Jeremy Pierce: February 2011 Archives

I've been posting thoughts I had while listening to the oral arguments for several Supreme Court cases from the early 1960s. See my earlier posts Supreme Court Religion Cases and Substantive Side-Issues with the School Bible-Reading Cases.

I'd like to turn now to the central issues in these cases. The main issue was whether it's constitutionally allowed for a government school system to have prayer or public Bible reading for students in school. In one case there was a prayer written to be non-sectarian (it was claimed), said by the students. Another had The Lord's Prayer, simply read by one person. One case had a Bible reading chosen by a teacher, without comment. Another had students choose a passage and read it with a short reflection of their own.

Justice Potter Stewart, who has gone down in history as a moderate swing justice, was the only justice to take the position that is usually seen as the traditional, conservative view (the view that would have won in the Supreme Court a generation earlier and probably would win now if there weren't all this precedent against it). That's how liberal the Supreme Court was during the Warren Court. A moderate was seen as the long conservative holdout. On this issue even Justice John Marshall Harlan II (who sometimes voted against liberal rulings by the Warren Court), Justice Hugo Black (who often used the kinds of textualist arguments Justice Scalia uses; Black opposed finding the constitutional right to privacy that was later used to justify Roe v. Wade), and Justice Byron White (one of only two justices to dissent to Roe v. Wade) sounded right in line with Chief Justice Earl Warren, Justice William Orville Douglas, Justice William Brennan, and all the others. Stewart was the only justice who recognized that the establishment clause was set up to avoid a state church like British Anglicanism (or at least the only one who thought its purpose mattered in interpreting it). The others all thought it also included government endorsement of religious content.

One of the arguments discussed in the case was that these policies didn't just violate the Establishment Clause by setting up a state religion. They even violate the free exercise clause by compelling religion, even though the policies all had opt-out clauses. Any parent who wanted a child not to participate could have their child opt out. The opposition resisted seeing this as a genuine option and called it coercion anyway, because some kids made fun of those who opted out. So it's state coercion to participate in religion, because some kids happened to make fun of someone not participating. I didn't know that students in public schools count as agents of the state.

One argument in favor of the Bible-reading policies and the saying of the Lord's prayer was that the opposition was a recognition of atheism as opposed to theism, and that itself constitutes an establishment of religion (given that atheism had at that point come to be recognized as a religion legally). The consistent response was to point out the diversity of possible motivations for opposing such a policy. It's fairly common to point out that Jews don't recognize the Lord's prayer (although someone pointed out a very similar prayer in the Kaddish) or that there are religions that don't recognize the Bible at all. The more interesting response was that some people might have so much reverence for the Bible that they don't want it tarnished by being read in such a setting (a stupid claim for a Christian to make, but apparently some have done so) or that they don't trust teachers as representatives of a secular state to teach the Bible or select passages for reading, given that which choices are made for reading might itself constitute an element of teaching the Bible (a much more reasonable motivation for not wanting this done, albeit a policy argument more than a constitutional one in my view). At one point, Justice Black (I believe) even pointed out that the Lord's prayer is in the same chapter where Jesus tells people not to pray in public (although that's not quite what Jesus said).

There's an interesting debate among the lawyers over whether the Bible can be used simply for moral teaching in isolation from whatever would make it count as religious teaching. One lawyer made the (obvious, in my view) claim that you can't separate the moral teaching of the Bible from the religious elements. The lawyer on the other side who resisted this made the (also obvious, in my view) claim that there are moral propositions contained in the Bible that are often held from a completely different religious framework (including atheism). I think they were talking past each other at many points. There certainly are moral teachings in the Bible that can be separated from their context, but the context is plainly religious, and the context was being read. It's hard to take the Sermon on the Mount as a merely moral tract while ignoring the tremendous emphasis Jesus places on the moral obligation to follow him, which certainly is a sectarian claim in the sense that matters on the view that the Constitution doesn't allow any expression of religion by state actors.

There's a tremendous tension in the Supreme Court's eventual position, one that several lawyers predicted would occur if they decided this case in the way that they did. They wanted to uphold state actors engaging in civic religion in several places, e.g. "In God We Trust" on coints, prayer in the Congress and Supreme Court, "under God" in the pledge of allegiance. They also wanted to claim that it's an unconstitutional establishment of religion for the Bible to be read in schools without comment (not requiring the presence of students who could opt out), for a traditional prayer like The Lord's Prayer to be read out in schools (not expecting any student to say them or even be present), or for a state to craft its own prayer with the goal of avoiding sectarian elements that Jews or Unitarians might object to. The Supreme Court had to continue to draw fine lines, often ones without much moral significance, to justify their unusual combination of positions, but they had a hard time resisting continued erosion of public expressions of religion by state actors, as several lawyers in these cases in the 1960s had pointed out would be the consequence of these cases. It strikes me as the better variety of slippery-slope argument. [The bad kind: doing X will lead to doing Y because weak-willed people will be hard to turn things back once it goes a certain distance, even though X is morally justified and Y isn't. The good kind: if you do X, which seems fine to you, then the same principles require doing Y, which you object to. When the claim that the same principles apply is correct, this is an excellent argument, despite getting made fun of constantly in public debates, e.g. when Rick Santorum pointed out that the Supreme Court's 2003 decision against laws prohibiting same-sex sodomy would require removing laws against incest, which libertarians have now been arguing on exactly those grounds based precisely on that case.]

One argument from the Unitarians' lawyer was rejected by the Supreme Court, quite explicitly. He was claiming that it doesn't matter if there's a secular purpose to an activity, because every establishment of religion has a secular purpose. People don't engage in civic religion unless they think there's a purpose for teaching morality. He's right, of course, about people's motivations. But does that mean the state is endorsing a religion just because it uses something from a religion for moral reasons or to affirm the tradition as contributing good things? The Supreme Court has rejected this, saying that there needs to be a secular purpose (along with a few other conditions), but some expressions of religion are all right given such a purpose (and given that the other conditions are met).

The same lawyer also would have allowed something the Supreme Court later rejected. He said it would be fine for the school to invite students to come read the Bible or pray at recess. It wouldn't be fine for a school to do it and then let people opt out. The Supreme Court has disallowed both. Private individuals who are not state actors can invite students to do this on school grounds, but the Supreme Court won't let a private actor who is also a state actor do this, because students can't distinguish those roles in the same person.

Here's an argument I find wholly unconvincing that might have gone into my previous post if I'd chosen. One lawyer argued that children are not known for the capacity to dissent, and I think the implied conclusion is that we should be more careful with them when it comes to opt-out clauses. But that misses a key legal principle in our system. It's not children who do the opting out when it comes to what they're exposed to in schools. It's their parents. This law allowed parents to opt their children out. He cites Justice Frankfurter as giving this argument as a precedent, but one of the justices (perhaps Powell ) rightly objects that that wasn't a controlling opinion of the Supreme Court. It was a concurring opinion where Justice Frankfurter had agreed with the Court's conclusions but written his own reasons up as well to indicate some other thoughts he had. So it's not a precedent. But it's an unconvincing argument anyway, given how our legal system works. Maybe there are better arguments in the area of this, but I don't think this has much weight at all.

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