Jeremy Pierce: January 2011 Archives

I wrote a little a couple weeks ago about the early 1960s Supreme Court cases Abington School District v. Schempp and Murray v. Curlett (and perhaps to a lesser degree Engel v. Vitale). I said at the time that I have two further posts planned, one on substantive issues that weren't central to the cases and another on the central questions the Court dealt with. This post is the first of those two. Here are four relatively independent observations from the oral arguments I listened to that affect the main argument to some degree but aren't very closely about the central issue. I have some more thoughts on the fundamental issue to come at some point.

More or Less Sectarian to Comment?

There's an interesting argument among the various lawyers and justices during the oral arguments for these cases, about whether it's more sectarian or less sectarian to read from the Bible without comment or with comment. One argument is that reading without comment is more like studying the Bible as literature, since it doesn't involve endorsement or criticism, whereas commenting on it expresses a viewpoint. On the other hand, some argued that simply reading it seems more like endorsement, since there's no room for critiquing anything in the text or showing room for interpreting in different ways, whereas commenting on it allows for critical discussion or demonstration of different interpretations. I suspect the two views have something different in mind for what the commenting would be like, but I thought it was an interesting debate. The two lawyers defending two different Bible-reading laws were making these opposite claims. One law explicitly disallowed comment, and the other allowed for it. But the justices seemed to disagree among themselves about which claim was more correct.

Absolute or Potentially-Conflicting Rights?

Two lawyers on the same side on the general questions disagreed about whether the Constitution is vague (in the following sense, anyway). One insisted that any particular policy (1) either is or is not an establishment of religion and (2) either is or is not a violation of someone's free exercise of religion. Another countered that whether something falls into either category comes in degrees. Justice Stewart joined in on this, also pointing out that the free exercise clause and the establishment clause are sometimes at odds with each other, presumably implying that it's the job of the Supreme Court to figure out which applies more strongly in a particular case. (This, I think, is a sign of what later came to be seen as his moderate approach as a swing voter on key cases in the more ideologically-diverse Supreme Court to come. But he comes across as a hard-line conservative in this case, given where everyone else on the Court was. I'm not sure Justices Thomas and Scalia differ from Justice Stewart on these questions very much.)

The lawyer for the Unitarians who were suing the school, on the other hand, refused to call these prohibitions absolute but thought both clauses are as close to absolute as possible. He allows for some cases to be so insignificantly establishing or so insignificantly diminishing of free exercise that they're not worth enforcing. For example, he says this of "In God we trust" on coins, which he doesn't think anyone would have standing to sue about. But he also insisted that it isn't a genuine violation in such cases. It's not an infringement of a right, on his   view, unless it's enforceable in court. So that's how he gets the near-absolute. Smaller violations are defined away as not violations. Such is the magic of legal positivism.

He admitted to three examples to show that he's not strictly an absolutist on this. Military and prison chaplaincies are one example. We infringe on rights to free expression of religion to remove someone from their religious outlet without providing an alternative, so the clear establishment in chaplaincies is allowed despite being an establishment of religion. The other issue has to do with taxation, perhaps tax exceptions for religious institutions, but I didn't get a good sense of the argument there. It might have something to do with religions being infringed in their free expression if some of their money is taken for government use, and that's why it's ok for governments to establish them in some sense by exempting them from taxes. I find the latter case much less convincing as an establishment, but I'm not sure what it is if the argument is something else.

Obama's Use of Scripture

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John Hobbins has an interesting analysis of President Obama's use of scripture in his Tucson speech.

I agree with him that the use of Job is well-placed, at least on one interpretation of Job. The quotation comes from chapter 30, where Job is giving his final arguments after his "friends" have finished their attacks against him. It comes before Elihu's speech, were Elihu (rightly or wrongly) condemns much of what Job says in the preceding chapters, including chapter 30. On one interpretation, Job is righteous not just before his speeches in the book but in everything he says the entire book, and Elihu just repeats what the "friends" had said but without some of the uncharitable comments they make about Job's own words and without accusing him of particular things without evidence. On another interpretation, Job goes a bit overboard in his description of evil occurring from God's hand, and Elihu corrects him. If the former interpretation is correct, then President Obama has wisely picked a description of the evil that occurs in the world and its appearance to us without knowing the full context. If the latter interpretation is correct, then he's picked a bit from one of Job's over-the-top speeches that ignore the goodness of God in working through the bad things that occur in the world.

It's the Psalm 46 quote that gets John excited, though. He says Obama has masterfully taken the words of that psalm and applied them in a pre-critical, figural way that is very useful in civic religion. I wouldn't have put it that way. I'm not sure Obama has taken the words and applied them at all, in fact. He simply quotes a verse from the psalm and then moves on, leaving it to everyone hearing or reading his words to figure out what he might mean by it.

Read the text of his speech. He speaks of faith that Rep. Giffords will pull through and then quotes the psalm:

There is a river whose streams make glad the city of God, 
the holy place where the Most High dwells. 
God is within her, she will not fall; 
God will help her at break of day.

He then goes on to speak of what happened in Tucson, as if the psalm quotation hadn't been there at all. I'm not remotely sure what President Obama even means to be saying by quoting this psalm in his speech. He doesn't explain it at all. He doesn't later apply it to this case. None of the language of the psalm appears anywhere else in the speech. He just reads a verse out of context and then changes the subject. It's like a bad sermon, where the preacher quotes a text and then just goes on to say whatever comes to mind, as if the text has nothing to do with the point of the sermon, there in order to make it sound remotely biblical.

His intent behind including this psalm can be taken in a number of ways, if we just go by the speech itself. He could be taking the reference of the City of God the way Augustine took it, implying that she is a Christian and therefore that the promises of the psalm can be applied to her. The river here, as intended in the psalm, would be God's means of taking care of his people. If so, and if she really is a Christian, I would have no problem with Christian application of the psalm in such a way. It would be taking the greater canonical themes and applying them in this psalm. But I have no reason to think Obama would restrict this psalm to Christians, given his pluralistic approach to religion.

He could be taking the city of God to be the United States, and the river would be God's means of taking care of the people of the United States. This is how I would most naturally take the use of this passage in a civic religion context. I'd be a little surprised if Obama thought there was some special relationship between God and the United States, though. But a lot of fans of civic religion would take it this way. This would be faithful to how the psalm is using this language within itself, but it would be getting the referent wrong (and there's no argument from later scripture for doing so, as there is in the Christian interpretation above).

One thing I would not conclude from his use of the psalm, however, is that he is identifying the river with Giffords, as John does in his post. It's so strongly at odds with what the psalm is doing that it would certainly not appear to me to be a charitable interpretation. I don't generally like to attribute such poor reading skills to an intelligent person like President Obama. I'm curious why John is taking him to be doing that. I know the first two interpretations are pretty unlikely unless he's just trying deliberately to be unclear and to have people take it in many different ways as they may be inclined (I'm not sure he's deliberately this way; he just is this way because of his relativistic proclivities, I would guess). But why is the river Giffords rather than Congress, the American people, Obama himself, or even Dick Cheney? There's nothing in the speech that gives a hint as to what he thinks the river is, what he thinks the city of God is, or what he thinks the holy place where God dwells is.

I have to conclude that Obama likes the metaphor but that he has given us no particular way of taking it, whether that's deliberate for relativistic reasons (something I wouldn't put past him) or simply because he has no idea that a metaphor needs to be given a referent in the context in some way (which would just be a sign of bad speech-writing skills). In neither case would I call it a "logical and audacious" transition. It's simply a bad transition, with no sense at all of what he's doing with it and no reason given for why it's even there.

It's no surprise to me that so many people had such high hopes for this president but were sorely disappointed once he had to start governing. He was the empty metaphor himself, standing for whatever the voters wanted to see in him, and when you include all the good anyone might want in a president, including several incompatible goals and hopes, there's no way to live up to it. He's doing the same thing here. I expect a number of other analyses from people who end up with completely different interpretation's from John's, all of them confident that they got him right and with no suggestion of any other ways of taking him. But perhaps that's, in a way, getting Obama right, if indeed his intent is to be so open-ended that people will take what they will (and I find that as likely as the alternative).

I've discovered that has Supreme Court audio going back to the 1960s. I've been listening to some religion cases from the early 1960s, and I've noticed some very interesting things. I listened to three different cases (two decided together), and I wrote up a bunch of thoughts along the way. I wanted to post some on the substantive issues of the cases, but for this post I'm restricting myself to some interesting observations on side issues that came up along the way. The cases involved have to do with prayer and Bible reading in public schools.

It's fascinating listening to these oral arguments a half-century later. It's like listening to radio broadcasts from the period, which our local NPR station plays sometimes in the evenings, except these are all names I've read about and who have authored opinions that have shaped the application of constitutional rights that we all just assume now. It's hard for me to imagine its being a live issue legally whether you can author a prayer for students to say every morning in school or whether you can have students reading passages from the Bible every single day over a loudspeaker to a whole school.

One of the issues that kept coming up when the Supreme Court took public Bible reading in schools to be sectarian was which Bible translation was being used. It seems that the King James Version was seen as particularly sectarian, and the only other Bible versions they even mentioned were the Douay-Reims translation of the Latin Vulgate (which apparently at the time was the standard English version among Catholics) and some Jewish translation of the Hebrew scriptures that I'd never heard of before this (the Jewish Publication Society version wasn't until I was in college).

Apparently there were riots at some point in the past over which Bible version was read when Catholics tried to get the Douay-Rheims translation included along with the KJV in school readings, and there was a public book-burning of the RSV as late as the early 1950s. At least the criticism of the TNIV hasn't usually gotten to those kinds of extremes.

One lawyer opposing Bible-reading represented Unitarians, whose claim was that reading the KJV opposed their beliefs by favoring the Trinity (e.g. for capitalizing "Spirit" in Genesis 1, which of course wouldn't be heard in a public reading, but he probably didn't know enough to point out the Trinitarian additions in the KJV in I John, which would have been a much stronger argument).

In a completely unrelated issue, I noticed at least three different people (among the various lawyers and justices) using the word 'infants' to refer to fifteen-year-olds without anyone thinking anything funny was going on with such a use. What's up with that? If Baptists had realized that that word could refer to a teenager, they would have been perfectly fine with Presbyterian views of baptism all these years.

One participant argued that the use of the name "Holy Bible" showed sectarianism. The response was that this is not a description but a name. It's probably less so now, but I think that was certainly right. In the 1960s, you probably couldn't buy a Bible without that title, and I suspect many people who didn't see the Bible as authoritative for life called it that without considering its meaning as a description, just as many Jews use 'Jesus Christ' without intending any Messianic overtones.

I intend to post some thoughts on more substantive issues in separate posts. Some of them are not quite central to the case but involve detailed issues and deserve their own posts. It would have been a huge post to include all that plus the main issues plus these side points all in one post, so I'm sort of working my way toward the central questions of the case.


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