Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Thursday, October 20, 2005

Regarding the Establishment Clause

One of the annoying things about Blogger is that it sends comments posted to your blog to an email account of your choice, but doesn't flag which post the comment corresponds to. Usually, as people tend to comment to the recent stuff, this isn't a big deal. Tonight, however, I received a comment via email I simply cannot track down in its original context. I wanted to respond, however, so I'm doing it this way.

In response to some earlier post on this site, reader MarkPele writes in full:

As a wise political science professor (a Dr., not a high-school civics teacher) said, to remove religion from the public sphere is not inherently neutral.

There is a religion that rejects other religions - secular humanism. It is a legal religion in the U.S. (it's institutions get tax breaks). Thus, removing religious symbols from the public sphere is, by definition, an establishment of a national secular humanist religion, which is a violation of the first amendment.

The quick and dirty answer is that the establishment clause, AS THE FRAMERS INTENDED, was not a separation of church and state, but was a forbidding of choosing a single Christian denomination above another. Many states at the time of the signing of the Constitution (and the ratification of the Bill of Rights) had clauses establishing particular Christian sects as the state religion, and thus there can be no question that the intention of the Bill of Rights was not to create a government afraid to mention religion of any form. If that were true, the ratifiers could have been sued under the individual states' constitutions.

A few thoughts Mark, and I thank you for your thoughtful statement of what I imagine is disagreement. There are a few incomplete syllogisms in the above comments, and there's one glaring betrayal of ignorance of the law. So I suppose wisdom is in the eye of the beholder, although I'll concede there's a kernel of truth, and a pithy appeal, to what the wise old professor you described says.

First, I think it's plainly the case that to remove religion from the public sphere is neutral in at least one regard: it neither burdens nor benefits any one religion over another. That is a fundamentally neutral quality. Of course, it looks very different if you are operating from a baseline assumption that Christianity enjoys some degree of privilege in the United States. And it does historically. So does slavery. So does denying the franchise to women. We moved past those things in the interest of greater equality, largely by imposing equal civil rights, equal treatment, to all. Another expression of neutrality. With the myriad of legitimate religions vying for time and space in the public square, however, such neutrality is far more difficult to positively impose in the religious sphere. So instead over the past two centuries our government has moved to affect neutrality negatively, by declining to feature religious expression in government spaces and documents and in the law. This is perhaps inconsistent with the original understanding to some degree, albeit to a lesser degree than you seem to think for the reasons that follow, but again so is the abolition of slavery and granting the franchise to women inconsistent with the original understanding. I don't hear you or anyone else on the originalist side arguing for a rollback of these defining moves forward.

Although I cannot speak conclusively to whether secular humanism is a "religion" under the law as you claim, I can speak with certainty that your sole supporting datum, that secular humanist organizations are granted tax-exempt status, does not conclude the matter. Many non-religious organizations receive tax exempt status. You're going to have to do better than that.

Finally, though your comments regarding the status of Christianity at the time of the Framing are largely consistent with my limited knowledge of the historical circumstances obtaining at that time, and while it may furthermore be the case that the Framers, or some of them (one of the problems with originalism is that the Framers pretty clearly disagreed about the import of various constitutional provisions and diverged in their goals for the nation they sought to form), intended the Establishment Clause to restrain the federal government from picking sides in the interstate battle over which sect of Christianity was to dominate, that hardly leads inexorably to the conclusion that "there can be no question that the intention of the Bill of Rights was not to create a government afraid to mention religion of any form."

First, NB, my points regarding ascribing a unitary intent to a collectively crafted document. Second, nobody has said anything about a government being precluded from mentioning religion in any form. Third, and most importantly (herein lies the glaring ignorance of the state of the law), what the First Amendment may have meant at framing a propos the federal government has since been "incorporated" by the Fourteenth Amendment as applicable to the states. This matter of incorporation has been sustained by Courts liberal and conservative; it is among one of the more solid precepts of modern constitutinal law.

What does this mean? First, it means that the relationship between state governments and the First Amendment was radically changed by the passage of the Fourteenth Amendment. Why? Because the Supreme Court, the body charged with interpreting the Constitution, said so a long time ago, and has continued to say so ever since. Second, even if you are correct that all the Establishment Clause originally aimed to do was to restrain the federal government from involving itself in, or concluding, differences between the states regarding intersectine squabbles among Christians, that same restraint now, as a matter of constitutional law, has been held -- and for some time -- to apply to state governments as well. Thus, even if the predicates for the original language have changed somehow, the fact remains that you appear to grant that the Establishment Clause affirmatively restrained the government to which it was drafted to apply from involving itself in religious squabbles. Now, that same Claue applies to state governments, and affirmatively restrains them in the same way.

If you don't like it, pass an amendment. But I don't think you can. Which means that self-described red-blooded Americans (whose idea of freedom is privileging their own parochial views over those of others (even to the extent of implying that those who disagree with them are less worthy of the title "Americans"), notwithstanding that this country is, to a person, a nation of immigrants with equal claim to its privileges and freedoms) aren't quite as numerous as they'd like everyone to belief.

I'm reminded, oddly, of a bit of verse from Wallace Stevens, with which I will leave you:

Bantams in Pine-Woods

Chieftain Iffucan of Azcan in caftan
Of tan with henna hackles, halt!

Damned universal cock, as if the sun
Was blackamoor to bear your blazing tail.

Fat! Fat! Fat! Fat! I am the personal.
Your world is you. I am my world.

You ten-foot poet among inchlings. Fat!
Begone! An inchling bristles in these pines,

Bristles, and points their Appalachian tangs,
And fears not portly Azcan nor his hoos.

Don't ask me why this poem seems a propos. I just work here.


Anonymous MarkPele said...

This was in a response to an article that was quoted on the DialogicalCoffeeHouse blog.

Since you waved the red flag of logical fallacies, let me poke a few holes in you response.

"First, I think it's plainly the case that to remove religion from the public sphere is neutral"

Since that is the point of the argument, then this is a plain assertion. Since you are not a recognized expert on the subject at hand (which I will further show), your assertion is fallacious.

Second, you asserted that Secular Humanism is not a religion because it is given tax-exempt status. Touche! Okay, the real story is that secular humanism was recognized by the Supreme Court in 1961 in the case of Torcaso v. Watkins, where Torcaso was refused public office when he refused to take an oath acknowledging God. Now there is a struggle over whether it is a religion or not, primarily because of the problem alluded to in my post - that government CANNOT BE NEUTRAL TOWARDS RELIGION. To plop a ten commandments monument apparently favors Christianity, but to remove it favors Secular Humanism. Thus, it's a catch-22.

As to whether the fourteenth amendment destroys establishment in the states, I cannot conclusively say one way or the other. I know how it is interpreted, but again, the modern view of interpretation of the Constitution is in light of the prevailing judicial/public opinion, and not necessarily what the Constitution says. (Remember that a big part of the debate between Kerry and Bush was over the issue of judicial interpretation of the Constitution).

On government mentioning religion. This again has been argued to absurdity in the courts as a fundamental chilling of religious speech by any public official or governmental entity while executing their office in any official capacity. It's a little confusing, but, for example, a high school coach may pray at home for his dinner, but if he prays with the team before a game, he is violating the law. Since Christianity requires open acknowledgement and glorification of God in all spheres, it is a catch-22. The Christian cannot practice his religion in the public sphere, but is required to practice in the public sphere by his religion. This is in effect a dis-Establishment of Christianity. When you look around at the religions that are not opposed by this chilling, the only one that really stands out is Secular Humanism, and thus, the state has, for all intents and purposes, established Secular Humanism as the religion of the public sphere.

Also, as the public sphere is becoming more and more private - for example, the fact that a company can no longer discriminate based on religion, that chilling effect is becoming more and more pronounced.

9:47 AM  
Blogger Moon said...

Ah, a commenter who cites legal precedent. In the immortal words of Br'er Rabbit, "Please don't throw me in that thar briar patch!"

But first, some basics: I didn't make a bald assertion as to the nature of "neutrality." Rather, I offered a basis, albeit one easily stated, for my claim: to remove religion from the public sphere, I said, "is neutral in at least one regard: it neither burdens nor benefits any one religion over another. That is a fundamentally neutral quality."

Now your response is question-begging to the extent it presumes that "secular humanism," as you call it, is a "religion" under the law. Thankfully, you cited precedent to support the proposition, so we have the friendly confines of the law in which to examine the claim.

In Torcaso v. Watkins, 367 U.S. 488 (1961) for those following along at home, noted, among other religions, that Secular Humanism, which it capitalized as such, was, along with Buddhism and Taoism, a "religion[] in this country which do[es] not teach what would generally be considered a belief in the existence of God," id. at 495 n.11. It did not do so, however, in connection with the holding in that case, and so made such mention in obiter dictum, language without binding legal effect as anyone with a background in law will recognize. This was doubly the case, in that any such belief in Secular Humanism was not at issue in that case, as the litigant in question had avowed no such "faith." Rather, the operative holding in that case, aside from reaffirming Jefferson's "wall" between church and state for the umpeenth time (the Court quotes something like a dozen cases sustaining that wall), was that the party's belief or disbelief could not be relied upon as a basis for denying his commission as a notary for the State of Maryland.

Accordingly, Torcaso failed to do two things you ascribe to it: 1) it failed to establish as a matter of law that Secular Humanism is, in fact, a religion; and 2) it failed to base it's holding on the proposition that the party in question could not be denied his commission on the basis of his lack of faith. Rather, it denied Maryland the prerogative to bar his commission for his lack of avowed religious belief.

Torcaso, in short, does not support your claim that an areligious party is in any material way religious, and therefore also fails to support your claim that denying expressions of your religion (or any other) somehow supports a religion based on the absence of belief. No such religion is recognized, nor is any such religion recognizable. (The American Heritage Dictionary defines religion as "1.a. Belief in and reverence for a supernatural power or powers regarded as creator and governer of the universe.")

I think the problem derives from what must seem an inexorable corrolary to certain people of faith: that a person necessarily has a faith, even if that faith is in the inutility or absence of faith. But just saying that's a religion doesn't make it so.

To be clear, if the Court required all government buildings to affirmatively deny the existence of God, I'd readily grant that such is a fundamentally religious ruling, and a plain violation of the Establishment Clause. But the Court has never required anything of the sort. I'll grant that affirmatively ordering the removal of a plaque commemorating the Ten Commandments is, in some sense, an order disfavoring the religion they represent. But that's like saying that an order requiring a party who unjustly benefited to restore the improperly gained assets to their rightful possessor somehow discriminates against the party who misappropriated the assets in the first place. The constitutional rulings at issue interpret the Constitution as requiring that the plaque never should have been there, and the remedy ordered restores a neutral state, albeit by a remedial, and taken in isolation non-neutral, act.

I also reject your claim based upon what one's Christian faith requires, though I don't contest the nature of the requirement, nor could I. You write:

Since Christianity requires open acknowledgement and glorification of God in all spheres, it is a catch-22. The Christian cannot practice his religion in the public sphere, but is required to practice in the public sphere by his religion.

One absolutely may practice one's religion in the public sphere, a right the Supreme Court has been careful to protect. A Muslim soccer coach at a public school, to be sure, could break from a game or a practice to face Mecca and pray at sundown, and anyone who denied him this prerogative by firing him for so doing would violate the constitution. He could not, however, in any way reward or punish students for joining or failing to join him, or even compel them to sit silently by while he did so. Thus, to respect the constitution, he would be advised to be discrete, not setting his prayer mat, say, in the middle of the soccer field. Forgive me if I find this in inconsequential burden on the faithful.

What the constitution affirmatively precludes, rather, is one using a position he holds under the laws of the United States or a state in furtherance of his religion, a very different matter. Notwithstanding the necessities of the evangelical obligation consistent with much Christian practice, many Christians seem to have reconciled themselves to not overtly proselytizing every waking second of every day. If that weren't the case, I'd have no Christian friends, because for a non-Christian such behavior would be intolerable. There are spheres, and at least according to some devout friends, the evangel may also inhere simply in setting an example consistent with their faith by living a life informed by Scripture.

I'm not so arrogant as to tell any Christian how to practice her faith, but I am arrogant enough to say that there are theocracies out there a Christian who simply cannot abide our Constitution can choose to live in. Furthermore, there are employments available where one is not materially restricted in the way one integrates faith and employment. Although you state categorically that private employment decisions predicated upon religious belief are impermissible, this is plainly not the case as a matter of settled law. There are restrictions, but they are not absolute and typically derive from other public benefits bestowed upon the private organization which the organization is free to refuse in favor of greater liberty.

Of course, no one is bound to take public office.

And we return to the original point: just saying that the absence of faith is a faith of its own is inconsistent with the commonly understood uses of that term, which contrary to your case name dropping is a principle the Court plainly has recognized and enshrined.

Finally, in keeping with the anti-constitutional rhetoric of the far right (in its patent disrespect for the separation of powers and the notion of three equal and independent branches of government each with enumerated powers), you betray an indifference to, or a lack of clarity with regard to, time-honored constitutional law with the following statement :

I know how it is interpreted, but again, the modern view of interpretation of the Constitution is in light of the prevailing judicial/public opinion, and not necessarily what the Constitution says.

I'd comment, but others, far greater than I shall ever be, have already done so:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed as pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions--a written constitution--would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

Marbury v. Madison, 5 U.S. 137, 177-79 (1803). As "red-blooded," "God-fearing" Christian Americans are fond of saying, "Love it or leave it." But don't pretend that the current sound-bite rhetoric that would demote the Supreme Court to a status subordinate to the very whim of majoritarian tendencies the Constitution hedges against is consistent with the historical understanding of the role the Constitution picked out for the courts, as manifest in that document, in the rhetoric and history surrounding the framing, and in common sense regarding the effectuating a tripartite scheme of government.

1:33 PM  
Anonymous MarkPele said...

Yes, you are right. The Supreme Court has decided that Secular Humanism is not a religion, but is the free exercise thereof. Thus, it is appropriate for the state to force the tenets (e.g. evolution) of secular humanism down students' throats, when it may not mention Christianity, but when a group of Secular Humanists come together, they are allowed tax exemptions under the guise of religion (Fellowship of Humanity v. County of Alameda), and when they want to be considered part of religious services, they may be (Kalska v. Hawk)

You quote from Marbury v. Madison is definitely out of context. The court was using that justification to interpret Congressional law in the terms of the Constitution, which prohibited certain actions by Congress. Thus, it was appropriate for the Court to strike down a law that was in conflict to the Constitution. What I'm talking about is the fact that the Courts interpret the Constitution based on the current ideas, not the way the document was written.

Interstate commerce is a great example where the Supreme Court has taken a "new and improved" view on a part of the Constitution. If you somehow feel that this re-interpretation of the supreme law of the land is warranted, then perhaps you might be interested in this supreme law...

(1) In accordance with the interests of the people and in order to strengthen and develop the socialist system, citizens of the USSR are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations.

Under your vision of Constitutional questioning and revision by the courts, what really is in place to protect us? Now that judges can, in effect, pass laws, there is no prohibition from a judge ruling to abridge our rights.

8:21 PM  
Anonymous binky said...

Given that I am so far out of my league, I should not even comment, but hey, why let that stop me. :) I have a question regarding this statement:

"To plop a ten commandments monument apparently favors Christianity, but to remove it favors Secular Humanism."

Does it really? Only secular humanism? Doesn't it also favor other [religions] that would desire to remove such a monument?

Similarly, on this:

"When you look around at the religions that are not opposed by this chilling, the only one that really stands out is Secular Humanism."

I only know the religion I was raised in (Methodism) but are there no other religions that require public practice? What of the public manifestations of Orthodox Judaism or Islam? And are we to make a distinction between dogma/cultural evolution of religious practices and fundamental requirements? That is, evangelism mandated by the bible versus cultural development of sharia applied to things like burquas? In Florida, for instance, this has come into the courts because of women being photographed for drivers' licenses (I know, not the same thing, but not knowing the legal scene as well as you guys, I am reaching). And are there not other religions that discourage public display, so that they would be "on the team" of secular humanism?

That is, it's not clear to me that in either case only secular humanism benefits. It seems like there are religious fellow travelers in benefit. And, since there are multiple benficiaries, no one (only) of them is benefitted above others.

In sum, while I think I can buy into the part about the non-privileging of christianity, I don't think I can buy the privileging of secular humanism based on the arguments presented here, at least. Perhaps being a layperson has something to do with it.

3:37 PM  
Blogger Moon said...

You're getting sloppy, Mark. First, Fellowship of Humanity is a case decided in California state court. You can find someone else with whom to dispute California law, or California interpretations of the federal constitution. Inasmuch as it is not a binding interpretations of federal law anywhere except California, and even there only to the extent it can be reconciled with United States Supreme Court precedent, I'm going to cry foul. I'm not interested in discussing California law, and it's beyond the scope of this discussion (plus, everyone knows those pinkos in California are loco). Similarly, I was unable to find Kalska in the United States Supreme Court, searching on the least common denominator "Hawk" (which took a few minutes, by the way, since the Court has decided eighty-five such cases), so that too is out of bounds. In the future, please, as I have done, supply citations if you're going to rely on caselaw, so it's not too hard to refute your Moebius logic by reference to the source of the problem.

About which, by the way, is it possible that you're relying on sites like this one? That goes right to your rejection of my citation to Marbury. I most affirmatively did not quote it out of context. It is the case unrefuted by anyone but commentators (who don't enjoy Article III commissions) that affirmatively stated the governing principle of judicial review: that the constitution necessarily must be interpreted, and that the Constitution charges the Court with that very responsibility, and that as such the Court is responsible for stating precisely what the Constitution means. Thus, the Constitution, at any given moment, means as a matter of positive law whatever the Court has said it means. Period. End of story.

I'm sure you and I both could line up an array of cases we believe were wrongly decided, but it's the law just the same, and as an attorney I wouldn't be very good at my job if I couldn't distinguish my wishful thinking from reality. Wishful thinking and $3.00 will get my client a latte.

And now that I review your comment, it dawns on me that that's the entire extent of your refutation of my systematic discussion of your various points: right wing paranoia about some Secular Humanist conspiracy (which doesn't at all address itself to my points about neutrality), and McCarthyist insinuations that somehow there's something soviet about what I'm saying about the Court.

That's offensive, counterproductive, and entirely typical. For a while there, I had credited you with not being a garden-variety troll. I still think you're more articulate, and I'm happy that you at least familiarize yourslf with someone's account of caselaw (if not the caselaw itself) -- something very few of the most adamant critics of the judiciary bother to do -- but seriously, that sort of smear is unnecessary and entirely counterproductive.

Oh, and with regard to this howler --

Yes, you are right. The Supreme Court has decided that Secular Humanism is not a religion, but is the free exercise thereof. --

that's neither what I said Torcaso said, nor what Torcaso said. As a matter of law, as I already explained once, Torcaso literally said nothing about Secular Humanism. As an aside, the Court suggested that Secular Humanism is a religion that does not recognize a deity as such, but that was not part of the holding. You are trying to lump in all atheists as Secular Humanism, something that on its face is preposterous. Nothing in Torcaso suggested that the injured party was a Secular Humanist; rather, it appears he was a garden variety atheist (in the sense, literally, that he refused to avow his faith in "God" in order to obtain his notary commission). It's also, I might add, possible that he was a Christian who believes in the separation of church and state (and notwithstanding your own parochial sense of evangelical duty, there are plenty of dedicated Christians who believe in that separation) and protested as a matter of principle.

In either case, you have yet to cite a case decided by the United States Supreme Court that recognizes as a basis of its decision (and thus as a matter of binding precedent) Secular Humanism as a religion.

Torcaso was decided under the Free Exercise Clause -- about this you are correct -- but only in recognizing the negative right to exercise no religion at all.

4:12 PM  
Blogger Moon said...

And Binky, I already made this point that's somewhat responsive to your question, but I'd like to draw it out. As I noted in my original comment to this post, there seems to be a disconnect here: Mr. Pele appears to believe that you either avow faith in a recognized religion involving a God, or you are stuck with the Secular Humanists, as though there were no alternative. Everything he says seems to follow from this proposition (a variation on the odious, but familiar, fur-us-or-agin-us meme), which even a cursory examination reveals as untenable.

4:15 PM  
Blogger Moon said...

Oh, and by the way, Mark, evolution, correct or not, is not a "tenet" of anything. It's science. It might be flawed science, incorrect science, or, as you would probably have it, just flat wrong science, but it is science and as such a "theory," not a "tenet."

Theories are the province of science classes. Tenets are the province of church, or perhaps electives in philosophy and theology. You wouldn't teach cooking in a math class, would you?

4:18 PM  
Anonymous binky said...

Thanks, Moon, but I think my question was more geared toward markpele's comment.

In any event, I guess my problem is that if we have multiple beneficiaries of a particular law/ruling, that I can't really accept that we assume one is the only "real" beneficiary.

4:32 PM  
Anonymous MarkPele said...

I'll try to cover both comments... Binky, when you say that a law (or state action) can benefit many religions and thus is permissable, that standard has really not held up in court. For example, menorah's or ten commandments displays support, at a minimum Christianity and Judaism, as well as a number of associated religions, such as Mormonism.

The apparent test for religion that Moon has mentioned seems to be consistent, although there have been recent cases, and apparently, the Appeals courts aren't quite as clear on the definition of religion. Moon, you are correct that I tend to lump non-theistic belief systems together. Atheism, Humanism and Freethinking are basically equivalent to Presbyterianism, Catholicism and Methodism - different facets of the same belief.

On the interpretation of the constitution, I cannot disagree more. It's interesting that you are standing behind the very thing that you poked fun at the "sola scriptura" crowd for - re-interpreting the Bible to suit their needs.

Let's say that ten years from now, there is a case on the "right to bear arms." Well, the US Supreme Court decides that the right to bear arms really means that hunters are allowed to eat meat from the arm sections of bears, provided they hunt them down with their bear hands, because, obviously, guns are outlawed.

What you seem to be saying is that it is 100% okay for the Supreme Court to say whatever it wants about the Constitution, because, what they say goes, and, oh by the way, that part about the President nominating justices? Well that really means the President of the Supreme Court, a.k.a. the Chief Justice.

I think you've defended at least the Supreme Court's view of religion appropriately. We can disagree about whether Secular Humanism is a religion, but obviously not it the realm of the Supreme Court. Being more scientifically minded, I should probably question your interpretation of evolution within the realm of science, but that is for another post. Also, Kevin Bywater is a friend of mine (who wrote the Summit article) and I did see the article on my search for cases, but I didn't actually read it.

I don't believe there is any secular humanist conspiracy, any more than there is a liberal media conspiracy. It is just that there is a strange attraction for certain types of occupations, and there is somewhat of a self-perpetuating cycle. The lawyers who do well train the next generation of lawyers, and certain opinions that were once the realm of wild speculation become the leading thought.

7:28 PM  
Anonymous MarkPele said...

I should also mention that I am not alone in this opinion. If you read Justice Thomas's concurring opinion on the recent Newdow case, he opines that the Establishment Clause was a federalist matter and was really a state's rights issue, not an individual right - thus, the 14th amendment would not, by necessity by applied to the states. You can read it here:

8:35 PM  
Anonymous binky said...

Oh, I see. Justic Thomas. Now it's clear.

8:52 AM  
Blogger Moon said...

Mark, you write:

Moon, you are correct that I tend to lump non-theistic belief systems together. Atheism, Humanism and Freethinking are basically equivalent to Presbyterianism, Catholicism and Methodism - different facets of the same belief.

You can do that if you like, but that doesn't make it so. If I were to say that Christianity encompasses all theistic belief systems you'd snort your coffee out your nose, and the same goes the other way. If I were to reject (and NB, I'm not saying that I do) the reductive account of one white-bearded God whose son banged around Earth a couple-thousand years ago that is hardly to say I accept every tenet of every non-theistic spiritual creed out there. And since you brought Torcaso into the equation, I'll note that they lumped in Taoism and Buddhism with Secular Humanism as non-theistic faiths. There is little overlap in any two of those three, no more than there is between Islam, Christianity, and Judaism, and quite possibly less.

I'm glad I was correct regarding your tacit premise, but the problem it creates for your argument is not remedied by your admission: it does not provide a targeted benefit to Taoism any more than it provides a targeted benefit to Secular Humanism to remove Ten Commandments displays from public buildings. It would provide such a benefit to Buddhism, say, if some passage from the Bhagavad Gita were posted in the Ten Commandements' stead, but that's not the act in question, the one you deemed non-neutral, the one which is only non-neutral to the extent that you are correct that all variations of non-belief or, really, non-Christian belief, in fact encompass one larger religion. Frankly, that's a ridiculous proposition betraying a profound myopia about the many worlds of spirituality that have nothing to do with Christianity. It's a presumption toxic to meaningful debate about spirituality in the public sphere.

As for the Supreme Court, what I am saying is that the Supreme Court is, by constitutional design, the arbiter of the meaning of the United States Constitution. That's what Marbury says, and no one has since denied it. The liveliness of the debate regarding what, precisely, this task entails shows that it is hardly tennis without a net (your 2d amendment hypo is amusing, but absurd): in addition to the specter of impeachment, Justices bear up under the weight of a tremendous Anglo-American commonlaw tradition, bound by their oaths to fulfill their responsibilities to interpret the law faithfully and consistently with stare decisis. All high officers can -- and do -- get away with bloody murder, and yet we pretend their oaths are sufficient. The Court, moreover, can't be hijacked by a rogue Justice -- it takes five of nine to effectuate anything serious. That makes the Court a more democratic branch of government than the presidency, where one nutball can . . . well, did you read the paper today (nothing specific, but the stories have shown nothing but deceit emanating from the White House for years now)?

I don't believe there is any secular humanist conspiracy, any more than there is a liberal media conspiracy. It is just that there is a strange attraction for certain types of occupations, and there is somewhat of a self-perpetuating cycle. The lawyers who do well train the next generation of lawyers, and certain opinions that were once the realm of wild speculation become the leading thought.

I'm not sure exactly what you're getting at here, although if it's a smear it's at least a kinder one than the Soviet slur of a couple of comments ago -- but in any case the evolving view of the law you seem to criticize here has, if I'm not mistaken, more than its share of analogs in the Christian community, where various sects' interpretations of Scripture have emerged out of whole cloth or "evolved" from alternative views over the years.

Meaning is ever in the eye of the beholder. We can set rules for how things are read, but we can't change this basic proposition of human cognition (whether comprised of God's bubble gum and baling wire or a happy accident of natural selection). And it's a safe bet that the Framers knew this elementary fact about how people read when they instantiated our constitutional democracy. Indeed, some of their contemporary writings (read all of the Federalist, not just what you can mine for quotes in your favor) reflect this knowledge.

Oh, and a propos Newdow, Justice Thomas's outlying dissents are not the law of the land, and in Newdow, characteristically, he wrote only for himself; no one joind his opinion.

I would take this opportunity to begin the process of rethinking the Establishment Clause. I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation. Moreover, as I will explain, the Pledge policy is not implicated by any sensible incorporation of the Establishment Clause, which would probably cover little more than the Free Exercise Clause.

Elk Grove Unified Sch. Dist. v. Newdow, 124 S.Ct. 2301, 2328 (2004) (Thomas, J., concurring) (emphasis added). (Note that Justice Thomas appears to concede the possibility that the Free Exercise Clause should be incorporated, a mighty concession from his point of view.) So Thomas disagrees with the prevailing Establishment Clause jurisprudence. In past eras, the acknowledgment underlying such a concession would preclude a justice from dissenting under stare decisis; but these days, certain "activist" justices, when faced with past precedents they don't like, just mouth off rather than following the law. (I don't subscribe to this lingo for reasons discussed on this site ad nauseam, but under the terms of those who criticize the current Court, everything I just said is more true of Messrs. Justices Scalia and Thomas than it is of any so-called liberal justice.)

Oh, and by the way, I said nothing, but nothing, about Sola Scriptura Christians at Dialogical Coffee House; indeed I took pains not to, as I prefer not to intrude upon the private sphere of religious belief, and I don't pretend to have more than a fairly general knowledge of Christianity in its multifarious incarnations. I merely corrected what I perceived to be a misstatement about the nature of tradition in the law, a matter wholly ancillary to that post and thread. I try not to come between people inclined to fight over religion, but when people start bowdlerizing or drawing patently inaccurate analogies from the law I have trouble holding my tongue.

9:16 AM  
Blogger Scott said...

It strikes me that ya'll have made your points and that there might not be much else to throw into this, but I'll add these 2 thoughts - 1) Catholocism and Methodism are not two sides of the same face and 2) if you don't like Marbury as establishing the preeminence of the Supreme Court when it comes to interpreting the constitution, how about Cooper v. Aaron?

12:28 PM  
Blogger Moon said...

Thanks Scott, for the additional citation. Just to draw it out a bit, in the post-Brown school desegregation case, Cooper v. Aaron, 358 U.S. 1 (1958), one of a series of cases in which the Supreme Court assured recalcitrant states in the south that they would have to effectuate school desegregation post-haste notwithstanding their objections to the ruling, the Court held:

Article VI of the Constitution makes the Constitution the 'supreme Law of the Land.' In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as 'the fundamental and paramount law of the nation,' declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, that 'It is emphatically the province and duty of the judicial department to say what the law is.' This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.

12:37 PM  
Anonymous MarkPele said...

Moon, I think we are going to have to agree to disagree on the neutrality principle. While I obviously don't have the backing to the Supreme Court in a decided law sense, there has obviously been thought around defining "religion" more broadly than belief in a supreme being. The court has carefully avoided this rabbit hole, but the result is not neutrality. The result is that a teacher in a public school can emphatically say, "GOD DOES NOT EXIST!" - with the government approval that this is somehow a non-religious statement. Yet, a different science teacher can be reprimanded or fired for saying, "GOD EXISTS!". You have argued quite successfully that legally, the former is protected under the Constitution as non-religious, and the second is somehow a violation of the Establishment Clause, but I am not willing to take that argument and conclude that this situation is somehow optimal.

Scott, I think that I would disagree with the ruling. The Supreme Court is not the final arbiter of the law. *IF* a court made a ruling that violated the Constitution, I would expect the justices to be impeached by the House of Representatives. It is obviously in the court's best interests to declare itself the final arbiter of all legal cases in the U.S., but that's why we (supposedly) have checks and balances. BTW: I lumped the three denominations together to make a point, not to say that they were somehow equivalent.

Such reinterpretation has already happened with the right to bear arms. The original right to bear arms was not for personal protection against a burglar, but for protection against an oppressive government. Obviously, we are no longer trusted as citizens to possess weapons to protect us from such things as unlawful forced police entry, etc., and we have the "supreme exposit[or]" to thank for that.

BTW: if you're interested, I'd like to start a separate discussion on the rights of jurors. This is probably right up your alley and I think it would be less emotional.

5:01 PM  
Blogger Moon said...

While I accept wholeheartedly that we must agree to disagree on neutrality, I cannot let this statement pass:

The result is that a teacher in a public school can emphatically say, "GOD DOES NOT EXIST!" - with the government approval that this is somehow a non-religious statement. Yet, a different science teacher can be reprimanded or fired for saying, "GOD EXISTS!".

Certainly, we agree that the latter is true. But the former proposition is patently false, and I defy you to find me one decision in any court of last resort in any state or the federal government to the contrary. I take it what you mean to say is that Darwinism constitutes an affirmative refutation of the existence of God. I do not, however, think this is a proposition that can stand without argument. Darwinism, indeed, is not entirely inconsistent with every Christian's account of creation, nor is Darwin in itself an invitation to disavow any theological creation story simpliciter. As I've argued, Darwin is a scientific theorem, which has a descriptive value based on the available evidence. It is nothing more. There are lots of Christians who don't buy into the 6,000-year timetable for natural history, but nonetheless believe in some initial act of creation. For them, Darwin has much the same descriptive value as it does for an atheist.

That's the whole difference between an article of scientific reasoning and an article of faith. An article of faith, truly held, is neither supported nor refuted by science, nor should it seek to be; the second it is confirmed scientifically, of course, it ceases being an article of faith.

As for the jury issue, I'm not sure what you have in mind, but if you shoot me a private email with a full introduction to the discussion you'd like to have, I'll post it in its entirety and either start off the discussion with a direct response if I'm so moved or just establish it as an open thread.

6:25 PM  
Anonymous MarkPele said...

Maybe the fact that you don't see ANY cases regarding a denial of the existence of God, where you have many accounts of that very thing happening in Biology classes nationwide suggests that the courts aren't even willing to consider this.

Rather than prove my case false, it quite possibly proves it true, with some acknowledgements that Christian organizations, like ACLJ are dying to have a court rule on this very thing.

On Stare Decisis, what do you think about earlier cases where we were deemed a "Christian nation", Bibles were allowed to be required reading in schools, etc.? Is it only an absolute requirement when the decisions of the existing court are in your favor?

6:44 AM  
Blogger Moon said...

. . . where you have many accounts of that very thing happening in Biology classes nationwide

Mark, I maintain that this is, on its face, almost certainly something the Court would consider a violation of the Establishment Clause were it to occur in public school. Moreover, I think the religious side of this debate has proven its proclivity to litigate (you appear to agree, given your reference to the ACLJ hunting for such a case). So the absence of cases doesn't suggest judicial unwillingness, but rather that such accounts are at best apocryphal. I attended public school for thirteen years and never once did any science teacher even approach the subject of God. If you've got examples of reputable journalistic outlets discussing this, or citations to cases where such behavior was condoned (and on this I'll take anything -- federal, state, local), I'd be happy to see them, but my intuitions, experience, and knowledge of the law tell me that all of this is a confabulation equating a refusal to discuss God and the teaching of Darwinism with an affirmation of the non-existence of God, which is a bridge too far.

On Stare Decisis, what do you think about earlier cases where we were deemed a "Christian nation", Bibles were allowed to be required reading in schools, etc.? Is it only an absolute requirement when the decisions of the existing court are in your favor?

Cases such as? Again, I urge you to learn the distinction between the "holding" of a case and "obiter dictum." An aside suggesting the "Christian" character of this nation is non-binding unless that proposition is essential to the Court's disposition, and I'm quite certain that any instances to which you are referring in the United States Supreme Court were of that gratuitous nature and hence legally immaterial.

I've also previously indicated that there are many cases in the United States Supreme Court with which I disagree. And of course I grant that the Constitution has been read in various ways by various Court compositions over the years, and that various Courts have opted to modify or even overrule prior readings, no Court more strenuously so than the Rehnquist Court, which rolled back federalism about a century in a ten-year span.

But my position on this issue is informed by my oath to uphold the law, my understanding of the nature of the Constitution, and my thorough understanding of the important principle established in Marbury: for the Constitution to have any effect at all, some body must be responsible for divining (if you will) the meaning of that document. The buck must stop somewhere. By design (if you will), by evident constitutional design, the body charged with that responsibility was and remains the United States Supreme Court. This is beyond cavil; there is simply no interpretive school of constitutional thought that can argue with any hope of winning that the Constitution is whatever 51% of the population believes or what the President or Congress says. Indeed, for a direct refutation of this proposition one need look no further than the document itself, which is plainly designed to hedge against a tyrannical majority, let alone the tyrannical plurality that would privilege Christianity above all else, foist it upon the unwilling, and restore us to some religious idyll that never existed on these shores (I know, I know, all Christianity is "the same" when it serves you, but I'm thinking most colonists would have disagreed rather strenuously that the various theological viewpoints expressed in other colonies were all that similar or tenable -- there's your "Christian" nation for you).

The fact is this: as a matter of law going to the very heart of our constitutional democracy, at any given moment the Constitution means precisely what the Court says, or has said, it means. That's a legal proposition the axiomatic truth of which I don't have the luxury in my work, nor the desire in the private sphere, to ignore.

My comfort with the evolving Constitution is that I think the Framers understood that they couldn't anticipate all future developments, and that they deliberately created a document at times critically vague precisely to leave future Courts room to account for present circumstances in articulating the law. This is not activism; it's reality.

Put yourself in their shoes: Do you really imagine that rulings issued today are going to be all that apt in 200 years, given all that has changed in the last 200 years and the fact that the rate of change has accelerated exponentially since then? Well, I don't think the Framers did either. And I don't have to agree with the Court's every ruling to respect those rulings as the law of the land.

9:13 AM  

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