Wednesday, October 29, 2014

Still on Offense

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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