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 THE LIBERTARIAN ENTERPRISE Number 377, July 23, 2006 "There is a movement afoot"
We Need to Talk
Special to The Libertarian Enterprise When people notice that the government is trampling all over their rights, they don't like it much. They protest. They make calls and write letters. Horror of horrors, they show up in their representatives' offices or speak up at public meetings and demand explanations and relief. Sometimes, they even vote en mass and craft change as a result. When people notice that the government is trampling all over their rights, they jump up and down until it stops—or at least until they're offered some kind of mitigation (all too often mere sops, but the point is still valid). Sometimes, though, the abridgement of freedom is far more subtle (actually, perhaps "insidious" would be a better word when we consider the probable end results of such subtle abridgements). Those are the times when only parts of rights are curbed or taken, and when the government has a reason for it that enough people are willing to buy that the abridgements stick. We can hold up the infringements of the Fourth Amendment in connection with the "war on terror," for example. But worst of all are those times when freedoms are lost either through hypocricy or because a majority wants things one way or another, and damn the rights of the minority who disagree! In these cases, people seem to forget that "equal treatment under the law" means just that, and that individual rights refer to the rights of, well, individuals, not majorities. In their general confusion about the notions of democracies, they think majority rule is the way civilized societies make decisions, forgetting (conveniently) that the Founding Fathers worried about the "tyranny of the majority" and crafted protections from it with their enumeration of "unalienable rights." Rarely has the latter case been more evident than recent inroads made into the protections of the First Amendment. Historically a relatively popular amendment even among politicians, it has become more and more the subject of curbs here and exceptions there. Sadly, almost all of the damages have been incurred with at the least the cooperation of the general public, and sometimes with the active demands of the population driving it even harder and faster. And hypocricy only serves to make it easier for those in authority to selectively pick and choose who will suffer and who will not. Perhaps the biggest headlines concerning free speech issues have been generated by a proposed constitutional amendment to prohibit flag desecration. While many Americans jumped on the amendment bandwagon out of their own perceived patriotism, most either didn't know or didn't care that the amendment wouldn't prohibit flag burning per se, but would instead permit the Senate to pick and choose what consitutes desecration and what does not. That, of course, opens up a bottomless can of worms that could lead even to the prohibition of flags on clothing or in artwork should Senators decide something of that nature is disrespectful. Even the most incendiary (you'll pardon the pun) of flag "desscrations"—that of actually burning a flag—has long been considered both offensive and a clearcut case of political speech. The Supreme Court has made several related rulings, the upshot of which is that flag burning may be disrespectful, but it's also protected under the First Amendment. That doesn't, of course, stop lawmakers from repeatedly trying to make such political speech illegal. Fortunately for truly free political speech, this latest amendment attempt failed as did predecessors. Unfortunately, the vote has been getting closer every year, and this year, it failed by a single vote. Throughout the course of the flag burning debate, we were told time and again that not only would an amendment abridge free speech, but that it was also unnecessary. Opponents of the amendment pointed out that flag burning was actually a rare occurrence. But then, as if to prove every point made by those who wanted the amendment to pass, a group of people in California thought it would be amusing to celebrate the victory for free speech by burning flags for no other reason than that they still could. (No, it's not illegal and it shouldn't be. But it was still tasteless and a deliberate goad to those who would take the right away no matter what the provocation for the expression that will doubtless do more to inspire those who would curb speech than otherwise.) Meanwhile, same sex marriage continues to be a big deal in many states. Only days ago, rulings in both New York and Georgia determined that it was okay for states to bar same-sex marriage. Homosexual activists vow to continue their fight; conservatives say that justice has been done. The problem as I see it is that the homosexuals are fighting for their perceived rights based on the idea of equal treatment under the law; religious conservatives, on the other hand, are fighting to prevent same-sex marriage based on morality and, as some say, the family itself. A few brave souls in Washington DC have ventured to suggest that a proposed federal marriage amendment should be dropped in favor of letting the states make their own decisions. In theory, this position favors the Tenth Amendment. In reality, it hands off a political hot potato to somebody else. Meanwhile, even those who think it's okay for states to decide (the vast majority of states that have decided have decided that marriage should be solely between a man and a woman) are worried about whether or not states would have to recognize decisions made in other states. What nobody is talking about is the First Amendment implications of same-sex marriage. If you do even a little research, you'll find that most churches won't marry same-sex couples. You'll also find that some will. Various religions have varying positions on homosexual relationships based on however it is they interpret their own holy writ. That's what they're supposed to do, and that's what the First Amendment suggests the government ought not interfere with. So by prohibiting gay marriage, some states are actively interfering with the freedom of some churches to make their own determinations as to just how they wish to administer the sacrament of marriage. In my mind, that's a dangerous precedent that the vast majority of Americans are conveniently ignoring. And it's one they'll continue to ignore until it comes back to bite them—and if history is any indicator at all, it will. Whatever you think about homosexuality, you might want to reconsider saying anything about it, at least if you choose to say so in a group of like-minded protesters. A request made under the Freedom of Information Act has revealed that the Department of Defense has actively engaged in surveillance of groups who have protested the military's Don't Ask Don't Tell policies. And whatever you do, don't protest the war in Iraq! Demonstrators who did that have been subject to surveillance by the Department of Homeland Securty and by the California National Guard at the very least. In fact, despite guarantees of assembly and the right to petition the government (in other words, to protest government policies), there have been a slew of cases where protests and protesters were monitored by government entities. The Electronic Privacy Information Center has posted a list on their web site that's chilling at best. Discovery of these actions and the subsequent outcry has engendered at least a few new policies, but the new rules have fallen under criticism as well. Nowhere, however, has the right to assembly and to protest been more egregiously violated than directly in the case of politics itself. All of us recall the horrific site of "free speech zones" in Boston near the site of the Democratic National Convention in 2004. Called reminiscent of concentration camps by critics, it was tempting to believe they were exaggerating until the fences topped with razor wire were actually photographed for us all to see. Arrests made in New York during the Republican National Convention garnered strong protests when more than a thousand were arrested but only a handful were charged, with some alleging that the arrests were a matter of convenience for politicians and police rather than any legitimate wrongdoing on the part of demonstrators. Such political bias and discrimination based on politics didn't stop when the election was over. Numerous groups have complained that they are pushed away from sites where President Bush is appearing because, they claim, supporters don't want the president to see their message. The ACLU is suing in connection with one of those instances after allegations surfaced that only anti-Bush protestors were removed by the order of the Secret Service while pro-Bush supporters were permitted to stay in the area. Perhaps nothing so divides groups of Americans, though, as matters that involve religion. Faith is typically deeply felt and isn't really subject to debate for most people. That's why the government, under the First Amendment, is supposed to remain neutral, and that's why Americans are supposed to be able to worship as they see fit. Unfortunately, the freedom of religion is becoming more and more interpreted by some as the freedom to agree with them or to keep quiet until they're done worshipping. The military is having its own widespread issues with religion, at least where chaplains are concerned. In one highly publicized case, a US Navy Chaplain complained bitterly and then went on a hunger strike after he said he was told he couldn't pray the way he wanted to. In reality, the Navy had told him he could do as he pleased for worship services or in his private life, but that when he was called upon to lead in larger groups where soldiers were a variety of faiths, he needed to show a little more respect for others who might not agree with him. He eventually started eating again and declared victory, apparently after policies were further clarified to him. That same military chaplain was castigated again, however, when he conducted a Christian funeral service for a Christian soldier. In his sermon, he talked about Jesus and how a faith in Him was necessary for heaven. Whatever you personally think about that, I think it's perfectly fair to say that the Chaplain believes it and so did the soldier he was burying. And yet some attendees complained, and the Navy disciplined him as a result. When the chaplain complained, investigators decided his complaints were without merit. That decision is a direct contradiction of what the Navy earlier claimed to be its policies, and I don't blame the chaplain if he's confused at this point because I surely am! As near as I can tell, anything is pretty much okay as long as nobody complains. Forgive me if I not only find that a shaky basis for a policy, but a direct contradiction to the right to worship freely. I have little doubt, however, that the chaplain would agree with the majority on one thing, and that's the 29 foot tall cross that stands on Mount Soledad in San Diego. The cross, which is part of a veteran's memorial, has been the subject of a 17-year legal battle. Media reports indicate that an atheist complained that the cross implied government endorsement of Christianity, and after years of litigation, the cross was scheduled to be taken down. At the last minute, however, a Supreme Court Justice intervened and said the cross can stay where it is until the city's appeals run their course. The real issue here, of course, is less that a cross is erected in the middle of the memorial, but that no other religious symbol is included. If arguments in favor of the cross hold as they have in other similar cases, the religious folks will say that the majority of soldiers are Christian, and so that's okay. The fact, however, is that this is a case of unalienable rights where the individual outweighs the majority. If other symbols were included, that might be different. But they're not, and so there is a clear favoritism shown to Christianity by the cross. Don't ask, though, that the cross stay up and be joined by other symbols. Those who can't understand why some might find the cross offensive apparently don't know about the story of an heroic Nevada soldier who died fighting for freedom. This young man was awarded a bronze star. Unfortunately, his name won't be listed on a memorial in his home town. If he were a Christian, his name would be there with a little cross next to it. If he were a Jew, he could have a Star of David by his name. In fact, he could be a Muslim or even an atheist and have a government approved symbol to honor his faith along with his sacrifice. Unfortunately, this young man was Wiccan, and the government has refused to permit that religion a symbol. So much for any pretense that the government doesn't favor one religion—or several—above others! There is a reason the First Amendment prohibits the government from interfering in speech or religion. It's because so many people think and believe so many different things that it couldn't possibly favor one idea or faith over another without actively discriminating against everybody who didn't subscribe to the same. And when the government tries to give its favor, it's only reasonable that we should be able to complain openly and gather together peacably to demand redress. Today, however, it seems that certain ideas are favored or disfavored by the government, and our ability to speak is dependent on which side of that divide our speech represents. Certain religious mores are given better treatment than others. Even the press is under active attack by the government for reporting on and criticizing government policies or programs. The erosion of the First Amendment has already gone much further than many would like to admit. To put a stop to it and to ensure we restore what we can, we must be on guard against the censorship of unpopular sentiments today if we intend to be able to have our own say tomorrow. If you want the cross to stay on Mount Soledad, be sure you speak up in favor of Wiccan soldiers. If you want your church to continue its refusal to recognize gay marriage without interference from the government, you'd best fight for the rights those churches that celebrate it. If you want the flag to continue to be a symbol of freedom, then you need to swallow your disgust when some would use it badly to express an idea of their own. Your individual rights are quite frankly dependent on the individual rights of others. To think otherwise—to pretend that what the majority wants is what everyone should get—means that we're already well on our way to losing completely the freedoms our forefathers considered so important that they included them in the very First Amendment.
Flag-burning in speech: Overview Flag Burning and the Law—History of U.S. Laws Against Flag Desecration Flag-burning amendment fails by a vote Same-sex marriage rulings will 'echo' across U.S. Department of Defense admits to wider surveillance of Don't Ask, Don't Tell groups Homeland Security Opens Reports Over Surveillance Claims California National Guard Suspected of Spying on CodePink and Raging Grannies Protestor Privacy and Free Expression Rights ACLU Sues Over Security for Bush Protest Military Wrestles With Disharmony Among Chaplains Fasting Chaplain Declares Victory Navy chaplain's complaint ruled 'without merit' Calif. high court OKs teens' suit against religious school Supreme Court Intervenes In 17-Year-Old Cross Battle Fallen Soldier Gets a Bronze Star but No Pagan Star
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