by Peter Irons. New York: Viking/Penguin, 2007. 384pp. Hardcover. $26.95. ISBN: 9780670038510. Reviewed by Ruthann Robson, Professor of Law & University Distinguished Professor, City University of New York School of Law. Email: robson [at] mail.law.cuny.edu.
pp.827-830
“Congress shall make no law respecting an establishment of religion.”
The First Amendment’s Establishment Clause – more properly termed an anti-Establishment Clause – was intended to unite the new nation by not favoring any particular religion. In recent decades, however, these seemingly simple ten words have proved among the Constitution’s most divisive. The accusations fly: the Religious Right is attempting to establish a theocracy by erecting nativity scenes outside city hall in December; the Atheist Left is trying to mandate godlessness by prohibiting prayer at high school graduation. The United States Supreme Court has become a referee, although one whose own impartiality is questioned.
Peter Irons, professor emeritus of political science at the University of California-San Diego and attorney, enters this fray with GOD ON TRIAL. The opening chapters are an accessible, condensed history of the Establishment Clause and its interpretations. He notes “considerable irony” in contemporary complaints of Evangelicals that church-state separation is a “lie” intended to destroy the foundation of our “Christian nation” (p.2). The truth, Irons argues, is Anglican sects established churches in colonial America, demanded the payment of taxes, and “detained, arrested, tortured, and deported religious dissenters, especially Baptists and other evangelical Christians” (p.5). He outlines constitutional origins, noting that the addition of the Bill of Rights to the Constitution in 1787, with the final phrasing of the Establishment Clause was vital to the eventual ratification of the document.
As Irons notes, this history is not merely interesting, but doctrinally significant. The intent of the framers of the Establishment Clause, especially James Madison, plays a crucial role in arguments over the Clause’s meaning. (pp.1-5). “No provision of the Constitution is more closely tied to or given content by its generating history,” according to Justice Rutledge’s dissent in EVERSON v. BOARD OF EDUCATION, the Court’s first Establishment Clause case. The Court decided EVERSON – holding that it was constitutional for New Jersey to spend tax dollars to pay the bus fares of parochial school children – only sixty years ago. Since then, the courts have made up for lost time; the Supreme Court has averaged approximately one Establishment Clause decision per year and the lower courts have rendered tens of thousands of others in the past half-century.
From this multitude, Irons selects six recent controversies: the Mount Soledad Cross in San Diego, the practice of [*828] prayer before high school football games in a community in Texas, the presence of the Ten Commandments in a Kentucky courthouse and on the statehouse grounds in Texas, the words “under God” in the pledge of allegiance, and the “intelligent design” litigation in Pennsylvania. His approach resembles his previous books: a mix of law, sociology, and journalism. In GOD ON TRIAL, however, Irons modifies the template established in his 1988 success, THE COURAGE OF THEIR CONVICTIONS, in which he profiled “sixteen Americans who fought their way to the Supreme Court.” Here, Irons extensively treats two controversies that never reach the high court; he thus provides a necessary tonic to the neglect of “lower” court opinions. An even more important difference is his explicitly stated but unelaborated decision to tell “the stories on both sides” (p.xiii). Irons has often used extensive first-person narratives in his work, but it is difficult to imagine THE COURAGE OF THEIR CONVICTIONS juxtaposing the statement of Georgia attorney general Michael Bowers, who appealed the invalidation of the state sodomy law, with the compelling account by Michael Hardwick, arrested after a police officer crashed into his bedroom. In GOD ON TRIAL, however, oppositional tales are the norm. In one chapter, the first-person narratives of two cousins are paired: Louanne Walker, a named plaintiff in the challenge to the Ten Commandments posted on the wall of the McCreary County, Kentucky courthouse and Jimmie Greene, the local official who posted them and passionately defended their place in the public building (pp.215-233).
Nevertheless, as in his earlier books, Irons’ sympathies are clear: he sides with the challengers. Although he describes his own religious background (Puritan, Catholic, Methodist, Presbyterian, Unitarian, and Jewish-by-marriage) and his current church membership (United Methodist), he forthrightly reveals his own anti-religion stance in some of the cases he discusses (pp.xviii-xix). Irons assisted those who objected to San Diego’s forty-three-foot-tall cross towering over the city as a memorial to Korean War veterans. Irons not only wrote legal briefs but also – “on the spur of the moment” – reserved the park site for Easter Sunday on behalf of the Atheist Coalition of San Diego (pp.91-92). When the sunrise event occurred, the featured speakers were from the Atheist Coalition, the First Unitarian Church, a Presbyterian church, the San Diego Community Church (with its “largely gay-and-lesbian congregation”), and Irons (pp.92-93).
Irons also supported Michael Newdow in his quest to have the words “under God” in the Pledge of Allegiance declared unconstitutional. Newdow, a medical doctor and law school graduate, represented himself on behalf of his school age daughter; Irons, along with Edwin Chemerinsky (since named Dean at the new UC-Irvine law school after a bit of unrelated First Amendment drama), edited Newdow’s “unwieldy brief” (p.247). Newdow, determined to argue his own case, practiced in moot court sessions with law professors serving as the justices. As Irons describes it, Newdow’s oral argument before the Supreme Court in 2004 was a testament to preparation. In one exchange, then-Chief Justice Rehnquist, following up on a question about [*829] divisiveness, probed Newdow about the 1954 vote in Congress inserting the words “under God” into the Pledge of Allegiance. Irons observes that Rehnquist was like a good prosecutor asking a question to which he already knew the answer. When Newdow accurately replied the Congressional vote was unanimous, Rehnquist “leaned back, a smile on his face and his point made.” The audience chuckled appreciatively at this debater’s display of Rehnquist’s skill. Newdow’s quick retort – “That’s only because no atheist can get elected to public office” – prompted spectator applause. Rehnquist, Irons reports, “looked shocked,” and “growled” that the courtroom would be cleared if there were any more clapping (p.254). Rehnquist, however, would have the last laugh. The Court side-stepped Newdow’s claim, instead concluding that he had no standing to raise the rights of his school-age daughter because he did not have legal custody. As Irons reports, Newdow passed the California bar and is now representing other parents and children who object to “under God” as part of the Pledge of Allegiance (pp.258-259)
Irons devotes considerable attention to the 2005 twenty-one day “intelligent design” bench trial in a Harrisburg, Pennsylvania federal courthouse. The judge, a recent Bush appointee with an “impeccable Republican background” (p.303), had to determine whether the nearby Dover Township school board’s adoption of the book, OF PANDAS AND PEOPLE, introduced religion into the biology curriculum. Each side had biologists testify as experts regarding the “theory” of evolution and the alternative “theory” of intelligent design. The deciding expert in the case, according to Irons, is Barbara Forrest, a philosophy professor and author of CREATIONISM’S TROJAN HORSE: THE WEDGE OF INTELLIGENT DESIGN. Professor Forrest buttressed her conclusions with a “raft of quotations” from intelligent design advocates, as well as a comparison between the original and second versions of the PANDAS book, showing “creation” and “creationism” had been replaced with “intelligent design” more than 150 times (p.312). The judge’s lengthy opinion against the school board came six weeks after the voters ousted the school board’s members who had supported intelligent design. After the election, evangelist Jerry Falwell warned the “good citizens of Dover” not to turn to God if there was “a disaster in your area,” but instead “call on Charles Darwin. Maybe he can help” (p.315).
In GOD ON TRIAL, Irons accomplishes his implicit goal of scholarly impartiality, even as he discloses his work as a real-life advocate. His reportage of the background, ensuing litigation, and judicial opinions is objective. The adversarial first-person narratives are not asymmetrical; indeed, almost all of the accounts evince an unattractive zealotry. Moreover, Irons plainly prides himself on his balanced methodology. He derides one competitor’s effort as largely “a product of law-library research” without evidence the author “talked with anyone on either side of America’s religious wars.” He chastises a journalistic book, implicitly suggesting the author should have spent more time in a reputable library, because it weaves a fantastical “conspiratorial web” between those who would stone blasphemers and the Bush White House. But unbalanced or [*830] otherwise, all approaches lead to the same conclusion: the “primary battlefield” in our nation’s “religious wars” has become the federal judiciary, especially the appointment of the next Supreme Court Justice, predicted to occur after the Presidential inauguration in 2009.
In fact, life-tenured federal judges do not necessarily make loyal warriors. William O. Douglas, the Court’s longest serving member (1939-1980) and famously subject to an impeachment attempt, wrote the Court’s 1952 opinion in ZORACH upholding a New York City program allowing some students to be released from school for religious instruction while the other students remained in classes. Douglas proclaimed: “We are a religious people whose institutions presuppose a Supreme Being.” In subsequent opinions, he concluded prayer in the public schools, Sunday “blue” laws, and even tax exemptions for churches were all unconstitutional establishments of religion. Justice Kennedy, a so-called centrist Justice on the current Court, derided the established doctrinal LEMON test as a fashion that invited formalism in 1989, only to write a majority opinion declining to reconsider LEMON in 1992.
Irons briefly entertains the notion that many – perhaps even most – of us are more flexible than the rhetoric of “war” and “battlefield” suggests, but his work leaves little hope for a principled truce.
REFERENCES:
Davis, Percival, and Dean H. Kenyon. 1989. OF PANDAS AND PEOPLE: THE CENTRAL QUESTION OF BIOLOGICAL ORIGINS. Richardson, TX: Foundation for Thought and Ethics.
Forrest, Barbara, and Paul R. Gross. 2003. CREATIONISM’S TROJAN HORSE: THE WEDGE OF INTELLIGENT DESIGN. Oxford: Oxford University Press.
Irons, Peter. 1988. THE COURAGE OF THEIR CONVICTIONS. New York: The Free Press.
CASE REFERENCES:
EVERSON v. BOARD OF EDUCATION, 330 US 1, 28 (1947).
LEMON v. KURTZMAN, 403 U.S. 602 (1971).
ZORACH v. CLAUSON, 343 US 306 (1952).
© Copyright 2007 by the author, Ruthann Robson.
