Swear or Affirm

Members of the House of Commons were sworn in this week as the new Parliament started. As is true in the U.S., members can choose to swear by God that they will bear true allegiance (to Her Majesty there, to the Constitution here), or they can solemnly affirm that they will do the same. But what's interesting is that, as can be seen in the video, in Britain many members actually choose the "affirm" option. The new Conservative Prime Minister, David Cameron, swore, but his Deputy Prime Minister, Liberal Democrat Nick Clegg, affirmed, as did the Speaker and the Leader of the Labour party. Most of the Labour party affirmed; most of the Conservatives swore.

What would happen to a politician in the U.S. today who declined to take an oath and swear by God to support the Constitution? Our Constitution gives the affirm option and provides that "no religious test" shall ever be required for public office, but I think the voters might visit their displeasure on a politician who didn't swear. Apparently Franklin Pierce chose to affirm back in 1853, and Quakers often affirm because their religion takes literally the biblical prohibition on swearing by God. But a politician today who affirmed and explained doing so on the ground that he didn't believe in God would be in some trouble here, I think.

Blasphemy!

It is easy to smile at the new Irish blasphemy law, which apparently imposes a whopping fine of 25,000 Euros (over $35,000) for "publishing or uttering matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby intentionally causing outrage among a substantial number of adherents of that religion." A group of Irish athiests is attempting to challenge the law by breaking it with a posting of famous blasphemous quotes.

But did you know that some American states also prohibit blasphemy? Oh, yes, they do. And it's not even the states you're thinking of.

A 1931 Michigan state law, still in force, provides "Any person who shall wilfully blaspheme the holy name of God, by cursing or contumeliously reproaching God, shall be guilty of a misdemeanor." (And the next section says, "Any person who has arrived at the age of discretion, who shall profanely curse or damn or swear by the name of God, Jesus Christ or the Holy Ghost, shall be guilty of a misdemeanor.")

A Massachusetts statute (apparently going back to 1697, but still in force) provides, "Whoever wilfully blasphemes the holy name of God by denying, cursing or contumeliously reproaching God, his creation, government or final judging of the world, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior."

Oklahoma law (sorry, no ready link) provides that "Blasphemy consists in wantonly uttering or publishing words, casting contumelious reproach or profane ridicule upon God, Jesus Christ, the Holy Ghost, the Holy Scriptures or the Christian or any other religion," and that "Blasphemy is a misdemeanor," although it exempts words used in the course of "serious discussion."

Sure, these laws are probably unconstitutional. But they're on the books. So Ireland isn't the only one limiting free speech in the name of protecting God from verbal abuse.

That Holiday Spirit

With the holiday season officially kicking off tomorrow, an interesting decision arrives from the Third Circuit. The question: can a school district adopt a policy forbidding religious music in holiday celebrations, including school concerts?

The South Orange-Maplewood school district in New Jersey adopted such a policy in an effort to achieve religious neutrality. After receiving a complaint from a concerned parent following a holiday concert that included traditional Christmas carols, the district's Director of Fine Arts indicated that schools should avoid music representing any religious holiday of any faith and suggested instead secular seasonal selections of the "Frosty the Snowman" type. Needless to say, this decision raised concerns with different parents, who brought a lawsuit.

Although these kinds of issues have become excessively polarizing, this case has a fairly straightfoward answer, which all the judges (including appointees of Presidents Carter, Clinton, and G.W. Bush) reached. Although the court was handicapped by having to apply the somewhat tangled official doctrines surrounding Establishment Clause issues, the decision follows from pretty basic distinctions.

A school's decision not to have its students present religious music in the holiday concert is different from the decision to have the students sing such music. The school district can hardly be obliged to present religious music in school. If the school district's policy violated the Constitution, it would follow that an individual school's similar decision would too, with the impossible result that every school's choral director would be legally required to present Christmas music in the school concert, not to mention music requested by other religions represented among the school's families.

Of course no one is trampling on a parent's right to have their children exposed to religious holiday music -- and children will get ample such exposure. Just not in the South Orange-Maplewood schools. Just because you have a right to teach your children something doesn't mean you have a right to have the school teach that same thing, if it doesn't want to.

Sigh. I remember my high school holiday concerts fondly, with I and the other Jewish kids cheerfully singing Christmas songs and not worrying about it. The South Orange-Maplewood policy does seem unnecessarily churlish. But it's constitutional.

Long Journey

Britain elected a new Speaker of the House of Commons yesterday, in an election that had many interesting features. For instance, it is understandable that the House, mired in scandals resulting from questionable expenditures by members, would turn to a member from the opposition Tory party as the new Speaker. Some, however, have suggested that John Bercow, the new Speaker, was chosen precisely because he is unpopular with the Tories, having criticized some conservative policies.

But what I really want to note is that Bercow is the first Jewish Speaker of the House of Commons. Not such a big deal these days, of course, but rather more important when one considers that when Lionel de Rothschild was elected to Parliament in 1847, he could not take his seat because he could not take the oath of office, which required him to swear "on the true faith of a Christian." Rothschild declined so to swear, and was unable to take his seat for nine years, during which he was re-elected twice, until Parliament finally adopted a bill relaxing the oath requirement for Jews. So a small but significant milestone as Jews have finally gone from entry into the House to attaining the House's highest office.

Big Day for Anti-Semites

I don't usually spend much time worrying about whether people hate me because I'm Jewish, but some days you can't help but think about it.

First, a gunman opened fire at the Holocaust Memorial Museum right here in Washington, DC. Police have arrested an 88-year-old long-time white supremacist and anti-Semite named James von Brunn, who is apparently the author of "Kill the Best Gentiles," a conspiracy theory book about how Jews are threatening the white race. "It's time to kill all the Jews," he said in a recent e-mail. Then he took his rifle over to the museum.

Of course, carrying such weapons around will soon be perfectly legal in DC if Congress repeals all our gun control laws, as it is threatening to do in an amendment attached to the DC Voting Rights Act.

Meanwhile, if you were wondering whether Reverend Jeremiah Wright has been unfairly portrayed by the media or whether he really is a smug, narcissistic blowhard, he helpfully cleared things up by explaining that "them Jews" aren't allowing President Obama to talk to him.

Bernard Malamud said, "If you ever forget you're a Jew, a Gentile will remind you." As I said, I don't spend much time thinking about this, but some days it seems that the Jews serve as a litmus test for hateful people. Eventually, we bring out their bigotry.

Time to Pontificate

Of course we bloggers pontificate every day, but it's not every day that the Pope shows up. So a little special commentary is in order.

I sent my resume to the College of Cardinals when Pope John Paul II died. I said I realied that I was a nontraditional candidate for the position, but perhaps the Church could benefit from a little shaking up by a nontraditional candidate.

The first thing I would do if I were Pope -- well, actually, I wouldn't do anything for a couple of years, you'd have to give people a little time to get used to me, and I'd want to go to seminary, but after that the first thing would be to issue a magnificently ambiguous encyclical concerning contraception. I wouldn't touch abortion. But I'd have those superbly subtle scriveners at the Vatican produce a perfectly ambiguous document that conservatives could point to and say, "look, the new Pope has reaffirmed the Church's traditional teaching about contraception," and the liberals could point to and say, "look, the new Pope has determined that the issue of contraception is to be left up to the conscience of the faithful."

And then I wouldn't say anything for five years. Maybe ten. Anytime anyone asked any questions about contraception, I'd refer them to the top Cardinals, who in turn would refer them to the encyclical. All your questions are answered in the encyclical, we'd tell everyone. That's how to make progress. The Church is like a huge ship -- it can't change course 180 degrees in an instant. Things would have to move slowly, and there'd have to be a period of ambiguity.

The other issue I'd move on would be women priests. Lack of applicants for the priesthood is holding the church back. Where can we find more good candidates? Well, duh -- you could increase your applicant pool by 100% instantly by allowing women. But again, it would be too controversial to change positions on this instantly. You'd have to start ambiguously.

Now, you might think that my strategy of ambiguity couldn't work on this issue. Making women priests would be pretty clear-cut.

But the canonical mind is equal to the challenge. I wouldn't actually make women priests. Of course women can't be priests, we'd tell everyone. But women could hold lesser offices -- deacon, perhaps, or perhaps a new lesser office would be invented. Then it's just a matter of gradually increasing the functions that deacons can perform until eventually they're saying mass. But they're not priests, oh no, of course not.

But of course they went and chose that Ratzinger fellow. Some people just can't accept change.

A Moderate Moment

Illinois's legislature, overriding the state Governor's veto, has mandated a moment of silence at the start of the school day. Naturally, some people are upset that that new law is "a way to sneak state-sanctioned prayer back into public schools."

Liberals need to take a break from indignation now and then. Sure, the lawmakers are hoping that students will use the moment of silence to pray. Apparently the law even says that the moment is for "silent prayer or for silent reflection on the anticipated activities of the day." So I don't think there's much doubt about the purpose.

But so what? No one is forcing anyone to pray. Students can silently pray at any time, with or without this law. Students are required to be silent at lots of time during the school day -- when the teacher is trying to teach the class, just for example -- so there can hardly be anything unconstitutional about requiring student silence.

Sometimes you just have to accept that something is a perfectly legal work-around even though you don't like the underlying purpose and something slightly different would be unconstitutional. The unconstitutional aspect of school prayer is the state sponsorship inherent in teacher involvement. Just having everyone be silent for a few moments, with no one saying what to do during that time, is fine. Religious students can pray; others can focus their energies on the upcoming day or even think about something funny or mischevous. This isn't a problem.

Culture Controversy

Faithful readers, I know you have been disappointed by the lack of content recently, but I've been unusually busy for a professor in August, and besides, August is silly season, so the news hasn't been attracting my blogger attention. Regular blogging to resume after Labor Day, I hope.

I was, though, struck by this item in today's Times: a public charter school in Florida is attracting controversy by -- gasp! -- teaching Hebrew. Some people are claiming this to be a violation of the separation of church and state.

As always, it's tough to get a full sense of the legal issues involved by reading a newspaper account, although this article does a pretty good job of bringing out important points. But let's note some basics. First, there can't possibly be a constitutional objection to a public school's teaching Hebrew. Schools teach French, Spanish, German, Latin, and all manner of languages. Hebrew can't be forbidden just because it's associated with Judaism.

The article observes that the Hebrew classes would also discuss some aspects of Jewish culture. Again, I would have to say, this is unobjectionable. When I took French classes, the books and classes always had some discussion of French culture. That's just a standard part of language class.

Now, things could go overboard. One of the potential textbooks had students translating the phrases “Our Holy Torah is dear to us” and “Man is redeemed from his sins through repentance.” That does seem to be pushing the envelope. But it sounds from the article as though the school's officials are taking considerable care to keep the instruction secular -- for example, they decided not to post a sign saying "weclome" in Hebrew, because the literal translation is "blessed are those who come." And they don't ask those applying to attend whether they are Jewish -- some of the students are Baptists.

So I would say, let's not get too excited. If there's a demand for bilingual Hebrew / English instruction, it can't be unconstitutional per se to fill it, any more than for Spanish / English instruction. Care will be needed to see that the classes are secular. Outside scrutiny is appropriate, but just as the school shouldn't be allowed to use public money to teach religion, neither should it be punished for offering secular instruction that would appeal specially to members of a particular religious group.

For Heaven's Sake

I'm no fan of Mitt Romney, but could people please stop attacking him for being a Mormon? It's a little cheap. Sure, he belongs to a minority religion that has beliefs that seems strange to outsiders, but every religion has beliefs that, viewed from the standpoint of science, logic, or another religion, seem strange.

A recent On the Media portrait quotes Judy Woodruff asking Romney about the supposed Mormon beliefs that "Jesus Christ will appear again in the state of Missouri or that God has a material body, that he was fathered by another God." Passing over the Missouri part, aren't the latter parts rather similar to some mainstream Christian beliefs? I'm Jewish, so my knowledge of Christian doctrine is imperfect, but I've always understood that Christians believe that Jesus was both God and the son of God and that he had a material body. I'm sure the Mormon views are different in ways that are theologically very important (Jesus wasn't the son of another God, in the mainstream view), but there are lots of theological differences between Christian denominations. Some Christians believe that they actually drink the blood and eat the body of Christ during the Eucharist ceremony (I expect some outsiders regard that as odd); others believe the ceremony is only symbolic.

The previous Dean of my law school was a Mormon, and he was a lovely fellow who made an excellent Dean and got a lot done for the school. I don't recommend that anyone vote for Romney, but let's leave his religion out of it.