Coercing Virtue (5 page)

A parallel development occurred in the alteration of the law relating to pornographic or obscene expression. This area is the one in which the Supreme Court’s capture by the philosophy of radical individualism is perhaps most blatant. For two centuries, in fact ever since the
establishment of the first colonies, Americans suppressed such expression. As late as 1942 a unanimous Court could say in
Chaplinsky
v.
New Hampshire
that prohibiting “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words” had “never been thought to raise any Constitutional problem” because “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Order and morality? In the culture created by modern liberalism, the words sound quaint, if not benighted and repressive.

The
Zeitgeist
mutated so rapidly that, in 1973, when a bare five-Justice majority upheld minor (and, as it proved, utterly ineffective) restraints on pornography in
Miller v. California
, there was a great outcry about censorship. Communities now find it impossible to control the torrent of pornography loosed upon them. Juries can no longer agree, as
Miller
requires, that any depiction of sexual conduct is “patently offensive” or that “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” And there is always a clutch of professors at hand to testify that the purest pornography is actually a profound parable about the horrors of capitalism or the repressiveness of the bourgeois state, or that, in any event, the photography or the prose has artistic value.

The Court has proved almost equally unable to cope with the problem of obscene speech.
Cohen
v.
California
(1971) threw First Amendment protection around a man who wore into a courthouse a jacket suggesting, with a
short Anglo-Saxon verb, that the reader perform a sexual act of extreme anatomical implausibility with the Selective Service System. Justice Harlan, writing for the majority, relied on both the dangers of the slippery slope and moral relativism. He said “the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word?” He might as well have said that, in tort law, the negligence standard is inherently boundless: How is one to distinguish the reckless driver from the safe one? The answer in both cases is the common sense of the community. Almost all judgments in law are matters of degree, as, to take another example, in distinguishing between libel and fair comment. Harlan’s other reason was a classic of moral relativism: “One man’s vulgarity,” he said, “is another’s lyric.” On that ground, it is impossible to see how law on any subject can be allowed to exist if any citizen disagrees with it. One man’s armed robbery is, after all, another’s just redistribution of wealth.

The First Amendment does not enforce virtue, but the Court should not misuse the guarantee to outlaw the legitimate efforts of communities to slow the erosion of moral standards, to safeguard the aesthetic environment, and to set minimal standards for the decency of public discourse. If the First Amendment were interpreted, as it was for most of our history, to permit such efforts, nothing of any worth would be lost and much would be gained.

The inversion of the Speech Clause so that pornography and calls for violence and law violation are better protected than political speech is a continuation of the
Court’s transformation of the clause from an indispensable element of democratic government to a guarantee of individual self-gratification and diminished popular engagement in politics. This trend, too, is congenial to the scale of values advanced by the New Class.

Much the same may be said of the Court’s interpretation of the Religion clauses of the First Amendment. The liberal intelligentsia is overwhelmingly secular and fearful of religion; hence its incessant harping on the dangers posed by the “religious right.” That ominous phrase is intended to suggest that Americans who are conservative and religious are a threat to the Republic, for they are probably intending to establish a theocracy and to institute an ecumenical version of the Inquisition. (Exasperated, a friend suggested that the press should begin referring to the “pagan left.”) It is certainly true, however, that the liberal intelligentsia’s antagonism to religion is now a prominent feature of American jurisprudence. The Court moved rather suddenly from tolerance of religion and religious expression to fierce hostility. Though not the first manifestation, one case illustrates the place of religion on the Court’s scale of values. Major philosophical shifts in the law sometimes occur through what may seem to laymen mere tinkerings with technical doctrine. The judiciary’s power to marginalize religion in public life was vastly increased through a change in the law of what lawyers call “standing,” which withholds the power to litigate from persons claiming only a generalized or ideological interest in an issue. Some direct impact on the plaintiff, such
as the loss of money or liberty, is required. But in 1968, in
Flast
v.
Cohen
, the Supreme Court created the entirely novel rule that taxpayers can sue under the Establishment Clause to prohibit federal expenditures aiding religious schools. The Court refused to allow similar suits to be brought under other parts of the Constitution. Thus, every single provision of the Constitution, from Article I, section 1, to the Twenty-seventh Amendment, except one, is immune from taxpayer or citizen enforcement – and that exception is the one used to attack public manifestations of religion.

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.