Whether one looks to God for the glory of the Union or not, the 9th Circuit decision in Newdow v. Rio Linda Union School District is the sort to generate strong feelings one way of the other. Judge Bea wrote the 60 page majority opinion holding that the words “under God” in the pledge of allegiance is not unconstitutional. To save you some time, here’s my summation of his opinion:
So what? Who cares? What’s the big deal? No harm, no foul.
Judge Reinhardt wrote a 133 page dissent. It’s filled with fun things, such as footnote 4, taking a swipe at Sarah Palins for demonstrating that she is, indeed, a regular gal in its worst sense. There’s little question that the words “under God” are a religious reference, inserted during the Cold War to distinguish God-loving Americans from atheist commies. It’s true that few of us, particularly school children, pay any heed to its actual words, and emit the sounds of a loyalty oath by rote.
That children stand and do it, because all the other kids stand and do it rather than because they feel a particular desire to emit those particular sounds, is likely the case. As Judge Reinhardt argues, coercion is just as wrong as compulsion, even if the issue is a tempest in a teapot. Becoming too ordinary, too accepted, makes the harm trivial, though obviously wrong. Eliminating the words “under God” from the secular pledge does no harm to religion. No churches will be burned in the writing of this dissent.
What was most interesting about this decision was the difference in tone between the majority and the dissent, and the reaction each engendered. In comments to Eugene Volokh’s post merely referencing the decision, commenters lambasted Judge Reinhardt’s dissent:
That children stand and do it, because all the other kids stand and do it rather than because they feel a particular desire to emit those particular sounds, is likely the case. As Judge Reinhardt argues, coercion is just as wrong as compulsion, even if the issue is a tempest in a teapot. Becoming too ordinary, too accepted, makes the harm trivial, though obviously wrong. Eliminating the words “under God” from the secular pledge does no harm to religion. No churches will be burned in the writing of this dissent.
What was most interesting about this decision was the difference in tone between the majority and the dissent, and the reaction each engendered. In comments to Eugene Volokh’s post merely referencing the decision, commenters lambasted Judge Reinhardt’s dissent:
I wonder if Judge Reinhardt realizes that he would probably be at least somewhat more effective (in the sense of being in dissent or reviewed and reversed by the Supreme Court less frequently) if his tone weren’t so strident and as arrogantly dismissive of colleagues (and supervisors in Washington) who don’t share his point of view. Or whether he’s just given up in his own mind and would rather be “right” (to the Warren-Court-constitution-in-exile movement) than be in the majority.This comment squarely makes the point: Should Judge Reinhardt have been more concerned with being “right” or being palatable to others? This reflects a fundamental question that permeates everything from court decisions to blawgs, any place where an expression of opinion appears.
Most of us have opinions. Most of us with opinions are afraid to express them, at least when our name is attached to them. We fear offending others, causing disagreement and disapproval. We don’t want to start fights. We don’t want others to think ill of us. We don’t want to be challenged. We don’t want to be on the outside.
In the rare instance that someone expresses their opinion, they try to do so in ways that are least offensive to others. The words are surrounded by equivocations, giving us a way out of our opinion if challenged, muddying the impact so that it’s less harsh or striking, even if the price is paid in clarity. We water down our words to reduce the impact on others, to reduce the rebound on ourselves. We do everything in our power to try to avoid offense.
It seems like taking offense has become a national pastime. It seems like avoiding offense has become a national pastime as well. The virtue of avoiding offense is extolled. We would rather be in the majority than right.
This is a crisis of confidence and cowardice. We don’t believe in ourselves enough to just express what we think. We fear the disapproval of others so much that we will color our expression, if we’ve got the guts to express at all, to avoid offense at all cost. We have become a nation of cowards, and we extoll other cowards to make ourselves feel better. We decry the bold and brave because they remind us of the cowards we’ve become.
When voices are forced to express an opinion, they often jump on the coattails of brave and bold people, like our founding fathers, because they are safe heroes today. How many of these voices would have had the guts to be one of our founding fathers if they had the chance? The vast majority would have preferred being part of the huddled masses, though they yearned for nothing more than the comfort of their fellow masses. It’s not that they don’t have opinions, but they are scared to death to express them at all, and even more afraid to stand up, without their bullet-proof vest, and state them clearly and unequivocally.
In another situation, I was recently informed that a critical decision was made on the basis of consensus and unanimity. There was no concern whether the decision was right. The decision-makers thought they had accomplished a great thing by avoiding conflict and creating consensus, even if the price was doing the right thing. No one left the room offended, and that was the greatest achievement they could think of.
Judge Reinhardt’s opinion, rather than Judge Bea’s, will be the fodder of much discussion, because it is bold, clear and striking. It will generate thought, debate, ideas and challenges. It will offend many. And it says what Judge Reinhardt means it to say. He could have chosen to be more collegial, less strident (or less arrogant, as the lovers of blather are inclined to characterize it), but he chose instead to demonstrate the strength of his beliefs by stating them in forceful language and using examples and rhetorical mechanisms to make his point.
Judge Reinhardt has chosen not to be part of the huddled mass, afraid that a strong opinion, clearly expressed, will hurt someone’s feelings. If you were given the opportunity to join the Sons of Liberty, would you have had the guts? Or do you hope to spend the rest of your life cowering in the corner hoping that no one will ever be angry at you for saying something they disagree with or hurts their feelings. Would rather be in the majority than be right?
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RE: “In the rare instance that someone expresses their opinion, they try to do so in ways that are least offensive to others. “
Check out some of the discussions occurring on-line. There are lots of us expressing bold (and ignorant) opinions for which some others will admire us less.
Not coincidentally, the folks who complain about the “arrogance” of someone they disagree with employ that complaint as a tool to avoid ever reaching the substance of the offending argument. Somehow people think they’ve won the argument by default if they object to an opponent’s tone.
I’m not sure how many comprise “lots”, but there are far more reacting with “be nice,” “don’t make waves,” “you’re over the top,” “you hurt my feelings,” etc. I “check out” many discussions on line. I hear some very bold voices. I hear the gasps and tsks of the cowards in response.
Of course, the obvious counterpoint is that sometimes you pull back a little bit in hopes of convincing others that you actually are right (being the only person who is “right” when nobody else realizes it can be little comfort). Concensus is not a bad thing if the thrust of the concensus is bringing others around to your point of view and, if one is stating their opinion, it can be safely assumed that they are doing so not just to show everyone else how right they are but to convince others to join their perspective. If you go around making your points in a manner that alienates and belittles the perspective of those who do not currently agree with you, it is more likely than not that your cause is not being advanced.
The point that a less strident or dirisive dissent may create a better chance that a reviewing court may see the merit in your position (and hopefully the ultimate goal is that your view of “right” becomes law) is a fair one.
That, of course, is the muddled rationalization, where “right” becomes kinda right, than almost right, then not quite right, then not right at all, but at least we’ve achieved consensus. And people can pretend that they’ve accomplished something though the end result is totally wrong, compared to what they believe to be right.
We can only judge right by what we believe, after hearing and considering all arguments. Once we’ve considered all arguments, though, if there is a right decision, that’s the decision to which we must adhere. Anything less isn’t right.
What if there was a unanimous opinion in this case, but the majority agreed to remove the word “under” and substitute the word “somewhere near”? You would achieve consensus, but the end result would have served no one. There’s a reason they say a camel is a horse built by committee. Consensus demands compromise. If there is room in what is “right” for compromise, then that’s great. More often than not, unfortunately, there is what is right and everything else.
If the ultimate goal is that your view of “right” becomes law, compromising it to make it more palatable to others does only one thing: guarantees that right will never happen.
Reading this just made me think of the Call to Diversity touted by all the big firms. So many firms say that they seek diversity of opinion, and that they benefit from it.
But is that really so?
Suppose a young associate at a big firm said homosexuals were sexual deviants, that a woman’s place is in the home, and not the office, and that Spainish-speaking immigrants to the U.S. should be required to either learn English, or leave.
There’s a different set of opinions, right?
The sort of diversity firms want?
Hell no. Diversity of opinion is the sort of things law firms won’t tolerate.
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A recent incident shows just how insincere most big firms are in their commitment to diversity.
Late last year, Ford & Harrison published its first Diversity Newsletter . . . sort of. The newsletter existed, it was available on-line, but you couldn’t access it if you wanted to. AThelink at the firm’s home page went not to the newsletter, but to a listing of other newsletters.
I got on the horn and spoke with Lynne Donaghy, the firm’s marketing director, and a member of the firm’s diversity committee. She had no idea people couldn’t access the newsletter. I called Dawn Siler-Nixon, the firm’s diversity officer, and she had no idea people couldn’t access the newsletter.
That’s the sort of importance the firm REALLY attaches to diversity of opinion (which it tolerates only SO LONG AS divergent opinions don’t conflict with the firm’s.
Majority v. Rights
I’d rather be called a religious nutcase than bow to the view that the core belief of the nation and the self evident truth of founders, that we are endowed by our creator with certain inalienable rights, was a mere fashion statement of the founding era, while the supposed one true cause was absolute separation of god and state.