February 05, 2004

Stupid Conservative Myth #20

Here's another fun one from your friends, the barking idiots on the right:

Liberals believe that homosexual parades displaying drag, transvestites and bestiality should be constitutionally protected and manger scenes at Christmas should be illegal.

For the first part, I have to say that I have yet to see a parade the celebrates bestiality or liberals who support such parades, so I can't speak to that part of it. Sounds like bullshit to me.

If people want to dress in drag or cross-dress, why the hell is it the government's business? Just another manifestation of the Church Lady Conservative, trying to stick her nose where it doesn't belong. As for manger scenes at Christmas (on public grounds) and the like ... well, that gets into the Establishment Clause. So this is actually one of the myths about liberals that has a ring of truth to it (a truth liberals should be proud of), though it is worded poorly.

In a way, this is a depressing post as I write it. It recollects some of the research I once did regarding the Establishment Clause. Supreme Court decisions (searchable at findlaw.com) are usually masterfully and persuasively written (for both sides, when there is a dissenting opinion), and they often represent the pinnacle of reasoned debate, which is sorely lacking in today's political discourse thanks largely to stupid, talk-radio, know-nothing conservatives and the media outlets and pundits who pander to their ilk.

I've always believed that this sort of debate is necessary in a Democracy. It strengthens us. It exposes us to new ideas and offers the possibility of changing long-held, damaging beliefs. Just as debate and philosophy constantly hone science into a sharper and more effective tool, so it does with government, when it is used properly.

The reason this subject is worth revisiting for me is that I really learned something neat by going through this Supreme Court decision, something about the law and the history of our country that I didn't already understand and appreciate. The reason it is depressing is because the infamous "Bush v Gore" decision of the Rehnquist court in 2000 made it all too clear that the conservatives on this court don't really care about logic and reason when the chips are down.

It's all just words used to gain their political ends, and so they are no better than the political hacks they installed into the White House in their damaging, unprecedented ruling. And so now every time I look at a Supreme Court opinion, especially one that involves one of the parties to "Bush v Gore" like Scalia, I can't help but wonder just how sincere the logic is on that side of the ledger and how much of the argument is driven by simple partisanship.

Anyway, on to the issue at hand, which is the Establishment Clause. The Establishment Clause (EC hereafter) is part of the First Amendment to the Constitution (in the part popularly known as the "Bill of Rights"), and it reads "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." A recent case involving prayer services at a high school graduation ceremony brought a lot of EC-related issues to light, and so I would like to briefly summarize and talk about it.

In the minority opinion, Scalia et al argue that prayer at a graduation ceremony is not in conflict with the EC because:

1) There are prayers at presidential inaugurations, public addresses, sessions of Congress, etc. Why not graduations? The majority argued that it's an apples/oranges comparison and referenced other cases in which Scalia's examples were addressed.

2) Participation is not obligatory or coerced in any way. Students are free to go or not go, pray or not pray. Probably the most debatable point here. Just how obligatory is attendance at a high school graduation? And once present, how much coercion is involved in a religious invocation during which everyone is encouraged to stand up and join in?

3) You could argue that there is equal obligation or coercion involved with the recitation of the Pledge of Allegiance, which includes "under God", and so if one is allowed, why not the other? I thought it was funny here to see conservatives using the "slippery slope" argument to their own benefit. After all, the words "under God" should've never been allowed into the pledge in the first place. It's an artifact from the 1950's, and I'm not sure it has ever been tested constitutionally until recently.

4) It wasn't the principal or any other state-employed official leading the prayer but instead a religious person invited by the principal, so there was no direct involvement of the state with the religious nature of the ceremony.

To this last point, a stipulated fact of this particular case was that "Principal Lee invited Rabbi Gutterman, provided him a two-page pamphlet, prepared by the National Conference of Christians and Jews, giving general advice on inclusive prayer for civic occasions, and advised him that his prayers at graduation should be nonsectarian." Sounds like "direct involvement of the state" to me.

Anyway, the majority's decision largely revolves around what is called the "Lemon test", which is based on a 1971 case "Lemon v. Kurtzman" in which some basic standards were set by the justices. According to these standards, the EC is not violated (so the act is ok under the constitution) when a governmental practice:

(1) reflects a clearly secular purpose;

(2) has a primary effect that neither advances nor inhibits religion; and

(3) avoids excessive government entanglement with religion.

Essentially, the Lemon test is violated whenever government action "creates an identification of the state with a religion, or with religion in general' or when 'the effect of the governmental action is to endorse one religion over another, or to endorse religion in general.'". Clearly, the majority argued, the Lemon test was violated here.

Looking further into the background of the EC brings some interesting surprises for me. For example, did you know that the founding fathers (such as James Madison, cited in the opinion, or Thomas Jefferson, whose historical importance I am sure liberals and conservatives can agree upon) primarily put the EC into the Bill of Rights as a way of protecting religion from governmental interference and not the other way around, as is popularly perceived?

Their wariness came from their experiences with the Church of England, a religion of convenience established by Henry VIII during his famous feud with the Catholic Church. People latched onto this religion at the expense of more "pure" expressions of religion, and the founding fathers worried that any kind of milquetoast "civic religion" would inevitably weaken other religions and thus threaten religious liberty. You can find out a lot more about the founding fathers thoughts on church and state here.

As the justices put it in their majority opinion:

In  the hands of government, what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed.

And in schools, the danger is worse:

What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

Of course, the worst-case scenario is what we've seen lately, in which the government is trying to endorse not a civic religion but a particular brand of fundamentalist Christianity. Imagine if you lived in Iran and openly practiced Baptism. You walk into a courtroom filled with Islamic symbols, recite a Muslim prayer before the trial, swear on the Koran, pledge allegiance to Allah, etc. How would you feel about your shot at a fair trial? The whole point of America is that we're *not* like that. Why can't stupid conservatives understand this simple truth?

I always get a good laugh when conservatives try to play the religious persecution card because of the EC. Conservatives, who absolutely ridicule any liberal who plays the victim card, are extremely quick to cry for help on religion. Oh, those nutty conservatives, they control all three branches of government, but they are scared that some liberal is going to throw them in jail just for saying "God" out loud or something.

Not only does this reflect a deeply ignorant and fundamentally wrong interpretation of the EC, but the sad irony is that the purpose of the EC is to protect the sanctity of their religion and their beliefs. Poor conservatives. They're too stupid to support the part of the constitution that protects what they claim to love the most. You just can't win with these idiots.

Posted by Observer at February 5, 2004 07:01 AM

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