No Uniformity in American Courts

By Russell Shaw
HERALD Columnist
(From the issue of 7/18/02)

Among the faults American courts surely do not have, dull uniformity has got to be high on the list.

Recent decisions in Washington and San Francisco, along with decisions threatened in Massachusetts and New Jersey, span a head-spinning spectrum from good sense to sinister nonsense on matters from school vouchers to the Pledge of Allegiance and gay 'marriage.'

Standing as a model of good sense is the Supreme Court's 5-4 ruling that education vouchers usable at church-sponsored schools are constitutional.

This may not entirely put an end to the ugly tradition of discriminatory treatment rooted, historically, in 19th century anti-Catholicism and often enough fostered and perpetuated by the high court itself, but it marks an important step in that direction. Thanks are due to Chief Justice Rehnquist, author of the majority opinion, and to Justices O'Connor, Scalia, Kennedy and Thomas, who concurred in it.

The inevitable sour note was supplied by the four dissenters — Justices Stevens, Souter, Ginsburg and Breyer.

Their opinions conjured up fantasies concerning the collapse of public education and religious strife reminiscent of the 16th and 17th centuries. The point of the exercise was to explain why parents of children otherwise trapped in failing public schools of inner-city Cleveland should not get vouchers worth a piddling couple of thousand dollars to help them attend schools — many of them church-sponsored — that offer them some hope.

Vouchers are unlikely to reshape the landscape of American education overnight, but in the years ahead they could help to bring about changes that will be to everyone's benefit, including the benefit of public school teachers and students. Score one for good sense, thanks to the Supreme Court.

Nonsense was abundantly in evidence in the 2-1 ruling of a panel of the 9th Circuit Court of Appeals that to say "under God" in the Pledge of Allegiance is unconstitutional. This silly decision provoked a predictable uproar and is likely to be reversed. But it will remain a reminder of the foolishness some federal judges are capable of if they try.

Assuming reversal, the really serious question may be the grounds on reversal will be based. Former Supreme Court Justice William Brennan once remarked that things like "under God" in the flag pledge were tolerable because they had "lost through rote repetition any significant religious content." But former Justice William O. Douglas in 1952 declared, "We are a religious people whose institutions presuppose a Supreme Being." Better Douglas than Brennan.

Finally, the nation ought to be keeping a wary eye — more than now seems to be the case — on developments in Massachusetts and New Jersey, where gay rights groups, acting after activists had denied any such intent, are suing to force legal recognition of homosexual relationships as marriages. Given the liberal leanings of the Massachusetts Supreme Judicial Court and the New Jersey Supreme Court, homosexual interests are only too likely too prevail. If that happens, the outcome in those two states will be exploited to force recognition of gay marriage everywhere in the nation.

Responding to a question during a luncheon session in Washington recently, a distinguished legal scholar warned starkly that "the institution of marriage as we've known it … may be gone" five years from now, thanks to judges eager to impose legalized gay marriage on the country.

That outcome would be absurd indeed — but absurdity of a truly horrifying kind. Here is an issue that cries out for, but isn't getting, a lot more attention than a foolish, soon-to-be-reversed court ruling against the words "under God."

Shaw is a freelance writer from Washington, D.C.

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