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Constitutional Law

The Supreme Court, Religion, and U.S. v. Alvarez: Contrasting Perspectives on False Speech

By Daniel Goodman, Esq.

The most significant news out of the Supreme Court in June was the ruling that the individual health insurance mandate is constitutional. The decision that upheld President Obama's Affordable Care Act, National Federation of Independent Business v. Sebelius, understandably garnered nearly all of the media's Court coverage, but we would be remiss to overlook US. v. Alvarez, the other decision delivered by the Court that same day. This overshadowed decision was a consequential First Amendment ruling, and is extremely important for what it says--and does not say--about the role of morality in the public sphere.

It is not against the law to lie. This principal has been part of Constitutional Law for some time, and is not a revelation; the First Amendment guarantees the right to free speech, regardless of the speech's factual content. Legislatures, though, are able to prohibit "false statements of fact" if they have compelling reasons to do so and if the lies cause tangible harm (e.g., in cases of fraud, libel, defamation, and misleading commercial speech); as lawyers and law students know, there are always exceptions. (And as the public knows, there is always a way to utilize legal jargon to turn a short and simple word like "lie" into a longer, more ambiguous phrase like "false statement of fact."). Alvarez effectively holds that it is perfectly legal to lie even when the lie could create public deception; although the decision was more nuanced than this, such is the effect of the decision. In a six to three vote, the Court overturned the Stolen Valor Act, which had made lying about receiving a military medal or decoration a federal crime.

Hemingway believed that what is said is less powerful than what is unsaid. What applies to literature can often apply to law as well. Amidst all the discussion about whether the Constitution could actually prohibit lying (and if so, how egregious of a lie), there was scant discussion about the actual morality of lying itself. And rightly so; after all, the Supreme Court is not tasked with determining what is moral and immoral, but with the task of determining what is constitutional and unconstitutional. Many of us are well aware that the role of moral arbiter is not the judicial branch's function. Yet when a Court decision offends our intuitive sense of morality, we cannot help but feel a profound sense discomfort. A military decoration is one of our most honorable civil distinctions; lying about receiving one just seems wrong. If the highest judicial body in our land--and arguably our most trusted civil institution--has essentially affirmed the legality of an act that many deem highly unethical, than to whom are we to turn for ethical and moral guidance?

Idealistic secularism believed that civil government and humanitarian culture could determine morality. What it discounted, though, is the type of scenario represented by Alvarez. What if misinformation and deceit is tolerated by a culture, and that same culture's only recourse is to a legal system that does not contain within it the ability to prohibit something as unethical as lying about a military honor? It is in situations such as these where religion can play a useful role.

Religion can function as the moral arbiter that the Supreme Court cannot. We should not turn to government or culture for our sense of morality any more than we should turn to religion as a source of secular law. This is not simply due to the separation between church and state, which is a constitutional prescription ensuring that neither religion nor state influence each other. It is due to the different functions of law and religion.

Law may codify some of our moral principles into legislation, but it ultimately works based upon legal, not moral, principles. While most religious systems contain law, religious law is ultimately geared towards encouraging its adherents to behave ethically. While law cannot give us compelling reasons to act morally, religion can be morally aspirational. The fact that our society views lying as a moral wrong stems not from our legal system, but from the influence of religion. "You shall not lie to one another" (Leviticus 19:11), and the Biblical admonition to "distance yourself from a false statement" (Exodus 23:7), have been transmitted for thousands of years, while the Constitutional protection of free speech has only been extant for a few hundred years. That our legal system has not codified this aspect of our morality does not mean that it is moral to lie.

Moreover, one does not even have to believe in God to believe that religion has useful functions. The non-believing philosopher Alain de Botton's provocatively titled new book "Religion for Atheists" discusses the many useful, important, and necessary functions of religion. He argues that secular institutions have not constructed adequate substitutes for the essential functions once (and still) served by religion.

One of religion's most useful historic functions is the teaching of right from wrong. We still need moral instruction from some source, and if we are not getting it from law, then we should turn to religion for such guidance. Religion can inspire us to act morally, can teach us right from wrong (if we let it), and can bind us together as communities who agree upon its ethical principles. Religion can teach us that just because lying may be legal does not mean that it is moral. The law of lying has now been covered by the Supreme Court. But what is unaddressed is the morality of lying, and it is this void that our religious institutions can and should fill.

Daniel Goodman, Esq. is an attorney concentrating in Constitutional Law and a first-year rabbinical student at Yeshivat Chovevei Torah in New York.

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