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.

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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.