Wednesday, August 31, 2005

A Double Standard

God, Country, Constitution, and
the Pledge of Allegiance

Why is is that when an atheist files a law suit against the words "under God" in the Pledge of Allegiance, it is front page news for months, but when a devout Christian files a law suit against the words "under God" in the Pledge of Allegiance, the media ignores it?

I just finished reading the decision in a 4th circuit federal appeals court case, Myers v. Loudon County Public Schools. Here is a description of the plaintiff and his complaint, from the text of the court's ruling:

Myers belongs to the Anabaptist Mennonite faith, which condemns the mixture of church and state. Anabaptist Mennonites are a Christian sect that "left Central Europe in late 1600 because of religious persecution for belief in the separation of church and state." According to the Mennonite Confession of Faith, "the primary allegiance of all Christians is to Christ’s kingdom, not the state or society. Because their citizenship is in heaven, Christians are called to resist the idolatrous temptation to give to the state the devotion that is owed to God."

Now THAT is the original meaning and intent of the separation of church and state. What is wrong with the words, "under God" in the Pledge of Allegiance is not that it might offend an atheist, what is wrong is that it might offend God. When an attempt was made to insert the words "Jesus Christ" into the preamble of Virginia's Bill for Religious Liberty, James Madison responded "The better proof of reverence for that holy name would be not to profane it by making it a topic of legislative discussion." For that very reason, there is no reference to God in the United States Constitution. The omission was not an oversight. It was a change from the Articles of Confederation. It was a deliberate choice by the Framers. As Madison had already set forth in the Memorial and Remonstrance Against Religious Assessments, to "employ Religion as an engine of Civil policy" is "an unhallowed perversion of the means of salvation."

Madison acknowledged while serving as President of the United States that "the source to which I look . . . is in . . . my fellow-citizens, and in the counsels of those representing them in the other departments associated in the care of the national interests. In these my confidence will under every difficulty be best placed, next to that which we have all been encouraged to feel in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications." Madison saw no contradiction between his own supplications to God, and his care to preserve that holy name from contamination in mere civil laws.

With that as the historical foundation of our nation... how did we ever get a pledge of allegiance like the one familiar to us today? Originally, it was a cute poem in a children's magazine. It was inspired by the 400th anniversary of Christopher Columbus stumbling into America on his way to India. It was written generically for every nation in North and South America. That was in 1892. Even our country's first centennial did not inspire such a verse.

It originally read "I pledge allegiance to my Flag and the Republic for which it stands: one Nation indivisible, with Liberty and Justice for all." In the 1920s, there were National Flag Conferences, which took it upon themselves to edit the original author's work, replacing "my flag" with "the flag of the United States of America." Then in 1942, congress voted on what the words of the pledge should be. It is now a law, recorded as 4 U. S. C. §4 (section 4, title 4, United States Code).

That was probably a mistake. We don't have a law to tell us the officially approved words for the Battle Hymn of the Republic. The words are those Julia Ward Howe wrote, and that is that. We don't litigate about where she made reference to God, or Christ. But the motive for codifying the pledge is easy to understand. We were in the midst of World War II. It was the last time we were wholeheartedly united as a nation behind any war effort. There was no question that our very survival was at stake. Civilians actually made sacrifices for the war effort. Congress thought that codification and greater use of the pledge would be a good patriotic exercise.

But if Congress could write one set of words into the law, it could write another. In 1954, the words "under God" were added, by a law known as 68 Stat. 249. So now, it is not simply, the words the author chose, it is the words congress dictated, in response to an intensive lobbying campaign. Is this, perhaps, the "unhallowed perversion of the means of salvation" that Madison wrote about?

Myers's lawsuit asked that the recitation of the pledge in public schools be ended as a violation of the First Amendment. The United States Supreme Court ruled long ago that reciting the pledge cannot be mandatory, West Virginia State Board of Education v. Barnette. In 1942, families in West Virginia filed suit when their children were threatened with expulsion if they did not salute the flag. These families adhered to "a literal version of Exodus, Chapter 20, verses 4 and 5, which says: 'Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.' They consider that the flag is an 'image' within this command. For this reason they refuse to salute it."

As the Supreme Court noted at that time "The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. ...the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual."

For over 60 years, the law has protected Mennonite children, or any others, from joining in the pledge of allegiance if they have religious objections. It does not prohibit public schools in general from reciting it as a patriotic exercise. Myers objected not only to having blasphemous words put in his children's mouth, but to the state appropriating the name of God at all.

Myers may be correct spiritually, or he may not. What he seeks may be the right thing for our nation to do, under the Constitution, or it may not. There are many, whose faith is not offended, who would assert their own right to recite the pledge if they choose to. Although individuals have an undoubted right to recite the pledge with, or without, the words "under God," perhaps the government should not appropriate the name of God in a statute, or promote daily use. But one question is still raised by the deafening silence that greeted his litigation:

Why is denial of God, under cover of the First Amendment, getting all the attention, while reliance on the First Amendment to promote reverence for God, is quietly suppressed? Where are the media now? Where are the concerned Christian lawyers rushing to aid Myers in making his case? What has become of our nation?

No, Virginia, there is not a constitutional right to incest...

It is time to throw some cold water, and a stiff dose of common sense, on the infernal racket running around the internet concerning a constitutional right to marry your youngest sister, or oldest brother, or to commit any other form of incest. I expect that 99.9% of Americans over the age of puberty would immediately recognize what a ridiculous idea that is. Well, the highly educated brains at the National Review suggest that such a right may exist. What will those fuzzy-brained intellectuals come up with next? Convicted felon Charles Colson, who morphed into a born-again disciple of Jesus Christ, then morphed into his old manipulative political self, but kept the Gospel as a fig leaf, sees some merit in the argument also.

What brings on this orgy of twisted philosophizing? It was set off by an obscure case from Wisconsin called Muth v. Frank. Look it up, the summary of facts by the Seventh Circuit federal appeals court will ruin your lunch. The plaintiff did indeed have a very sad childhood. Incidentally, the federal appeals judges who heard the case unanimously upheld the Wisconsin state law making incest a Class F felony.

But, the National Review's sharp legal minds observed, "there is no form of legal reasoning that can distinguish a 'right' to commit homosexual sodomy from a 'right' to marry your sister and raise a family." (There isn't? Well... they haven't found one...) In an article entitled Could the Supreme Court embrace incest?, Matthew J. Frank assures us that the high court will simply have to do just that to remain faithful to its own precedents.

The article offers a long-winded analysis, twisting the legal standards "strict scrutiny" and "rational basis," into a Gordian knot nobody could untie. But it can easily be cut. Frank simply demonstrates that going round the mulberry bush of legal rhetoric can lead to some really useless conclusions. A simple look at the plain truth, a due regard for facts, even a teeny weeny drop of common sense, puts all this rhetorical nonsense to rest. The late Supreme Court Justice William O. Douglas remarked that "Common sense often makes good law." Amen to that Justice Douglas. Where are you when we really need you?

Of course the foundation of sand for this red hot rhetoric is the Supreme Court's ruling in Lawrence v. Texas. In that case, the Supreme Court held that states may not impose criminal penalties on homosexual acts between consenting adults in the privacy of their own homes. A majority of states no longer had such laws anyway – a Republican governor of Arizona signed the repeal of that state's penalties, commenting that "government does not belong in our private lives."

The fundamental constitutional right is the right to privacy, the right to be left alone by the government. It is not and never has been an enumerated right to commit any and all deviant sexual acts, no matter who they may harm. We all learned in elementary school the age-old principal, "A man's home is his castle." That castle can be breached if a homeowner (or tenant) is using their residence to commit rape, murder or torture, or to warehouse illegal drugs for sale, or explosives that may level the entire neighborhood. No citizen may use their own right to privacy as a cover to harm their neighbors, or even their own children.

Prohibitions against incest are not merely a rejection by society of private behavior that the majority finds personally disgusting. (Incidentally, the Supreme Court did NOT restrict the right of any person to call homosexual acts either disgusting or sinful. It just said the police can't barge into private homes to arrest people for it.) Incest has an impact on the children which result from the union. Laws against incest also reflect the fact that brothers and sisters have generally been raised in an intimate family setting, which was explicitly NOT a sexual relationship (except between mom and dad). Incest is not limited to siblings: sex with closely related sometime custodial adults is also prohibited – for the same excellent reasons.

Colson, mercifully, is not so cerebral as the pundits at William F. Buckeley, Jr.'s family magazine. He arrives by a plain and simple path at the same wrong-headed conclusion. ( Taking the Plunge: A Case of Incest). If people are “free as adults to engage in private conduct in the exercise of their liberty under the Due Process Clause of the 14th Amendment to the Constitution” then of course it goes without saying that every choice a person makes is an exercise of their liberty! "Substitute 'incestuous' for 'homosexual' in Kennedy’s opinion and its meaning remains exactly the same," according to Colson.

Hmmm... so if I say "I love my wife" and you substitute into the same sentence "I love my racing car," we have both expressed the same sentiment? If I fill out a withdrawal slip, and hand it to the teller at a bank, that is the same thing as writing "I have a gun, give me all your cash" and handing it to the same teller? I have a right to hand a teller one piece of paper, obviously I have the right to hand a teller any piece of paper bearing any message I choose to write on it! We must expect Supreme Court justices to have better sense than that, even the ones we sometimes disagree with. (There is no justice I always agree with, and no justice I never agree with either. They are falliable human beings, like all of us. Fortunately, nine heads really are better than one.)

It is true that SOME human societies have not only approved of incest, but required it for certain elites – who could find no mate worthy of them outside their own family. The pharaohs of Egypt come to mind. (One must be grateful that the self-proclaimed elite snobs at National Review have not rated their own family pedigrees quite so highly as that). But many cultures, including those based on Jewish tradition, recognized that incest produced seriously deformed children, or in the long run a seriously deformed people. We knew that long before genes were mapped or the structure of DNA unraveled.

Any informed citizen could see at least two plain and obvious reasons there is a "rational basis," not to mention a "compelling state interest," in prohibiting incest. As the 7th circuit's judge Evans wrote, in a concurring opinion, "Muth can only prevail (1) if he can rely on Lawrence v. Texas and (2) if Lawrence v. Texas can be read to decriminalize incest. He can’t satisfy either “if,” but even if he could slip past the first one, he could never get by the second." Now, would anyone care to maintain that the Supreme Court has obligated itself to find a constitutional right to commit incest?

Well, National Review after all is the magazine that wrote "the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally... because for the time being it is the advanced race." If the magazine existed at the time of the American Revolution, the entire staff would have enlisted in Lord Buckley's Loyal Rangers and marched off to fight for King George. National Review has never met a constitutional right it fully approved of.

From that viewpoint, legalization of incest would be a small price to pay, if it stampeded the rest of us in sheer revulsion to abandon all our real constitutional rights. Maybe we would even throw away the right to keep and bear arms, along with free speech and freedom of religion. Few Americans would really want to see the constitutional right to privacy thrown out wholesale. We all expect that there is a zone of our lives the government may not intrude upon. We only argue over its boundaries.

Private consensual adult homosexual conduct harms nobody but those who engage in it. Incest harms entire families, up and down the family tree. It generally involves at least one partner to the incest taking unfair advantage of the other, based on prior family roles and association. No federal court has found a constitutional right to commit incest, for the very good reason that there is none. Beware of poisonous spiders weaving rhetorical webs, to protect us from dangers dredged up out of their own perverted imagination.