First Things RSS Feed - David M. Smolin

Natural Rights & the Right to Choose

Sat, 01 Feb 2003 00:00:00 -0500

The anti-abortion movement has been struggling since 1992, when the Supreme Court reaffirmed Roe v. Wade and the country elected a President who supported abortion rights. These combined events broke the heart of a movement that had seemed on the verge of eliminating the unrestricted abortion license and returning the issue to the legislative arena. What does a movement do when even its intermediary goals become unattainable? With the majority of Supreme Court Justices and the new President strongly committed to abortion rights, the anti-abortion movement appeared doomed to irrelevance.

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The Supreme Court 2000: A Symposium

Sun, 01 Oct 2000 00:00:00 -0400

In considering the blind spots of other generations or cultures from a safe distance, it becomes clear that there is no atrocity, no horror, no injustice which human beings, under some circumstances, will not defend, or even posit as a positive good. Present an injustice or atrocity in a way that appeals to a combination of perceived self“interest, ideological fit, and group superiority, and all classes of human beings, regardless of intelligence, educational level, or social position, will likely embrace it.

The atrocities we can critique from afar frequently fail to illumine our minds sufficiently to steer us away from those closer at hand, for self“interest, ideology, and pride are far more powerful blinders than we realize. Certainly it is difficult for a society as divided as contemporary America to come to a shared understanding on fundamental ethical issues.

Justice Antonin Scalia declares in Stenberg v. Carhart that he is “optimistic enough to believe” that the decision constitutionally protecting partial“birth abortion will “one day . . . be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu [validating internment of Japanese“Americans during World War II] and Dred Scott [holding white supremacy and racial slavery as fundamental tenets of American constitutionalism].” Justice Scalia is hoping that one day we will be as removed from the abortion controversy as we are today removed from past controversies over slavery and the internment of Japanese“Americans, and that this distance will be the consequence of having clearly and definitively rejected the injustice in question.

The alternatives to Justice Scalia’s “optimism” are either 1) to accept the viewpoint that partial“birth abortion is legally and ethically acceptable, or 2) to fear that America will never reach the place where it clearly rejects such horrific forms of killing. There have been, after all, empires, nations, regimes, and peoples that went through their entire history without ever turning from their particular injustices and atrocities. There is no guarantee of justice being realized in history”including American history”and we cannot be confident that Justice Scalia’s optimism will be vindicated.

Stenberg is historic because it constitutionally validates and protects an extreme and horrific form of abortion bordering on infanticide, while placing this validation in the context of explicitly gruesome descriptions of the various forms of late“term abortion. The legal issues and factual background of Stenberg forced each Justice to confront the raw facts of precisely how abortion brings about the destruction of the human fetus.

Stenberg centered on various methods of post“fifteen“week abortion. The most common method of abortion at this stage, dilation and evacuation (D&E), generally involves the use of surgical instruments to dismember the fetus. Because of a technical point regarding interpretation of the Nebraska statute, the majority in Stenberg felt obligated to emphasize, in clinical language, that D&E involves pulling “a portion of the fetus through the cervix into the birth canal,” where the “traction” of the surgical instrument and the cervical opening produces dismemberment. Just in case anyone could miss the meaning of the majority’s clinical description, Justice Anthony Kennedy’s dissent translated this into lay language:

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The Limits of Theory

Sun, 01 Aug 1999 00:00:00 -0400

The Problematics of Moral and Legal Theory
By Richard A. Posner.
Belknap/Harvard University Press. 320 pp. $29.95

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Alabama Standing in the Need of Prayer

Fri, 01 May 1998 00:00:00 -0400

The controversy over the injunction issued in October 1997 by Alabama Federal District Judge Ira M. DeMent restricting religious activity in public schools, as well as the continuing controversy in the state concerning Judge Roy Moore’s courtroom display of the Ten Commandments, can be interpreted as typical manifestations of Alabama’s Bible Belt culture, a culture considered by many to be backward, narrow, and bigoted. Resistance by Alabama officials and citizens to Supreme Court precedents regarding religion can appear analogous to earlier official and unofficial resistance to Brown v. Board of Education ‘s mandate to end the long era of Jim Crow. The analogy is made more plausible because segregationism, and in an earlier era, racial slavery, had been defended in specifically religious terms in Alabama and throughout the South. The image of the “good old boy” pious bigot tends to be superimposed upon more recent events, transposing Alabama Governor Fob James into a contemporary George Wallace, and an outraged pro-prayer Alabama citizenry into a virtual Klan mob.

These stereotypes, however, obscure the significance of the recent events in Alabama. It is true, of course, that evangelical forms of Christianity are more prevalent in Alabama (and the South generally) than in most of America. Southern evangelicalism has always, however, cut in more than one direction with respect to race and other issues. The tradition of finding diametrically opposed political implications in the Bible has deep roots in the South, going back to the days when slaveowners repeatedly invoked the New Testament admonition that slaves should obey their masters, while the slaves expressed their hopes for freedom in songs about Moses, Pharaoh, and the children of Israel. A similar phenomenon appeared during the civil rights era, with many whites finding biblical support for segregation, while blacks and a minority of liberal whites found inspiration in the biblical principle of human equality.

The complex reality of religion in the South is that a single dominant religion-evangelical Protestantism-has simultaneously served three disparate social functions: political and social oppression, political and social liberation, and personal, familial, and social discipline and self-help. This third element-religion as a source of personal, familial, and social discipline and self-help-has in many respects served as a unifying bond in a region that might otherwise be torn apart by racial, class, and ideological divisions. Christianity, moreover, served to temper at least some of the extremes in the dialectic of oppression and liberation, softening social oppression by emphasizing the duties of paternalism and restraining the anarchistic and antinomian tendencies of liberation movements with the leaven of God’s moral law.

Alabama’s social history is made even more complex by its heritage as a Western, frontier state for poor whites migrating in search of their own land and facing all the difficulties of those who seek to make a living off the land. Many of these poor whites and their descendants were opposed to secession, and deeply resented the planter class. For them, as for so many Alabamians, evangelical religion was a great source of comfort and inspiration in perilous and demanding circumstances.

Remarkably, despite the coming of economic prosperity to much of the state in recent years, the influence of a decadent mass culture, and an officially “secular” public school system, Alabamians have retained remarkably high rates of belief in the doctrines of their traditional evangelical religion. Large majorities of Alabamians believe not only in God, but also in the divinity of Christ and the inspiration of the Scriptures.

It is a puzzling phenomenon of Southern life that although adherence to traditional Christian dogmas is higher than the national average, adherence in practice to traditional Christian morality is not. Alabama has rather high rates of illegitimacy, divorce, abortion, and violent crime. These statistical rates, however, generally do not represent adherence to ideals of individual autonomy, nor broad rejection of traditional Christian morality. Although Alabama certainly has its abortion and gay rights activists, their numbers and influence pale in comparison with their counterparts elsewhere. For the most part, Alabama is typical of the Southern tendency to uphold virtue and salvation as ideals even when habitually indulging in sinful conduct. Southerners also tend to bluntly describe immoral conduct as “sin,” and to be keenly aware of deviations from Christian standards, particularly in the area of sexual morality. Outsiders are often puzzled by this Saturday night/Sunday morning dichotomy, and are unable to grasp why more Southerners do not clearly reject their evangelical heritage. Within the South, however, the high rates of sin that saturate American society make neither the participants nor the observers of such behavior reject evangelical Christianity, but instead have the opposite effect of creating a deeply felt need for the forgiveness, reconciliation, and personal discipline found in evangelical piety. Southern Christians who succeed in keeping their behavior within the bounds of Christian morality feel the pull of the sin-soaked world around them, and deeply feel their need-and their children’s need-for evangelical religion to help overcome that pull. Many of those who habitually indulge in the various forms of vice and sin do not repudiate their evangelical beliefs, but instead seem to assume, rightly or wrongly, that they will make things right with God before it’s all through. Thus, most Alabamians assume that religion’s assistance is a critical source of guidance and strength.

It is this deeply felt belief that only religion is truly effective in answering the needs of the individual, family, and community for guidance and strength that underlies the deeply hostile reaction to Judge DeMent’s order. Although the U.S. Supreme Court’s campaign to secularize America’s public schools has been active for two generations, most Alabamians still support many forms of conduct deemed unconstitutional by the courts, such as prayer and Bible reading in the classroom, and prayer and religious speech at official school functions. The function of socializing and teaching children is, for most people in Alabama, closely intertwined with religion. It is not enough for children to be taught proper rules of behavior: they must be taught that God is the authority for those rules, the source of the strength to keep them, and the bestower of forgiveness and consolation when we fall short.

Most Alabamians are inclined to think of their neighborhood public schools as the people’s schools, rather than “government schools,” as they are disparagingly called by some among the growing minority of parents choosing church schools or home schools. This ownership or identification with the public schools makes it very difficult for parents to understand why the beliefs shared by the vast majority of parents cannot be applied to the critical task of training children in the schools. These feelings are particularly strong in the less populous, less diverse regions of Alabama. (“Less diverse” in this context refers not to race but to the percentage of persons with origins outside the South.) Although these parents would not want to impose their beliefs on those of other faiths, they encounter few, if any, adherents to non-Christian religions in their communities or schools. They do not understand why the village atheists, or the liberal Christian parents who believe in the Supreme Court’s vision of secular schools, should trump the vast majority who want religion in the schools. Surely the minority could be accommodated, they believe, without giving up religion in public school.

The plaintiffs’ complaint that triggered Judge DeMent’s injunction illustrates the underlying cultural conflict in Alabama. The lawsuit originally targeted the schools of Dekalb County and the City of Talladega, two noncontiguous school districts located outside Alabama’s major metropolitan centers. The vast majority of the residents of these districts would be native Alabamians, and Christian in their religious profession. The plaintiffs in the Dekalb County lawsuit are Michael Chandler, an Assistant Principal at a K-12 school, and his son Jesse, a seventh-grade student when the suit was filed. The plaintiffs bringing a complaint against the Talladega City Schools are an anonymous female high school student (Jane Doe) and her mother. Their complaint illustrates the frustrations of families seeking the “secular” educational environment envisioned by Supreme Court precedents in community public schools that as a matter of course employ religion as an agent of socialization. Repeatedly, the Chandlers and Does complained of the children being “exposed,” “subjected,” or “compelled to listen” to “unwelcome prayer” or “devotional reading.” Repeatedly, Assistant Principal Chandler found that his complaints to higher level school officials were in vain. When he complained of classroom prayers, the superintendent informed him that the school board’s policy was “to allow religion in the schools whenever possible” on the assumption that “prayer in school did not hurt anything and might do some good.” When Mr. Chandler complained about prayer before football games, he was told that it was “a tradition that would not be stopped.” When he objected to devotions prior to 4-H meetings held at the schools, he was pointedly informed that “no one else” had objected to the exercises.

Religion seems virtually inescapable for these plaintiffs. They complain of prayer and Bible reading in the classroom, prayer before football games, invocations and benedictions at graduation, religious speech and prayer at drug awareness assemblies, prayer at parent-teacher meetings, devotions at 4-H meetings held at the public schools, devotions over the loudspeakers, Bible reading at honor society school assemblies, prayer at pep rallies and football banquets, and Gideon Bible distribution in the classroom.

Systematic teaching of religious doctrine was notably absent from the religious activities in these Alabama public schools. Although religion was used to consecrate, guide, and motivate, no special effort was made to present a Christian worldview, or to apply such a worldview to academic subjects. The public schools did not contain anything equivalent to a Baptist Sunday School program. The schools left the task of systematic religious instruction to families and churches. The schools instead employed religious beliefs already held by the public to advance the pedagogical function of socializing and training the next generation.

There is no doubt, of course, that much of the activity described by the plaintiffs was unconstitutional under case law from the Supreme Court. If the plaintiffs’ complaint had merely targeted the conduct covered by those precedents, and Judge DeMent’s order had merely followed those precedents, then the order, however controversial it might have been locally, would have been legally unassailable. The plaintiffs’ complaint, however, broadly stated that school officials had “required or permitted students, parents, and faculty members to engage in a variety of religious activities while attending school events” (emphasis added). The plaintiffs further requested an order prohibiting the schools from, among other things, “permitting . . . or refusing to halt . . . student . . . initiated prayers, invocations, and/or benedictions at compulsory or non-compulsory school-related events and activities and in the classroom.” The plaintiffs therefore introduced into the lawsuit the concept that school officials were constitutionally required to prohibit student and parental religious activity, even when such activity was initiated by students.

The Supreme Court, however, has frequently viewed student religious activity in the public school as a form of constitutionally protected speech, and Congress in the Equal Access Act has applied this principle to the protection of high school Bible clubs. Thus, the Court has simultaneously required public school officials, such as teachers and coaches, to be neutral toward religion under the Establishment Clause, while permitting students, as private citizens compelled by law to attend school, to be religiously active. This approach has created a number of questions not yet answered by the Supreme Court. For example, although school-initiated public prayers by clergy or faculty at graduation is considered unconstitutional, the status of public prayers initiated and conducted by students is unclear. Moreover, the degree to which students engaged in traditional valedictorian addresses can lead a prayer, or engage in religious speech, has not been defined by the Court. Similar issues exist in regard to events such as football games, school assemblies, and awards banquets.

Judge DeMent, following the lead of the plaintiffs, decided to try to define the parameters of permissible student religious speech and conduct. The judge’s controversial order enjoined school officials from “permitting . . . officially sanctioned religious activity in the classrooms . . . regardless of whether the activity is initiated, led by, or engaged in by students.” Some of the judge’s comments made it apparent that he might consider “permitting” activity in some circumstances to constitute an implied act of official sanction, and thus a violation of his order. Similarly, school officials were enjoined from “permitting prayers, invocations, benedictions, or devotional messages at graduation or commencement exercises,” even when given by a student “in the guise of valedictory, salutatory, . . . or similar student addresses or remarks.”

The judge attempted to alleviate the harshness of his order by remarking that he was not proscribing “brief personal expression by a student which contains religious references during a commencement exercise or student address,” so long as no audience response or participation is solicited. The “brevity” limitation of student religious speech, in a context otherwise banning it, was made more problematic by the judge’s demand that school officials bring immediate disciplinary action against enjoined activity by students in a manner “calculated to cause the cessation of the violative conduct as it occurs and to deter similar conduct in the future” (emphasis added). A school official reading this order could reasonably ask if he must bring a stop watch to graduation and time the “religious” portion of every student speech to ensure its brevity. Indeed, the judge’s order implied that school officials should be prepared to storm the podium and physically silence students whose religious speech defies the judge’s limitations.

Judge DeMent similarly mishandled the issue of other sorts of school-sponsored assemblies and events, enjoining school officials from “permitting” religious speech and activities “regardless of whether the activity takes place during instructional time, regardless of whether attendance is compulsory or non-compulsory, and regardless of whether the speaker/presenter is a student, school official, or nonschool person.” This broad language would seem to require school officials to become ever-vigilant censors of every school event, extinguishing every form of religious activity and speech, no matter to what degree it is student-initiated or controlled. A student who publicly bows in prayer upon achieving some athletic success, or a group of students who form a circle and ask for God’s protection and help before commencing some

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Consecrating the President

Wed, 01 Jan 1997 00:00:00 -0500

This month a hundred million Americans will watch a United States Supreme Court Justice once again ask a President-elect to place his hand upon a Christian Bible and swear an oath of allegiance to the Constitution of the United States. The candidate will end his oath with “so help me God,” and mention God somewhere in the inaugural address; prominent clergy will lead the nation in prayer. Then that Supreme Court Justice, along with the others who were in attendance, will return to their jobs of considering whether prayers at graduations and football games or government assistance to religious schools are unconstitutional because of possible “confusion” by young people, the “imposition” of religious practice, or a message of “endorsement” of religion.

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