Tuesday, December 30, 2008

The Inauguration Lawsuit

It appears that, in the case of the lawsuit against religious expressions at the inauguration, my attempt to write shorter posts resulted in gaps that made it difficult for me to be clear. So, allow me to take the time to express my position in more detail.

First, of course, I address this issue as a moral question, not as a legal question. The moral question concerns the moral rights of freedom of speech and freedom of religion which, I hold, is an immunity from a violent response against what a person might say or his religious practices, so long as those practices do not do violence to others.

I wish to apply these principles to the specific counts brought up in the lawsuit.

Count 1: The alteration of the Presidential Oath of Office specified in Article II of the Constitution, to be perpetrated by defendant Roberts with no authority whatsoever, violates the establishment clause.

My response to this is that, if the alteration did not violate the establishment clause, would it then be permissible? In making the argument itself, the pleading says that inserting the words “so help me God” into the oath constitutes a change in the same way that inserting the word “not” before the words “preserve, protect, and defend the Constitution of the United States” constitutes a change to the oath. The argument is that Roberts has no more authority to make the first change than he does to make the second.

Yet, please note that the second change – the insertion of the word “not” does not violate the establishment clause. In fact, the establishment clause does not enter into the argument against the word “not” at all. This is a case of a person (charged with defending the Constitution) taking upon himself the authority to make a change to the constitution without any legitimate authority to do so, and in violation of the provisions established in the constitution that such changes require an amendment to the constitution.

Count 2: Government-sponsored invocations to God and benedictions in the name of God, provided at the inauguration of the President by government-invited clergy, violate the establishment clause.

My statement against this argument is the (rhetorical) question, shall we make it illegal for a politician to attend a religious service while in office on the basis that for him to attend such a service constitutes promoting one religious belief over others? Should it be interpreted as an act that denigrates every religious service that he did not attend, or every religious practice he does not participate in?

One way to ask the same question: Is it truly an insult against Islam and Christianity for an atheist even to exist, since being an atheist implies that one holds that Muslims and Christians are in error, and it is wrong for anybody to denigrate the beliefs if Muslims and Christians?

Part of my issue here is the establishment of the degree to which this is a “government sponsored” invocation. I hold this to be an Obama-sponsored invocation, and the expressions that Obama makes to be within his right to make. The pleading states (and I agree) that Obama has the right to add the words “so help me God” when he takes the oath of office. I hold that this also gives Obama the right to hand the microphone over to a priest, if he wishes, for that person to speak in Obama’s name.

Any word, phrase, or sentence that Obama is constitutionally permitted to say at his inauguration, in his inaugural speech or otherwise, I hold that he has a right to allow somebody else to say in his name. If Obama is permitted to lead a prayer at the inauguration, then Obama is permitted to give the microphone to somebody else and have that person give the prayer. If the Constitution prohibits prayer during the inauguration, then Obama is not permitted to add “so help me God” when he takes the oath of office.

I hold that it is vitally important to a free and democratic society that there be a particularly strong prohibition on summoning the threat of violence to prohibit people from saying what they believe. The only legitimate response to words – no matter how callous – are words and private actions. In this case, the private actions include the act of voting or refraining to vote for a candidate based upon what that candidate might say (or have others say) at his inauguration. However, an appeal to the courts is an appeal to violence, and a violation of the prohibition on the limit of responding only through words and private actions.

Let us assume that the people elected a racist President. During the inaugural address he wishes to hand the microphone over to the leader of the KKK, who shows up in the white sheet characteristic of that group, to give a speech denigrating “negroes”. The President would be within his constitutional rights to do so. The legitimate actions to take to prevent that from happening is not to call upon the courts to prevent it, but to work to make sure that somebody like that does not get elected.

Similarly, the legitimate moral remedy in this case are private actions to ensure that a candidate who denigrates atheists will not get elected, and to point out to the voters that a candidate who would make such a statement is unworthy of holding public office.

Yet, however pernicious a candidate's position may be, there must be some room within the right to freedom of speech for him to say, "This is my vision of an ideal society." If there is no such freedom, then freedom itself does not exist.

Count 3: The alteration of the presidential oath of office, to be perpetrated by defendant Roberts, and the government-sponsored, clergy-led invocation and benediction, to be perpetuated by the remaining defendants, violate the free exercise clause.

Count 4: The alteration of the presidential oath of office, to be perpetrated by defendant Roberts, and the government-sponsored, clergy-led invocation and benediction, to be perpetuated by the remaining defendants, violate [the Religious Freedom Restoration Act].

Count 5: The alteration of the presidential oath of office, to be perpetrated by defendant Roberts, and the government-sponsored, clergy-led invocation and benediction, to be perpetuated by the remaining defendants, violate the Due Process clause of the Fifth Amendment.

Each of these three provisions are mere modifications of the two provisions already discussed. Alteration of the presidential oath of office is an alteration of the Constitution made without amendment and does not depend in the slightest on its religious content. Whereas the moral right to freedom of religion and freedom of speech places a moral limit on the legitimate response to a President expressing his beliefs at his inauguration of words and private action.


Jamie said...

My question is: does this extend to opening prayers before government functions? Like before a city government meeting, or a session of congress? Are such prayers simply the individuals involved giving the microphone over before starting the meeting? Or is it the government body issuing a prayer in its official capacity?

Anonymous said...

Two points:

You're right, it's not constitutionally part of the oath. Technically it ends at "... United States." Since the oath is then over, the POTUS can add whatever he wants. In fact, nothing bars him from asking Roberts to add an ad lib line. To prohibit him from making a public proclaimation asking God for help would violate his right to free speech. Also, Roberts is free to say anything he wants as well without having his rights infringed upon.

Second point. Can't buy the violation of the Establishment Clause in that his words aren't establishing anything since he is speaking for himself.

Alonzo Fyfe said...

So, does this right to freedom of speech include the right to add the phrase to the end of the oath of office that says, ". . . or not, as the mood suits me"?

X said...

He would be endorsing religion while acting in his official capacity as POTUS at an official government ceremony. That is a very different thing from privately going to church on Sunday. The courts absolutely have a duty to govern the behaviors of public servants acting in their official capacity. Every action of the president is basically a form of speech, so your argument implies that the courts have no grounds whatsoever for constraining the president's powers.

Also, equating any lawsuit with violence is naive. They have many other enforcement methods at their disposal. The President would have to follow a court order or be impeached. Nowhwere would violence ever enter in to it.

If the president can say whatever he wants without court review, then he can order a warrantless wiretapping program with impunity. Your conception of absolute free speech is wrong when applied to public servants acting in their official capacity.

Mig22 said...

Hello All. In response to Anonymous on 1/3, I think it's safe to say that added words to the end of the oath are part of the sentence, part of the thought, part of the oath.

Also, the President's words are not speaking for himself in this context. Those words are a formal statement and acceptance of his role. That takes it out of the realm of personal speech.

Just some thoughts. Regards.