Friday, October 25, 2002

Just once more on the Commandments

This will be my last post about the Ten Commandments in the Alabama Judicial Building for a while. But there was something eating at me about the news report about the parties' final arguments before Judge Thompson, and I couldn't quite put my finger on it until I started thinking about the oral argument in a case before the U.S. Supreme Court more than 30 years ago.

The case was Cohen v. California, known to law students far and wide as the "F**k the Draft" case. (I use the asterisks only because I want to avoid the impersonal wrath of internet filters). Cohen was arrested for wearing his denim jacket with those words on it, in the hallways of an L.A. County Courthouse. He contended that this conviction violated his First Amendment rights; and the Supreme Court agreed by a 5-4 vote.

Cohen's lawyer, Melville Nimmer, is said to have figured that in order to win, he had to say the word out loud in oral argument. If he was squeamish about it, he knew, this would be an implicit concession that saying the word in a courthouse was beyond the pale. And sure enough, when he rose to begin his argument, the Chief Justice telegraphed to him that he shouldn't say that nasty word ("it will not be necessary for you to dwell on the facts," etc.). But Nimmer stood his ground, and said it plainly and simply; and the roof did not collapse, and he won the case. Here's a link to a Real Audio of the argument, courtesy of www.oyez.com, if you don't believe me.

What does this have to do with the Ten Commandments trial in Montgomery? It's that Judge Thompson is reported to have said that the question presented – and the way that he would likely begin his opinion – is "Can the state acknowledge God?". And one of the plaintiffs' lawyers responded that the question instead was "whether God can be acknowledged by the state in this way?" Now, I am second to no one in my admiration for Judge Thompson; and I know that it's much easier to be an armchair second-guesser than to be the one doing an oral argument; and I know that you can't always believe what you read in the paper.

But it seems to me that, just as it was imperative to say "F**k the draft" even when the Chief Justice said not to, so it would have been important to say in this case, "No, your honor, that's not the question at all, and let me explain why, because it's really the heart of the case, even though it will be appalling to some people: to "acknowledge" something is to admit that it exists, that it is true. The verb 'acknowledge' presupposes that the thing being acknowledged is, in fact, demonstrably and recognizedly true. If something's not quite obviously true, but you want to declare that it is true, what you're doing is not 'acknowledging'; you're 'contending' or 'asserting'. And, your honor, although you may perhaps, in your personal capacity, believe in the existence of God (the God of the Christian Bible) as strongly as you believe in the existence of the world itself -- that is not an agreed-upon truth, and it's not the government's place to assert that it is the truth. It's not a matter of 'acknowledging' God; it's a matter of debating whether God in the Christian sense exists, and more precisely whether government has the right to take sides in that debate. That's what this case is about, your honor; and so I respectfully submit that if you start your opinion in the way that you just said you might, you are well on the way to the wrong answer in this case." Just as Mr. Nimmer said that word that made the authorities cringe, the way to win this case is to say, out loud and without shame, that the existence of the (judeo-)Christian God is not a "fact" that the government can recognize as such. The question is not whether the state can "acknowledge" God; the question is whether the state can assert the existence of God in this particular fashion. Again, it's quite possible that the plaintiffs' lawyers made this point well, and that Judge Thompson indicated that he understood that this was what's at stake; but if so, you wouldn't know it from reading the Mtgmry Advertiser.

Yes, I know that if my mother-in-law sees this she might cringe; but she lovingly accepts me despite the fact that my level of certainty in God's existence is about 25 percent of hers.

posted by sam 7:05 AM 0 comments

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