"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 dogma—that
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
upon—the 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
one—to 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
could—and they
already do to a great extent—influence
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 of—or 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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