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Earl Doherty

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"The way this country is going..."
June 18, 2005)

     A recent episode of Law & Order (first broadcast around May 1) should have given many people in America food for thought
for some, it should have been food for alarm. The story centered on a man (white) who years earlier had killed a young black man with whom his sister was involved, fearing that she might marry him. No, the racist element is not the issue. Immediately after the murder, which the police failed to solve at the time, the brother repented of his deed and found religion. He turned his life around, left a lucrative job to work with a charitable church agency, gave away his personal trappings of luxury and "adopted Jesus Christ as his personal Savior."
     Now, nine years later, new evidence has surfaced which leads him to come forward and admit his responsibility. When he is on the verge of pleading guilty in court and facing a possible 30-year sentence, a new lawyer is hired by the church agency, and she persuades the defendant to withdraw his plea and appeal to a new 'defense,' a version of a precedent of recent, as yet little-used, vintage. This is the argument that the indictment should be set aside because the defendant, since the commission of the crime, has rehabilitated himself. In this case, he has become a different person, leading an exemplary life; he has become a born-again Christian. As his counselor puts it: "Bruce Elwyn has redeemed himself in the eyes of the Lord and the law should recognize that."
     Our hard-headed chief prosecutor, Jack McCoy (played by the peerless Sam Waterston), will, of course, have none of that. In spirited conversation with his assistant, the latter somewhat sympathetic to the defendant's claim, the two argue various aspects of the issue. In the course of that exchange, the assistant points out a quote from Chief Justice Antonin Scalia of the U.S. Supreme Court: "Our laws derive their authority from God." And from the venerable William O. Douglas: "We are a religious people whose institutions presuppose a Supreme Being." She reminds Jack that the Colorado court split 3-2 on the question of whether the jury could consult the Bible in regard to the death sentence. McCoy argues that finding Jesus should not absolve any citizen of responsibility for criminal actions, regardless of whether their life change has been genuine
which in this case it seems to be. Not only would this cause chaos in the justice system, it would be discriminatory. When the assistant points out that "Forgiveness is a Christian ideal," he counters: "So if you don't believe in Christ you have to do your time?"
     McCoy realizes that Elwyn's lawyer has a future trial in mind, should the motion for dismissal fail. She is aiming for "jury nullification," namely, persuading the defendant's twelve peers to ignore or set aside strict legalities and the evidence, to acquit on the basis of other considerations. These are usually more subjective and emotional, often ideological ones which the jury itself or society as a whole have come to regard as of overriding importance.
     In a hearing before a judge on the motion to dismiss the indictment, the two attorneys argue their respective cases.  The defense speech runs like this:

"Is it too scary to acknowledge that there is a higher moral power than is written in our law books? Bruce Elwyn rendered himself unto the very power we acknowledge is the inspiration for our legal institutions. God is woven into the fabric of our laws; judicial bodies open their sessions with prayer; we ask witnesses to swear on the Bible; over your head, Your Honor, higher than the Law itself, is written 'In God We Trust.' Are we to pay this only lip service? Look at what God has done for Bruce Elwyn. Can the justice of men do better?"

Prosecutor Jack McCoy responds:

"....If you really really turn to God, can you walk away from murder with a clean slate? This simply places the defendant above the law. We acknowledge the existence of a higher moral authority, but while our laws may be guided by our faith, we deliberately don't conduct them under the guise of religion. Our Founding Fathers left God out of the Constitution, not because of some lack of faith on their part, but because of what they knew about the toxic combination of state and religious power. To dismiss this indictment would be a miscarriage of justice. Bruce Elwyn first has to answer to the state, to his victim, to his victim's family. Then one day, hopefully, he will answer to his Maker."

     The judge agrees and rejects the motion to dismiss the indictment. When the defendant's lawyer promises Jack McCoy that he will have a fight on his hands at trial, Elwyn declares his resolve now to plead guilty, that he will find peace only when he admits his crime and suffers the consequences.  His lawyer, with much chagrin, leaves the courtroom with these parting words to McCoy: "Too bad, Jack. The way things are going in this country, I could have hung the jury."

     Could she be right? Is it conceivable that a jury in a U.S. court could be persuaded that a defendant's apparent rehabilitation in terms of "finding Jesus and adopting him as one's personal Savior" should absolve him of indictment and secular punishment for a crime? Considering the leeway granted to defense lawyers to accept some jury pool members and reject others, it would not be impossible to assemble twelve U.S. citizens, at least a majority of whom might be sympathetic to such an idea.  Where would a trend like this stop? In such an atmosphere, government legislatures and administrations, public bodies responsible for appointing various types of authorities who decide policies, not to mention, of course, voters as a whole who already frequently operate this way, could very well adopt the practice
indeed, as self-evident dogmathat religious factors should govern all aspects of society and its behavior. If all Justices of the various supreme courts come to think as Antonin Scalia does, supported by a majority of ordinary citizens, then this will come to pass. The United States of America will become a judicial and administrative theocracy.
    It could be said that the U.S. Constitution is not worth the paper it is printed on. For all its hallowed status, a constitution's principles will be preserved only as long as the influential majority of the populace believe they are worth preserving, and only until the time when the judiciary along with the people and their representatives at large decide to reinterpret, compromise or reject those principles, a process which already seems to be under way. When too many come to believe in
and act uponthe idea that one's faith in Jesus (or any other god) is of far greater importance than the non-religious laws, institutions and traditions of the world they live in, secular foundations will slide away like quicksand.
     It is possible that America is on the verge of such a transformation. Were that to happen, part of the responsibility would lie with those who did not have the courage or insight to recognize and oppose it. But if to put it bluntly, as a friend of mine recently did, "they are reproducing faster than we are," secular society may ultimately find itself powerless. Part of that "reproducing" is educational. One of the marks of evangelical society is the fierce indoctrination of its children, the protective walls they manage to throw up around their minds to keep out subversive ideas. We all know the great struggle secular society is waging
and it's a failing oneto keep creationism out of the science classroom and prevent the teaching of evolution from evaporating into the wind under the pressures of the evangelical community. That struggle is expanding into all expressions of our culture, not just education. Recently, several IMAX theaters in the U.S. have been under attack for showing science documentaries which contain ideas that are contrary to creationism and Intelligent Design. Evangelical parents and churches have put pressure on those theaters to withdraw such public presentations. Just as in the writing of school textbooks, producers of these science features are now considering sanitizing their movies to remove any such 'controversial' elements. Science will no longer be science, whether in the schools or in public culture; it will be a half-baked and whitewashed pablum agreeable to fundamentalist digestive systems. Business has long been assailed by self-appointed religious groups to eliminate or censor products they find objectionable. (The horror story concerning The Last Temptation of Christ recounted in the recent film "Heart of the Beholder" is a prime example.) If they couldand they already do to a great extentinfluence the content of television and Hollywood's output, can books or the Internet be far behind? Newspapers as a whole already tremble under the vigilant glare of their evangelical readership, and are largely afraid to publish opinion pieces or coverage of issues it disapproves ofor reacts in fury against. How many more steps might it take before the appointment (or election) of some kind of overseeing body is introduced to determine the content of such things? I don't know. But the trend is something which ought to haunt the dreams of many Americans.
     This trend is something which the secular community as a whole has not sufficiently challenged and declared their refusal to buckle under to. The writers and producers of Law & Order need to be emulated by more of us, to bring such alarming prospects more vividly into public consciousness.  Jack McCoy could not have been portrayed as an atheist (that would have been too courageous), but he at least upheld the primacy of secular principles in the running of what is supposed to be a secular nation
at least as the Fathers envisioned it and modern rationality and human rights demands. McCoy's argument before the court contained a powerful phrase: "the toxic combination of state and religious power." Their separation needs to be upheld to prevent the nation's body from becoming fatally poisoned.

Earl Doherty

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