When the Constitution May Be Wrong

The Westboro Baptist Church protests are the kind of example which is a real test of our tolerance for free speech.  The church, supported by the ACLU, is appealing a US District Court decision that compels it to pay $11 million for invasion of privacy and intent to inflict emotional distress.  What did the church do?

It staged a protest at the funeral of a US soldier killed in Iraq, claiming that he died as part of God’s punishment for US tolerance of homosexuality. Among the signs and shouts of “Thank God for Dead Soldiers,” at least one child stood on the US flag (Ross 10A).

The First Amendment of the Constitution, what the church says protects it right to protest, reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Various news stories argue the legality of the church’s position, then. Do the protests constitute the “free exercise” of religion? Is the freedom of speech beyond compromise? Is hate speech “peaceable”?  Is the protest at a soldier’s funeral a government petition?

These are good questions to ask, of course.  They center around the strictness of Constitutional interpretation. A strict constructionist would argue that we must follow the letter of the Constitution absolutely, as written, as the Founders intended.  A liberal or contextual constructionist might argue that the Constitution must be followed in spirit, adapting itself to changing times.

Safely, predictably, the news media argue about the legal positions of the two sides.  Just give us the rules to follow (or explain how to interpret them), they say, and we will follow them.  The ACLU lawyers follow the same reasoning, one actually claiming that though he finds the church’s position “reprehensible,” it is protected by the Constitution. Therefore he supports the church’s argument and expects to win.

But isn’t the story in the ACLU’s position? Somehow, oddly, we get caught up in the laws/rules and we set aside the question of morality, of principle, of humanity.  For myself, even if the Supreme Court rules in favor of the Westboro church, it is wrong to disturb the funeral.

Two pieces of common sense come in conflict.  The first is the danger of anyone’s moral judgments taking precedence over legal; the second is that just because we have the right to do something does not mean we should. Both positions carry consequences.  If we allow moral relativism to “rule,” we risk the chaos of extremists and other weirdos claiming legitimacy for their behavior.  But if we allow the “law” to govern without morality or conscience, we still risk the absurdities and chaos but cash in our humanity.

What concerns me most is that the ACLU lawyer—like the inventors of the atomic bomb who had family, like the white collar criminals who bilk the working class out of billions each year in “legal” (or at least unprosecuted) transactions—has set aside his moral self, his conscience, his reason in order to make a rhetorical case.

Socrates warned us about the rhetoricians.  We must seek neither relativism nor law for its own sake, but Truth.  Rhetoricians, he argued, seek only to persuade the ignorant for their own selfish ends. We can be impressed with the fireworks of their legal arguments, but in the end we are duped because we ourselves are told what to think.

For the past many years, the State of Michigan has advertised its law to wear seatbelts:  “It’s not just a good idea, it’s the law.”  The rhetoric is fascinating:  Never mind, it says, that we might or might not decide what is best for us; follow the law regardless of what we think.  I would, of course, reverse it:  “It’s not just the law, it’s a darned good idea!”

As frustrating as it is, legal extremism and moral relativism can only be resolved through dialogue, not posturing in courtrooms or funerals. “Our message has exploded all over the world,” the church spokesperson declared. “They don’t deserve the protection of freedom of speech, freedom of religion,” a prosecutor retorts (Ross).

When do we begin a dialogue of conscience, where will it happen, and who will participate?

 

Work Cited

Ross, Timberly. “Is Church’s Hate-filled Message Free Speech?” Detroit Free Press, 4 Nov. 2007, 10A.