De-Citizenship Trials in Practice: Tolerating Fred Phelps

Vox Populi, a regular commentator on this blog, has just started a blog of his own where I have been going back and forth with him on the issue of tolerating Muslims. As I have argued here in the past, in addition to the usual restrictions on free speech such as the inability to "shout fire," incite to violence or be a public nuisance, one is also limited by inability to make statements, or even to hold beliefs, that challenge the legitimacy of the system. This disqualifies the beliefs of most extremists, whether from the left or the right, secular or religious, Christian, Muslim or Jewish. Such people would be outside the protection of the First Amendment and could be targeted by the government. In fact, it may be necessary for the government to not allow such people the protection of the First Amendment.

To be clear, this does not limit normative disagreement, even very strong disagreement. I am allowed to believe that President Barack Obama's health care plan and stimulus package are mistakes that will bring disaster to this country and even cost lives. I can believe that both Christianity and Islam are not "True" religions and do not help their believers "get right" with God. I can believe these things as long as I accept that both Obama and my Christian and Muslims neighbors are basically decent people and patriotic citizens, who came by their mistaken beliefs honestly. This allows me to accept Obama as my legitimate president, as called for by the Constitution, and Christians and Muslims as fellow citizens.

What I would like to discuss here are the practical matters involved. How would we, in practice, go about stripping such people of their citizenship and avoid turning this into a tool of legitimate free speech suppression. Take the example of Fred Phelps, the minister of the infamous Westboro Baptist Church. Phelps believes that "God hates fags" and that American tolerance of homosexuality has caused the death of our soldiers in Iraq. To make his point, he and his followers have even taken to picketing the funerals of American soldiers.




To put this in context, this is the sort of anti-gay hate speech that even Ann Coulter denounces.

I do not care if Phelps is "intolerant" or engaging in "hate" speech. What is of concern is the fact that Phelps not only does not agree with American policy but no longer accepts the legitimacy of the United State government. For example, the Hebrew prophets, whom I presume Phelps looks to as his models, could denounce the individual sins of the people of Israel without ever questioning that they were people of God. In fact, it was precisely because they were the people of God that the children of Israel had need of being rebuked. Elijah may have denounced King Ahab as an idolater and murder, whom God would punish, but he never challenged the fact that Ahab was a legitimate king. Phelps makes no such distinction. His world is one in which his small group is righteous and everyone else is wicked beyond redemption.

I see nothing objectionable with having the government sue Phelps, drag him into court and put to him some very simple questions: considering what he believes about the United States, does he consider himself an American citizen bound by American law, and if so how does he justify, not the belief in the iniquity of the United States, but his part in it as an American citizen? This exercise would be worth it just to make Phelps squirm, trying to answer these questions with a straight face. He would not have to convince any judge or jury to sympathize with his world view or even agree with how he rectifies this dilemma. All we are asking him to do is to convince a judge or jury that he believes his own answers and that, in his own mind, he is not trying to put one over them, secretly laughing at their gullibility. Failure to do this would result in his being stripped of his citizenship. He would still be allowed to live in this country; he would not be put in jail or even fined. All this would mean is that he would lose his ability to vote, access to government services and the ability to take part in public discourse.

It is important to understand that we would not be coming after Phelps for any of his beliefs per se. Our only objection to him is his breach of contract. In civil law, if one signed a contract only to find out that the other person did not believe himself bound by this contract, one would be justified in suing for breach of contract and demand to be released by the court from this contract. In this case, it would be irrelevant that the contract has yet to actually be broken. It is enough that the contract was not entered in good faith. Government is a contract signed between government and citizens. Before we can begin to talk about the parties fulfilling their parts of the contract (like the government protecting the free speech of citizens) all parties need to be acting in good faith and accept the legitimacy of the contract. If one of the parties, say Citizen Fred Phelps, is not acting in good faith then the contract is off. I am not about to lift a finger to protect his First Amendment rights unless I am convinced that he is willing to do the same for me. The Constitution is not a suicide pact.

The course of action I am outlying is not one of "I will only tolerate tolerant people." Such notions of tolerance are meaningless and can be dismissed as cover only people one agrees with as all beliefs imply some form of intolerance. I would be perfectly willing to accept Phelps as a citizen despite him being an "intolerant" person who believes in making homosexuality a crime. He can even believe that we are a sinful nation for tolerating homosexuality and that God is going to punish us as long as he believed that the United States had the "right" to make laws tolerating homosexuality and the United States government was still rightfully his government. To convince me that he holds this I would have to see him saying things like "Oh Lord! As Isaiah said: 'Behold I am a man of unclean lips dwelling amongst a people of unclean lips.' This is a nation of homosexuality tolerating sinners, but I pray that you forgive them for they have come to these sins in good faith seeking to follow a just Constitution. These are my people and as Moses prayed that if the burden of their sin is too heavy 'remove me from your book' and let me be punished with them." Phelps would still be a bigot, but I could still accept him as a fellow citizen. Whatever else he might believe, I would know that he was on my side as an American.

Joe's Response to Some Good Christmas Tolerance IV

I agree with that assessment. I would agree that calling a government sponsored Christmas tree persecution is going rather far, into the absurd range. But while I would not say it is persecution, I would call it unfair.

As you say, the difference between us is more about where to draw the line and how prevalent religious intolerance is than on any fundamental difference of opinion I think. That may be due to differences between the areas we grew up. I spent much of my life in areas that many people spoke of tolerance but acted on intolerance. There are too many places in the south that are very friendly only so long as you agree with them (not having spent much time outside of the south I can't say how widespread it is elsewhere). Ironically,
I have seen an interesting dichotomy (broadly generalizing here) along southern blacks and whites (discounting some of the vociferous and attention-getting blacks) wherein the poor blacks as a whole tend to be more charitable and tolerant than the whites as a whole (I say as a whole because this distinction does not hold for many people on both sides). This could be due to the fact that blacks often had to be tolerant to get by whereas the whites did not.

Certainly your point about the historical instances of religious persecution being far more blatant and severe than the current situation in the US is completely valid. The issue as I see it is that there are those, particularly in the south, that would like to see the situation get much more intolerant than it is now, such that illegal but in areas accepted acts of hatred become legal and I think we must guard against that. So I would accept that my position may be on the "liberal" side as a defense against the extreme "conservative" side. Although I really hate those terms because liberal and conservative are very poor descriptors and lump complex intertwined issues together, but that is another tirade against the imprecision of current labels. Most people really don't like to think about issues in more than a superficial way, sadly enough.

My response: I have never lived in the South so I cannot comment about southern tolerance. Maryland technically speaking is below the Mason-Dixon Line, but last I checked it still does not really count.

While we both want to draw the line between church and state in different places, there is an important difference between us. The founding fathers would have been far more likely to agree with my line, that the government cannot directly coerce people into following a given belief or give any special status to a given belief, than with your line, that the government cannot do anything that might make members of minority religions feel marginalized. (This is leaving out the fact that the first amendment does not apply to states in the first place; remember the Constitution says "Congress shall make no law ...". The idea that the first amendment applies to states was an invention of the Supreme Court.) So I have the Constitutional high ground. You can make all the moral pleas so want but you cannot say that the Constitution supports you. That being said, you do seem to have the Supreme Court on your side.

To get back to an earlier issue, why do you assume that whenever anyone tries to go after a group, which holds unpopular beliefs, that religion is to blame? You do not need religion to persecute people. Furthermore, what connection is there between the government putting up a Christmas tree and someone throwing a brick through my storefront window? As I see it people who want to engage in violence are going to find an excuse to justify it. Religion is a good excuse. If you do not have that than there is always race. If you are really desperate you can always start a fight over rival sports teams. (Here at Ohio State we have a history of sporting events turning violent, particularly if it involves Michigan.)

Why would the government putting up a Christmas tree on state property be unfair to me? There is nothing unfair with putting something up to a democratic vote. In Columbus OH the government can put up a Christmas tree, in Brooklyn NY the government put up a menorah and in suburban Detroit MI the government can put up a Crescent. Look, if I really felt a need to have a government that played to my religious sensibilities, I could always run off to Israel. I am a part of the liberal tradition. I value living with people who do not share my values. The government is therefore doing me a favor by putting up a Christmas tree; they are forcing me to be more open minded. I think my life is richer because I learned to sing Christmas carols from listening to the radio. I would not have had that opportunity if I did not live in a Christian society that was open with its Christianity.