God in the courtroom

I recently was present for oral arguments where a pastor was representing himself pro se. The judge mentioned that a party associated with the case was absent due to family health reasons, and the pastor requested that the court observe a moment of silence for the family. Not knowing how to respond, the judge and the rest of the court awkwardly complied and bowed their heads until the pastor declared the moment over, while I looked on incredulously.

This episode with a pro se litigant was unusual, but Deity is regularly invoked in many courtrooms. Where I currently practice, it is common for a court to open with with an announcement such as “May God save the United States and this Honorable Court.” Many judges and members of the bar bow their heads as this invocation is proclaimed. In many jurisdictions the swearing of an oath ends in “so help me God,” a phrase that was recently challenged again with respect to the swearing-in of President Barack Obama. Religious references are also common in the legislative branch. Sessions of Congress and state legislatures are traditionally opened with a prayer.

The bizarre courtroom incident with the pastor made me consider my own position on religion in the courtoom and other government functions. Despite being a personally religious person, I have always felt somewhat uncomfortable with the institutionalization of religion. Perhaps this is due in part to having grown up in a region of the United States where Mormonism was a very small minority religion. I had a sense that whenever God was invoked in public, it was done in such a way and with language that was different from my own religious beliefs. I also identified at an early age that there was a certain amount of hostility or rejection associated with my denomination. I was a Mormon kid, and being Mormon was a little weird. I only encountered invocations or public religious observations occasionally, but whenever they occurred I was keenly aware that they represented a difference between everyone else and me.

But even though I’m not always comfortable with religious references in government, I don’t think that they should be done away with entirely. I think it’s important that the democratic process be a free marketplace of all ideas, religious or otherwise. Consequently, I generally think that the exclusion of all religious references in any branch of government is inappropriate, and contrary to the purpose and language of the First Amendment. My general rule of thumb is that personal statements of conviction should always be allowed.

Prayers before legislative sessions or “so help me God” oaths are usually called “de minimis” religious references by the Supreme Court, and the Court seems to take a fairly tolerant approach to these references, since they were common practices long before the United States was even formed. But this isn’t an opinion that is universally shared. In January, MichaelNewdow (the same litigant who challenged the phrase “under God” in the Pledge of Allegiance) sought to exclude a clergy invocation and benediction from the presidential inauguration and enjoin Chief Justice John Roberts from using the phrase “so help me God” in the presidential oath. Mr.Newdow had filed a similar lawsuit before at the second inauguration of President George W. Bush, and this most recent wasn’t likely to prevail because he made all the same arguments.

I noticed that U.C. Berkley Law professor Eugene Volokh had an interesting thought about the prayers at the inauguration. He suggested that “a President’s inviting a particular clergyman to say things at the President’s inauguration might well be treated as an extension of the President’s own right to express whatever views — including denominationally specific views — he wants to express as part of his own speech.” This seems like it touches on my rule of thumb regarding personal expression of speech, although it may not be applicable to courtroom oaths or legislative prayers because the courts and the legislatures are not embodied in one person.

As you likely know, Mr. Newdow’s lawsuit was again rejected and both the oath and the prayers went forward as planned. And thanks to a slip of the tongue by the Chief Justice and racial rhymes in the inaugural benediction, the references to Deity became the least controversial parts of the day.

Unpopular religions at home and abroad

John F. of the popular Mormon blog By Common Consent wrote earlier this week on the German government’s treatment of certain religious denominations as dangerous or extremist groups. The main target currently seems to be Scientologists, which corresponds with similar hostility in the U.S. and other countries. John F. quotes statements by German officials calling Scientology a “dangerous” and “antidemocratic organisation” that pursues “totalitarian goals.”

Like John F., I get a little nervous when groups like Scientology come under fire. It is all to easy to imagine the same rhetoric and tactics turned on other minority religions. (I realize there are good arguments that Scientology doesn’t constitute a religion, but for the purposes of the First Amendment it does.) Last year when the group “Anonymous” began its campaign against Scientologists worldwide, I couldn’t help cringing. Most of the criticisms aimed at Scientology could also apply to Jehova’s Witnesses, Seventh-Day Adventists, Mormons, and any other minority religion. And because Scientologists weren’t popular with the press or mainstream Christians, this campaign of intimidation, cyber-crime, and copyright infringement was tacitly condoned by most people.

Jeff F. points out that the only reason Mormons in Germany haven’t been subject to the same treatment as Scientolgists and Jehova’s Witnesses is because they are marginally less unpopular. I think the same could be said of campaigns like Anonymous — they haven’t targeted Mormons only because other groups are less popular. And in the wake of Proposition 8, I see the fortunes of the Church of Jesus Christ of Latter-day Saints growing worse rather than better in the near future.

I should note that the Anonymous campaign is significantly different from the actions of the German government, in that it is private action rather than state action. The First Amendment is designed to protect religious groups and their beliefs, even unpopular ones, from governmental interference. But religious groups are supposed to enjoy similar protections in Germany under the German Constitution and Article 10 of the European Charter of Fundamental Rights. Other countries such as Canada have also treated religious and political minorities unequally despite constitutional and governmental laws to the contrary. The protections afforded to religious groups in America have been on the decline ever since the 1990 Supreme Court Case Employment Division v. Smith . It isn’t hard to imagine the U.S. government engaging in similar discrimination under the guise of national security or equality.

Religious Freedom Day 2009

By presidential decree, today is Religious Freedom Day. President Bush issued a proclamation three days ago to create this day of observance. The date was apparently chosen to honor the passage of the Virginia Statute for Religious Freedom, passed on this day in 1786. I’m sure the fact that President Bush has less than a week left in office had nothing to do with the date.

I’m embarrassed to say that I was unfamiliar with the Virginia Statute for Religious Freedom, but I’m very happy to have it called to my attention. Thomas Jefferson apparently proposed the law in 1779, but it wasn’t passed until 1786. The document is a bit difficult to read, with more than 700 words crammed into two colossal sentences, but it is worth the effort. I find three things particularly interesting about the Statute. The first is how familiar it sounds:

. . . Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.

I think the Virginia Statute for Religious Freedom articulates the same American ideals that found home in the Eleventh Article of Faith. It certainly seems to be in harmony with the Mormon Church’s teachings on the matter.

The second thing I noticed was how the concept of agency was referenced throughout the text. The Statute begins:

Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, who being Lord, both of body and mind yet chose not to propagate it by coercions on either, as was in his Almighty power to do . . .

 The Virginia legislators essentially explained the necessity of free agency in the Plan of Salvation. I think this is fascinating, and I wonder if this was a commonly held belief at the time.

The third and final observation I have is how the drafters of the Virginia Statute for Religious Freedom weren’t reluctant to invoke Deity in their legislation. Presumably the legislators subscribed to different denominations or ways of thought — Jefferson himself apparently subscribed to a deist philosophy — but that didn’t preclude any references to God in the Statute. This sort of language also makes it fairly clear that the concept of freedom of religion held by the so-called Founding Fathers was distinct from the views of many today.

I occasionally hear members of the Mormon Church (often around the 4th of July) express the patriotic notion that American was founded on “just and holy principles.” If you were to argue, as many have done before, that America was founded by inspired men, the Virginia Statute for Religions Freedom would be a good starting point.