My kingdom is not of this world.  John 18:36

Recently I attended a Catholic mass where the American flag was on display.  During the mass, the priest led the congregation in the pledge of allegiance.

Immediately my mind jumped that this somehow violated the First Amendment. But analyzing this situation I have come to realize it simply does not.

The role of the First Amendment’s religions clause in America.

Governmental “institutions must not press religious observances upon their citizens.” Van Orden v. Perry, 545 U.S. 677, 683 (2005) (Rehnquist, C.J., plurality opinion). Even “subtle and indirect” pressures are impermissible. Lee v. Weisman, 505 U.S. 577, 593 (1992). The government can neither “persuade [n]or compel” people to join in prayer. Id. at 599. Government cannot bring to bear public pressure, nor lend its support to peer pressure, to join in prayer. Id. at 593.  “[A]t a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” Lee, 505 U.S. at 587.  The government can neither “force nor influence” a person in religious matters. Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) (emphasis added).
Clearly, the key to the First Amendment protection about religion is government action.  In this situation, there is no government action which means the First Amendment does not apply since it is the church influencing, maybe even requiring, a patriotic act during a church service.

The question remains: should a church have a flag in church and do the pledge of allegiance during a church service? 

To answer that question we must first look to the history of American flags being displayed in churches.
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History of the American flag in churches
American history scholars agree that flags became more common in American churches during World War I.[1]  Those who refused to place flags in their sanctuaries were accused of being pro-German.  When Herman Hoeksma, minister of a Christian Reformed church in Holland, Michigan, refused to put the flag in the sanctuary during World War I, he was reviled as a pro-German traitor and a Communist. One newspaper suggested that Hoeksma should be deported or shot. Another Dutch Christian Reformed minister in Iowa was run out of town, and had his church burned by vigilantes, for declining to display the flag.[2]  In the 1910s, Klansmen donated flags to southern churches and insisted that they be displayed in sanctuaries. During World War II and the fervent anti-communism of the 1950s, the failure to display flags in sanctuaries was considered un-American.[3]
This brief history shows that historically to push to have the American flag displayed in church or risk bodily harm and run out of town.
 
There is still another difficulty in displaying the American flag in the place of highest honor during church worship. It is one of the oldest and most universal Christian understandings of worship that a mass is the spiritual gathering around the Lord's table for worship by everyone.  The whole holy, catholic or universal Church (as that term is used in the Nicene Creed) is joined together at mass all over the world and in heaven.  Is it not a denial catholic or universal Church to limit the mass to Americans who pledge allegiance to the flag?  If, as the Nicene Creed tells us the church is global, even in its local manifestation, no statement, symbol, song or gesture should suggest limitation to a certain nation or people.  The Bible speaks of Peter saying, “I truly understand that God shows no partiality, but in every nation anyone who fears him and does what is right is acceptable to him.”  Acts 10:34–35.  Emphasis added.  In Psalm 98 God reveals his righteousness to nations not a specific nation swearing allegiance.
 
It is a rather narrow view of a catholic or universal Church to suggest God gives you a preferred place if you say pledge allegiance to the flag of a certain nation during mass.  My memory of religious instruction did not indicate America having a special covenant or divine revelation from God.  The Bible specifically rejects the idea that one people are to be considered God’s favorites when it states “there is no favoritism with God.”  Romans 2:11; Ephesians 6:9.  In fact, the Bible states “if you show partiality, you are committing sin.”  James. 2:9
 
Saying this differently, displaying a flag and saying the pledge of allegiance during mass is a misguided nationalistic faith of the type found in found in America’s past.  It is a behavior contrary to the Bible’s specific ban of partiality.  An American flag used in the worship of the universal church is no more appropriate than hanging a cross in a civil courtroom.


[1] ENEMY ALIENS? WORLD WAR I AND DUTCH AMERICANS, https://origins.calvin.edu/2020/01/14/world-war-i-and-dutch-americans/; The history of the American flag in Missouri Synod Churches, https://concordiahistoricalinstitute.org/wp-content/uploads/2019/06/HF62_2_American_Flag_LCMS_Churches.pdf

[2] The Church and the American Flag, HTTPS://WWW.THEGOSPELCOALITION.ORG/BLOGS/EVANGELICAL-HISTORY/THE-CHURCH-AND-THE-AMERICAN-FLAG/

[3] Id.

“Pretrial decisions determine mostly everything.”
– PROFESSOR CALEB FOOTE, JOHN JAY COLLEGE OF
CRIMINAL JUSTICE AND GRADUATE CENTER,
CITY UNIVERSITY OF NEW YORK
 
The issue of using cash bail to hold a person presumed innocent in jail before trial is a complex issue.  Over and over again, the presumption of innocence in favor of the accused has been called "axiomatic and elementary and its enforcement lies at the foundation of the administration of our criminal law.  Coffin v. United States, 156 U.S. 432, 453 (1895)"  United States v. Salemo, 481 U.S. 739, 790 (1979) (J. Marshall, dissenting).  “The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the law.”  Weeks v. United States, 232 U.S. 383, 393 (1914).  Likewise, Wisconsin law holds that presumptions in favor of moral honesty and innocence are not only “justified in all civilized nations” but by the institutions of social life and by the laws enacted by government.  West v. State, 1 Wis. 209, 215 (1853).  Any punishment of the due process right to presumption of innocence must pass “close judicial scrutiny.”  Williams, 425 U.S. at 503-04; Gaertner, supra.; Whitty, supra.  State v. Shumate, 107 Wis. 2d 460, 467, 319 N.W.2d 834, 838 (1982) (quoting State v. Braun, 100 Wis. 2d 77, 86, 301 N.W.2d 180, 185 (1981)) (when setting the amount of bail, a court should not forget about the presumption of innocence).
 
Those issues have been the subject of countless law reviews, studies, and briefs by attorneys.  However, one issue that has not been dealt with that extensively is what happens when a case is over?  How is bail money returned?
 
If a person is found not guilty, any money posted for bail will be returned to the person who posted it in about two weeks after the case is over by the clerk of courts office.   There is a
 
If a person is found guilty, by law, the court MUST apply bond money deposited first towards the payment of any restitution ordered and then to the payment of the judgment.  Disbursement of the bond money posted may not occur until the case has been disposed of and may be held up to 120 days after disposition upon a pending order for restitution.
 
For misdemeanors, Wis. Stat. §969.02(6) explains that when a judgment of conviction is entered in a prosecution in which a deposit had been made in accordance with sub. (2), the balance of such deposit, after deduction of the bond costs, shall be applied first to the payment of any restitution ordered under §973.20 and then, if ordered restitution is satisfied in full, to the payment of the judgment.
 
For a felony Wis. Stat.  §969.03(4) provides that if a judgment of conviction is entered in a prosecution in which a deposit had been made in accordance with sub. (1) (d), the balance of the deposit, after deduction of the bond costs, shall be applied first to the payment of any restitution ordered under §973.20 and then, if ordered restitution is satisfied in full, to the payment of the judgment.
 
If the money deposited by an individual other than the defendant is applied towards restitution, and/or judgment, the recovery of the money by the person who posted is a matter between the parties and not the court.

On Jackson Street across from Tenor High School in Milwaukee the historical marker[1] pictured above has been placed.  It is a monument to Joshua Glover.  The name Joshua Glover is a symbol of Wisconsin’s schizophrenic reaction to race and policing. 

The method of the arrest of Glover Joshua Glover as a fugitive slave is like many of the arrests of Black Americans today.  Joshua Glover sought asylum from his slave owner in Racine, Wisconsin. Upon learning his whereabouts in 1854, slave owner Bennami Garland attempted to use the Fugitive Slave Act to recover him.  Garland, used the power of a United States District court and proceeded to Glover's shanty in company with two deputy United States marshals.  The marshals surprised by their appearance and Glover resisted arrest. One of the deputies knocked him down with a club and leveled a pistol at his head, while the others handcuffed him. In the words of Sherman M. Booth, whose subsequent connection with the case gave him national notoriety, the slave "was knocked down and handcuffed, dumped mangled and bleeding into a democrat wagon, and with a marshal's foot on his neck taken to Milwaukee and thrust into the county jail."  On March 18, 1854 a mob incited by Sherman Booth broke into the jail and rescued Glover.  Eventually, Glover escaped to Waukesha by boat on Lake Michigan to Canada.[2]  
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For his part in the escape of Glover, Booth was arrested and a grand jury found a bill of indictment against him for aiding and abetting the release of a fugitive slave in violation of the Fugitive Slave Act. Booth was placed in custody.  Again, as if from today’s news, the United States marshals claimed immunity from the habeas.  The Wisconsin Supreme Court found the marshalls acted improperly.  However, the US Supreme Court by Chief Justice Roger B. Taney unanimously held that state courts cannot issue rulings that contradict the decisions of federal courts, and overturned the decision by the Wisconsin Supreme Court. Ableman v. Booth, 62 U.S. (21 How.) 506 (1859),

You can debate all you want about the teaching of critical race theory (given America’s history of slavery, how can you deny race as a problem in America’s history?), but clearly race, policing and the law have been intertwined.  These activities were officially stopped only with the passage of the Thirteenth Amendment.In the years following the 13th Amendment, formerly enslaved people saw little relief from racist government policies as they promptly became subject to Black Codes.  For the next three years, these new laws specified how, when and where African Americans could work and how much they would be paid. They also restricted black voting rights, dictated how and where African Americans could travel and limited where they could live.

The ratification of the 14th Amendment in 1868 quickly made the Black Codes illegal by giving formerly enslaved blacks equal protection of laws through the Constitution. But within two decades, Jim Crow laws aimed at subjugating African Americans and denying their civil rights were enacted across southern and some northern states, replacing the Black Codes.  For about 80 years, Jim Crow laws mandated separate public spaces for blacks and whites, such as schools, libraries, water fountains and restaurants – and enforcing them was part of the police’s job. Blacks who broke laws or violated social norms often endured police brutality.  Meanwhile, the authorities didn’t punish the perpetrators when African Americans were lynched. Nor did the judicial system hold the police accountable for failing to intervene when black people were being murdered by mobs.

Move forward to recent history.  District Judge Shira A. Scheindlin of the U.S. District Court Southern District of New York ruled that “[b]ased on the preponderance of the credible evidence”, the plaintiffs had established that the NYPD carries out more stops where there are more Blacks and Hispanic residents, even when other relevant variables are held constant. . . . . [and] Blacks and Hispanics are more likely than whites to be stopped within precincts and census tracts, even after controlling for other relevant variables.  Floyd v. City of N.Y., 959 F. Supp. 2d 540, 557, 560, 572 fn 100, 574-575, n.121.  (S.D.N.Y. 2013).

In 2017, the ACLU filed Collins v. City of Milwaukee[3] to challenge Milwaukee’s stop-and-frisk program.  Expert reports, relying on the city’s own data, show that a huge fraction of Milwaukee police stops are made without reasonable suspicion as required by law and disproportionately subject Black and Latino people to stigmatizing police encounters.  The ACLU reported data that even after controlling for factors other than race and ethnicity, black people in Milwaukee are significantly more likely to be subjected to traffic and pedestrian stops and searched after being subjected to a traffic stop, even though it is highly unlikely that these stops and searches will result in the discovery of drugs or weapons. In a majority of documented traffic and pedestrian stops, officers had failed to identify individualized, objective, and articulable reasonable suspicion of criminal activity or vehicle equipment violations prior to conducting the stop. Her report also concluded that Milwaukee police officers routinely failed to document race and ethnicity information about people subjected to such stops.
 
Separately, I had argued the same point in another case.[4]  My client had just parked his car across National Ave. from his home when a squad car turned onto the street from S. 23rd St. As it passed by my client, it stopped and officers said he seemed to be crossing the street without paying attention, that they almost hit him, and asked if he hadn't seen the car approaching.  Aphay said he had seen, and just kept walking toward home, even after officers asked him his name.  That's when the officers stopped him, grabbed his arm, frisked him, and found the gun and drugs.

As I explained in that case "The refusal to cooperate by not answering the questions, without more, does not furnish the objective justification needed for a detention or stop," the lawyers wrote, citing another opinion.  Clearly, any law or police procedure that makes the right to stand or walk across a street after they park their car dependent on "the whim of any police officer" is unconstitutional, the brief states. "What will be accomplished if this practice continues unchecked is that innocent people, mostly minorities like [my client], will continue to learn that all too often the police are not there to serve and protect them."

University of Wisconsin-Madison professor of Afro-American studies Christy Clark-Pujara[5] has explained that the Wisconsin constitution adopted in 1848 barred black people from voting, but did grant it to white men regardless of their citizenship status — like newly arrived immigrants — and to Native American men who renounced tribal affiliations. This created a political structure in which, as Clark-Pujara put it, "you didn't need citizenship, you just needed whiteness."  While many white citizens in the young state of Wisconsin opposed slavery, most of those people were not actively working to abolish it, and many feared black migration into the state.

In 2019, Black drivers were eight times more likely than white drivers to be pulled over by police in Milwaukee. In 2020, they were 9.5 times more likely.[6]  In 2019, Black people were four times more likely to be subjected to a field interview than white people. They were seven times more likely to be frisked. That same year, Hispanic and Latinx drivers were two and a half times more likely than white people to be pulled over and 1.3 times more likely to be frisked.[7]

This background casts police in the same role as the federal marshals in the case of Joshua Glover.  It is up to the police to accept this role or actively change it.


[1] A bronze bust, created by Toronto-born artist Quentin VerCetty, now sits at Joshua Glover Park — a park in Toronto, Canada.  https://dailyhive.com/toronto/toronto-unveils-new-statue-of-historic-abolitionist-figure-joshua-glover

[2] https://digicoll.library.wisc.edu/WIReader/WER1124.html; http://www.etobicokehistorical.com/joshua-glover.html

[3] https://scholar.google.com/scholar_case?case=9453977146194782377&hl=en&as_sdt=6&as_vis=1&oi=scholarr

[4] https://www.jsonline.com/story/news/blogs/proof-and-hearsay/2016/12/06/lawyer-police-abusing-stop-and-frisk/95005266/

[5] https://www.wiscontext.org/wisconsins-halting-path-toward-black-suffrage

[6] https://www.jsonline.com/story/news/local/milwaukee/2021/09/24/racial-disparities-2020-milwaukee-stop-and-frisk-practices-worsened/5811970001/

[7] Id.