Frank’s Case Book

`The constitutional freedom of religion [is] the most inalienable and sacred of all human rights.” — Thomas Jefferson: Virginia Board of Visitors Minutes, 1819.

“I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.” — Thomas Jefferson to Samuel Miller, 1808.

The US Constitution is revered so much today that it is often forgotten that its passage was far from certain. For many, the increased government powers granted in the Constitution posed the danger of tyranny. After having spent so much effort escaping the political power of Great Britain, the Founders were reluctant to cede too much authority to the central government. To alleviate this deficiency, the first ten amendments to the Constitution which passed soon after the Constitution itself explicitly enumerated rights. Collectively these first ten amendments are known as the Bill of Rights.

The Founders were well-read and precise in their use of language. They did not write cavalierly. They wrote with thoughtful and deliberate purpose. It can be reasonably assumed that the importance they accorded to specific liberties is reflected in the order of the amendments. In terms of avoiding tyranny, the First Amendment is the most important, and the first two clauses of that amendment read, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The Founders understood that religion is a countervailing source of authority in human affairs. Robust and free religious communities represent a bulwark to tyranny, even before freedom of speech, of the press, and of association. It is, therefore, disturbing when some are trying to use the gay rights movement to undermine religious liberty.

Consider, for example, Massachusetts. In the Goodridge case, the state Supreme Court in a 4-3 decision, ruled that the State of Massachusetts is compelled to recognize same-sex marriages. Now, we have an interesting situation because Massachusetts state law prohibits discrimination on sexual “orientation.” Catholic Charities of Boston has long been providing adoption services and has a particularly good reputation for finding homes for hard-to-place children. However, in accordance with church teaching, they are not providing adoption services for same-sex couples. Adoption agencies are licensed by the state and now it seems that Catholic Charities will not be allowed to provide such services.

Now one may make a libertarian case for gay marriages or even for allowing gay couples to adopt children. That debate we will leave for later. However, what ever public purpose is served this must be weighed against the circumscription of deeply held religious beliefs.

The First Amendment right of freedom of the press can only be limited in the case of immediate public safety or a clear and present danger. Given the ordering of the First Amendment, it would seem that an even higher standard should be required to prevail over the free exercise of religion.

This is not the opinion of some scholars who argue for gay rights, Chai Feldblum of Georgetown Law School argues that even though religious liberty is an explicitly enumerated liberty, “There can be conflict between religious and sexual liberty, but in almost all case the sexual liberty should win because that is the only way that the dignity of gay people can be affirmed in any realistic manner.” However, it is not clear that this arises organically out of Constitutional law. It appears to be Feldblum’s personal preference.

Consider some other potential threats to religious liberty:

• Can a private school expel gay or lesbian students who openly violate a religious stricture? Must the religious institutions be compelled to accommodate behavior that conflicts with their religious beliefs?
• Could a church-supported homeless shelter forbid a gay or lesbian couple the use of quarters reserved for married couples?
• Could a cleric who offers marriage counseling be compelled to offer such counseling to a same-sex couple?
• Can a Catholic hospital be required to offer contraception or abortions?

In general, commercial enterprises who offer public accommodations must serve everyone, but should non-profit church-affiliated organization be compelled to accommodate activities they find sinful? Can the tax-exempt status of churches be used as a lever to force such compliance? Those on the Left should not be so quick to follow that route. One can conceive of a university affiliated with a pacifist church being compelled to allow military recruiters on campus. The Federal statute known as the Solomon Amendment, after its author, mandates equal access to military recruiters. It currently contains an explicit exemption for such schools and uses federal funding, and does not use tax exempt status as leverage.

The religious liberty clause of the First Amendment is not the only liberty threatened. Particularly on college campus, the reflexive totalitarianism of the Left is apparent. At William Patterson University a state school in New Jersey, a faculty member sent out to many members on campus an invitation to view movies with a pro-gay theme. A strictly religious Muslim student-employee, Jihad Daniel, replied in a private e-mail that he wished to be removed from the e-mail list, but went on to refer to gay and lesbian activity as a “perversions.” Daniel received a letter of reprimand for using “derogatory and demeaning” language. Under the threat of a law suit by the Foundation for Individual Rights in Education (FIRE), cooler heads prevailed and the reprimand was withdrawn, but not before New Jersey State Attorney General ominously asserted that “speech which violates a non-discrimination policy is not protected.”

An Ohio State University Librarian recommended the book It Takes a Family by Senator Rick Santorum and The Marketing of Evil by David Kupelian as part of a freshman reading list. Several faculty members claimed that the books recommended by the librarian made them feel unsafe and a sexual harassment charge was issued. The charges were ultimately dropped, but the clear message from these events is that expression of anti-gay opinions on campus is dangerous.

So while we argue about the civil liberties issues around tracking phone numbers, long-term systemic threats are ignored.

The Sunday morning news programs were reporting that former President Jimmy Carter had written an op-ed piece in the New York Times. A devout Christian, Carter was arguing that the potential war in Iraq did not fulfill the requirements of the “Just War Theory.” After reading the rather short piece, I am left wondering why no one was able to persuade the former president to re-work his ideas rather than embarrass himself with a rather pedestrian set of arguments. Either Carter does not understand Just War Theory, or he is being deliberately deceptive.

Carter’s first argument is that a majority of religious leaders are opposed to the war. Of course this is not really a self-contained argument at all, it is rather an appeal to authority. Perhaps, Carter is thinking about Pope John Paul II’s stand against this war, given that Catholic history provides the theoretical basis for the Just War Theory. Given Pope John Paul II’s experience as religious leader in an oppressed Poland, the Pope’s words should be given serious consideration. However, the Pope was against the first Gulf War that freed the Kuwaiti people from foreign domination and the War in Kosovo that prevented further ethnic cleansing. The Pope was well-intentioned and wrong on both counts. Although there are questions about the precise role of Pope Pius XII in World War II, it is obvious in retrospect that the Pope should have done more to use his moral authority to oppose Hitler. In the 1980s, the national Catholic leadership in the United States opposed the deployment of intermediate nuclear missiles in Europe and even the idea of “deterrence.” This does not represent a distinguished record of judgment on geopolitical matters.

Carter notes that some “spokesmen of the Southern Baptist Convention” support the war, but then disparagingly suggests that they are “greatly influenced by their commitment to Israel based on eschatological, or final days, theology.” He does not explain why they were wrong, just implies that a commitment to Israel makes it difficult to be objective about the matter. Given Carter’s own relationship with PLO leader Yasser Arafat, would it be fair to dismiss Carter’s subsequent arguments? Surely, Carter could have developed this line of reasoning rather than firing a “drive-by” argument without hanging around to present a complete case.

Carter correctly points out that to be just, a war must represent the last resort. Carter claims, “it is obvious that clear alternatives to war exist.” In a metaphysical sense, this is always true. Acquiescence to a dictator is certainly always a way to prevent the immediate prospect of war. The question is more complex than flippantly presented by Carter. Waiting until the last resort simply means that all realistic efforts to resolve the issue should be exhausted. Is there any question, but that after 12 years Saddam Hussein will not voluntarily disarm, especially when he hasn’t when faced with over a quarter of a million allied troops? Delay would probably ease the pressure and make Hussein’s compliance even less likely.

Just War Theory requires the force must be proportionate and directed at combatants. Carter rewords the argument and stands it on its head: “the war’s weapons must discriminate between combatants and noncombatants,” subtly suggesting that unattainable military perfection is required. Here, Carter gives no guidance as to how to balance the good that will be achieved versus the likely “collateral damage.” Surely, no military in history has been as careful to avoid civilian casualties. Where is Carter’s argument? Why waste valuable space on the New York Times op-ed page if you decline to marshal any facts for your case?

Just War Theory requires, according to Carter, that “violence must be proportional to the injury we have suffered.” Carter’s entire argument here, word-for-word is, “Despite Saddam Hussein’s other serious crimes, American efforts to tie Iraq to the 9/11 terrorist attacks have been unconvincing.” Is that it? Is that his entire argument? No one has argued that this war is to pay back Iraq for 9/11. Rather, it is that the world will be substantially safer if an unbalanced leader, who continues to cooperate with various terrorist groups, is deprived of weapons of mass destruction.

Just War Theory actually requires that the force used be proportional to the good achieved. The way Carter suggests that the “violence must be proportional to the injury” implies violence for the purpose of retribution or vengance, which is not allowed under Just War Theory. Just War Theory requires that the good outweighs the application of violence. Another, Nobel Peace Prize Winner, Holocaust survivor, Elie Wiesel explains this best, “Saddam Hussein is a murderer. He should be indicted for crimes against humanity for what he has done… I am behind the president totally in his fight against terrorism. If Iraq is seen in that context, I think [Bush] can make a case for military intervention.”

Carter states that Just War Theory requires, “The attackers must have legitimate authority sanctioned by the society they profess to represent.” This is Carter’s way of saying that unless the United Nations approves, the war is not just. Actually, Carter’s phrasing is disingenuous. Just War Theory requires that to be just, a war must be conducted by a legitimate authority. It does not spell out the nature of this legitimacy. Congress has granted the president the necessary authority. Carter’s argument suggests that the US president with authority granted by Congress does not constitute a legitimate authority unless the United Nations backs the action. Under such a criteria, the War in Kosovo that stopped vicious ethnic cleansing by a modern Fascist, a war not approved by the United Nations, was not just. Did Carter make that argument then? Moreover, when the United Nations did not authorize intervention in Rwanda, where hundreds of thousands were killed, it lost much of its moral authority to sanction anything.

Carter rightly argues that for a war to be just, the peace that is established “must be a clear improvement over what exists.” May I respectfully suggest that for an ex-president safely living in Georgia, life will not be appreciable changed. However, for the people of Iraq, the situation will likely get substantially better. It could hardly get worse.

“All the life and power of true religion consist in the inward and full persuasion of the mind; and faith is not faith without believing. Whatever profession we make, to whatever outward worship we conform, if we are not fully satisfied in our own mind that the one is true and the other well pleasing unto God, such profession and such practice, far from being any furtherance, are indeed great obstacles to our salvation.” – John Locke, A Letter Concerning Toleration, 1689.

In the Supreme Court Building, a careful observer will note a frieze depicting historical figures in legal history from Moses to the first US Supreme Court Justice John Marshall. One sculpted figure is a representation of the Prophet Mohammad grasping both a Koran and sword. The depiction is honorific recognizing Mohammad’s contribution to the law. Some Islamic groups have requested that the figure be sand-blasted away. Representations of Mohammad are discouraged in some Islamic sects and this figure offends certain religious sensibilities. Representations of Mohammad are allowed is other Islamic traditions. The Supreme Court declined the request because removing the figure would compromise the historic and artistic integrity of the work. There have been no violent responses to this refusal.

In September of 2005, the Danish paper, Jyllands-Posten, published cartoons lampooning and deriding Mohammad as leading a violent religious tradition. It is reasonable to expect that some Muslims would take offense at the ridicule of their key religious figure. It was tasteless for Jyllands-Posten to criticize radical Islamists in a way that more broadly insults all Muslims. Some upset with the cartoons demanded that the Danish government take action against the newspaper. The Danish Prime Minister Anders Fogh Rasmussen has rightly and courageously stood up for press freedom. He claims that he has no authority to control the press and he would not want any such discretion. As a consequence, some outraged Muslims have resorted to burning embassies and threatening those associated with the cartoons with violence. Some the violent protests have resulted in deaths. There is no doubt that Syria, Iran, and some radical Muslims have deliberately inflamed emotions and incited this violence. There are even some particularly egregious images that are purported to be published by the Danish newspaper, which were never published by them.

The two depictions of Mohammad, in the Supreme Court and in the Jyllands-Posten cartoons are different. One is honorific and the other insulting and critical. Yet both are equally protected expressions. A free society allows for open expression, the congenial and scholarly as well as the exploitive and mean-spirited. Enduring offense is one price we pay for freedom. In the modern Western world, this principle is not in dispute.

The reaction by some in the Islamic World reflects a pre-Enlightenment view of belief and is one more indication of the present clash of civilizations. Radical Islamists are not only devote and certain believers, but are convinced that this certainty entitles them to compel proper observance on the part of others. This mirrors the medieval views of a Christianity too anxious to use force to enforce belief. The modern ethos recognizes that orthodoxy cannot be imposed. If one manifests outward compliance with religious observances out of intimidation, there is no genuine faith and belief. Teaching and personal witness are the means that others are brought to faith.

What is somewhat more disconcerting is the confused reaction of the Western press. One the one hand, some European newspapers, in solidarity with their Danish colleagues, have republished the controversial cartoons. If such republication were a journalistic judgment that showing the cartoons was necessary to understand the controversy that action would be appropriate. However, in some cases this republication was just an assertion of the right to publish. This approach is counterproductive. Imagine for example if a newspaper published a racially-bigoted cartoon. Would republication be salutary? It is possible to separate assertion of a right of publication from the gratuitously offensive exercise of the right.

One the other hand, some news organizations appear to apply a double standard with respect to publication of religiously offensive material. When a controversial photographer Andres Serrano displayed a crucifix in urine, CNN and other mainstream organization had little difficulty in showing the photograph to make clear to readers and viewers the nature of the controversy. By contrast, now there is a reluctance to publish the Danish cartoons out of an excessive deference to Muslim religious sensibilities. Why?

One possibility is that the dominant media sources have internalized terminal political correctness believing that it is impermissible to offend any group save Christians, especially Conservative Christians.

Another possibility is that media have been successfully intimidated. Offended Christians may generate complaints, pickets, and boycotts, but little violence. By contrast, certain radical Islamic groups can be counted on to react violently to media interests abroad. If the media can be forced to alter their coverage by violence or potential violence, they will only encourage more of it.

Whether out of political correctness or fear and intimidation, the double standard of the main stream media with regard the publication of offensive material has been less than noble and heroic.