Debating Culture and the Courtroom—Past and Present

Cultures, Courts, and the U.S. Constitution
By James H. Landman

Source: James H. Landman, "Trying Beliefs: The Law of Cultural Orthodoxy and Dissent." Insights on Law & Society 2.2 (winter 2002).

America is a nation where many different cultures live side by side. Its educational institutions reflect this multiculturalism. The outlooks, foods, religions, clothing, and even the jewelry of students in your school most likely reflect norms established by the majority culture and that of the very large minorities. On the other hand, there are students in your school whose families belong to less populous minority groups whose customs are so different from the norm that their pastimes, foods, religions, and clothing may seem exotic to other students. These families have chosen to adhere to the standards of their own small cultural groups.

People living under the American system of justice expect that whatever their customs and opinions are, they will be equally treated and equally protected, whether they are pursuing an education, a career, or a religious ideal. Many U.S. laws are designed to ensure the rights of minorities and protect them from the tyranny of dominant groups. U.S. courts are dedicated to upholding those laws.

Cultural Orthodoxy in Tudor England
The bigger groups in a nation, however, aren't always the ones that dominate. Small groups, such as the English Tudor royalty of the 1500s, used their political power to determine how their entire nation would pray. Through laws and courts, they could regulate everything the people said or did, with imprisonment, torture, and, sometimes, execution being the punishments for failing to comply. This enforced cultural orthodoxy, or set of cultural norms, was openly justified as needed to protect the faith's purity, the state's stability, and the public safety. Unspoken were the monarchs' determination to remain in power by controlling dissident cultures in their realm.

The English story offered the Framers of the Constitution rich examples of how the cultures of dominant groups could suppress weaker cultures, and the English body of law was at the heart of many of the important debates at the Constitutional Convention about the extent to which the United States would tolerate and protect cultural difference. The First Amendment's opening two clauses provided that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These provisions laid the legal grounds for defusing what was then, and continues to be, one of the most volatile sources of cultural strife—clashes between and among conflicting religious cultures.

English law had long been a powerful alliance of church and state, with political and religious orthodoxy going hand in hand from as far back as the thirteenth century, when England was still a Catholic nation. At that time, the Fourth Lateran Council imposed a duty on "all the faithful" to take the sacrament (communion) and confess to a priest once a year. It also condemned all heresies against Catholicism. Ecclesiastical (church) courts tried heretics and handed the condemned to civil courts for punishment. In this way, the church recognized the authority of a loyal sovereign, who would in turn enforce the will of the Church through civil courts, ensuring that people were conforming with church teachings. This is the essence of an established church-a doctrine of belief that gives legitimacy to a state structure, which in turn lends its power and force to support the faith by persecuting dissident cultures. An offense against one is often treated as an offense against the other.

Three hundred years later, the ecclesiastical and civil courts were brought together when the English monarchy broke with the Roman Catholic Church and established itself as the head of the Church of England. Now an attack on the established church could be even more easily interpreted as an attack on the king or queen. A series of laws legitimized the succession of the royal line as supreme governors of the realm; imposed a standard book of common prayer, rites, sacraments and ceremonies, and punishments of up to life imprisonment on any religious figure who committed blasphemy (contempt or lack of respect for the sacred) by failing to follow and support the standards; and excluded anyone who refused to take the sacrament from membership in English town corporations and civil or military office. Thus, all Roman Catholics, nonconforming Protestants, and Jews were barred from public office in the 1500s and would remain so until that law was repealed in the 1800s. Official protection of the established church against blasphemy still exists today in English law.

Also in the 1500s, the Tudors established an administrative tribunal called the Star Chamber, which served at their pleasure. Star Chamber was not bound by common law procedures—trial by jury, for example, was not required. Although the court could not impose capital punishment, it could impose corporal punishments such as branding, maiming, and whipping.

In the 1606 case De Libellis Famosis, Star Chamber defined seditious libel (criticism of public persons or the government) as a crime because it tended to undermine respect for public authority. Having told the truth was no defense against a seditious libel charge because the crime was based on the need to maintain public respect for government and its agents. Star Chamber was dissolved in 1641, but seditious libel, like blasphemy, became established as a common law offense. Charges of blasphemous and seditious libel became practically interchangeable. Both were seen as attacks on the state, which was now both religious and political. The development of seditious libel as a common law offense in England would prove to influence the development and interpretation of law in American courtrooms hundreds of years later.

First Amendment and Culture
The First Amendment's opening clauses—protecting free exercise of religion and prohibiting the establishment of a national religion—were a direct response to the English experience with the tyranny of religious orthodoxy, which the Framers were determined to prohibit. Nonetheless, the practical effect of these protections on majority and minority religious cultures in the United States has not been without surprises.

For most of U.S. history, the majority of Americans have practiced some form of Christian Protestantism. Legal attempts to ban or suppress the practice of other faiths have been rare, but lawmakers have at times shown considerable imagination in passing laws that openly promoted a state purpose but adversely affected the ability of minority cultures to practice their beliefs.

One such Oregon law, declared unconstitutional in 1925 by the Supreme Court in Pierce v. Society of Sisters required all children between 8 and 16 to attend public schools, which at the time still played a significant role in inculcating Anglo-Protestant values. The law, which on the surface promoted the state's interest in ensuring an adequate education for its citizens, had the practical effect of destroying the Roman Catholic parochial schools that had developed to give parents an alternative to the moral education offered in the public school system.

Small religious groups have had mixed success in their attempts to practice their faiths, such as those Native American tribes who have been unable to regain ancient burial grounds and treasured religious artifacts seized for display in museums. In 1862, Congress passed the Morrill Act, making the public but limited Mormon practice of plural marriage a federal crime. Utah was denied statehood until its church president finally clarified the official Mormon position against plural marriage in 1890. On the other hand, the Supreme Court overturned a municipal ordinance in Florida that prohibited Caribbean immigrants who practiced the ancient African Santeria religion from performing ritualistic animal sacrifice within city limits. The Court found the ordinance unconstitutional because it singled out followers of this faith while allowing the killing of animals for nonreligious reasons such as food, hunting, and fishing.

Ironically, the First Amendment's religious clauses have frustrated many faith-minded Americans in large and small cultural groups who see court interpretations of the establishment clause, such as those banning prayer at school and public events, as a restriction of their right to freely exercise their religions, and even as a government assault on their religious beliefs and a suppression of their religious culture.

The First Amendment's third clause—guaranteeing freedom of speech—has likewise met with unexpected challenges, some of which relate to the offense of seditious libel.

The English Treason Act of 1352 defined treason in both concrete and vague terms. The Framers adopted the concrete portions that defined treason as levying war against the United States or "adhering to their enemies, giving them aid and comfort." They omitted the vague offense of "compassing or imagining the death of a king," which criminalized an intention—an act of the mind. English law eventually developed the doctrine that, in order to come before the court, an act of the mind had to be accompanied by an overt act.

There have been relatively few cases of treason in U.S. history and few controversies involving the treason clauses. But the continuing force of the English common law of seditious libel on American law remains highly controversial. The U.S. Constitution did not grant the branches of government the authority to regulate speech, and it denied the government authority to prosecute political dissidence—the expression of thoughts or ideas about the government—that did not rise to the level of treason. The First Amendment's provisions that "Congress shall make no law . . . abridging the freedom of speech" strengthened this protection.

Yet, under the American system, is one entirely immune from punishment if speech is seditious or otherwise injurious to the common good? Sometimes the answer has been no. In one landmark sedition case, Abrams v. United States (250 U.S. 616) (1919), the Supreme Court upheld the conviction of five alien radicals for publishing two leaflets criticizing the U.S. war effort in World War I, with the government's case including the argument that the First Amendment left the English common law of seditious libel in force.

The federal government has enacted several sedition acts over the course of American history. All were passed in times of great uncertainty, when the nation was on the brink of or actively engaged in war. Tolerance of dissidence tended to be low, and distrust of cultural "outsiders" ran high.

Historically in times of crisis, U.S. courts have allowed the government generous rein to restrict speech that may pose a threat to the government. Throughout the twentieth century, the Supreme Court struggled to define a workable balance between free speech rights and the need of the federal government to protect national security, including the test that spoken or published words present "a clear and present danger" of substantive evils that Congress has the right to prevent.

Today, in an era of tragedy and war that is producing new fears of sedition, there still exists no legal formula that conclusively defines protected speech. From all sectors of American culture, there is unprecedented support for the way the war is being prosecuted by the executive branch. Yet, as in the past, a culture of political dissent exists in America that was instilled at its inception to protect against the tyranny of political orthodoxy in what was fashioned as a secular, rather than a religious, state. That dissent will find expression, challenging the laws and the courts to uphold the principles upon which the nation, however tensely, rests.

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