You’re a judge. You have power, in your sentencing, to make various miscreants suffer all sorts of creative punishments, as long as they fall well short of the rack and wheel. For example, a judge in Cleveland recently sentenced a woman (who had driven her car up the side-walk to get around a stopped school bus carrying special-needs children) to carry a sign proclaiming herself an idiot. You are faced with a troubled young man who appears to have received almost no instruction, in his 17 years, in the particulars of right and wrong. You see no productive purpose in locking him up and throwing away the key, for what he needs is a transfusion of ethics. What do you do?
In the throes of this very dilemma, Oklahoma district judge Mike Norman was sentencing Tyler Alred for DUI manslaughter. Alred was driving his Chevrolet pickup drunk in 2011 when he hit a tree, ending the life of his passenger and friend, 16-year old John Dum. The judge gave Tyler a deferred prison sentence provided that he attend church every Sunday for the next ten years, as well as graduate from high school and welding school. Both Alred’s attorney and the victim’s family agreed to the terms of the sentence.
I sympathize with Judge Norman. Although religion traffics in morality rather than ethics, church is one of the very few, assessable, affordable places to receive coherent instruction regarding ethical living, and the Bible is replete with ethics lessons and instruction. I have no idea whether Tyler will absorb any of this; after all. a large proportion of regular church-goers don’t, and there is always the alarming possibility that after ten years Tyler will calling Darwin a heretic and sending fan letters to Pat Robertson. It is a good bet, however, that young Alred will be better off attending church for ten years than he would be languishing in a jail cell.
There is a problem, however, that even Judge Norman acknowledges: his sentence is illegal, a flat-out violation of the Constitution. If government cannot establish a religion, it certainly can’t order a citizen to be religious, or to patronize a church. Neither Tyler, nor his family, nor his lawyer is likely to challenge the sentence, because it is, given the alternatives, a good deal. The American Civil Liberties Union, however, has a very legitimate reason to challenge the ruling. Tyler Alred’s welfare isn’t the ACLU’s concern; protecting Constitutional rights is. Allowing Judge Norman’s sentence to stand weakens the Constitution by creating an exception to the Establishment Clause, and it’s hard to state that exception in a way that wouldn’t lead to long-term erosion of religious freedom. The government can make us go to church for our own good? The government can make us want to go to church by making the other options horrendous? The government can make us go to church if we drive drunk?
The ACLU doesn’t take all the cases where the Constitution needs defending, and there are more than the usual reasons to take a pass on this one, prime among them being that the “victim” of the unconstitutional conduct involved coud have his life’s prospects ruined if Judge Norman is forced to send him to prison. Nonetheless, I think it is crucial that it use this case to illustrate the principle that no infringement on the freedom of religion means none, and that the ends don’t justify the means, when the means is trashing a core Constitutional right. Tyler Alred may have to be sacrificed so the Constitution survives.
Judge Norman says that his unconstitutional sentence was the right thing to do. He’s wrong. Telling judges that violating the Constitution won’t be tolerated is the right thing to do.
Graphic: Fundamentalist Fun House