Courtesy of courts.oregon.gov.

by James Skillen

Representative government, the rule of law, and an independent judiciary cannot be sustained if unlawful extremists (whether a majority or a minority) undermine any of these institutions and get away with it. Three pieces in last Tuesday's NEW YORK TIMES (3/29/05) suggest that extremists are already far along in their effort to undermine American democracy.

On March 28, Colorado's high court upheld a lower court's decision to throw out a jury's death-penalty verdict when the court learned that the jurors had consulted the Bible during their deliberations. The court said that was an illegitimate (extremist?) appeal to "higher authority" because the jurors were supposed to deliberate "without the aid or distraction of extraneous texts." The presiding trial judge had instructed the jurors to "think beyond the narrow confines of the law." But the emphasis was on each juror consulting his or her "internal code of right and wrong" and steering clear of "outside" influences. The high court apparently saved us and the convicted murderer from extremist jurors.

Lawrence M. Krauss, a physicist at Case Western Reserve University, wrote a column in that day's TIMES denouncing religious extremists such as the Taliban, the Templeton Foundation, Justice Antonin Scalia, and Intelligent Design theorists for letting sentiment and fear trump reason and reality. After all, he states as simple fact, "science and religion are separate entities: science is a predictive discipline based on empirically falsifiable facts; religion is a hopeful discipline based on inner faith."

Then there was columnist and economist Paul Krugman who vilified a long list of Religious Right extremists who show "contempt for democracy" and strike fear in the hearts of legislators and judges by demanding that pharmacists be allowed not to supply women with birth-control drugs and that teachers be allowed to present creationist material in classrooms. He urges moderates to stand up to these extremists before the latter start to assassinate their opponents.

The problem here is that Krugman, Krauss, and many on both the left and right wings of American politics neither understand religion nor accept public pluralism. The religions people live by are not mere sentiments or inner feelings. Judgments about the death penalty, Terry Shiavo's life, abortion, and teaching evolution are about the reality of "outside" life in a public community. Fundamental disagreements about these issues have to be debated, not dismissed.

For meaningful debate to take place, however, genuine pluralism must be instituted. Neither the dogmas of secularists nor the dogmas of the professedly religious should be forced on the entire public. There is nothing wrong with allowing some pharmacists, publicly identified, to refuse to sell birth-control drugs as long as other pharmacists, publicly identified, are free to do so. There is nothing wrong with allowing schools, including faith-based schools, in a truly pluralistic, equally funded, public system to teach science and other disciplines in different ways. Sadly, dogmatists like Krugman and Krauss as well as dogmatists on the religious right and left are fighting for total public victory that will marginalize everyone with whom they disagree.

Of course juries cannot reach pluralistic conclusions, for then they are "hung." But what would Colorado's high court have said if the jurors had not consulted the Bible but, instead, had achieved unanimity (whether for or against the death penalty) based on "internal codes of right and wrong" all shaped by Jesus working in their hearts? The point is that the "extraneous" Bible can no more be kept out of the heart and mind than can deep faith in science. And that which is held deeply in the heart will influence public judgments about reality. That is why the public square should be open and genuinely pluralistic.

James Skillen is president of the Center for Public Justice – www.cpjustice.org. This essay was published as a Capital Commentary on 4.4.05. To sign up to receive Capital Commentaries, send an email to capcomm@cpjustice.org.


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