Perhaps you noticed an interesting confluence of events on Wednesday, July 19. On that day, President Bush vetoed legislation that would have authorized the expanded use of federal funds for stem-cell research, the House of Representatives voted to enact legislation depriving the federal courts of jurisdiction to hear any case challenging the constitutionality of the phrase “under God” in the Pledge of Allegiance, and the House voted to purchase a municipal park in San Diego on which a 29-foot-high cross stands.
What these three acts have in common is a reckless disregard for the fundamental American aspiration to keep church and state separate. In vetoing the bill that would have funded stem-cell research, President Bush invoked what he termed a “conflict between science and ethics.” But what, exactly, is the “ethical” side of this conflict? Clearly, it derives from the belief that an embryo smaller than a period on this page is a “human life” – indeed, a human life that is as valuable as those of living, breathing, suffering children. And what, exactly, is the basis of this belief? Is it Science? Reason? Logic? Tradition? Morals? None-of-the Above?
What the President describes neutrally as “ethics” is simply his own, sectarian religious belief. Is this an ethical (or legitimate) basis on which a President should veto a law? Of course, Mr. Bush is entitled to his belief. He is entitled, for his own religious reasons, to choose not to donate an embryo he creates to try to save the lives of living, breathing children. More than that, he is entitled to protect the interests of others who do not want the embryos they create to be used in this manner. Thus, he could ethically veto a law that required all embryos to be destroyed in the name of scientific research, even over the religious objections of their creators. But in what sense is it “ethical” for Mr. Bush – acting as President of the United States -- to place his own sectarian, religious belief above the convictions of a majority of the American people and a substantial majority of both the House of Representatives and the Senate? In my judgment, this is no different from the President vetoing a law providing a subsidy to pork producers because eating pork offends his religious faith. Such a veto is an unethical and illegitimate usurpation of state authority designed to impose on all of society a particular religious faith.
On the very same day, the House of Representatives voted to enact a law designed to prevent federal courts from even considering whether the phrase “under God” in the Pledge of Allegiance violates the Constitution. More than forty years ago, the Supreme Court held that public schools cannot constitutionally make school prayer an official part of the school day. The Court explained that such prayer in a school setting impermissibly lends the state’s power and prestige to the inculcation of religious belief in violation of the Establishment Clause of the First Amendment. Relying upon that precedent, a federal court of appeals held in 2002 that public schools cannot constitutionally make recitation of the “under God” clause of the Pledge of Allegiance an official part of the school day.
Although the Supreme Court disposed of the case without addressing that question, the House decided that federal courts should no longer be allowed to think about that issue. The sponsor of the legislation, Republican Representative Todd Akin of Missouri, candidly explained that, “We believe that there is a God who gives basic rights to all people, and it is the job of the government to protect those rights.” Note that he believes the state should teach children that it is God, rather than “We the People,” who gives Americans their rights. The “right” he is interested in protecting is not the right of individuals to pray, which they are free to do any time they like, but the “right” of the state to use public schools to instill religious belief in our children.
Later that same day, the House voted to purchase a parcel of land from San Diego. But this was not just any piece of land. In this municipal park, there stands a 29-foot tall cross. The cross has long been the subject of litigation because state law prohibits the erection of such a religious symbol on state or municipal property. To resolve the dispute, the House decided to buy the property – and the cross – so the cross wouldn’t have to be removed. What in God’s name is this all about? How can it possibly be the legitimate business of the federal government to use taxpayers’ money to buy municipal land so it can continue to bear a cross? What clause in the United States Constitution authorizes the national government to take such action? On the same theory, can the House authorize the expenditure of federal funds to buy land for a favored church?
My point is not that these acts necessarily violate the United States Constitution. They might, and they might not. The Establishment Clause is a complex and confusing area of the law. But each of them interjects governmental power to further sectarian religious beliefs in a deeply troubling manner. Our elected officials need a better sense of ethics.