Thursday, October 7, 2010

Tell It To the Judge

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
West Virginia Board of Education v. Barnette (1943) (majority opinion by Justice Jackson).
Just three years earlier, in Minersville School District v. Gobitis, the Supreme Court held that the Constitution permitted the Minersville School District in Pennsylvania to expel Lillian and William Gobitis for refusing to say the pledge of allegiance.  As Jehovah's Witnesses, they believed allegiance could and should only be pledged to God, and while they might respect the flag, it wasn't God.  Tough.
There was but a single dissent.
Three years can, occasionally, be a long time.
Barnette was the same issue.  Again Jehovah's Witnesses.  This time the vote was 6-3.  The other way.
Justices Black and Douglas changed sides.  They explained.
Words uttered under coercion are proof of loyalty to nothing but self-interest. Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people's elected representatives within the bounds of express constitutional prohibitions. These laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men.
Neither our domestic tranquillity in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation. If, as we think, their fears are groundless, time and reason are the proper antidotes for their errors. The ceremonial, when enforced against conscientious objectors, more likely to defeat than to serve its high purpose, is a handy implement for disguised religious persecution. As such, it is inconsistent with our Constitution's plan and purpose.
And so it has been.
Unless you happen to be in the courtroom of Chancery Court Judge Littlejohn in Tupelo, Mississippi when he orders everyone in the courtroom to stand and recite the pledge.  Unless you happen to be Danny Lampley, an attorney who was in the courtroom on business and, it is reported, stood respectfully but did not recite.
Unless you happen to be jailed for refusing.
Lampley Contempt Order                                                            
I assume that even in Mississippi judges take an oath to obey the Constitution.


  1. Somehow, this reminds me of the time that the members of a 'sportsman's club' in Toledo thought it would be a great idea to begin each meeting by reciting the pledge of allegiance. Good idea, right? Great idea, right? Only, there was one small problem... the only person in the entire room who knew the pledge was my brother, Shotgun Bob.

    It gets better.

    I originally learned the pledge from my grandmother, who knew it without the phrase 'under God'. I also recited the pledge every morning in grade school, right before the Lord's prayer. I think Shotgun Bob learned it about the same way. As you can tell, both of us grew up terribly damaged from having to say the pledge of allegiance and the Lord's prayer every day. Well, every school day anyhow. The point is that we weren't harmed and we learned something useful.

    As for this attorney who didn't want to recite the pledge, if he's a citizen of the United States who is not using this refusal as some kind of civil disobedience protest against the government, I say let him recite the pledge. At the same time, the judge should not be able to jail him for contempt any more than a cop should be able to arrest me for resisting arrest. Both do though, don't they.

  2. Cynicism is too often rewarded, as yours was in this case, but as my father often says, if wishes were horses, beggars would ride. You were right about how it turned out.

    The weird part is I'm pretty sure the SCJC was told at the closed session after the public arguments that they couldn't do the warning. I say this because the E.D. Seanna Willing came out that afternoon with a clarifying statement to the media that the board only had the three options, which I dutifully published along with others. In retrospect, it was clearly something that had come up that day or she wouldn't have felt the need to clarify it!

    From the appellate hearing it was pretty clear they'd done the wrong thing. Did the SCJC blow the case up intentionally? The ones I know on there aren't stupid people (including the county judge from my home county in East Texas), but they made a decision seemingly against advice of counsel to grant what Keller called "lawless" leniency. I blame them more than the judges after listening to the oral arguments. But I also don't understand why the judges couldn't just kick it back for re-sentencing.

  3. One of the problems with computers is that they make it easy to screw some things up. I'm going to copy your comment to the Keller post, which is where you meant it to go.

    (I'd just move it there, as from you, but it's beyond my technical expertise to do that.)

    And then I'll add a response.