A fascinating piece from the Sunday New York TImes by respected faith columnist and author, Mark Oppenheimer, explores a legal battle in which a Tennessee Judge has forcibly changedÂ a baby’s nameÂ from “Messiah” to “Martin.” Her reasoning was as follows: “The word â€˜Messiahâ€™ is a title, and itâ€™s a title that has only been earned by one person and that one person is Jesus Christ.”
As Mr. Oppenheimer deftly explains, this dispute is anything but simple – whether viewed through the prism of law or religion. One way to think about its ramifications is that virtually EVERY individual provision of the First Amendment offers competing answers as to what is or is not Constitutional about the judge’s decision. Just take a quick look at what the Amendment itself says (And remember: as far as single-sentence laws go, there’s a lot packed into this one…) I’llÂ underline the competing principles:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That’s right – EVERY provision. Let’s consider them one at a time:
- Establishment of Relgion: On the one hand, the Judge almost certainly violated the Constitution by basing her ruling on the notionÂ that “Messiah” is a “title” rather than a “name” and that it has only been “earned” by one person – namely, Jesus Christ. That sure seems like a classic example of the government specifically telling the people there is only one true religion – a blatant Establishment Clause violation. On the other hand, as Oppenheimer notes, the fundamental purpose of names is to help people toÂ identify each other. Perhaps allowing the name “Messiah” would itself be an “establishment of religion” insofar as the government would be “forcing” people to refer to an individual in a manner that might directly contradict their own competing religious beliefsÂ – including people who work FOR the government and enjoy an added degree of First Amendment protection. (Oppenheimer offers the example of court clerk being forced to call out an individual’s name in a way that could be construed as a specific religious endorsement. Countless similar hypotheticals can be imagined ranging from public announcements at airports to voters not being able to vote freely for or against a candidate if their understanding of religion meant that doing so could be construed by God as either a rejection or acceptance of the Messiah – and. theoretically,Â the same might hold true for at least some atheists…)
- Free Exercise of Religion: If the Judge had ruled in favor of the parents, she would arguably have been upholding their right to choose a name for their child in accordance with their personal faith. Few would disagree, for example, that Latinos should be allowed to select the extremely common name “Jesus” or that Moslems can name their sons “Mohammed.”Â But again, a contradiction emerges. Freely exercising religion (like most Constitutional rights) has numerous limitations (e.g., bans on polygamy and the use of “ceremonial” illegal drugs),Â and there is considerable precedent forÂ restricting names deemed to pose a substantial risk of disturbing the social order. If you want to find out for yourself, sign up for the next available hearing date over at your local courthouse and ask the judge to rename you “Motherf___er Johnson.” Trust me: You’ll be lucky to get away without a contempt citation…
- Freedom of the Press: If young Messiah grows up and decides to become a journalist, despite the fact that his name might offend some readers, he surely deserves the fundamental right to report the news, no? Or is it conceivable that readers’ might lose THEIR freedom to read (or watch) the press due to some sort of religious restriction against seeing the author’s name? (Orthodox Jews substitute “G-d” for “God” in order to comply with the Biblical commandment against “taking the Lord’s name in vain,” and within ultra-orthodox communities, reading non-sanctioned materials is prohibited to avoid the mere risk of encountering impermissible language, ideas and imagery.) This argument seems legally specious insofar as there are numerous First Amendment protected publications that violate individual religious beliefs yet are nevertheless allowed to be published since nobody is forcing individuals to purchase something they find objectionable. But now imagine that Messiah turns out to be aÂ “once-in-a-generation”Â gifted writer who, all by himself, has quadrupledÂ his newspaper’s circulation… Could that paper put up giant public billboards that say: “GET THE LATEST NEWS FROM MESSIAH”???
- Freedom of Speech: This one is more basic. Slightly… The “naming decision” is undeniably an act of speech (whether committed by parents or by an individual) and it furthermore results in speech every time someone uses the name. Thus, restrictions on namingÂ – by definition – amount to government “abridging the freedom of speech.” As Justice Oliver Wendell Holmes famously pointed out, however, yelling “FIRE” in a crowded theater, is also an act of speech and yet government can pass laws prohibitingÂ such conductÂ because they are “narrowly tailored to the compelling governmental purpose” of preventing “a clear and present danger.” Similarly, there are no strip clubs in shopping malls and you’re not allowed to wake up your neighbors at 4 AM by screaming your views about the President. Free speech, even under the First Amendment’s most liberal constructions, is far from absolute. So does this case perhaps more closely resemble what Justice Potter Stewart famously quipped about pornography: “I know it when I see it”? That is, the names “Jesus” and “Mohammed” may well be sufficiently commonÂ that everyone “just kinda knows” they’re unlikely toÂ risk social disorder, whereas “Messiah” (or more extreme names) could actually pose some type ofÂ threat…
- Assembly and Petitioning: As in the airport loudspeaker example, Messiah might one day get a license to hold giant protest rally at which he begins his speech (heard by 300,000 people standing on the national mall and broadcast live on television and the Internet), with the words “I amÂ Messiah!” Could the same sort of longstanding “time, place and manner” restrictions that regularly limit the assembly and petitioning right apply here as well? If so, the Judge’s decision to rename Messiah is actually protecting his future right to give that public speech (“I amÂ Martin!”). But then there’s an additional problem here as well: What if your real name is Bob but you happen genuinely to believe YOU ARE THE ACTUAL MESSIAH – RISEN FROM THE DEAD?Â Shouldn’t Bob be able to declare his heartfeltÂ (and possibly divine) convictionÂ to the world? After all, that’s pretty much how Jesus of Nazareth did it… So is there a difference?
It is true that First Amendment law is nearly always based on balancing tests but it is extremely rare to find a case in which ALL the various clauses of the Amendment not only seem to contradict one another – but even to contradict themselves.
From a legal perspective, this type of controversy holds particular significance: (1) Already national groups like the ACLU and various religious organizations are preparing to get involved – each arguing from divergent ideological perspectives and with powerful incentives to gainÂ asÂ muchÂ media exposure as possible; (2) With growing publicity, similar cases willÂ probably begin toÂ emerge in other jurisdictions – each presenting their own set of judicial quandaries; (3) It will likely only be a matter of time before creative lawyers begin using the “logic” within this decision and related rulings in an effort to decide matters having little if any factual connection to the naming of children (e.g., what about the naming of buildings? Are there implications for copyright law? And seeing as the Supreme Court made it abundantly clear that corporations are “legal persons” in its Citizens UnitedÂ holding, is there a chance we might even see challenges to long-established brands? -Â surely, many lesser known competitors would have an interest in making that attempt; and (4) As with any religious debate in the United States – from evolution to prayer in school – the already growing gap between our “culturally red” and “culturally blue” Americas is most certainly going to continue expanding.
Regardless, I’m guessing Messiah/Martin will be at least five years old before we learnÂ anything close to final answers on these and a host of other as-of-yet unforeseeable issues – and more importantly, at leastÂ forÂ one particular young boy in Tennessee, it will be a very long time before he even knows his ownÂ name…
And to think – The Founding Fathers did all that with just one short sentence. Now, imagine if they’d had to reform health care . . .