Melville's "Moby Dick" is either -- readers differ -- a great novel about God or a boring treatise about whaling. But Chapter 89 is about law and is relevant to the question of why today's Supreme Court, which does not suffer in silence, suffers from an onerous work load.
Last week the court chewed yet again on the First Amendment's Establishment Clause, that simple injunction ("Congress shall make no law respecting an establishment of religion . . .") which the court has contrived to make absurdly complicated.
Melville praised the terseness of the whalers' code, which could be engraved in a harpoon's barb: "A fast-fish belongs to the party fast to it." And: "A loose-fish is fair game for anybody who can soonest catch it." But such concision left room for ample contention. Was a whale "fast" (attached) when just bearing a symbol of possession? Was a whale "loose" if dragging an empty boat?
The generalness of many of the Constitution's provisions guarantees for the court a constant flow of work. The Constitution's open-textured language has allowed it to suit both a simple agrarian and a complex industrial nation. But the court has kept busy deciding, for example, what constitutes "interstate commerce," or how the phrase "unreasonable searches" relates to electronic surveillance. The Establishment Clause, reasonably read, is devoid of complexity. It means government must not be partial to a particular religion or sect.
But last week a litigious Alabaman persuaded six justices (Stevens, Brennan, Marshall, Blackmun, Powell and -- et tu? -- O'Connor) to rule that Alabama ravished the Constitution with a law authorizing a minute of silence in public schools "for meditation or voluntary prayer."
A moral, although not a constitutional, objection to "voluntary spoken prayer" in schools is that it can be neither really prayer nor truly voluntary. It must be thin liturgical gruel to give no offense to any sect, and children will feel coercive peer pressure to participate. But what injury does a moment of silence do, even if the legislature hopes children will use it for prayer? The only "injury" is to a few litigious adults -- self-appointed thought police -- whose injury is the annoyance they feel about what might be in a child's mind, or a legislature's hopes.
Had Alabama deleted the last three words in the phrase "meditation or voluntary prayer," the court probably would have said the law passed constitutional muster. Indeed, the man who brought this frivolous suit (call him Ishmael, because that is his name) said he only did so because he detected a suggestion that prayer is the "preferred activity" during the silent minute.
The justices could devote even more time to complaining about their case load if they would just use Will's Generic Opinion. It is a one-sentence opinion applicable in 99.99 percent of all contemporary cases arising from government action touching religion: "The practice in question does not do what the Establishment Clause was intended to prevent -- impose an official creed, or significantly enhance or hinder a sect -- so the practice is constitutional and the complaining parties should buzz off."
But in 1971 the court decided, contrary to the clear evidence of the Framers' intentions, that the Establishment Clause requires government to be punctiliously neutral, not between religious sects but between religion and secularism. So the court devised a rococo three-part test: Government action touching religion is presumptively unconstitutional unless it has a secular purpose, and its primary effect neither advances nor inhibits religion, and it does not foster excessive entanglement of government with religion. Given that formula, the outcome of the Alabama case was, perhaps, predictable.
Still, Justice Stevens, writing for the majority, took 23 pages to explain that Alabama's purpose was not pristinely secular and hence the law violates the convoluted misconstruction with which the court has replaced the unambiguous concision of the Framers' Establishment Clause. Now, what of the 24 other states that have "moment-of-silence" laws? The court can put each law, complete with each law's legislative history, under its moral microscope.
The court's previous triumphs regarding the Establishment Clause include a ruling that it is constitutional to use public funds to buy textbooks for religiously affiliated schools but unconstitutional to buy other instructional material, such as maps. That harebrained hair-splitting caused Sen. Pat Moynihan to throw up his hands in Celtic eloquence and ask: What about atlases?
The court has said legislatures may pay chaplains, but now a suit is coming that seeks to prevent the use of public funds to print chaplains' prayers, presumably because exposure of non-legislators to the chaplains' works would "establish" religion. I hope such cases inundate the court until the justices fall on their knees (not on government property, of course, lest "excessive entanglement" occur) and pray for relief from the consequences of their anti-constitutional cleverness.