11 March 2010

This Year in Jerusalem

Once upon a time, I took an oath to "protect the Constitution against all enemies, foreign and domestic," as did every member of the Congress that voted to ratify the "under God" language the Pledge of Allegiance in both 1954, and again in 2002. In the latest case advanced by Michael Newdow, the Ninth Circuit today held (2 (Bea) – 1 (Reinhardt)) that the Pledge of Allegiance including the "under God" language appended during the McCarthy era — supposedly as a way of undermining those "godless commies" — does not constitute an undue invasion of religious expression into civic affairs, even when mandated by the state as part of a daily school exercise (large PDF).

I will not pretend that this is an easy decision under existing precedent, particularly under existing Supreme Court precedent. I do think that Judge Reinhardt's dissent has the better of the argument here, but not by so much that I think Judge Bea (and his silent partner Judge Nelson) are anything other than just mistaken. The problem, I think, is that the Supreme Court's precedent on the wall between Church and State gives too little historical context to the battle between "exercise" and "establishment" in the seventeenth and eighteenth centuries, and as a result allows too much establishment to occur when it is nonsectarian establishment.

This should matter a great deal to writers.

TOBY: But I'll tell you why it should be front and center. It's not the first amendment, it's not religious freedom, it's not church and state, it's not... abstract —
LEO: What is it?
TOBY: It's the fourth grader who gets his ass kicked at recess because he sat out the voluntary prayer in homeroom. It's another way of making kids different from other kids when they're required by law to be there. That's why you want it front and center. The fourth grader: That's the prize.
LEO: What did they do to you?

The West Wing, "Shibboleth" (Season 2, whole number 30; emphasis added). Despite his "prickly" nature, I don't think we can justify what Toby's classmates did to him at recess. Been there myself... much less than a decade later (hypothetically, anyway), on the opposite coast, for merely doubting the existence of any deity and expressing that doubt. The problem is not the affirmation of belief; it's the negation, the neglect, the scorning and shunning that Lillian Gobitis and her brother endured. Then I got to see it up close and personal dealing with Southwest Asia on a professional basis... with a selection of live munitions for spice.

Right now in Jerusalem; last century in Londonderry; 1631 in Magdeburg; I could name more examples than I wish to without ever getting into what was happening in Europe at the same time as Lillian Gobitis was shunned by her classmates and expelled from school. Take your pick: Ratification of religious differences and doctrine by the state always has the same result. The irony that insertion of the religious language into what was purportedly a purely civic and political context was for an explicitly political reason appears to have escaped Judge Bea (see slip op. at 3885–90) (and his overreliance upon "Congressional findings of fact", slip op. at 3902), but not Judge Reinhardt (see slip op. at 3976–89).

In any event, the matter is now ripe for rehearing and/or a petition to the Supreme Court. I think both opinions did the best job they could, within the constraints imposed by existing dogma, to present their cases; as I mentioned, Judge Reinhardt has the better of this particular argument, albeit not by much. The battle isn't over; it probably never will be over. What was that old, oft-misquoted and oft-misattributed line about the price of liberty being eternal vigilance... and what was its context?