Claes Persson wrote:
> Legal Affairs
> HURT FEELINGS AREN'T ENOUGH OF A REASON
> by Stuart Taylor Jr.
> The burden of hearing people go on about God at public events does
> not deserve a constitutional remedy.
> http://www.theatlantic.com/politics/nj/taylor2002-07-09.htm
>
-------------------------
It's an interesting article. It doesn't say what your headline would
lead us to think. I'm taking the liberty of reproducing the article
below so that everone will be encouraged to read it...
D.C. Dispatch | July 9, 2002
LEGAL AFFAIRS
by Stuart Taylor Jr.
....
"Why should I be made to feel like an outsider?" asked Mike Newdow, the
California atheist who got two judges to declare the Pledge of
Allegiance unconstitutional, as he explained his litigious urges to The
New York Times. After he's finished stripping "under God" out of the
Pledge, he hopes to rip "In God We Trust" off of our money. And he is
itching to do something about the annoying proclivities of newly elected
presidents to pray at their inaugurations.
Wacky? Sure. But not particularly surprising. In his intolerant urge to
stop more than two centuries of government sponsorship of innocuous bows
toward religion, Newdow typifies the hypersensitive, illiberal attitude
of more than a few crusaders for strict separation of church and
state?an attitude that has infected some Supreme Court opinions. And in
his desire to make not being offended a constitutional right, Newdow has
something in common with campus multiculturalists bent on censoring as
"harassment" the uttering of political opinions that offend members of
politically preferred groups.
Newdow's pseudo-constitutional objection to being "made to feel like an
outsider" draws undeserved plausibility from Justice Sandra Day
O'Connor's dubious contention, in opinions since 1984, that the
Constitution forbids any governmental endorsement of religion that
"sends a message to non-adherents that they are outsiders, not full
members of the political community." Someone should tell O'Connor that
lots of folks are made to feel like outsiders every day, in many ways;
the burden of hearing people go on about God at public events does not
rank high on the scale of oppressiveness or deserve a constitutional
remedy. I say this as one who doubts the wisdom (but not the
constitutionality) of the 1954 law that put "under God" in the Pledge.
The 2-1 decision in Newdow v. U.S. Congress to strike down the Pledge
has been widely ridiculed as an example of the liberal adventurism long
associated with the U.S. Court of Appeals for the 9th Circuit. But in
fairness to Judge Alfred T. Goodwin, the Nixon-appointed author of the
decision, his logic was rooted both in O'Connor's formula for detecting
establishment-clause violations and in the ill-advised language of
Supreme Court precedents banning nondenominational prayers at high
school graduations and football games.
Goodwin acknowledged that Newdow's 8-year-old daughter had not been
required to join her classmates in reciting anything. But he held, "The
mere fact that a pupil is required to listen every day to the statement
'one nation under God' has a coercive effect" and thus
unconstitutionally compels students to participate in a religious
exercise.
In reaching this odd conclusion, Goodwin relied especially on the
Supreme Court's ruling two years ago that "the delivery of a pre-game
prayer has the improper effect of coercing those present to participate
in an act of religious worship"?even though nobody was required either
to attend the football games or to join in the prayers.
The facts of that case, Santa Fe Independent School District v. Doe, did
raise real constitutional problems because the pre-game prayers were
sponsored by school officials who were also said to have "chastised
children who held minority religious beliefs." But Justice John Paul
Stevens went well beyond the facts in an opinion for the Court that,
dissenters complained, "bristles with hostility to all things religious
in public life." He suggested that pre-game prayers would be
unconstitutionally coercive even if initiated by a vote of the students,
without official encouragement; dissenters would be "at the mercy of the
majority," feeling a "sense of isolation and affront." A majority vote,
Stevens explained, "guarantees, by definition, that minority candidates
will never prevail and that their views will be effectively silenced."
"Silenced": a favorite word of campus speech-code enforcers who seek to
justify their own censorial itch by claiming that they are impermissibly
"silenced" if others are allowed to say things that they don't want to
hear. Did some bright young Stevens law clerk seize a chance to slip
such Orwellian reasoning into the law of the land?
Be that as it may, what we have here is a failure to appreciate vast
differences of degree. It is one thing to see religious coercion at work
when children are pressured by the threat of ostracism to join in the
unmistakably religious exercise of reciting classroom prayers. It is
quite another thing to see prayers as coercive when attendance is
optional and any pressure on those present to participate is minimal.
And when students do feel pressure to join in classroom recitations of
the 31-word Pledge, they can easily skip "under God" if it offends them,
without adverse consequences.
With some stretching, Stevens's logic in the football-prayer case could
even be read as foreshadowing a ban on all patriotic rituals at
schools?not only those that mention God, as do the national anthem and
most other patriotic songs, but also those that are devoid of religious
content. Consider the recitation of (say) passages from the safely
secular Bill of Rights. This would raise no establishment-clause issue.
But it arguably would violate the free-speech clause, if a single
student objected, under an updated reinterpretation of the Supreme
Court's justly celebrated 1943 decision in West Virginia Board of
Education v. Barnette.
The Court held then that the free-speech clause barred "compelling"
Jehovah's Witnesses to recite the Pledge of Allegiance?which did not
mention God at the time?because such compulsion would violate their
beliefs. The Court said allowing those students to be silent would not
prevent the other students from reciting the Pledge. But that part of
the decision is arguably outdated. Now that the current justices have
said school-sponsored religious speech would amount to "coercing those
present to participate," would not the same be true of school-sponsored
patriotic speech?
There is, of course, zero chance that the justices, who follow the
election returns, will exile patriotic rituals from schools. And it
seems a safe bet that the commonsense view expressed by Judge Ferdinand
F. Fernandez in dissenting from the three-judge panel's ruling in the
Pledge case will eventually prevail on appeal. Vague governmental
references to God, he wrote, have "no tendency to establish a religion
in this country or to suppress anyone's exercise, or non-exercise, of
religion, except in the fevered eye of persons who most fervently would
like to drive all tincture of religion out of the public life of our
polity." Fernandez also put his finger on the circularity of the
majority's don't-make-anyone-feel-bad jurisprudence: "I recognize that
some people may not feel good about hearing [phrases such as 'under
God'] recited in their presence, but, then, others might not feel good
if they are omitted." Hurt feelings do not a constitutional violation
make.
Common sense was also the touchstone of Zelman v. Simmons-Harris, the
Supreme Court's 5-4 decision on June 27 approving tuition vouchers for
religious and other private schools in Cleveland. Chief Justice William
H. Rehnquist persuasively held that giving vouchers to poor families
desperate to escape failing public schools does not amount to an
establishment of religion?even if the vast majority of the voucher money
ends up at religious schools?as long as parents have a reasonable choice
among magnet schools, charter schools, special grants for individual
tutoring, and secular as well as religious private schools.
This is not to dismiss the fears of the liberal dissenters. The use of
tax dollars to pay for religious indoctrination raises concerns close to
the core of the establishment clause. And voucher programs?unlike the
Pledge of Allegiance?could someday create problems more serious than
hurt feelings. They could make religious schools dependent on public aid
and thus subject them to intrusive regulation. And competition among
religious sects for government money could foment conflict and damage
the nation's social fabric.
But other programs have long channeled state and federal aid to
religious schools without causing serious problems. The harms feared by
the dissenters are speculative. Grievous damage is being done right now
to the millions of inner-city children trapped in dismal public schools
that prepare them only for lives of ignorance and poverty. Vouchers,
although no panacea, are perhaps the most promising experiment yet
devised for providing such children with decent educations and hope for
better lives. It would be perverse to construe the establishment clause
so rigidly as to kill in its cradle an education reform that could do
the neediest among us a lot of good.
We have a long way to go to live up to promise of "liberty and justice
for all" in the Pledge of Allegiance. The voucher decision was a step in
the right direction.
The URL for this page is
http://www.theatlantic.com/politics/nj/taylor2002-07-09.htm.
All material copyright The Atlantic Monthly Group. All rights reserved.
___________________________________________________________
Check out http://clik.to/sf for other lists to join.
A93MR48T18
==^================================================================
This email was sent to: archive@jab.org
EASY UNSUBSCRIBE click here: http://topica.com/u/?b1dhdK.b1tdRU
Or send an email to: [EMAIL PROTECTED]
T O P I C A -- Register now to manage your mail!
http://www.topica.com/partner/tag02/register
==^================================================================
