After last week’s blog on
the new tactic by religious conservatives of engaging in inconsiderate behavior
and then trying to shift the burden onto those they’ve imposed upon to justify
their reactions, I thought I’d said everything I had to say on this subject.
But, apparently Indiana is not the only place where the strong arm of the law
and the thoughtless imposition of religion onto the public occurs. The ongoing
parade of offensive behavior disingenuously defended as protected religious
beliefs continues, this time with an example coming out of Texas.
Repeated Offense Does Not a Tradition Make
Justice of the Peace Wayne
Mack of Montgomery County, Texas, is the latest to mount the “Why should it
offend you?” bandwagon with a practice that would, on most planets other than
Texas, merit investigation if not discipline by the state bar. According to the
Houston Chronicle, Mack begins every session of his court as follows:
Prior to the opening ceremony of Mack’s court, a bailiff
informs all people in the courtroom of the rules and court proceedings. The
bailiff also tells the courtroom that it is the tradition of the court, as a
part of the opening ceremonies, to have a prayer offered by a Justice Court
Chaplain, adding it is not a requirement to participate in the prayer. The
prayer is followed by the pledges to the U.S. and Texas flags.
Those who do not want to participate are allowed to step
outside the courtroom during the prayer. Their decision to do so will not have
any effect on the turnout of their business, Mack said.
Much of this account comes
from the letter
of complaint sent to the judge by the Freedom from Religion
Foundation on behalf of a party appearing before the justice of the peace. The party reported the judge began the court
session with the comment, “We are going
to say a prayer. If any of you are offended by that you can leave into the
hallway and your case will not be affected.”
Of course, that disclaimer
is a patent admission that the judge recognizes that his behavior is
inappropriate. While claiming the mantle of tradition is a classic means of
attempting to legitimize behaviors lacking intrinsic legitimacy, as Max Weber long ago noted, the “tradition” in question dates only
to the appointment of this justice of the peace last May. Legitimization presumes a lack of legitimacy.
And mere repeated incidences of inappropriate behavior by a public official
does not make a pattern of behavior a tradition and thus beyond question, it makes a dereliction of
duty.
It is a patently
disingenuous argument that an elected official’s offensive and constitutionally
impermissible behavior is somehow the problem of those who might be offended.
To make such a remark evidences an inability to take responsibility for one’s
own behavior, a rather important concept in most courts. We expect this from
juvenile offenders, not the official sitting on the other side of the bar.
It also compounds
inconsiderate and contextually inappropriate behavior with dishonesty. But, as
I noted previously, it is becoming increasingly common to hear this argument
among religious conservatives imposing tone-deaf, inappropriate behaviors on
the public and then seeking to have those imposed upon justify their irritated
reactions.
Vote of No Confidence
Not surprisingly, the judge’s
rather glib reassurance hardly translates to confidence on the part of those
coming before him. As the party in Mack’s courtroom reported
“I felt that the Judge was watching for reactions from
the courtroom; bowed heads, indifference, etc. I definitely felt that our cases
would be affected by our reactions [to the bible reading]… Once the Bible
reading was over we were then asked to bow our heads to pray. I was very
uncomfortable and certainly felt that I was being coerced into following this
ritual and that the outcome of my case depended upon my body language.”
While the judge may well not
consider whether a party participates in his courtroom religious rituals in his
holdings or how s/he responds to its imposition on them, it’s not hard to
understand how the parties before him would think that he would. While we should
not presume bias, the judge should also provide no reason to suspect it. Engaging
in conduct that further pressurizes an already pressurized event is not only
inconsiderate and unprofessional, it borders on sadistic.
Courtrooms are always pressurized settings. The representatives of the law wear special clothing that
set them apart from the public. They use special language that signals to the
public they are not operating on day-to-day terms (No one goes down the street
saying, “Oye! Oye! Oye! to passersby). Courts operate under rules and
procedures that the general public doesn’t understand, hence the need for most
who appear before judges to be accompanied by legal specialists called
attorneys who can negotiate the labyrinthine procedural process and speak the
rarified language of law.
Appearances of Impropriety
The Texas Code of Judicial
Conduct contains an entire section devoted to “Performing the Duties of Judicial Office
Impartially and Diligently.” Among its provisions are requirements that judges “should
be faithful to the law and shall maintain professional competence in it. A
judge shall not be swayed by partisan interests, public clamor, or fear of
criticism.” That includes intentionally imposing offensive religious (and thus
partisan) behavior on the public and then telling those who might be offended
to leave the courtroom.
The code further enjoins
judges from performing their judicial duties in a manner which “by words or conduct
manifest bias or prejudice, including but not limited to bias or prejudice
based upon race, sex, religion, national origin, disability, age, sexual
orientation or socioeconomic status…” That includes creating a visible litmus
test through an imposed prayer designed to discern fellow believers from
heathen that raises doubt in the judge’s capacity and willingness to act
impartially.
More fundamentally, the Code
of Ethics in Texas, like all other American jurisdictions, contains a
prohibition binding attorneys and judges alike not only against conduct which
is specifically prohibited by the code but also for behaviors which offer “an
appearance of impropriety.” Using a state court for the purpose of Bible
reading and prayer is not only an appearance of impropriety, it is a violation
of the First Amendment.
There is a good reason for
that code provision. And there is an even better reason for the relevant
provisions of the First Amendment.
“You Communist!”
My second year of teaching
over in Citrus County, I encountered an incident which illuminated the wisdom
of the Framers in separating religious practice from state power. As a part of
the daily drill in morning homeroom, the principal, never hesitant about an
opportunity to hear his own voice between spitting his tobacco juice into a can,
would conduct the Pledge of Allegiance over the school intercom. Students were
to stand, place hand over heart and join in the recitation.
All fine and good except my
flag had gone out the door of my classroom the first day of classes. So, for my
two years in the refiners fire of middle school teaching in that contentious, redneck
county, we simply saluted the bracket which once held the flag every morning.
All of us except
Elizabeth.
She was a student in the
gifted program, bright, sweet, polite to a fault and beautiful even in the
drab, long dresses her mother required her to wear. And she was a Jehovah’s
Witness.
As Elizabeth explained it to
me, saluting flags was the same thing as worshiping graven images, something
strictly prohibited by Witness teachings. And the Supreme Court had carved out
an exception for folks like Elizabeth, allowing them to absent themselves from
the classroom when the pledge was being executed each morning.
Over the years, I’ve come to
see the wisdom in that thinking. Flag salutes are subtly coercive, fueled by
public expectations and enforced by righteous indignation. It’s rarely a
completely voluntary activity. And it does suggest an orthodoxy with which one
must comply or be seen a heretic with the expectable punishment that
accompanies such a judgment.
Nothing made that clearer
than the way Elizabeth was treated by her equally bright and talented gifted
classmates when she would return from the hall after each flag salute.
“Communist!” they would say to her under their breaths once I decreed they
could not say that aloud in class. And Elizabeth confided in me that she was
not always treated fairly or included by her classmates because of this
religious behavior.
Elizabeth found she could
depend on her teacher to do his best to protect her interests and her feelings
in that classroom. Imagine what it would have been like had she felt she had to
deal with not only the injustice of her classmates’ thoughtless comments but a
teacher unlikely to treat her with respect as well with power over her daily
life.
I’ve never forgotten poor
Elizabeth, reentering my classroom each morning, face knit in apprehension,
wondering how she would be treated. She taught me an important lesson about being
seen as different on the account of religion and how thoughtless majorities are
prone to abuse their power and tyrannize the minorities among them.
A Time and a Place
For everything there is a season, and
a time for every matter under heaven (Ecclesiastes
3:1)
Justice of the Peace Wayne
Mack is probably a devoted public servant. His website speaks
of his tireless service to the people of Montgomery County including the
inception of a chaplaincy service to aid law enforcement in dealing with
tragedies. While my guess is that Judge Mack and I probably agree on little
about law, policy or religion, his public service is commendable.
That said, the writer of
Ecclesiastes was wise to recognize the essential role of context in behaviors.
There is a time and a season (or as SCOTUS has repeatedly ruled, a “time, place
and manner”) for every activity. That the judge in question recognizes this is
reflected by his response to the complaints in this incident by holding a
prayer breakfast (complete with a George Bush imitator from America’s Got Talent) at the local
convention center and charging admission to pay for its rental.
But proceedings in
courtrooms are neither the time nor the place for Bible readings or prayers.
Roadside stops by evangelizing state troopers don’t qualify either. And while tone-deaf,
inconsiderate religious displays in entertainment venues such as professional
sports (and the neo-professional sports attempting to generate profits on
college campuses that have replaced intercollegiate athletics) are not not
nearly as potentially harmful to the interests of those involved in incidents
involving the color of law, they aren’t the time or place, either.
Offensive behavior is always
condemnable on its own account regardless of its nature. It is never the problem of those who are forced
to endure those behaviors. But it should always be a problem for those public officials who inappropriately
and unconstitutionally interject religion into the execution of their official
duties.
Calling public officials on
the abuse of their powers and the failure to live into their ethical
responsibilities does not make them martyrs. It makes them accountable, like
every other holder of power and the responsibilities that go with its exercise.
No American should ever have to doubt that they have at least the potential to
obtain justice when they come into an American courtroom, even in Texas.
A Little Respect
American evangelicals today
believe they are disrespected more than Muslims, African-Americans, Hispanics, Jews and
atheists and about as much as gays and lesbians. It’s instructive to note that evangelicals
tend to see themselves as disrespected (50%) at about a rate 40% higher than
other Americans (31%) see them as such in the Pew Research poll. One can never
underestimate the proclivity among evangelicals to construct their religious
faiths in terms of martyrdom.
But the events of Texas and
Indiana might be instructive for those who, in Jesus’ words, have “ears to
hear.” Respect-worthy behaviors do not mean those that will gain affirmation
from the fellow members of your tribe. It means behaving in ways that evinces a
genuine respect for the dignity of all human beings regardless of who they are
or what they believe.
If you behave in
unrespectable ways, imposing your religious behaviors on the general public and
then blaming them for taking offense, you’re not going to be respected. And if
you abuse your power in the process, your behavior is by definition not
respectable and you are not a martyr when called on it.
Sunday’s common lectionary
readings from Leviticus and Matthew reflect the evolution of the Great
Commandment to love one’s neighbor as oneself from the bounds of the tribe
(Leviticus 19) to Jesus’ application of that command to all humanity (Matthew 22).
Perhaps that is the challenge Jesus poses to many evangelicals today:
Evolve beyond your tribal understandings. Try to see and
respect the image of G-d on the faces of those outside your tribe. Don ‘t
conditionalize your respect for them on their buying into your faith
constructs. Respect their humanity and perhaps they will begin respecting your
faith tradition. Besides the fear and loathing you currently generate, what do
you have to lose?
Let those with ears hear.
++++++++++++++++++++++++++++++++++
The Rev. Harry Scott Coverston,
J.D., M.Div., Ph.D.
Member, Florida Bar (inactive status)
Priest, Episcopal Church (Dio. of El Camino
Real, CA)
Asst. Lecturer: Humanities, Religion,
Philosophy of Law
University of Central Florida, Osceola
Regional Campus, Kissimmee
If the
unexamined life is not worth living, surely an unexamined belief system, be it
religious or political, is not worth holding.
Most
things of value do not lend themselves to production in sound bytes. ++++++++++++++++++++++++++++++++++
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