What I Should Have Said

I swear, when I wrote the “Of Crosses and Constitiutions” post on Wednesday, I wanted to make a couple of quick points.

1. The Supreme Court has at best a “muddled jurisprudence” with respect to the religion part of the First Amendment

2. Whatever it decides to do with the “desert cross” case it heard this week, it won’t much matter and won’t have any normative effect on how people view government involvement with religion. (For a much better description of the Court’s struggles with the case and the amendment, and a few laughs, read Dahlia Lithwick’s piece currently on Slate.com.)

3. Regardless of what the First Amendment does or should do, I think government should rebuild the, now out of fashion, wall of separation between itself and religion.

Well, the comments to the post indicate that my concerns with the intersection of government and religion are with a matter that is a mere nuisance, a horrendous waste of time, something of minor irritation to non-Christians and their sympathizers, who should quit their whining. (Yes, to an extent I’m twisting what you said to set up what I have to say, don’t get bent out of shape.)

But, I still think it’s important that when government picks and chooses among people or groups of people, whether the distinction for disparate treatment is religion, color, place of origin or otherwise, that the Courts step in and rein in the majority by applying those pesky amendments in the Constitution along with its due process and equal protection requirements.

I’ve been a lawyer a long time, almost certainly too long a time. Put bluntly, I don’t care what the Framers’ intent was with respect to the effect of the words they chose two and half centuries ago on the societal disputes we face today. I do care, deeply about the framework they had the genius to craft to make sure the majority, whatever the majority is at any given time with respect to any given issue, can’t trample the time’s or issue’s minority.

I and most of you that visit here have the distinct advantage of being middle or upper middle class, coming from stable social and economic backgrounds, having genes that gave us the “right” skin color. We are the current inhabitants of the Framers’ social and economic stratum. (Even if we are a step or two removed, we have aspirations to their stratum and a pre-disposition to approve of our “betters’” behavior.) Thus, a symbol here and there isn’t a big deal, right?

To move away from religion for a bit, a story is in order. When I was a baby lawyer, I had occasion to go to the Rockdale County, Georgia Courthouse to file something. The area is now an Atlanta bedroom community and was starting to be one back then. In the main lobby there was a large plaque honoring our nation’s dead in our wars this century, a section for each war, each of which had a sub-section for “colored.” For all I know, that plaque could still be there, this is Georgia.

Was I justified in being shocked by the separate lists? After all, the Founding Fathers had slaves. Isn’t the plaque a harmless vestige of a less enlightened time? Are “colored” people and their sympathizers being overly sensitive about something that really doesn’t harm anyone?

Isn’t the plaque just another cross in the desert, erected in a time that we didn’t think about the U.S. being multi-cultural, multi-racial and multi-religious? The cross builders and the plaque installers had the same purpose, honor our nation’s war dead. They did it in a way perfectly in tune with the time. Then and now, most of the people in this country are white and Christian. Does that give the government license to favor one race or one religion?

Women have been traditionally subject to being “put in their place;” indeed, the GOP saw the need for that just this week. And, that’s OK because the GOP isn’t the government as much as it thinks it should be. Gays? “Don’t ask, don’t tell” a government policy. Sanctity of Marriage laws are government laws that discriminate between groups of people. Does the Constitution protect women and gays? Sometimes. It should do so all the time.

Consideration of such issues by our Courts is not a nuisance, a waste of time or giving in to whining minorities. It is at the heart of what the Constitution promises.