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Sunday, Sept. 8, 2002

THE VIEW FROM NEW YORK

Judicial biases shape the American way


NEW YORK -- The first time I knew that Japan's Supreme Court was not really supreme but just another political arm of the state was when it ruled on the Sunagawa Incident. In December 1959, it reversed the Tokyo District Court's ruling that the Japan-U.S. Mutual Security Treaty was unconstitutional.

The District Court's decision, handed down just nine months earlier, had electrified the nation. In July 1957, some of the demonstrators against the expansion of the U.S. military base in Sunagawa, Tokyo, were arrested for violating a special law pertaining to the security treaty. I doubt that the arrests themselves caught much attention; clashes between demonstrators and the police were common at the time. But the District Court's ruling, when it came, was a complete surprise. It was instantly dubbed the Date Decision after the name of the judge, Akio Date.

For me, a 17-year-old student, it was an eye-opener. Teachers had taught us that the Self-Defense Forces were unconstitutional because of Article 9, which states, in part, "land, sea, and air forces, as well as other war potential, will never be maintained." But the prevailing sense was that nothing could be done about it. The government created the military and allowed a foreign military presence through a security treaty. Whatever the Constitution said didn't really matter.

The prosecution appealed its case, of course, through the procedure known as "jumping appeal" -- asking the Supreme Court to reach a decision as soon as it could. That's why the slow-moving body took only nine months to reach a conclusion. Its reversal of the Date Decision snuffed out any hopes for a straight reading of Article 9.

I was reminded of the Sunagawa Incident recently when the United States produced two court decisions in as many days that were at odds with each other.

On June 26, the U.S. Appeals Court in San Francisco ruled that the two words, "under God," in the Pledge of Allegiance violated that part of the First Amendment known as the Establishment Clause: "Congress shall make no law respecting an establishment of religion."

The hue and cry against this ruling was instantaneous and overwhelming. President George W. Bush dismissed the ruling as "ridiculous." The Senate voted 98-0 to support the Pledge. One day later, Judge Alfred Goodwin stayed the decision that he had written.

On the same day that Goodwin took this extraordinary step, the Supreme Court ruled 5-4 that the school-voucher program in Cleveland, Ohio, "does not offend the Establishment Clause." Bush welcomed that ruling as a "victory for parents and students," comparing it to "Brown vs. Board of Education," the famous 1954 Supreme Court decision that rejected the segregationist "separate but equal" doctrine pertaining to schools.

The contrast between the two decisions couldn't be greater. Goodwin's opinion was a model of lucid logicality. The Supreme Court decision, delivered by Chief Justice William Rehnquist, was an obvious attempt to sidestep the real issue.

Recent Supreme Court opinions, Goodwin pointed out, make it clear that "the mere enactment of a statute" indicating endorsement of or restriction on religion "may constitute an Establishment Clause violation." In a 2000 case, for example, the Supreme Court held that a school district's "policy of permitting student-led, student-initiated prayer at football games violates the Establishment Clause."

That decision, citing an earlier opinion, said "the constitution also requires that the court keep in mind the myriad, subtle ways in which Establishment Clause values can be eroded." That being the case, the court must also closely examine the context in which the challenged statute was enacted. By applying that requirement, you find that the two challenged words, "under God," clearly meant "under a Christian God" when Congress added them to the Pledge of Allegiance in 1954.

Rep. Louis Rabaut, who sponsored the addition, wanted to inculcate in "the children of our land" the meaning of "our way of life and its origins."

Goodwin concluded his reasoning with a statement that the media gleefully seized upon: "A profession that we are a nation 'under God' is identical, for Establishment Clause purposes, to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god.' " I suspect that the media simply neglected to cite the remainder of the sentence: "because none of these professions can be neutral with respect to religion."

It would be hard to imagine any other conclusion if you were to follow the legal logic on the basis of case law.

By contrast, Rehnquist's majority opinion on school vouchers had little logic. Ignoring the principal tenet of the Establishment Clause, "no government aid to religion," he focused on "neutrality" and "private choice," although neither hardly exists.

However, the Cleveland voucher program, which is meant to help public school students in the inner city, has one obvious flaw. The participation in the program by suburban public schools and urban private schools, including religious schools, is declared "voluntary," an aspect that drastically limits so-called choice.

Suburban public schools aren't interested in accepting voucher students. Nonreligious private schools can't take them because the tuition guaranteed by the state is too low. Only religious schools whose operations are subsidized by religious bodies are willing to take them in. As a result, 96 percent of the voucher users go to religious schools. The program is rigged, and the outcome is clear.

Furthermore, religious schools say they will not accept voucher students if any restraint is placed on their mission of religious indoctrination. Under the circumstances, Rehnquist's talk of "incidental advancement of a religious mission, or the perceived endorsement of a religious message" flies in the face of reality.

Still, the program is meant to promote public good, and it may well be the kind of "sympathetic case that provokes impatience with the constitution," as Associate Justice Souter said in his dissenting opinion. But, as he went on to say, "constitutional lines have to be drawn," and that need is "the price of constitutional government."

The Japanese Supreme Court's ruling to remand the Date Decision on Article 9 may have been a political necessity. The U.S. Supreme Court's decision on school vouchers can hardly be called that, even though the Republican president said he supported the program.

In "How Democratic Is the American Constitution?" (Yale University Press, 2002), Yale political science professor Robert Dahl notes the extensive policymaking power of the nonelected body that is the Supreme Court and warily points to the inevitable aspect of interpreting the constitution: "Judges bring their own ideology, biases and preferences to bear." It seems that Rehnquist's majority opinion was an acute reflection of that unavoidability.

Hiroaki Sato is a translator and essayist who lives in New York.


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