indeed, it could be added that the Court has almost succeeded in establishing a new religion: secular humanism. That is what the intelligentsia want, it is what they are getting, and we may all be the worse for it.
Substantive Due Process
A more general judicial legislative power has been seized in the name of the Due Process Clause when no provision of the Constitution can, even with stretching or inversion, be found to apply. The Fifth and Fourteenth amendments require, respectively, due process by the federal government and the states: “No person shall … be deprived of life, liberty, or property, without due process of law.” “Substantive due process” has been used over and over again since Dred Scott to strike down laws whose invalidation is not justified by any provision of the Constitution. John Hart Ely commented that “there is simply no avoiding the fact that the word that follows ‘due’ is ‘process.’ … ‘[S]ubstantive due process’ is a contradiction in terms – sort of like ‘green pastel redness.’” Once the clause was said to impose substantive requirements on statutes, there was, unfortunately, nothing to define or even to suggest what the substance of substantive due process might be. There was, and could be, only the impulse of the judge. Despite its fatal defects in law, logic, and history, however, the Court finds substantive due process too valuable a source of unconfined judicial law-making to be abandoned.
The clause’s most notorious achievement in modern times was to serve as the textual peg for the Court-invented “right of privacy.” Griswold v. Connecticut (1965) struck down a state law prohibiting the use of contraceptives. The law had been enforced, under the general accessory provision of the criminal code, only against birth control clinics that advertised contraception. The Court’s opinion argued that various guaranteed rights related to privacy – the rights of association, freedom from the quartering of soldiers in private homes, freedom from unreasonable searches and seizures, and so on – and that, from these rights, could be constructed a general, if undefined, right of privacy. Since the use of contraception was done in private, the Connecticut statute violated the Due Process Clause. A new right to be used as the Court desired had been invented. Using identical reasoning, Justice Brennan later said that the various freedoms guaranteed by the Bill of Rights were about dignity, so there is a general, again undefined, right to dignity. Since the death penalty subjects the condemned person to a loss of dignity, capital punishment, though several times acknowledged to be available by the Constitution, was, in fact, unconstitutional. Reasoning of this sort assumes that those who adopted the Bill of Rights had an intuition of a more encompassing right they were unable to articulate, but had to settle for a list of specific guarantees. In this view, the Court must finish the drafting by discerning a meaning that the framers could not. The word “hubris” comes to mind.
The Court has used its invented privacy right exclusively to enforce sexual freedoms. The most drastic instance was the success of the pro-abortion movement in evading democratic processes to lodge its desires in the Constitution, effectively making abortion a convenient birth control technique. The majority opinion in Roe v. Wade (1973) is a curious performance: in just over fifty-one pages it contains no shred of legal reasoning (or logic of any description), but simply announces that the right of privacy is sufficiently capacious to encompass a woman’s right to an abortion. The opinion laid down new rules more permissive than any state legislature had produced. For once, the public did not passively acquiesce. The decision polarized American politics, including the politics of confirming nominees to the Supreme Court. Almost twenty years later the bitter dispute Roe began has not subsided, despite an explicit warning by three Justices in Planned Parenthood v. Casey (1992) that, if the public did not accept the Court’s ruling, it would be derelict in its civic duty: “[T]he Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution. … [T]o overrule under fire in the absence of the most compelling reason … would subvert the Court’s legitimacy. … Some cost will be paid by anyone who approves or implements a constitutional decision where it is [unpopular]. An extra price will be paid by those who themselves disapprove of the decision’s results when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law. To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast.” It is mind-boggling that the citizenry were admonished that they should accept Roe because they must “respect the rule of law” when Roe itself, as well as Casey, are themselves crass violations of the rule of law, are not rooted in any conceivable interpretation of the Constitution, and have nothing to do with “constitutional terms.” Yet it is the people who must pass the test set by the Court, reminding us of Bertolt Brecht’s jest that the people have lost the confidence of the government and a new people must be formed.
Something of the intellectual rigor of the joint opinion may be gleaned from its now-famous “mystery passage”: “[Our] law affords constitutional protection to … the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, [which] are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The words are devoid of any ascertainable meaning. They could as easily be used to protect the unborn child’s right to define his or her concept of existence. Some lower court judges have, nevertheless, found that the rhetoric compels such things as a right to assisted suicide, though their decisions were quickly reversed. What justifies either the creation of that right to assisted suicide or its denial is not clear from the mystery passage.
Worse was to come. In Stenberg v. Carhart (2000) the Court majority struck down a Nebraska statute prohibiting partial birth abortions. The procedure Nebraska sought to outlaw involves delivering the body of a baby, but leaving its head inside the uterus. The abortionist forces a pair of blunt scissors into the base of the skull, spreads the scissors to enlarge the opening, removes the scissors, and thrusts a suction catheter into the hole and evacuates the skull’s contents. The skull collapses and the dead baby is fully removed from the mother. The Court majority held the procedure constitutionally protected, saying the statute was so imprecise that other forms of abortion might be “unduly burdened.” That objection, were it accurate, would leave room for statutes more carefully drafted, but the Nebraska law was also found defective because, though it contained an exception for cases where the mother’s life would otherwise be endangered, there was no exception for adverse effects on the mother’s health. Even physicians who used the procedure said it was never necessary to preserve health, but the Court insisted on an exception that entirely swallows the rule: an abortionist will always say that this procedure is necessary to the woman’s mental or emotional well-being.
Stenberg was by no means the end of the Court’s campaign. Hill v. Colorado (2000) upheld a Colorado statute making it criminal to approach within 8 feet of a person seeking an abortion or within 100 feet of the entrance to an abortion clinic in order to protest or persuade against abortion. Because the ban was based on the content of the message, the Court’s previous decisions showed it to be invalid. The statute would not have been countenanced for a moment had the speech been made against a war or in support of a strike. As a dissent noted, “There is apparently no end to the distortion of our First Amendment law that the Court is willing to endure to sustain this restriction upon the free speech of abortion opponents.” Yet Justice Stevens stated with satisfaction in Stenberg that “the central holding of Roe v. Wade … has been endorsed by all but 4 of the 17 Ju
stices who have addressed the issue.” Since there is no constitutional support for Roe, that fact is less a testimony to the merits of the decision than proof that a large majority of the Justices are willing to jettison the Constitution when their own sympathies or ideologies are in play. Abortion has become a sacred cause for the Court, before which neither the Constitution nor the Court’s previous decisions can stand. The abortion right has survived many changes in the Court’s personnel and, though it will never gain general public assent, abortion virtually on demand and for any reason seems secure for the foreseeable future. It is a central part of the New Class’s creed.