Sunday, August 17, 2008

The First Amendment as Shield

In recent weeks, there has been an uproar over blogger P.Z. Myers' desecration of a consecrated eucharistic wafer. A little background: A college student in Florida received death threats from angry Catholics after he smuggled a consecrated wafer out of a Catholic church. P.Z. Myers, an outspoken atheist, was outraged by the vitriol cast at the student and pledged to desecrate a post-transubstantiation host in order to affirm his belief that "nothing must be held sacred." Bill Donohue and the Catholic League got in on the action and Myers has received several death threats of his own, along with thousands of angry emails from offended Catholics.

In response to this incident, the Confraternity of Catholic Clergy issued a press release that caught my eye because of its pronouncements on the meaning of religious freedom and the intentions of the founding fathers. The statement reads, in part,
We find the actions of University of Minnesota (Morris) Professor Paul Myers reprehensible, inexcusable, and unconstitutional. His flagrant display of irreverence by profaning a consecrated Host from a Catholic church goes beyond the limit of academic freedom and free speech.
The same Bill of Rights which protect freedom of speech also protect freedom of religion. The Founding Fathers did not envision a freedom FROM religion, rather a freedom OF religion. In other words, our nation's constitution protects the rights of ALL religions, not one and not just a few. Attacking the most sacred elements of a religion is not free speech anymore than would be perjury in a court or libel in a newspaper . . . The freedom of religion means that no one has the right to attack, malign or grossly offend a faith tradition they personally do not have membership or ascribe allegiance.
I haven't been able to find much information on this organization. According to their website, the CCC is an "Association of 600 Roman Catholic Priests and Deacons pledged to the pursuit of personal holiness, loyalty to the Roman Pontiff, commitment to theological study and strict adherence to the authentic teachings of the Magisterium." Since they lack either the resources or the web-savvy to hire a web designer, I have to assume that it's not a very powerful organization. Still, I think that their understanding of religious freedom is worthy of comment.

First, I think that it’s important to dispel the idea that the actions of any private citizen can be unconstitutional (unless that citizen is acting as an agent of the government). Private citizens can violate laws, but the Constitution only applies to governmental actions. As Professor Laurence Tribe once pointed out, there are only two ways a private citizen can violate the Constitution: by enslaving someone or by transporting alcohol across state lines in violation of section 2 of the 21st Amendment. Even though Myers works at a public university, the desecration took place at his private residence and he discussed it on his personal blog (not hosted by the university), so it’s difficult to argue that he has the standing to act unconstitutionally.

I’m not writing to defend Myers’ actions, but to examine the CCC’s take on freedom of religion. Their position includes three main elements, one of which is probably true, while the others are, I think, way off the mark.

The first (true) part of their argument is that the Founding Fathers did not envision a society that functioned without religion. As various contributors to this blog have shown, the leading political figures of the late 18th century believed that religion was the backbone of private and public morality (though by “religion,” they did not necessarily mean orthodox Christianity). I disagree with the Founders on this issue, but I don’t deny that they thought that way.

The second part (“Attacking the most sacred elements of a religion is not free speech”) is worth fleshing out. I don’t think there’s anything in our founding documents that prevents me from going out and buying a Bible and starting a bonfire with it. It may be crass, but it isn’t illegal (as long as I don't start a forest fire). There may be something here about hate crimes, but since hate crimes are all about intention, I don’t think Myers' acts would meet hate crime criteria since they were meant to demonstrate the folly of sacred objects, rather than to convey hatred of a particular group. Not 100% sure on this — anyone with legal expertise please feel free to prove me wrong. And just for the record, I don’t support burning books for any reason.

Of course, you can’t burn a church or destroy a sacred object that belongs to someone else (arson and theft are crimes, after all), and they may be arguing here that the consecrated host was stolen. Can you be said to steal something if it is freely given to you? Is the implied contract between a communicant and a celebrant legally enforceable? If anyone knows case law on this, I’d be interested in seeing it — the only relevant examples I can find involve stealing large numbers of free things (like campus newspapers) in order to keep them from being distributed. The distinction here is that there is a difference between criticizing a religion’s beliefs and attempting to intimidate its membership by vandalizing their buildings/libraries/relics, etc. I think Myers’ actions (destroying an object with negligible monetary value in the privacy of his own home and then writing about his reasons for doing so) are closer to the former than the latter, but the CCC obviously disagrees.

The last pillar of the CCC’s argument is the strangest. It deserves to be quoted again:
The freedom of religion means that no one has the right to attack, malign or grossly offend a faith tradition they personally do not have membership or ascribe allegiance.
By placing this statement immediately after their speculations on the Founding Fathers’ intentions, the CCC implies that the Founding Fathers understood the 1st Amendment to be a Constitutional shield protecting religious orthodoxies from the uncouth rabble who might “malign” them.

I have a mental image of John Adams doing a spit-take.

Adams certainly did his share of maligning. Speaking of his own forebears, Adams spoke approvingly of how they “derid[ed], as all reasonable and impartial men must do, the ridiculous fancies of sanctified effluvia from Episcopal fingers.” He also believed that the Mass and its trappings were intended to “bewitch the simple and ignorant.”

Come on, John, tell us how you really feel:
In the Countries of slavery, and Romish superstition, the Laity must not learn to read, least they should detect the gross Impostures of the Priesthood, and shake off the Yoke of Bondage. But in Protestant Countries and especially in England and its Colonies, Freedom of Enquiry is allowed to be not only [illegible] the Priviledge but the Duty of every Individual. We know it to be our Duty, to read, examine and judge for ourselves, even of ourselves what is right. No Priest nor Pope has any Right to say what I shall believe, and I will not believe one Word they say, if I think it is not founded in Reason and in Revelation. Now how can I judge what My Bible justifies unless I can read my Bible.
I don’t know whether the CCC would be “grossly offend[ed]” by those remarks, but Adams certainly meant them to be offensive.

Adams was not alone in saying mean things about the Catholic church. In 1774, the Continental Congress called Catholicism, “a Religion that has deluged [Britain] in blood and dispersed Impiety, Bigotry, Persecution, Murder and Rebellion through every part of the World.” John Jay supported an article of the New York Constitution that prevented people from becoming citizens unless they would “abjure and renounce all allegiance and subjection to all and every foreign king, prince, potentate, and State in all matters, ecclesiastical as well as civil.”

Our founding documents may enshrine a right to worship without fearing government persecution, but our Founding Fathers did not surrender their right to criticize "faith traditions." I doubt that Americans who grew up reading about the Marian martyrs would endorse any legal barriers preventing people from criticizing the doctrine of transubstantiation.

I am envisioning a comments thread that runs off the rails picking apart Prof. Myers’ actions rather than the CCC’s position on the freedom of religion. I’ll save you lots of time by linking to several threads that have beaten that subject to death.

Instead, what do you think: Did the Founding Fathers believe that the first amendment should function as a cocoon to insulate “faith traditions” from non-members who wish to “attack, malign or grossly offend” them?


Phil Johnson said...

What drivel the CCC has put out here.
And, why do those 600 priests and lay persons think they can get away with it?
Because America is in an era where Christian piety is gaining an upper hand over our political thinking.
Danger Ahead!!

Tom Van Dyke said...

The CCC position is nonsense, arguing on federal grounds. Nonstarter.

However, see People v. Ruggles [New York, 1811] and Updegraph v. Commonwealth [Pennsylvania, 1824] for a view on how the states exercised their power under federalism, the strongest and more enduring argument in Ruggles being that the "...we must intend that these words were uttered in a wanton manner, and, as they evidently import, with a wicked and malicious disposition, and not in a serious discussion upon any controverted point in religion," making Ruggles' quite colorful blasphemy more "an offence against the public peace and safety" than an exercise in free speech.

Now, of course such things wouldn't hold up today, as even pornography is also held as "free speech." And "Piss Christ" was never banned.

And outraged Christians [Catholics in this case] should keep in mind the infamous Muhammed cartoons, and put the shoe on the other foot.

But the unanimous decision in Ruggles is also instructive in that it acknowledges Christianity to be the religion of the bulk of the people, of society. This isn't helpful in a legal sense---and it doesn't claim that Christianity is legally the state religion---but it does reveal the common perception in 1811 that America [or at least the state of New York] was a "Christian Nation," the key word here being "nation," more loosely understood as being more than the sum of its laws and borders.

Such a special protection for Christianity wouldn't pass muster today, but certain Christian Nationists are correct in pointing out that it wasn't always that way.

Tom Van Dyke said...

Oooops. The link to Ruggles, the key graf being:

"Nor are we bound, by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the grand Lama; and for this plain reason, that the case assumes that we are a christian people, and the morality of the country is deeply ingrafted upon christianity, and not upon the doctrines or worship of those impostors."

Brad Hart said...

Though I find the actions of Mr. Myers to be very distasteful and disrespectful -- and I am sure that was his intention -- I agree with your overall assessment, Caitlin. The CCC cannot expect the government to rush in whenever a citizen, or group of citizens, attacks or grossly offends someone's faith. To expect such intervention WOULD be a violation of the 1st Amendment.

I am reminded of the plight of the Mormon Church during the 1800s. Citizens of Missouri and Illinois regularly criticized the Mormon faith in newspapers, posters, etc. Though the great majority of their literature was incorrect, their actions were not illegal. Things only became illegal once citizens resorted to violent action to expel the Mormons from their respective state. That was the point when freedom of religion was violated.

The CCC has every reason to be upset. For someone to steal and then desecrate a holy emblem of their faith is not only distasteful but also extremely disrespectful. However, the CCC cannot expect the government to take action in this matter.

Anonymous said...

Belief by itself cannot command our respect. We have heard religious authorities contend that unveiled women are asking for rape, that God has destined Africans for servitude, and that gays or Jews deserve to be killed. Not only are such beliefs not to be respected, but few of us would respect those who hold them.

We respect everyone's right to believe whatever they want, and reciprocally reserve the right to mock any such belief in return.

Proclaiming that those who don't share your religious beliefs or your sexual preferences will suffer eternal torment certainly doesn't rise to the level of hate speech, but it certainly doesn't descend to the level of tolerance either.

Kevin Schmiesing said...

As a committed Catholic, I'll weigh in here. In essence, I agree with the post and the comments. The CCC statement is surely confused and deserves the criticism leveled here. Let me suggest more broadly, however, that the response of the CCC and some others is reflective of an overly litigious culture wherein there must be laws for or against everything. As religious (and sundry other types of) quarrels are absorbed into politics, the battles quickly escalate so that everything ends up in a constitutional fight and/or Supreme Court decision.

With that said, non-Catholics would do well to understand that this act is as offensive and sacrilegious an attack on Catholic belief as possible. While I unequivocally condemn the death threats and I oppose any kind of criminal punishment for this sort of thing, the professor should not be surprised that he has elicited such a firestorm, and anyone perpetrating this kind of public outrage should be prepared to deal with the consequences. It is the kind of action, furthermore, that undermines religious liberty by contributing to a climate of hostility and distrust among people of differing religious persuasions.

Anonymous said...

The professor, I assure you, is not surprised by the outrage. (Actually, I suspect he's somewhat disappointed he didn't think of it first.)

The beauty of this whole episode is that it has now become a "Win-Win" - each side has drummed up a new mini-wave of support for future book deals, speaking fees, fundraising efforts, etc.

All I need now to make this complete is for Van Dyke or Rowe to drop by inform me that the founders had learned to capitalize on such bickering in their day as well;)

Anonymous said...

This sounds frighteningly like what the Muslims say about freedom of speech and cartoons and books about "prophet" Mohamed.