Parading Over American Liberty
Recently a court in San Diego upheld the rights of four members of the San Diego Fire Department who had objected to the Department’s requiring them to participate in a Gay Pride Parade.
The good news is that the court sustained one of the most basic of American liberties.
The bad news if that the administrators of a major American city and its Fire Department are apparently ignorant of those basic rights.
The dispute harkens back to two of the most famous cases in American Constitutional law–often referred to as the Flag Salute Cases.
In 1940 a case made its way to the Supreme Court concerning whether children of Jehovah’s Witnesses were required to participate in the daily American flag salute in public schools. The families claimed that the pledge of allegiance to the flag violated the fundamental beliefs of their religion. At a time when the world was again at war, the Court saw the flag salute as a symbol of national unity that fostered the common good. Therefore it could not be set aside because of a claim of conscience. The result led to a massive number of expulsions of Jehovah’s Witnesses children from public schools and a general persecution of that religious group for their refusal to salute the flag.
In an unusual and exceptional move, the Court returned to the question in 1943. This time it found in favor of the Jehovah’s Witnesses and declared:
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
This decision represented a significant shift in the Court’s interpretation of the First Amendment. Instead of dealing with the matter in terms of granting an exemption from the law on account of religious belief, the Court asked if the government could impose such a law at all and decided it could not. The 1943 decision decreed that government had no power to make people engage in symbolic actions, religious or secular.
The American Constitution is about the performance of “overt actions.” Saluting the flag and are symbolic participating in parades actions, and no one can be required to perform them because doing so expresses belief, and compelling belief is outside the scope of government.
People cannot be punished for not saluting the flag, and they cannot be prosecuted for desecrating it either.
In a similar court case in 1977, Jehovah’s Witnesses in New Hampshire were fined and jailed for covering up the state motto, “Live Free or Die” on their cars’ license plates. The Court rightly determined that citizens cannot be required to display the motto. To require this would be to force people to publicly proclaim a belief, and the government does not have the authority to do that.
The government of the Unites States is one of limited and specified powers. It is confined to secular matters within its competence. The Second Flag Salute Case stated that the mandatory flag salute law was not within the specified secular powers delegated to government. In one of its most famous pronouncements ever, the Court declared:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
By requiring the firefighters to march in the Gay Pride Parade, officials in San Diego whether they were “high or petty” were imposing their own orthodoxy and political correctness.
Shame on them!