A Stitch in Haste

Andrew Sullivan asks, in the context of "moments of silence" in public schools, whether just a little theocracy might be hunky-dory:

It makes you want to sympathize with the Christianists. Can we exercise a little mutual respect on these matters?

The title of his post is "Fundie Atheists."

First things first: The plaintiff parent at issue here is suing, not over the moment of silence per se, but over the overtly religious undertones in the moment of silence legislation: "silent prayer or ... silent reflection on the anticipated activities of the day" —

"Neither side here has a slam-dunk case," said Sheldon Nahmod, a Chicago-Kent Law School professor and constitutional scholar. "A statute that requires a moment of silence and that's all, or a moment for meditation and that's all, would be constitutional. But here the questions will revolve around the language referencing prayer and making it mandatory."

But of course, just having a moment of silence (which, incidentally, does nothing whatsoever to further a school's educational mission) would be too much (or is it too little?) for the theocrats, who suffer from the political equivalent of Tourette Syndrome — they can't go two weeks or travel across two school districts without having a prayer-in-the-classroom spasm.

It's a bit silly to suggest that an exasperated pushback reaction to fundamentalism is itself "fundamentalism." Stated differently, "What's one more drop?" is not a very persuasive argument to make to a water torture victim. For example:

--A federal appellate court has just rejected a taxpayer-standing lawsuit against the Indiana legislature's practice of opening sessions with sectarian prayers (non-sectarian invocations at government meetings already have a longstanding — and unwarranted — First Amendment exemption).

--Louisiana legislators are trying to resuscitate two blatantly unconstitutional earmarks to churches by repackaging them as "faith-based initiative" grants. (See my previous post.)

--Some veterans (perhaps including this guy) with nothing better to do are upset because the federal government had the audacity to remind its military cemeteries that an outrageous "Judeo-Christian" (and trinitarian, if you're keeping score) flag-folding recitation was neither officially sanctioned nor constitutional, and should not be read aloud by cemetery (i.e., government) employees without the express prior request of the family. I guess those mourning relatives are "fundie atheists" too.

And that's just what happened to be in my aggregator at this particular moment. Many, many more anecdotes and lawsuits cross my computer screen every single day, with nary a peep from me. There are only so many hours in the day. But point out a single one, or file a single exasperated lawsuit and — presto! — you're a "fundie atheist."

Sullivan's position is simply untenable. He should know better.

To review: One of two arguments against non-deferential standards of judicial review (a/k/a "activist judges") is that a legislature is better equipped to research policy questions. Congress — or a state legislature or town council or school board — can hold committee hearings, conduct field research, prepare detailed reports and debate legislation to a far greater extent than a judge or panel of judges ever could.

(The second argument — that elected legislators better reflect the "will of the majority" — is irrelevant to this post. For a sample of my thoughts on that premise, see here.)

The problem, quite frankly, with "legislators can research issues better than judges" is that "can" is not synonymous with "do." To assume that politicians actually do their homework, or base their votes on such research, naively assumes facts not in evidence.

Indeed, "homework" (i.e., public education) is a great example:

Most legislators thought it was a terrific idea last fall when they required students in Illinois schools to have a moment of silence to pray or reflect, but House lawmakers now think they could have used a few more moments for reflection themselves before they put the law in place.

The House voted Tuesday to reverse the requirement after getting an earful of complaints from school administrators and teacher unions who found the requirement poorly thought out and unenforceable.
...
Chicago Public Schools spokesman Mike Vaughn said the district supports [the proposed reversal]. "We don't consider a moment of silence a good use of classroom time and don't plan on implementing one in our district," he said.

A bill that was: (a) in no way urgent; (b) micromanaging a major governmental activity (public education), and (c) constitutionally suspect, was passed (and also veto-overridden) without any "deference-deserving" legislator taking the time to actually ask teachers and educrats what they thought or how they would respond to such a bill. (Or, alternatively, these activist legislators simply didn't care about what teachers and educrats thought. Was this a pro-education bill or a pro-theocracy bill disguised as a pro-education bill?)

Such processes and outcomes are, of course, the rule and not the exception. This legislative embarrassment is merely a compact, uncomplicated example. But rest assured: it happens all the time, in every legislature, on almost every vote.

So remind me again why judges should defer to it?

(Via Religion Clause.)