Religious Rights and Wrongs

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.

Comments

[Larry]

Regarding the church/state separation aspects of President Bush's veto of the stem-cell legislation, Mr. Stone is simply wrong.

First, the ethical argument against embryonic stem-cell research, without any reference to religion, is so easy to make that I trust I needn't make it here.

Second, even if one's ethics are informed, or even formed directly, by one's religious beliefs, this doesn't mean one must ignore them while serving as a politician.

The world Stone would have us live in would allow non-believers free rein while the religious would often have to deny or act against the moral teachings of their faith.

[Kimball Corson]

Since Nietzsche's observation long ago that god is dead, as we claim to have known him, because we now understand and realize that such a god was of our own creation, the figment of our imaginations, and the fabric of myth, religionists have been on the stark defensive, not understanding Nietzsche and clinging to every trapping, phrase and tidbit that symbolizes religious meaning in their lives. They do this largely out of shock and defiance, but earnestly nonetheless and now thoughtlessly too, pressing their case into the public arena. So now we fight about where nativity scenes, crosses and biblical phrases may be located or deployed, with Jews often aligned themselves with these fundamentalistic Christians for other and opportunistic reasons in this common era. It makes for quite a circus but the level of discourse is pathetic, reaffirming once again Nietzsche’s basic positions here.

Seeking to avoid such religious impositions on us by one or another faith and to protect its currency with all of us, who ironically claim the same god but different and inconsistent enlightenments, our Constitution determined to separate church and state and avoid a theocracy with the same zeal that Arabs praying to the same god, now want one. But what happens when, in the manner of a Fabian Socialist, a President of controlling religious views bamboozles his way past us into the White House and gives those of his ilk an ear and too much of what they want. It is then, in particular and especially that we need the likes of a Geof Stone to speak up and be heard by those pressing their own views on the rest of us (and by those adjudicating the legality of such efforts) through sympathetic ears in government, and have them understand why this presents problems.

The larger problem in this regard, is we keep getting born again (pun intended)and each generation has to find its way out of this particular woods by its own discovery of what has gone before, dragging the rest of us with them.. Here we go again. Just as the Scopes monkey trial made matters clear to that generation, we had to go a second round recently, with better results I might add, but the point is we keep having to revisit these issues and seem as slow to learn from history and philosophy, as our anti-intellectual heritage might imply. For me, the struggle is getting tiresome. We cannot seem to ever put it squarely behind us.

[Kimball Corson]

And Larry, on your first point, what ethical system do you deploy or are you referring to? That of Aristotle? Kant? the postmodern relativists? the logical positivists? Deploying the word ethical does not wrap it up. It only open Pandora's box.

On your second point, do you really what a theocracy as the Arabs do, but of a different type? Where and how do you draw the lines? And would the rest of us agree? At least separation is neat and clean.

Finally, it is not a question of giving non-believers free reign, it is a question of not having one or another faith dictate to the rest of us, as you would like (assuming it reflect your religious views). If we are to listen to you on what is appropriate, why not listen to our Muslims citizens instead? Each religious faction has its own axe to grind, but it should not be on the rest of us. Take it away and leave the separation of church and state to keep us from each others throats.

Does it ever strike you as amazing that all the many factions and religions claiming the same God, can agree on so little and what should be done? The Jews of the community want the town square to have a large statute of Abraham; the Christians, one of Jesus; the Arabs, one of Mohamed, etc. Give the rest of us a break. How about a large oak tree instead? But there we go favoring environmentalist, who some would say hold there views with religious passion.

Religion is and should be a private matter. Jesus, before St. Paul and the Catholic Church got a hold of him, said we should only pray in private. Christians should listen to him on that point and what it implies.

[Kimball Corson]

Speaking of religion and the problems it causes, the Middle East has certainly done a back flip. Until now, I have found it easy to be sympathetic to the Palestinian and Arab cause regarding Israel because of the history and intransigence of that Jewish State. Sharon’s change of heart on land for peace, the election and then attack of Hamas on Israel and also the election and attack of Hezzbola, as a part of the government of Lebanon, on Israel too changes my views. I now therefore change my position on Israel. After the Palestinians elected Hamas and walked away from the peace talks and the road map and after Israel gave up land and settlements and was prepared to do more, only to get snubbed and attacked, I now think Israel should counterattack and counterattack hard wherever Hamas and Hezzbola are to be found. Damn the thought, but I actually agree with Bush on this point.

Perhaps it was the prospect of progress that induced these two organizations, with Syrian and Iranian input and support, to force the option of war and also intimidate the rest of adjacent Arab populations who wanted the progress and the prospect of peace. On the other hand, if you are dumb enough to elect Hamas and Hezzbola to govern, it can be said the populations of Gaza and Lebanon are getting what they ask for, if not deserve. Intimidated or not, don’t these folks connect the dots. Let Israel have its defensive DMZ until Iran and Syria get longer range rockets. Unfortunately, this Middle Eastern struggle will continue for as long as it takes until radical Arabs get and use nuclear weaponry against Israel. Not a pleasant thought, but almost an assured certainty, I think.

[Reader]

Dear Kimball Corson:

Please get your own blog.

Thanks,

Everyone Else

[Kimball Corson]

I have my own blog, thank you, which I have cited here earlier. But feel free to disagree with me on any matter of subtance I raise here, speaking for yourself, of course.

[Kimball Corson]

But I do apologize for being too far off topic too early on my next to last comment here.

[Professor Stone = Peter Singer]

Prof. Stone: "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."

(a) If the value of human life correlates to the size of the human, then midgets must be less valuable humans than professional basketball players.
(b) If human life's value correlates to the age of the human, then an elderly cripple suffering from dementia must be more valuable than an able-bodied math genius who is 22.
(c) If human life's value correlates to how much the human breathes, then awake humans must be more valuable than sleeping humans and humans who are conscious must be more valuable than humans who are in comas. It must also be true that humans with damaged brains (or lungs) are less valuable than other humans. It follows that the mentally retarded and smokers are less valuable humans than others.
(d) If human life's value correlates to how much suffering it endures, then masochists must be the most valuable forms of human life.
(e) If human life can only have value when a human being is alive, then dead humans are of less value than living humans. It follows that the history of ideas is less important than the transient opinions of the living.

My questions for Professor Stone:
1. Do you believe that euthanasia is acceptable so long as the person is brain-damaged (or some other kind of less valuable human)?
2. Do you believe that forced sterilization of the mentally retarded is acceptable?
3. Do you believe that your viewpoint on such matters is nonsectarian and neutral or do you believe it is essentially religious and partisan?

[Albert]

While I disagree with Bush's views on stem cells, I don't think vetoing the bill is an imposition of his moral views on U.S. citizens. After all, the bill (as is my understanding) didn't ban such research, but only banned federal funding of such research. I don't think the government should be funding research like that, regardless of how ethical or unethical it is.

As for the law regarding court jurisdiction I think it is outrageous to ban courts from ruling on pledge cases; it is a direct assault on the independence of the judiciary. So much for checks and balances!

Regarding the pledge specifically, though, do schools have the right to force students to say it at all? How is this legal? Also, are schools now allowed to force students who do say the Pledge (assuming they can't just force all students to say it) to include "under God?" Furthermore, how is such a rule, if it exists, even enforced? It seems like an absurd rule on pragmatic grounds alone, if it exists.

Finally, the public land case is the most ridiculous event commented on in this post. How is land owned by the House not public land? (How can the House own land at all?)

[John]

I find it exteremely pernicious that lawyers and politicians think they can define what life is when biologists can't, and then label everyone who disagrees with them as a religous nut. Admittedly, I am a religous nut but there are people a billion times smarter than Professor Stone who think tough questions need to be asked embroynic stem cell research like this guy: http://www.stanford.edu/~ethics/Site/Main.html

[Kimball Corson]

It would be hard to find anyone a billion ties smarter than Professor Stone. He had and may still have the highest grade average ever to go through the University of Chicago Law School, from near prehistoric days to the early 1970's or the present.

[Kimball Corson]

Pete Singer,

I think the value of life correlates most strongly and accurately to the capacity to meaningfully participate in life’s various and many aspects, intellectual, physical, spiritual and social. An embryo doesn't qualify then as living any more than a dead body does. At best, an embryo posits a potentiality “to live,” but not yet of value. That is why the first trimester aspect of Roe vs. Wade is so important. Likely viability out side of the womb after then creates a much-augmented capacity to live and accordingly is protected. While the dividing line is somewhat arbitrary and dependent on medical technology, the basic idea is sound, I think.

[The Law Fairy]

I don't go to church anymore, much to my father's chagrin, and posts like this make me fear I soon may no longer have the option of going.

Professor Stone, shockingly for someone so educated and intelligent, makes the logical fallacy of assuming that because someone holds certain religious beliefs, any other beliefs (which may affect policy)are automatically suspect. If Bush is a Christian, and he holds views that are in any way contrary to *some* agnostics/atheists, then he holds these views *because* he is a Christian, and therefore has no right to act on them. THIS sort of thinking is precisely what the First Amendment was meant to protect. Ask yourselves, if people were questioning the right of Wiccans to hold office (I'm sure, by the way, there are some fundamentalists who do -- oddly enough, then, Professor Stone's illogical and constitutionally troublesome thinking falls right in line with theirs), would you feel differently? People cannot leave their beliefs at the door, period. To say that because they hold public office, they ought to, is tantamount to establishing oneself a dictator -- or a philospher-king, at the very least.

Don't mistake me: I am no fan of President Bush. I think the man is flushing the country down the crapper. But that's because he's a bad president, not because he's a Christian. To say "President Bush is a Christian" is not an argument against him. You can hide behind broad statements like "he's imposing his beliefs," "he's trying to establish a theocracy," yadda yadda yadda. The bottom line is, you are faulting him for holding religious beliefs, period. If you can throw your beliefs out the window the second they have any meaning, then you don't really hold them. Therefore, if Bush is not allowed to base any decisions that matter on his belief system, then he is not allowed to be a Christian.

How on earth is this a constitutional -- nay, MORAL -- position to hold????

Posts like this make me ashamed to hold a degree that makes people who hold these beliefs my "peers." I wish intelligent people were not so closed-minded.

By the way, Kimball, I believe Prof. Stone's record has been surpassed. From what I understand, the person to graduate with the highest GPA from Chicago Law is Tacy Flint, one of my contemporaries. If I'm not mistaken, Ms. Flint is one of Justice Thomas' incoming clerks.

[George W. Bush]

Kimball Corson: I think the value of life correlates most strongly and accurately to the capacity to meaningfully participate in life’s various and many aspects, intellectual, physical, spiritual and social.

This seems to be an argument for euthanasia of the stupid, crippled, agnostic, and antisocial.

[Information Demon]

Tacy Flint will be one of Justice Breyer's clerks.

http://www.project55.org/shared_effort_page3spring2006.htm

[Kimball Corson]

But when a religionist President admits to praying to god and seeking his guidance and also the counsel of ministers on matters of social and public policy, then his motives may well be suspect and church and state are really no longer meaningfully separated, as Geof Stone suggests. Indeed, as Bush told his key speech writer now departed, the two of them were the agents of god, acting as such in their respective positions. Pretty spooky, I say.

[Kimball Corson]

To President Bush (improbably so, except for your email address given):

That the value of life correlates most strongly and accurately to the capacity to meaningfully participate in life’s various and many aspects, intellectual, physical, spiritual and social does not mean that euthanasia is appropriate for the stupid, crippled, agnostic or antisocial. Each, in one or another of these handicap categories, has the capacity "to live" perfectly well in the other noted demensions of life, although they maybe particularly handicapped in one of them.
I think we are all handicapped in one way or the other.

[Kimball Corson]

Law Fairy,

Hurmpph. Gradeflation, I say. But I do wish I could assume Tracy's cancer burden and prospects and set her totally free, were that possible. It should not happen to one so young and able, though if she survives to a nice old age, Nietzsche would disagree and I might be the fool.

[josh]

Larry writes, "the ethical argument against embryonic stem-cell research, without any reference to religion, is so easy to make that I trust I needn't make it here."

I think he does need to make it. Try the ethical argument FOR such research made by someone with a skin in the game (Michael Kinsley, who is having brain surgery this summer to attempt to slow the effects of Parkinsons)

http://www.washingtonpost.com/wp-dyn/content/article/2006/07/06/AR2006070601554.html

[The Law Fairy]

"Gradeflation"? With Chicago's gestapo curve?? Ummm... yeah, okay.

I was going to respond in greater depth, but a statement that uninformed doesn't even deserve a substantive response.

[Kimball Corson]

Law Fairy,

I do know that average grades in some other parts of the University and in the college have taken a hop up since the seventies (with much faculty discussion on the point, assessing, among other things, the comparative disadvantaging effects of low grade averages for Chicago graduates in the market place (e.g., a Chicago C+ average vs a Harvard A- average, where at one point as late as the 1990's, 76% of all grades given to undergrades at Harvard were A's. Harvard has since tightened up). That is a fact. Why not in law too, my flip Harrumph notwithstanding. If there are more than a hand full of students in a class with gpa above 80, then grades in the Law School have inflated.

[Kimball Corson]

. . . at the top end, adjustable for class size since then, that is. With those few students out, the rest were evenly split between B's and C's with the line of demarcation for those two groups at 75, if my memory serves me.

[The Law Fairy]

"Gradeflation" is a word that gets thrown around way too much without consideration for whether or not the grades, if they are in fact higher, are actually deserved. My generation has to deal with the most competitive market any generation has ever seen -- children are taught from an early age that they must be hyper-capable. Kids don't get childhoods anymore, and graduate degrees are the new bachelor's degree (in terms of competitive edge, that is). To look at these trends and assume any increase in median GPAs is somehow the work of administrative mandate, rather than heightened competition, is, at best, quite a leap. There is nothing at all unbelievable about the notion that today's average law student just might be more qualified than the average law student of fifty years ago. If that is the case, it hardly qualifies as "inflation" to give the "average" student an A. The only reason to enforce strict curves, as Chicago does, is to appeal to employers and others who are looking for easy reasons to write people off rather than interview them. Hey, who am I to question Big Money.

You have to admit, in addition, there is something inherently offensive about the notion that a young female student "couldn't possibly" obtain a higher GPA than Professor Stone on her own merit. Just because he is older and male does not mean he has a monopoly on legal intelligence.

[George W. Bush]

Kimball Corson: Each, in one or another of these handicap categories, has the capacity "to live" perfectly well in the other noted demensions of life, although they maybe particularly handicapped in one of them.

Embryos participate in the physical and spiritual aspects of life. Under your test, they are as valuable as crippled retards, and so should not be destroyed. Your argument is either inconsistent, or you support the euthanasia of crippled retards.

[Kimball Corson]

It was not easy in the 70's but admission to the top schools has tightened up considerably over time beginning well before then, largely because the profession has grown hugely since World War II, compensation has sky rocketed in the better firms and the quantity of graduates produced by the top schools has not come close to keeping pace with the growth in demand for them.

During my last ten years of practice I left a large firm and joined a firm of ten, all Harvard grads except me, an Oxford grad and one from Berkeley. We found it impossible to expand in the rapidly growing Phoenix market without compromise in academic credentials and so we did not. Instead, we agreed to shut the firm down after ten more years and went after the money, training no one except a equally large contingent of paralegals.

That said, not all top lawyers come out of the top schools. I have litigated against several and somewhere along the line they have had protracted experiences fighting or working with other good lawyers and became much more competent. Earning big bucks instead of paying them, as at top schools, also can work improvements in some. Good mentoring during an associateship or longer is also key. I had the good fortune to be a protegee of John P. Frank, a former Yale law professor, for almost a decade and that mattered a lot to the development of my skills. Two of his other more visable protegees are Janet Napolitano, Governor of Arizona, and Mary Schroeder, Chief Judge of the Ninth Circuit Court of Appeals. All three of these factors affected my development significantly, especially because I went off to law school on a lark to kill time, waiting for some data to be developed and intending to return to a Ph.D. program I was working on in economics. I found law was more fun and profitable, but less profound. I think as much as not, the top schools are really just final screens for applied intelligence and a few like Chicago, Yale and one or two others really work hard at teaching their students well.