Via WVLT:
The atheist who’s spent years trying to ban recitation of the Pledge of Allegiance in public schools says he’ll file a new lawsuit this week.
Michael Newdow says he’ll ask a federal court to order removal of the national motto “In God We Trust” from U-S coins and currency. He says it violates the religious rights of atheists who belong to his “First Amendment Church of True Science.”
The church’s “three suggestions” are “question, be honest and do what’s right.” Newdow says it wouldn’t be right to take up a collection when the money says “In God We Trust.”
Last year, the Supreme Court dismissed Newdow’s lawsuit over the words “under God” in the Pledge of Allegiance because he doesn’t have custody of his daughter, in whose name the lawsuit was filed.
Newdow has resurrected that case by filing an identical lawsuit on behalf of two families.
Newdow’s claim with regard to the Pledge was always leading to this point—just as large settlements against tobacco companies were bound to lead to lawsuits against fast food purveyors and gun manufacturers. The arena of law, even moreso than that of rhetoric is, it seems to m, the real home to the slippery slope argument, which draws its force from structural allowances that are then transferred into new context—part of a living litigation industry that takes kernel precedents established in particular rulings and works to creatively apply those precedents to unrelated (but superficially analogous) contexts.
My opinion about the Pledge controversy has always been that the way to remove “under God” from the Pledge is to do so the way it was installed in the first place: through the legislative process. Removing “under God” via some strained reading of the Establishment Clause (or as the 9th Circuit Court attempted to do, by arguing that mouthing the words was potentially coercive and injurious) is a mistake. The inclusion of the phrase is, from a Constitutional standpoint, de minimis, and so any ruling to contrary will lead to precisely the type of legal action Newdow is now taking—attempting to rid any governmental entity or institution of all vestigial traces of traditional or culturally ceremonial religion.
I find arguments that the motto “In God with Trust” or the phrase “under God” violate the Establish Clause at best dubious, and at worst completely disingenuous; neither phrase establishes an official religion; and those who wish these phrases removed by the Courts are seeking nothing more than to undermine religion as a societally-sanctioned institution by suggesting that the non-religious are so offended by seeing or hearing religious language that is tied historically and traditionally to our government that all traces of it must be removed—therefore marking secularism, by default, as the official state “religion.”
Newdow’s claim here is that “it wouldn’t be right to take up a collection when the money says ‘In God We Trust,’” because as an atheist, he would be forced to violate a central principle of his Church. But by this same logic, would state and federal buildings be compelled, for instance, to keep kosher in their cafeterias to prevent orthodox Jews from violating their principles? Could anarchists form a Church of their own and then sue the federal goverment to disband governmental institutions?
The best way to deal with claims like Newdow’s are to rule that the phrases in question 1) don’t “establish” and official government sponsered religion 2) are de minimus. Such a precedent would put an end, one hopes, to this growing attempt to suggest that the mere encounter with certain language that is not to our liking is not grounds for a lawsuit—and that one of the things that makes a pluralistic society strong is our ability to truly tolerate the reasonable traditions and practices of others.
Of course, I’m not a lawyer, so regard the above with suspicion.
(h/t Stop the ACLU)
Hasn’t God killed this guy yet? What’s the holdup?!
“If I had a rubber hose, I’d beat……â€Â
The media is going to send out the Bat-Signal on this just like they did for the pledge. It’s not that they fully support it. They just know how much it enrages conservatives. Their hatred for us holds a higher priority than the cause that they support.
Jeff, I was (am?) a lawyer, and I think your reasoning is quite sound.
All this will lead (or already has led) to what my Dad used to say – “they’ll all be trying to pick fly shit out of pepper”.
what’s next? Eliminate the office of Senate and House Chaplins? Eradicate the prayer, yes prayer, that commences every Congressional and Supreme Court session? Jack-hammer out all the crosses and Stars-of-David on the headstones at Arlington Nat’l cemetery? How far does society have to go to accomodate those who demand ‘freedom from religion’ as opposed to ‘freedom of religion’?
Lastly, if you want a true understanding of how the Founding Fathers felt about God, try googling
“George Washington’s 1789 Thanksgiving Proclamation”……nuff said.
Find Nedow guilty of Aggravated Assholery and tattoo a warning on his forehead: Does Not Play Well With Others.
SB: job
he’s a piece of work, all right.
He should get a hobby…
I just posted here about a couple of fellows who are trying to get the crosses out of the seal of the city of Las Cruces (literally, “The Crosses”), New Mexico.
These things are nothing more than an all-out assault upon Western Civilization and its Judeo-Christian roots. It would be nice to see the judiciary rule on this sort of thing with a little bit of common sense, but I’m not holding my breath.
I’d just like to chime in quick with my two cents as an atheist and say that most atheists would agree with every word Jeff’s written. Most of us feel an embarrassment about Newdow that’s similar to the embarrassment Fred Phelps or Pat Robertson causes for Christians.
Actually Proud,
Newdow did sue to prevent a prayer from being recited at Bush’s second inaugural:
http://www.cbsnews.com/stories/2005/01/14/politics/main666977.shtml
The man is a litigious little bastard, isn’t he?
1.
No, not necessarily. References to God on money can be (and are) well-argued to be Constitutional under the distinction of passivity and “ceremonial deism.”
2. In contrast, a coercive pledge that involves declaring fealty to God in a public school can be argued to be a distinct issue, because it’s not passive, and it tracks much closer to a violation of the Establishment Clause, despite your old conservative canard about a “strained reading.” Seems pretty black and white to me, compared to the situationally ironic and amusing scene of watching an ostensible Constitutional literalist say “but what they really MEANT was …”
Just because a Federal legislative act doesn’t fulfill the trappings of establishing a de facto state religion (a la the Church of England), down to the length of the pointy hats and structure of weekly services, does not mean that the addition of explicitly religious text to a public oath effectively compelled to school children does not represent some “establishment of religion” by the state, that violates the Constitution in both letter and intent.
But hey, work that meme. If, as a society, we’re going to afford extra-special protections to the sensibilities of religious folks, because hey, religion is “special,” then atheists should fall under that protection as well.
What a douchebag.
Or maybe I should say, my God, what a douchebag.
Didn’t mean you, Bill. Just so we’re clear.
And for the record, yes, I think taking “In God We Trust” off of currency is a practical waste of time and undermines his stronger case against the pledge, when the two are viewed contextually and politically, but not legally.
you have no right to not be offended.
now bugger off.
undermines his stronger case against the pledge
The pledge was the first attempt for a reason – for the one you hint at in your comment (ie, it makes sense). After the pledge, we have the laundry list that proudvastrightwingconspirator’s comment contains, for example.
My point is this – what will stop this guy from trying to have erased ALL references to religion from the public? Nothing, except a set ruling from the USSC.
Give ‘em an inch, they want a mile.
TV (Harry)
tw: food; It is lunchtime.
Or just add the rest:
“All Others Pay Cash”
SB: received
wisdom
Ugh. You are aware that compulsory school prayer, though it does not “establish” a state religion, falls afoul of Establishment? The Establishment Clause means more than that. The meaning of the Constitution, you’ll find, is often more complex than, say, Rush Limbaugh represents it to be.
Newdow’s legal theory is rather confused; his supposed right to collect money for his church isn’t a persuasive case against stamping money “In God We Trust.” But your refutation of that theory is equally confused.
And once again the lovely “legislate, don’t litigate” meme. Sheesh. You’ll forgive those of us who don’t see the point of that to the question whether or not the Constitution contains a certain right, I trust? (I can only imagine where this country would have wound up if white Southerners had thought to argue, “Don’t bring these desegregation cases to court, with their activist judges! Just go to the Arkansas legislature!
Atheist Republican Lawyer checking in….
Yeah, your reasoning sounds good to me. It seems like, in practice if not explicitly spelled out, the courts have applied a “de minimis” exception to the Establishment Clause.
Guys like Newdow, IMO, are an embarrassment, and just make atheists look like a bunch of fringe nutjobs. Just from a practical standpoint, atheists are a small minority, and that’s unlikely to change real soon. So we’ve gotta pick our fights wisely. This ain’t that.
If the feds started aggressively promoting belief in God—not any particular or “official” god, just God—few of us would find that copacetic. So the second prong is the key. But all the second prong does is pour the substance of the debate into a different glass. Conservative judges would find most forms of state action to be “de minimis,” liberal judges would rule the opposite way. Both would “take[] kernel precedents established in particular rulings and work[] to creatively apply those precedents to unrelated contexts,” except now all the relevant rulings and precedents would be within the analytical framework of whether something is “de minimis” or not.
The Court has actually done something like this in another context, with predictable results. Before the Miranda case was decided, the constitutional standard for coerced confessions was a facts-and-circumstances test. It was completely ad hoc, and consequently made a jumble of federal jurisprudence in that area. The Warren Court decided to clean it up a bit in Miranda by prescribing a bright-line rule, namely, the issuance of Miranda warnings. But a funny thing happened on the way to clarity: pretty soon, prisoners were filing all sorts of lawsuits related to the issuance of warnings. Some claimed not to have understood them, some claimed they were only partially given, some said they weren’t administered until a half-hour into the interrogation, etc etc. The wonderfully ironic result was that, ever since, the Court has developed a line of cases stemming from Miranda that are just as convoluted and fact-specific as its jurisprudence under the original F-and-C test. (And to add insult to injury, they ended up retaining the F-and-C test anyway. A prisoner who receives the Miranda warning but then has a confession beaten out of him can still allege a Due Process violation, which in turn will depend on … all the facts and circumstances.)
In other words, same shit, different wrapper. Which is why a lot of people (like me) hate law, and a lot of other people love it.
can’t you guys at least see the benefit of this guy fucking with the religos in their chosen forum: th courts?
i like this cat just for stirring the pot.
My personal view on this is that one shouldn’t invoke His name other than in prayer. For me to put a sort of almost-as-an-afterthought mention of the Deity into a pledge of allegiance to some secular entity would therefore be wrong. And for me to fight to keep it included in the Pledge would be a fight for other people to be encouraged to do wrong. For unbelievers to similarly pray would be even more wrong.
But that’s my view, and I don’t think I’d force it on others. I could probably turn the Pledge into something I could view as legitimate prayer, but then we’d be at state-mandated prayer, which has its problems.
It’s taken me a while to reach this conclusion, and it’s quite an unsatisfying one, as I’m less sure of what I think the government ought to do now, than I was when Newdow began his campaign.
I, for one, don’t particularly *care* if phrase “In God We Trust” comes off the currency during a redesign.
Just keep the All Seeing Eye.
.
So, if the Dearborne, MI school system decides to add an Islamic prayer to the pledge, and your child attends that school, I suppose that you’d have no right to not to be offended as well, right?
Sure, of course you wouldn’t. Conversely stated, you “have the ability to not be offended.”
If this world actually functioned on people exercising their rights and abilities not to be offended, especially over religion, I’d venture to say things would be a lot more peaceful.
But here in real world, not anonymous know-it-all blog commenter’s world of “infinite populist common sense that trumps all,” people tend to get prickly when the belief systems of others are foisted upon them, especially by the state, especially when it deals with a competing vision of the supereme being.
Or so I’ve read.
For Jack Roy —
I used to be willing to engage you when you posted here, because I hadn’t visited your site, which is practically a shrine to my persistent assholery. So forgive me if I now treat everything you say with the proper disdain—though very quickly, compulsory prayer (you are forced to pray to something) is different than reciting the Pledge, particularly when you have an opt out. The rest of your “argument”—typically superficial snarling snark about talking points and Limbaugh, etc—is meant to suggest you have a superior understanding than do I, though without saying anything substantive to back that up.
You may well have. But throw away lines about southerners and racism and Rush Limbaugh don’t prove it. In fact, they show how intellectually lazy you are.
Allah—you’re right that it is difficult to get to an objective standard of “de minimis,” which is why I suspect it is so important to establish a ind of juridical baseline by defeating both the Pledge case and this new case on that ground. At least that way we have some decided idea of where and how de minimis applies to such cases.
Bill (from INDC)
Suppose you are correct regarding an inordinate amount of offence being foisted upon non-believers having to (optionally) recite the pledge, for the sake of argument let’s say you are. Is the proper way to deal with this in the court system or the state/federal legislature?
Hmmmm.
Frankly as a non-Christian I’ve never understood this bizzare hatred of Christianity so prevalent in so many lefties.
Perhaps they need to add prozac to the flouride in the water.
This guy is an atheist and he runs a church?
Isn’t that sort of missing the whole point of atheism?
Why doesn’t this cocoanut just take credit cards. Last I looked, Visa & MC don’t have uncomfortable references to God. Cash is so twentieth century..
Spam word: “away” as in “Why won’t he just go away?”
-MLD
Well, Bill – I don’t even have to go to a school in Dearborn to hear a call to Islamic prayers. I can hear the call to prayer on the streets of Hamtramck. Hamtramck used to be, of course, a bastion of Polish Catholics.
To the extent I’ve allowed my temper to get the better of me—and I don’t think it can be denied—yeah, I plead guilty. But the fact remains that appealing to legislative remedies over judicial ones is analytically empty and non-responsive when the question is whether the Constitution already prohibits certain governmental action. If you don’t like the reference to civil rights litigation or think that amounts to a casual accusation of racism (and I was unaware that such a corrolary to Godwin’s law existed), substitute a case involving a constitutional challenge that you like. Like, say, one involving the Takings Clause; to the litigants arguing that the government lacked the power to regulate their property beyond a certain point, it would have been no answer to tell them to seek legislative action rather than judicial enforcement of the rights they believed they already had. Sometimes they were incorrect and sometimes they were correct, but in either event telling them to go to the state house would have been profoundly missing the point.
And you fail to understand: “compulsory prayer … is different than reciting the Pledge, particularly when you have an opt out.” Sure. The question (and you’ll forgive me being snooty, but this is really obvious) is how it is different. The standard for whether governmental action violates the First Amendment is emphatically not whether it “establishes” a state religion, as that word is commonly understood. The point of the example of compulsory school prayer is to show that such is not the true rule—if it were the rule that everything is permissible that doesn’t “establish” a church, we could force people to pray in school. But we can’t, so that’s surely not the rule. And you’ll forgive me for suspecting from your use of that obnoxious canard—which I’ve otherwise heard only on particularly uninformed talk radio—that you had in fact derived such a theory from that sort of talk radio. So, yes, things are different and similar in a thousand different ways—but the question is what things are similar in the legally relevant way.
So my apologies for the “throw away lines.” I’ll be more direct: (a) Your understanding of Establishment jurisprudence is in error. (b) Your appeal to the legislative process is nonresponsive. (c) I’m sorry your feelings got hurt.
He says it violates the religious rights of atheists who belong to his “First Amendment Church of True Science.â€Â
So how would a decision in favor of this guy not also be showing preference for an established religion?
Man, I bet Christmas morning sucks at the Newdow household….
Only truly brilliant men like Jack Roy have the capacity to understand the establishment clause. Jeez, don’t you people understand that allowing a prayer to be read at the introduction of new sessions of Congress, and mentioning G-d in the beginning of USSC cases was a way for the founders to show their disloyalty to the constitution?
Imbeciles.
The truth, Jack, is that you don’t want to go the legislature route, simply because you don’t have the support of the people.
Rich—
The interesting quirk in the First Amendment’s treatment of religion is that it’s got two clauses that to some degree contradict each other. Establishment says (in my paraphrase), You can’t make it too easy for religion. Free Exercise says (again, my paraphrase), you can’t make it too hard for religion. (In the context of the welfare state, where government subsidizes all sorts of activity, the twin command that government not aid religion and not discriminate against it is, I think, best understood as a particularly cruel joke.)
(Please keep in mind that “established” is a word with a peculiar meaning that is not fully connoted in its vernacular sense. Consult a lawyer before using.)
Also as a side note, it’s important to keep in mind that courts can get away with many things that legislatures, etc., cannot.
But in this case the confusion is Newdow’s. He hasn’t got a free exercise claim (the kind that he’s appealing to by discussing the impact the pledge has on his own church), yet he argues that the pledge interferes with his right to practice his religion. (And since Smith v. Employment Division, it’s not even a close call to say he has no case.) His real claim is under the establishment clause, yet he’s talking about it as though it were a free exercise claim. I think that explains why it’s so difficult to understand Newdow’s suit, since even he doesn’t seem to.
Sheesh, Defense Guy. Thanks for that enlightening correction. I wasn’t aware that “truly brilliant men” was the local jargon for “took con law,” but I appreciate the compliment.
I don’t know if it’s obvious, but I don’t actually think Newdow’s got a viable case, and I wouldn’t sue or go to the legislature if I were in his shoes; I don’t think the pledge ought to be corrected. (Thanks for assuming, though.) I just happen to have pointed out that no one here has identified the actual reason he doesn’t have a case, and have instead relied on—sorry, Mr. Goldstein—idiotic a.m.-radio talking-point nonsense.
First, let me say that I completely agree with Bill as regards the Pledge. The “under God” part was explicitly added as a state-mandated statement of belief (to the detriment of the meter of the Pledge).
Second, the usual response in these cases is to argue “ceremonial deism”. Now where, exactly, is “ceremonial deism” mentioned as an exception in the Constitution? I mean besides in the “emanations and penumbras” of the actual words, that is. I submit that it is wholly a creation of an activist court refusing to actually read the constitution.
You’re welcome Jack, because everyone knows that you cannot understand the complexities of the constitution unless you have taken a higher ed course in it. The framers really wanted to confound us with all that legalese, which is why they made it so difficult to understand.
Ugh.
1) There is a difference between the Constitution and constitutional doctrine.
2) While it’s not necessary to have a law degree in order to understand what the law says, many people frequenty feel it’s appropriate to ask one.
3) I suspect that if you went to a court and asked them to invalidate a law because it was unconstitutional, and had nothing more than the common understanding of the phrase of the constitution, you’d not get very far.
And to the extent I can use the example of Mr. Defense Guy to validate my preexisting assumption that this fight is largely motivated by the misunderstanding of some as to what the law actually is, I’m grateful for the chance. Kisses, Guy.
Doug —
I won’t speak to ceremonial deism except to say that we have certain traditions that simply weren’t previously considered unconstitutional—and eminated, in some instances (or at least, analogues did) from the very people who wrote and ratified the Constitution.
But as to the Pledge argument both you and Bill make—yes, the line was added legislatively. Which is how it should be removed. I don’t know the history off the top of my head, so I wonder were there any serious Constitutional challenges to the legislation raised at the time, and if so, were they followed up upon?
Right Jack, it wasn’t the framers, it was the lawyers that got thier hands on it later. Well thank G-d for you then.
I don’t know of any contemporaneous challenges to the change in the Pledge, but then IANAL. Considering the climate of the times, how eager would you have been to challenge that change in the 1950s?
I agree that the change should be made legislatively, but the legislature is gutless. That leaves only the courts to protect the rights of the minority, much though I might wish it otherwise.
To be more explicit about my argument, the government has no rights; it has responsibilities and enumerated powers. The addition of “under God” to the Pledge of Allegiance by legislative fiat was an explicit attempt by the government to establish monotheism in direct contravention of the 1st Amendment, it furthered no responsibility of government, and it was enacted under no enumerated power granted to government.
Since the legislature is unwilling to do the honorable thing*, it is the responsibility of the courts to enforce the constitution against the legislature.
* I know that’s a ludicrous expectation, but that was the original presumption, however wrongheaded.
I unfortunately have little to add to the historical question that isn’t speculative, but “under God” was added in the 1950s, well before Establishment jurisprudence went through its most recent evolutions. (A case where school officers removed Catholic students from the public schools and escorted them to Catholic school for afternoon classes was upheld as constitutional at around the same time.) Were there any constitutional challenges? I don’t know. But given the state of the doctrine at the time, such a challenge would have been remarkably … adventurous.
On the ceremonial deism point—there’s a lot more interesting to be written about that theory, but it’s not quite so simple as certain religious acknowledgements getting grandfathered in. Not to offend you again with comparisons to civil rights litigation, but segregation was considered constitutional until it wasn’t, even by the Framers of the 14th Amendment themselves. Indeed, that’s an almost inescapable corrolary of judicial review. If you believe that the Constitution has no content whatsoever that wasn’t there when it was adopted—a claim rejected by even Robert Bork—that’s fine, but you should recognize what a controversial interpretation you’re adopting.
Well, that kind of begs the question, Doug. Because many of us who are arguing that it’s the legislature’s responsibility to remove the phrase don’t see the original inclusion as a “legislative fiat” because we don’t think it violates the Establishment Clause. We read the clause much more narrowly.
For the record, I don’t like the Pledge at all. But I believe allowing an opt out is a perfectly reasonable solution.
The Establishment clause says “Congress shall make no law respecting and Establishment of Religion,” not “Congress shall make no law Establishing a Religion….”
So this particular argument:
Does not really deal with the text as written.
Josh,
That should read:
.
“Respecting” modifies “establishment” not “religion”.
Jack Roy;
I agree that there is a difference between the Constitution and constitutional doctrine. That’s what motivates large numbers of strict constructionists. When I took Con Law, I spent the entire two quarters being pissed off at what judges had done to the Constitution. Got really good grades, too. You tend to remember what pisses you off.
I hated the pledge–always have. Even in elementary school, I was offended by “under god” and I was offended by the nature of the pledge itself. At that age I felt no need to pledge anything to my country and, in my day, the damned thing was mandatory. Still, even today I don’t see the “opt out” as a satisfactory alternative. As anyone who attends a wedding at a strange church knows, it feels awkward being the only person to not kneel, or pray or sing or fold their hands or whatever. Not everyone wants to stand out.
I also questioned “In God We Trust” as a kid–I’m not sure if I was aware of the First Amendment (probably was through teachings of the Pilgrims flight from religious persecution), but it seemed odd to be on a government document.
That said, I would never waste my time to try to change the law. I just don’t see it as being that important, and I doubt the pledge or the buck left any emotional scars on me. No big deal. Deminimis.
Jeff, I am a big fan. I’m politically and fiscally conservative, but the conservative blogs would consider me socially liberal. I have degrees in Political Science and Economics, and I’m a lawyer. I’m also an atheist. I’ve read Jack Roy’s blog and he sounds like a disingenuous (or maybe just ignorant) ass. HOWEVER, I’m with him on this thread of comments. He nails most things here pretty well.
Those of you who truly believe the Constitution was meant to be taken at face value are nuts. The thing is riddled with vague and ambiguous terms that are absolutely worthless without the huge body of jurisprudence that surrounds it (much of which actually preceded it in the Common Law).
If you don’t believe me, look at the comment threads in conservative blogs that deal with constitutional issues. Everyone claims certain articles or amendments are “obvious” yet those people invariably interpret those provisions in conflicting ways. If that’s not proof enough that many provisions are not obvious, then sit down and actually try to put the Constitution to use. Go ahead, I dare you. A good start would be to define “due process,” without going beyond the four corners of the document.
To those who think this is a “democracy” and government should be left to mob rule, you’re forgetting we have a constitutional form of government, and why. You’re forgetting the intended role of the judiciary and, especially, the Supreme Court. Constitutional issues cannot and should not be left to the legislature for obvious reasons.
If you were to put ten “Defense Guys” in a room, you would end up with 10 interpretations of our “obvious” Constitution. I’m frightened to imagine what 10 “Defense Guys” on the legislature would do.
No, you don’t have to be a lawyer to make sense of the Constitution. But more often than not, the loud-mouthed anti-lawyer “Defense Guys” don’t even sense the boundlessness of their ignorance. You simply cannot argue with one who doesn’t know how clueless he is.
The establishment clause was originally writ to protect the states, several of whom already had official religions, from being fucked with by the Federal Government. I will try to get some cites later, I think Rhodes Island had a religion, can’t remember the details. Every thing that has happened since has been jack asses like jack roy jacking off on the Constitution.
“Well, that kind of begs the question, Doug. Because many of us who are arguing that it’s the legislature’s responsibility to remove the phrase don’t see the original inclusion as a “legislative fiat—
“fiat: 1) a command or act of will that creates something without or as if without further effort; 2) an authoritative determination : DICTATE; 3) an authoritative or arbitrary order.” Merriam Webster’ Collegiate Dictionary, 10th Ed.
The act that added “under God” seems to clearly meet this definition. The legislature said, “Let there be ‘Under God’”, and there was. So much for denotation.
As to connotation: The use of “fiat” is usually intended to connote action without authority or legality. Even assuming that the legislature’s action does not violate the Establishment Clause (a stipulation I will not make), the federal government can take no action except by the use of a specifically enumerated power. There is no such power for this action.
“…because we don’t think it violates the Establishment Clause. We read the clause much more narrowly.”
A respectable position, with which I (obviously) disagree completely. As I see it, the act violates both the original intent and all reasonable readings of the actual text of the 1st Amendment. The act’s intent was to stigmatize Communists, who would refuse to take the oath (being presumably unwilling to lie!?) because it ran counter to their beliefs. That is clearly an establishment, a violation of the Free Exercise clause, and a violation of the Religious Test clause.
FIRE IN THE HOLE!
Mark—uh, thank you?
B Moe—also the 14th Amendment happened. It’s called the Incorporation Doctrine. (But for the record, yes, the original understanding was that the various states would be permitted to establish their own churches; the last established church I believe existed in South Carolina until 1820 or so, after which common practice was away from state establishment. And of course after the Civil War Amendments everything changed on the legal landscape, as well.)
Mark —
You write:
I feel for that discomfort, but I certainly don’t want to rectify it with law that establish such feeling of discomfort as legal precedent. The point of this post was to suggest how such precedents would be abused—and if you want a PC country bound by law, this is the precisely the kind of thinking that would precipitate such a slippery slope.
Which is why I suggested de minimis as a ground for ruling. As Allah points out, even this ground is liable to stretch between the ideological poles a bit; all the more reason to get it nailed down now on these kinds of cases.
From my perspective.
For the record, I’m agnostic. I just think that the idea of coercion is legally quite dangerous and ripe for litigious abuse, and should only be applied very narrowly.
Me?
I think it takes more faith to be an atheist than a believer.
But then, I’m not a lawyer…
anomdebus,
Yeah, I know. It’s a typo. The clause doesn’t make any sense with the “and” in there. My point was that one can’t emphasize only “establishment,” to the exclusion of “respecting,” and remain faithful to the text.
ok Bill, you win. nothing is as easy as it is in my head. like say if your most deeply held beliefs are being smashed around by a bunch of idiots, why would that bother me? I mean, if I actually cherish them. or if my beliefs weren’t allowed in school. me, too! – like ths tshirt.
like if my cell phone number failed to contain a majority of my favorite numbers. that is like, so unfair. verizon MUST do something. it’s a conspiracy.
it’s only courtesy, so your teacher feels like they’re in charge or something. ever mumble through an our father? it only means something if it means something to you. it doesn’t really mean much to me, so I don’t really care if I have to do it, unless I have something better to do. you’re already in a public school anyway, you’re way past having something better to do, or you’d be there. but apparently this means something to somebody, the chumps, and they’re not having any of it. so this giant ferris wheel we’re all on, some of us trying real hard to get to the middle of the wheel, perfection whathaveyou, others enjoying the ride, others making out, trying not to be seen, others still trying to push everyone else from getting to the middle. I’ve found the center in me, so I’m fine.
why am I suddenly saddened? it’s like my entire worldview has been shattered.
“with” dignity, of course.
I would love to hear the twisted logic by which the 14th Amendment make In God We Trust on a coin unconstitutional.
Josh —
EC: Congress shall make no law respecting an Establishment of Religion.
My statement: The best way to deal with claims like Newdow’s are to rule that the phrases in question 1) don’t “establish†and official government sponsered religion.
My argument is that because the phrases don’t establish a religion, Congress is not in legal error making the law.
Please expand on where I’m making the error. As I say, I’m not a lawyer, so I’m listening.
In this case, as a separation of church and state is explicitly spelled out in the first amendement to the Constitution and several generations of precedence, the courts.
There are still areas of the country where atheists technically aren’t even allowed to run for elected office. Now, just because that may be popular, does it make it Constitutional? The litmus test for the pledge is this:
If the line said “One nation, under Jesus,” would you deem that acceptable? Why or why not?
Jeff:
“I feel for that discomfort, but I certainly don’t want to rectify it with law that establish such feeling of discomfort as legal precedent. The point of this post was to suggest how such precedents would be abusedâ€â€and if you want a PC country bound by law, this is the precisely the kind of thinking that would precipitate such a slippery slope.”
I didn’t mean for anything I said to suggest that I don’t agree with this. I do, wholeheartedly.
Don’t like the pledge, but I can live with it. On the other hand, I absolutely abhor the Newdows of this country, and I’d like to see him jaywalking in front of a steamroller. We may have too many laws in this country, but we have even more trouble makers. He’s gotta go.
Kelly,
Good point, and I mispoke. Consider me an agnositc who gets sloppy with religious terminology.
Well, it doesn’t say “respecting an Establishment of a State Religion” it says “respecting an Establishment of Religion.” From my admittedly spotty reading comprehension skills, that can be very reasonably interpreted to include the establishment of “religion” (not ”a religion”) by the state.
And since the addition of “under God” in the pledge was explicitly executed to establish the premise that the USA was a theistic state, this reasonable person might further get the idea that such a law was distinctly unconstitutional.
But hey, I’m just a literalist, I guess. Leave all this murky “figuring out intent” mumbo-jumbo to the liberals.
Josh,
I am not sure I follow. Its just fancy talk for “Congress can’t make a law about the setting up of a religion or stop anybody from doing so”. Respecting in this case does not refer to giving respect.src
B Moe,
The 14th amendment wouldn’t have anything to do with federal currency. However, if it were true that US government and religion can never overlap and the 14th amendment applies the establishment clause, then no level of government could establish a state religion as they did in the early republic. One or both of those conditions are disputed.
I suspect you think you’re being clever, Bill. But we’re back now to “establish”. Which is different than, say, “acknowledge.”
Which, yeah, that would bring us back to intent, I guess.
If you don’t believe in God, fine, don’t believe in God. Most days I don’t either. I also don’t believe in Snow White, the Easter Bunny, the Tooth Fairy or the Devil. Should I be outraged and offended by their image on government property? The Easter Bunny is left over Paganism after all, as is Halloween. Yet we make fun of Christians wigging out about Halloween. Why is Paganism less of a religion than Christianity? Do we stop teaching Nordic and Greek Mythology in schools? What exactly is the difference between a Myth and a Religion exactly?
I am getting really weary at all this pissing and moaning about nothing when we can’t teach our kids to read and write! Everybody is going nuts over ID and evolution, conveniently ignoring the fact that if we taught the scientific method correctly it would be a moot point.
And if you think the Constitution needs updating, you do it with a clearly drawn amendment. If the left really wants to ban torture, I suggest we start with the Supreme Court.
/rant off
tw: down-> boy
imma go home and have a little drinkie now^^
If memory serves, Jesus and the disciples had to pay their taxes using coins emblazoned with the image of Caesar—under whose government Jesus Christ was crucified.
If Newdow objects to a theistic motto on the currency of the United States, then he can have the offerings given using checks. He can even have the checks embossed with his own atheistic motto if he likes.
On a related note, I imagine that the visage of Abraham Lincoln is not very popular among white supremacists these days. But I bet they still use $5 bills.
Bill,
“But hey, I’m just a literalist, I guess. Leave all this murky “figuring out intent†mumbo-jumbo to the liberals.”
The murky mumbo jumbo runs both ways. The conservatives are at least equally guilty as the liberals on this front. Why? Because many many portions of the document really cannot be taken “literally,” due to the intentional vagueness of its terms.
For what it’s worth, I’m with ya through most of your analysis, and I concur in your conclusion. But I also agree with Jeff that it’s no big deal and people need to grow some skin. In other words, I tend to think it’s unconstitutional, and I also don’t give a shit.
Furthermore, I’d rather live with some annoying unconstitutional practices (we do every day) than see Newdow prevail at anything.
Then it needs to be rewritten. I am curious as to what you consider to be vague, I really don’t see it.
I am assuming this is the section of XIV in question:
I emphasize the only parts that seem remotely relevant.
Now I see alot of guaranteed priveleges being abridged in this mess, but I’ll be damned if I see any guaranteed immunities being violated.
B Moe,
I’ll resurrect an example from a few comments ago.
“Due Process” in the Fourteenth Amendment. What does that entail? Enumerate all the guarantees, and don’t go beyond the four corners of the document, please.
“Equal Protection.” Please do the same. Be careful with this one, because a “literal” interpretation will place you on the farthest leftist moonbat extreme. Yup, it’s true.
Hell, tackle any of the truly controversial clauses and you’ll find that they were purposely left to interpretation and adaptation to changing technology, needs and mores.
I’m saying this from the viewpoint of a conservative who values conservative jurisprudence. Many of my colleagues consider me a “strict constructionist,” and I suppose I tend toward that. But as distinguished from casual observers and political pundits, people who actually wrestle with the Constitution on a daily basis know what I’m talking about.
And you should too. Put 10 B Moe clones in a room and let me ask questions about various clauses of the Constitution. I guarantee I’ll hear 10 different interpretations in response to most questions. What might be cut and dried in the quietness of your private thoughts becomes much less so when confronted with practical exercises and the conflicting interpretations of others. And, if asked to actually put your thoughts in writing, you will likely find conflicts within your own thought processes and have to revise your position.
I speak from practical experience and training, which is not to be confused with elitism.
One of the comments here that really struck me is Jack Roy’s perversion of the first amendment’s language in order to attempt to present a “contradiction” within the document.
Part “A”: Congress shall make no law respecting an establishment of religion,
Part “B”: or prohibiting the free exercise thereof
What’s hard to understand about that?
The government has no business actively suppressing or promoting religion. That does constitute a “wall of separation” in one sense, but it is a porous wall. It neither prohibits government’s acknowlegement of the religions of its constituency nor grants to churches absolute impunity from governmental sanctions.
What those who are proponents of the purging of all religious symbolism and language from government under the auspices of the “wall of separation” provided by the constitution are prone to forget is that if the wall is absolute, the government would have absolutely no control over the activities of religious groups. If one’s religion called for human sacrifice, then, so be it. The government would stand powerless to stop that activity.
In short, if it’s an absolute truth that religion can’t touch government, then by the other edge of that sword, government can’t touch religion.
This, however (from a fairly unlikely source), is profound:
That’s the crux of many of our woes today. The federal government made a decision that the rights guaranteed to the states by the constitution were subject to any number of limitations, the most significant being that of secession. In one stroke, the federal government destroyed the tenth amendment, dooming the Constitution to a figurehead presence in the very goverment it so eloquently instituted. From henceforth, the cardinal sin against the Union would be to act as if the Constitution actually meant what it said.
If you would try to ask constitutional questions in the midst of that fucking brawl you are a better man than I.^^
Heh, so you’ve seen Multiplicity?
Late to the game, but some Newdow history is in order here.
First, the Pledge case: This case was not brought because of Newdow’s high-minded appreciation for the Equality of All Citizens, no matter what their religious identification. He brought the suit to jerk around his ex-wife, who had their daughter in the Elk Grove (California) Unified School District, when Newdow wanted the child to be either home-schooled or in private education. And so when Newdow’s ex-wife told him to jam it (she had sole physical/legal custody), he brought the original suit ostensibly on behalf of the child (even tho Newdow’s child and mother are of a Born-Again Christian faith), and it was then shot down because he didn’t have standing before the court (as he didn’t have custody of the child in question). All the while, the ex-wife and the EGUSD had to pay legal expenses to the various courts and lawyers to defend themselves against Newdow’s pissant grudge.
Next, the currency – “In God We Trust” has been on U.S. Coinage going back to 1864 (the two-cent piece) owing to religious sentiment during the War Of The Northern Aggression. It has always appeared on coinage since (tho disappearing from occasional stampings), and IGWT was made the official motto of the United States of America by joint resolution of Congress (84-140), signed by President Eisenhower, in 1956. Data on the above can be found at “http://www.ustreas.gov/education/fact-sheets/currency/in-god-we-trust.shtml”.
In sum – Michael Newdow is a doctor who doesn’t practice, a lawyer who only works his own cases, a pastor of a church that does not believe in G_D, a father who enjoys dragging the faith of his wife and child through the mud on as frequent a basis as possible, and is an all-around 21st Century Renaissance Grade-A Asshole. And like all such Assholes, he believes that His Way is the Only Way, and as such we must all Follow His Way unto Secular Salvation.
“establishment of religion” was understood in the sense of state religion.
E.g., the Church of England was the “established” church.
BoDiddly:
“One of the comments here that really struck me is Jack Roy’s perversion of the first amendment’s language in order to attempt to present a “contradiction†within the document.
Part “Aâ€Â: Congress shall make no law respecting an establishment of religion,
Part “Bâ€Â: or prohibiting the free exercise thereof
What’s hard to understand about that?”
Well lets start with the tenet of Christianity and some other religions that prohibit the worship of “false gods.” Now if a kid is forced to pledge an allegience to a country founded under a god that is false according to his personal religion, isn’t that a prohibition of his free exercise? That’s only one example, but I’m more interested in making my next martini than spewing examples here. In the meantime, be honest about this. One cannot truly be free to exercise their religion by rejecting false gods, when the government (school system in the 60’s when I grew up) compelled me to pledge my allegience to something I didn’t believe it.
I’m not saying I give a shit, but you’re intellectually dishonest if you don’t recognize the problem. I’ve read enough of your writings to know you’re not stupid, so that’s not it.
I would love to say Jack Roy perverted something, but I don’t believe he did.
Whoa,
What I just wrote obviously did not flow from BoDiddly’s post. I conflated things because I’m buzzed. Nevermind. Sorry, I’ll shut up now.
Mark, you’re blurring the line between free exercise and imposition. Nowhere is the Christian commanded to forcibly stop others from worshipping false gods, only to abstain from personal worship of idols. I dare say no government could be powerful enough to force someone to break that commandment, a statement reinforced through the centuries of Christian martyrdom.
What the various athiestic lawsuits are essentially seeking is a government mandated prohibition on societal pressures, something that far overreaches the scope of the Constitution. If someone is ridiculed as a result of their abstention from the pledge, that simply is not the concern of the government.
As to the question of the phrase on our currency (and for that matter in the question of the Las Cruces crosses), again, there is no basis for the argument that their presence satisfies a reasonable definition of coersion. Are we to believe that somehow the mere statement on coinage and currency is causing such deep psychological trauma that someone feels as if they can’t participate in commerce lest they be acknowledging the presence of a god whose existence they vehemently deny?
Jeff’s heading is particularly appropriate, because it illustrates the absurdities extrapolated by the very system you support–that of decision upon decision upon decision so far removing current law from the constitution that a return to originalist principles seems radical.
btw–hope the martinis haven’t completely kicked in
Bill, this is flat-out untrue. There is nothing in the Constitution that supports the notion of a “wall of separation” between church and state. The phrase found its way into constitutional jurisprudence during the lifetimes of some of the people who read (and even write) blogs today, having been cherry-picked by a single Supreme Court justice from a single letter written by Thomas Jefferson—who had no direct involvement in the creation of any part of the Constitution, and as President issued no official policy applying this concept to the Establishment Clause. In effect, this notion’s incorporation into constitutional jurisprudence was an act of judicial whimsy.
The answer to the first question is obviously No. The answer to your second question is equally obvious—just apparently not to you.
I am not a legal scholar and don’t have time to research due process and equal protection to try to figure out what you are talking about. I will say that equal protection seems fairly self-evident to me. If due process is unclear, then the laws need to be redrafted by the legislature, not the courts.
Can you point to anywhere in the Federalists Papers or any other associated writings that make you say this? I have seen plenty of discussions of making the Constitution flexible by the process of legislative amendment, but the idea the words themselves have indefinite meanings I think would appall the drafters. I also believe most of the vagueness refered to is simply people seeing things that aren’t there, mirages are quite vague, I am told.
This is why I don’t love all lawyers. It is the arrogance of the position that I find astounding. I am not, as you claim, anti-lawyer, nor do I think as you do that the constitution and the intent of the founders (in their words) offers no roadmap to how it should be interpreted. To fuckwits like you, it is whatever you wish it to be.
You wish it to be so, and so that is enough for you, and us plebes without our law degrees should just shut up and let our betters handle things. Fuck you very much, but I don’t think so.
It’s a strawman argument, but I will answer it anyway. No, it would not be acceptable because it introduces the specificity of a particular religion that the term G-d does not.
It’s all such a wicked game, as the idea of G-d and creator are found in the first document which establishes our system.
Doug,
Your argument that because the legislature is a fraidy cat we have to have the courts do the job is specious at best. If the legislature is a fraidy cat to do something, then change the legislature. If we take you argument into another arena we could say that if the doctor is afraid to operate on your cancer you can go to a dentist to operate on it. After all, both are part of the medical profession just as judges and legislators are part of the government profession.
There is a reason we have courts and that reason is not to do the legislation that the legislature does not.
Shit, where do I begin?
BoDiddly:
“Mark, you’re blurring the line between free exercise and imposition.”
At first, I thought you said I blurred the line between free exercise and IMPLOSION, which is exactly what my brain did. No more drunk posting from me.
B Moe:
It’s the court’s job to evaluate legislative actions against the Consitution. So when the legislature creates a requirement or a limit on, for example, a person’s opportunity to be heard, it is up to the Court to determine whether that act complies with “due process” according to the Constitution. Obviously, the legislature cannot be permitted to define the Constitution to suit its own purposes everytime a statute is under review.
Defense Guy:
Sorry, that was unfair. I lumped you in with a bunch of pretty ignorant people who love to shout on another blog about why people with decades of daily hands-on experience with the Constitution are no more useful than someone with no legal training or experience whatsoever. If that’s not you, then I owe you an apology.
If, however, you believe that training and experience is a waste of time and the Constitution is equally amenable to interpretation by all, then you’ll find yourself in a world of disappointment if you ever end up in court on a constitutional issue.
Your assertion that I feel the Constitution and the framers left no roadmap is completly unfounded–I’ve never said that and I don’t believe that. I’m only saying that those who think it is all contained within the four corners of the document are either dishonest or ignorant. If you don’t believe me, I’ll re-use the simple and tired example of “due process.” You can’t tell me what it means because the Constitution does not define it. That term (and many others) was left open by the framers for the court to interpret. Since even YOU used the word “interpretated,” I suspect you might agree with me.
I understand where you are coming from mark, and apologize for the foul language and personal attacks. I really do not have a problem with lawyers. I am not a lawyer and must concede that those with training in the law often will have an insight that I lack.
…
guess my comment didn’t arrive before that last martini, huh?
“Doug,
Your argument that because the legislature is a fraidy cat we have to have the courts do the job is specious at best. If the legislature is a fraidy cat to do something, then change the legislature.”
Neglecting the ad hominems, the legislature is a creature of the majority. Much of the purpose of the Constitution is protection of the rights of minorities. How is a minority to secure its rights against a majority-controlled legislature through the legislature?
“If we take you argument into another arena we could say that if the doctor is afraid to operate on your cancer you can go to a dentist to operate on it. After all, both are part of the medical profession just as judges and legislators are part of the government profession.”
Is it your claim that dentists are empowered to check doctors? Not my understanding, but absent that claim, your analogy is not on point.
“There is a reason we have courts and that reason is not to do the legislation that the legislature does not.”
No, we have courts (at least in part) to check the power of the Executive and Legislative branches when they overreach. This is a Legislative branch overreach into an area that is not within their purview and in specific contravention of Constitutional guarantees of fundamental rights.
TW: serious—as a heart attack
I am not sure I follow. Its just fancy talk for “Congress can’t make a law about the setting up of a religion or stop anybody from doing soâ€Â. Respecting in this case does not refer to giving respect.
Well, my original comment was merely to point out that the inclusion of “respecting” means you can’t just say “anything short of actually establishing a state religion doesn’t violate the 1st Amendment,” which appears to have been the thrust of part (2) of Goldstein’s argument.
“Respecting” may be just fancy talk, or it may mean ”to relate or refer to.” So if that is the proper reading of “Respecting” and Goldstein’s strong reading of “Establishment” is the correct one, it means that the Pledge is constitutional, since it doesn’t really touch on a particular Church or creed, but things like tax exemptions for churches are arguably unconstitutional.
Now you’re talking, Josh.
Recently in “Rural Indiana”, my old elementary held an assembly for the student body to discuss the Muslim Religion and provided a prayer room for those children. ALL 3 OF THEM!
Why does everything have to change to suit everyone? I imagine the words “yes” and “no” have been around for about the same amount of time, right? Just say no. No – to removing phrases, crosses, and words from places you don’t like. No – to hyphenated races. No – to reforming mass murderers and child molesters. No – to ridiculous lawsuits. No – to marriage for prisoners. And the list goes on and on…
“Necessity is the mother of invention” – Someone felt it was necessary to avoid commercials, so they invented the remote, dvrs, etc. Someone didn’t like McDonald’s, they opened a Burger King. Someone didn’t like either of them, and opened a gym. Life is full of choices, that’s why it takes 20 minutes to order coffee or an ice cream cone anymore!
Change the station, the channel, or in this case, your country. You don’t have to believe everything you hear, and you don’t have to listen to everything that’s out there. If it bothers him so much to see “God” written on money, he should go live in a tree in someone third world country, make his clothes from hemp, and use banana leaves to wipe his ass.
I agree with several others that make him out to be the spokesman for nutjobs within the atheist sect, just as Roberts or (take your pick) does for Christians. I have no problem with choices people make when it comes to religion, sexual preference, or politics – just don’t shove your opinions down my throat while tying up the already backlogged judicial system with your bullsh** shenanigans.
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