Monday, September 14, 2020

Robert Jackson, Stan Van Gundy, Patriotic Rituals, and the Endowment Effect

 by Michael C. Dorf

"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." -- Justice Robert Jackson, speaking for the majority in West Virginia State Board of Education v. Barnette (1943), which, in the midst of a world war, held that children in public schools may not be compelled to recite the Pledge of Allegiance.

"All the talk about national anthem protests begs the question — Why do we even play the anthem before games? Why do we have to honor our country before we play a game? We don’t play the anthem before movies, plays etc. It makes no sense. Let’s end the practice and just play."  -- Stan Van Gundy, former NBA head coach and front office executive, on Twitter on Friday.


Justice Jackson's opinion is rightly celebrated as a brave and eloquent defense of freedom of speech and conscience. Yet note what it permits. Suppose some students object to saying the Pledge of Allegiance--perhaps because they and/or their family believe, as the plaintiffs in Barnette believed, that it is a form of idol worship, or perhaps because they believe its words ring hollow in light of American policy at home and/or abroad. The Barnette case gives them a right to opt out--to sit or stand respectfully and quietly. However, the case permits school authorities to put students to a difficult choice: recite the Pledge and violate your conscience or risk ridicule, ostracism, and perhaps even violence from outraged self-styled patriots.

The Supreme Court's religion precedents are (at least until further narrowed or overruled) more sensitive.  Public schools may not hold official group prayer at all. They may not do so even when student participation is formally voluntary, as at a high school graduation ceremony. Thus, Justice Kennedy's majority opinion in Lee v. Weisman recognizes peer pressure as exerting a coercive effect.

One can formally reconcile the school prayer cases (no religious exercises at all) with Barnette (only an opt-out right) on the ground that the First Amendment's Establishment Clause imposes stricter limits on religious affirmations than on secular ones, but that reconciliation only goes so far. After all, in Lee, Justice Kennedy does not say that the graduation prayer impermissibly endorses religion; he says it impermissibly coerces religious participation. And the First Amendment protects against coerced speech even on secular matters.

Accordingly, if one were to take seriously Justice Kennedy's analysis in Lee, one would follow Coach Van Gundy's suggestion and minimize the occasions at which patriotic rituals are observed. Sure, there are some occasions that require solemnification. Before testifying, witnesses swear or affirm. And while the Supreme Court erred badly in Town of Greece v. Galloway by allowing sectarian prayers at the beginning of town board meetings, it would be hard to argue that a recitation of the Pledge of Allegiance or singing of the Star Spangled Banner is never an appropriate public ritual.

But to repeat Coach Van Gundy's question, what possible justification is there for singing the national anthem before a sporting event but not before the curtain opens on a movie or a show? The short answer is that there is no justification, which is not to say there is no explanation. Here I'll offer two.

First--and I say this as a lifelong fan of and participant in athletic competitions--organized team sports often function as a substitute for war or inter-tribal conflict. Martial metaphors abound in sport because the activities are homologous. Playing the national anthem before a game can thus be seen either as an effort to rouse the fans and fortify the will of the home team (think of the Crispin's Day speech in Shakespeare's Henry V) or perhaps, more peaceably, to remind the fans that although they favor different teams, they are united in their love of country. Either way, jingoism, patriotism, and organized team sports go together.

Second, even if we would not now adopt a practice of singing the national anthem before sporting events, ending the practice is a different matter. Here, as in many other domains, the endowment effect operates. In the Supreme Court case law, Justice Breyer has been most sensitive to the fact that removing possibly problematic religious symbols could itself be fraught, as it would be perceived as hostile to religion. So too here, ending the practice of beginning sporting events with the national anthem would spark a backlash that would be exploited by the War-on-Christmas crowd and the Demagogue-in-Chief.

Thus, much as I agree with Van Gundy that the current practice is unjustified, I don't think it very likely that we will see it end any time soon.


Joe said...

There is an interesting chapter on the Barnette case in the "Constitutional Law Stories" book that the author here edited.

The two reasons at the end are good ones.

"what possible justification is there for singing the national anthem before a sporting event but not before the curtain opens on a movie or a show"

Noting a sporting event is a type of show, there has been some sense over the years that the "national past time," "as American as apple pie" is on some level American.

It isn't like a movie. This doesn't mean all the patriotic and military theater (though honoring a vet, which is done at Mets baseball games, and such seems to me okay especially if other people who do charity work or such are honored too) is required. But, there always was some sense of "national" to the whole affair. So, you have regional teams from across the nation. And, the Toronto Blue Jays plays their own anthem.

The problems in our society has made such rituals also a sensible time to provide a moment of protest. If there was no national anthem, however, protest would still be able to be practiced & many athletes would probably wish to do so.

Then, there is the concern for coercion. If there is a problem where athletes find the ritual coercive, I doubt it is so important (even with all I said) to make it required. I think some ritual (though the "under God" part is a problem for specific reasons) at public schools -- in place to teach students how to be citizens -- makes sense. The nature of the pledge might be a problem (a form of indoctrination). But, some other ritual, with opt out allowed, very well might be okay.

Joe said...

BTW, "good" in my comment means I thought they were well phrased. Not that I necessarily think they are reasons to keep it.

CEP said...


At military-base theaters, both in the US and overseas, the National Anthem is played before movies. And the whole house stands for the National Anthem. Including two-year-old children. Including noncitizen dependents. It's admittedly an odd audience… but it somewhat softens the validity of the stated assumption.

Whether this should be done is another question entirely; as a veteran myself, I question the wisdom of devaluing the National Anthem and flag like this, turning them into something routine and easy to ignore. (As a horrifying counterpart, consider that the jury in the Rodney King case felt "desensitized" by having the video of his beating at the hands of LA cops played over, and over, and over during the trial.)

Frank Willa said...

Reading this it struck me that this discussion evokes the recent posts regarding the Civil War Monuments as well as the ones to the Founders. Perhaps we are a flexion point where re-examining both what we put in public places as well as what 'rituals' we practice in public gatherings are at issue. That is, how much do we stick with the 'endowment effect' and how much should we 'correct' practices that are the embodiments of wrongs? In a recent comment I noted the arc of history from the Magna Carta...and tried to say there were times and events that decided what direction the advancement of individual rights and liberties occurred ( taking us away from autocracy); had they not happened as they did we would not be where we are. So, where do we go from here, from now?

Jason S. Marks said...

Interesting post!

I would draw everyone's attention to the work of sociologist Robert Bellah, who coined the phrase "American civil religion." Bellah wrote in his study of American society that, given our very different and divergent religious views, and at times polarizing political views, the thread that would hold the country together would be civil rituals that made all of us feel united as Americans. He discussed how baseball became associated with quintessential American values, and as such, it would make sense that Americans would mark its earliest major sporting event with rituals like parades and the national anthem.

I would add that ironically the attempts to sacralize American sports has only commodified the anthem, just as the battle for religious symbols in the public square really emerged as an attempt to commercialize those holidays. Commerce is maybe America's first civil religion, and perhaps has eclipsed all other values. In this vein, we can see the athlete protests as ironically bringing attention back to the values that inhere in the documents and anthems now commodified and commercialized. The anthem is not just a rote exercise, it stands for something and means something. It is no surprise that African-Americans take these symbols of civil religion more seriously than most of us do today because they have historically been excluded -- go back to Frederick Douglass' famed speech on the Fourth of July. The BLM protests at sporting events is really part of a tradition stretching back before the Civil War and shows that we need to do some work as a society to restore integrity to our civil religion if it shall have any meaning at all and any ability to hold us together in these times of strife.

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