Constitutional democracies and their associated individual liberties can be buttressed by the force of written law, but ultimately the people and those who are entrusted with leadership in democratic institutions must respect individual liberties. No dam of written words can stand indefinitely against the perpetual force of individual and collective actions undermining individual liberties. The problem is that it is natural for human beings to desire outcomes some so badly that they rationalize ignoring individual rights. Honoring the rights of others rests on a respect and tolerance for the capacity of others to decide for themselves, even when we disagree. Tolerance can only be a virtue if practiced with respect to activities with which there is strong disagreement.
This natural tendency to ignore individual liberties in the pursuit of what some consider laudable goals accounts for the erosion of Fourth Amendment protections in pursuit of the War on Drugs and the sacrifice of First Amendment protections at the altar of campaign finance reform and abortion rights. To this we can now add circumscription of religious freedom in pursuit of the gay rights agenda.
Denver District Court Judge John W. Coughlin is probably a nice enough fellow who, I imagine, fancies himself as a compassionate modern-day Solomon adjudicating thorny issues. However, there are places that not even judges should intrude and Coughlin has taken it upon himself to control the religious instruction a parent provides her child.
It all started about eight years ago when Dr. Cheryl Clark adopted a little girl to raise with her lesbian partner Elsey McLeod. In 2000, Clark converted to Christianity and left the relationship, leaving the disposition of the child a point of conflict. Since Clark had been the only one to officially adopt the child, it would seem that McLeod had no parental rights whatsoever. Clark voluntarily offered visitation privileges, but McLeod sued for joint custody.
Judge Coughlin expanded a legal doctrine usually reserved for abandoned or neglected children who have been cared for by a third party. Clark declared that McLeod was a “psychological parent” who was entitled to share custody and equal parenting time. This decision represents an interesting issue in its own right. A principled extension of Coughlin’s jurisprudence would confer equal parental rights to a live-in boyfriend who neither sires nor adopts a child. However, for our purposes here, let us concede McLeod’s parental rights, regardless of serious reservations concerning the legal principle applied.
Given that McLeod and Clark have radically divergent religious views, Coughlin granted Clark authority over the young girl’s religious instruction. Coughlin overstepped his authority when he instructed that Clark, “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic.” Clark’s order was a presumptuous and vague injunction preventing Clark from exercising her First Amendment religious privileges. “Homophobic” itself is a problematic term. The term suggests fear but has been pulled and stretched to apply to anything that does not strictly conform to the gay rights agenda.
It is not uncommon in divorce cases for judges to constrain a custodial parent from disparaging the other parent. There is no indication that Clark made a point of disparaging her former partner, but even if she had, the restriction on religious instruction exceeds the judge’s constitutional authority. Consider the logic of the principle Coughlin is applying. If one parent divorces another for infidelity, does that mean that the custodial parent cannot attend or provide religious instruction to the child in a church that honors religious prohibitions against infidelity, lest the non-custodial parent would be indirectly cast in an ignoble light? If a non-custodial parent is a soldier, does that give a judge the authority to instruct a custodial parent to not attend a pacifist church? How far will judges like Coughlin go in deciding upon the specific religious doctrines that are suitable for instruction?
This case is on appeal. The US Constitution can only protect us to the extent that government institutions, particularly the Courts, honor constraints on arbitrary government power. Judge Coughlin’s ruling is an example of a good person yielding to the temptation of conforming to popular prejudices.
Bush’s Infuriating and Ennobling Moral Clarity
Sunday, November 23rd, 2003In the popular fictional epic The Lord of the Rings, four Hobbits or Halflings, venture forth from the Shire and help usher in a new age by playing an indispensable role in the defeat of the evil forces of Mordor. However, when they return to the Shire they find that it has fallen under the tyranny of thugs and ruffians. After a few feeble attempts at resistance, the Hobbits who had remained in the Shire had been intimidated and demoralized. They were demoralized in the sense of being disheartened and having lost confidence in their ability to stand up in defense of themselves and their homes. They were also literally “de”-“moralized” in the sense of loosing their moral bearing, of not appreciating the difference between good and evil enough to understanding there are some values worth risks to personal safety.
When Frodo, Sam, Merry, and Pippin finally returned to the Shire they brought with them not only the fighting skills they acquired during their quest, but a confidence and moral integrity that informed and underpinned their unwillingness to be bullied or intimidated, to be forced to work in the service of thugs, or to yield their personal freedom. They brought with them the most precious treasure of their adventures: moral clarity. Ultimately, the four organized their fellow Hobbits to expel the “Chief” and his minions.
J. R. Tolkien, of course, was not writing geopolitical epic, but a morality tale of good and evil, about the temptations of evil and the ease of acquiescence to malevolence. Nonetheless, he illustrates important themes about the nature of evil, applicable to whether dealing with the Dark Lord of Mordor, 20th century Nazism, or 21st century Islamofascism. Perhaps the most important realization is that moral clarity is necessary for triumph over evil.
President George Bush’s most important virtue is his moral clarity; a clarity that is infuriating to his adversaries whose moral vision has blurred into shades of gray. Bush’s clarity is not fathomable to opponents whose fiery red passions for good have faded into the soft pastels of “getting along.” In his November 19th speech at White Hall Palace, the President explained that terrorist attacks, particularly against civilian targets are “…part of the global campaign by terrorist networks to intimidate and demoralize all who oppose them.” In this context, Bush probably used the word demoralize in the sense of dishearten, but demoralization in the sense of a loss of moral clarity is perhaps a more apt description.
It is still not clear whether the West and other liberal democracies will be able to summon the moral confidence and courage to overcome rather than attempt an accommodation with Islamofascism, an accommodation doomed to failure. Perhaps, we are culturally exhausted after a world war against Nazism, a forty-year marathon struggle against global Communism, to have much moral energy left to confront the challenge of Islamofascism. Unfortunately, we are seeing signs of a flagging of moral fortitude and only a flaccid moral consensus.
While self-criticism and self examination remain important and salutary elements of free societies, when there is more anger by some on the Left that Bush did not manage to acquire full United Nations sanction for the liberation of Iraq, than relief for release of the Shiites and the Kurds from ethnic and religious oppression, we must recognize a loss of moral clarity.
We know now that formerly trusted news sources like the BBC deliberately misrepresented the progress of the Iraq War, and CNN guiltily concedes that it withheld information about Iraq in order to gain access to the regime. When at the same time neither organization focuses on the 150 newspapers publishing in freedom now in circulation in Iraq, we must recognize a loss of moral clarity.
When protesters bravely confront American and British police, while not venturing to the streets of Baghdad and Kabul (or even the streets of Washington and London) to protest bombing of civilians, we must recognize the loss of moral clarity. Where are all the human shields on the Left who vowed to protect Iraqis with their persons? Why are these human shields not standing in front of United Nations or Red Crescent installations in Iraq?
When civilians are deliberately targeted by Islamofascists and American arrogance or globalization is blamed, we must recognize a loss of moral clarity. Islamofascists are deathly afraid of Western democracies because they know that given a choice, Muslims like others will embrace freedom and modernity. Do we recognize the same truth?
In many ways, Britain and the United States are out of moral step with (actually several strides head of) much of the rest of Europe who have forgotten the moral underpinnings of their freedom and consequent affluence. France and Germany have smugly embraced realpolitik as if it were a sign of maturity and statesmanship. They engage in desperate accommodation with illiberal forces while paying lip service to human rights. By contrast as Bush explained, “The United States and Great Britain share a mission in the world beyond the balance of power or the simple pursuit of interest. We seek the advance of freedom and the peace that freedom brings.” Where some see arrogance, others seem moral clarity, humble and modest in the assumption that freedom is not just the privilege of a few. France and Germany have been demoralized in both senses of the word.
President John Kennedy in a different context once proclaimed, “Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty.” The fact that this assertion which underpinned US Cold War fortitude would now be considered by many to be an arrogant self assertion of American values of liberty evidences a loss, particularly on the Left who once embraced Kennedy, of moral clarity.
Fortunately, in the past leaders there arose leaders like President Franklin Roosevelt and Prime Minister Winston Churchill in World War II and President Ronald Reagan and Prime Minister Margaret Thatcher in the Cold War who were able to instill a sense of courage and commitment to liberal ideals. Their efforts were sufficient to overcome doubt and lassitude. It is still an open question whether Bush and Prime Minister Tony Blair will be able to duplicate the success of their predecessors. Their meeting last week confirms their commitment to protect the West from terrorism by expanding the empire of liberty. We might have thought that the assault of September 11 would have washed away self doubt and uncertainty about the necessity of routing out the forces of terror. However, time has attenuated indignation and certainty. The question is whether Bush and Blair can now lead their countries and bring the rest of the world with them on their quest.
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