Monday, December 29, 2008

Innaugural Lawsuit

Hemant Mehta of Friendly Atheists report on a group of atheists who are suing to remove "so help me God" from the inaugural pledge and the inaugural prayer from the inauguration on the grounds of separation of church and state.

(See Atheists Sue over the Inauguration)

I do not see the merits of this case.

I have argued that freedom of speech is an immunity from violence, not an immunity from criticism. We are free as citizens to criticize the statements that any politician makes - including his or her religious statements. However, the right to freedom of speech implies that we will not resort to violence in order to prevent people from speaking.

This particular lawsuit is an appeal to violence. The decisions of courts are enforced through the use of people with guns. The authority of the court, ultimately, comes from physical intimidation - from its ability to direct people with guns to threaten those who do not obey the court's decisions.

In our state with separation of powers, judges do not have any direct control to order around people with guns. The execution of a court order is handed over to the executive branch, and any direct control the courts have is constrained by the legislature. However, none of this changes the fact that an appeal to courts is an appeal to violence.

An appeal to the courts to prevent certain things from being said is, then, a resort, not to reason or to moral criticism as a way of objecting to the claims of another. It is a resort to violence.

The right to freedom of speech is a prohibition on the use of violence to control what is said.

If the justice who delivers the oath adds the words, "so help me God" at the end of the pledge, we have reason to protest. The duty of the justice is to give the oath as written.

However, once the candidate takes the oath as written, then decides to add on his own the phrase "so help me God", we are free to condemn and criticize his actions (and we have reason to do so). However, we have no right to bring the instruments of violence to bear to prevent him from speaking.

The same is true of the inaugural prayer. We have the right to protest the degree to which we are taxed in order to provide and pay for a national church service. However, if the President wishes to give the microphone to somebody to speak, we may well criticize and condemn him as we would criticize any person for the things said (if they are worthy of criticism). Yet here, too, it is wrong to bring the instruments of violence to bear against their being said.

Sorry, but this lawsuit suggests that quite a few atheists do not have as firm a grasp of the moral standards of freedom of speech and freedom of religion that they claim to have.

17 comments:

Transplanted Lawyer said...

It also suggests that they have a tin ear when it comes to politics and lack the ability to choose their battles. Whether we consider the use of the phrase "so help me God" a violation of the Establishment Clause or not, the President will still have to be the President and will still need to muster political support if he is to accomplish anything while in office. And like it or not, the majority of Americans want to know that the President believes in God (they'd rather have a Muslim than an atheist as President, as we all know) and this is a political signal to them that he does. Leave this battle for a new President whose stand on the question of belief in God is unquestioned.

Zerotarian said...

I agree that a President(-elect) should be permitted, as an individual, to voluntarily add the phrase "so help me God" to the end of the oath. However, as I understand it from Hemant's blog and from a quick scan of the actual complaint, the problem is that the President-elect doesn't just add the phrase himself, but that the Chief Justice reads it to him as part of the oath he "must" take. That's different.

How is it not legitimate to sue the government for using religious leaders in the inauguration? Perhaps I'm wrong, but I thought the inauguration ceremony was the people's ceremony, not a private ceremony by and for the new President. The inaugural lineup is determined not just by the President-elect, but by a Congressional committee that he appoints. It's inappropriate for them to endorse religion (or non-religion).

Yes, enforcement via the courts is ultimately violence. But you've argued many times on this very blog that the courts are a legitimate and fair way to determine when violence is justified. By your logic in this particular post, how is any church-state separation suit justified?

Zerotarian said...

Or to put it another way, let's accept for the sake of argument your claim that this suit is unjust (in the moral, not legal sense). Normally, if a law when enforced as written results in injustice, then we have reason to abolish or amend that law, correct? So as I see it, you're arguing that either (a) the Establishment Clause does not in fact legally prohibit the actions in question, or (b) the Establishment Clause as currently written goes too far, and therefore we have reason to amend it to prevent the injustice that would result from enforcing it as currently written.

Alonzo Fyfe said...

The standard that I would use is that the lawsuit must challenge an existing law that commands or funds a religious expression.

Challenges to having "under God" in the Pledge and "In God We Trust" as the motto challenge existing law. Challenges to funding the Boy Scouts are challenges to laws as to how tax revenue are being spent.

The Innauguration ceremony, as I understand it, is paid for by a combination of public funds and voluntary contributions. The Innaugural Prayer Service is a service that the President chooses to attend.

As I said, we can make a legitimate claim against any public funds being used in this event. However, I do not see any justification for prohibiting an elected official from attending a church service on the day of his innauguration.

Alonzo Fyfe said...

Well, the language to the Bill of Rights is interesting.

For example, it states, "Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble"

If we take this to mean legal right, then the Amendment is vacuuous. Legal rights cannot be abridged by any law because the law establishes the limits of a legal right.

If we take this to mean a moral right (a right that exists prior to and independent of law), then we have a case where we must determine what the moral right is prior to rendering a legal judgment.

The Bill of Rights is filled with this type of language.

". . . the right of the people to keep and bear arms . . ."

"The right of the people to be secure in their persons, houses, papers, and effects . . ."

". . . due process of law . . ."

". . . just compensation . . ."

". . . right of a trial by jury . . ."

Even phrases like, "freedom of speech", "the consent of the owner", "probable cause", "unreasonable searches and seizures" have a moral component - a moral question that must be answered prior to determining what the law does and does not permit, require, or prohibit.

So, I would argue that a moral analysis preceeds and, at least partially determines, the legal answer in many of these cases.

Janus said...

I fail to see how bringing a case before SCOTUS is "an appeal to violence". Perhaps it is my feeble intellect, but perhaps your argument just doesn't work on two points:

(1) The Supreme Court is a perfect place to criticize current law that is considered unethical. In fact, if there were no recourse, either through the courts or congress, the government would - by definition - not be interventionist. And I vaguely recall from reading people like Popper and Hayek that for a country to be just, it must limit the power and influence of some individuals. Otherwise, the liberty of others would be restricted to the point where they were little more than slaves.

(2) Chief Justice Roberts is a citizen of the United States with enormous influence. He is compelled to transmit a message that says that atheists ought never become POTUS. That is immoral. So, don't compel him to say such a disgusting thing.

Alonzo Fyfe said...

Using the courts counts as violence because, when the Court renders a decision, it is backed by a threat of violence. "Obey this order or suffer the consequences." Granted that this violence comes from the Executive Department, which has sometimes refused to enforce a court decision. However, the rule of law depends ultimately on the executive branch's willingness to use violence against those who do not do what the judge says.

Zerotarian said...

Your criteria -- "that the lawsuit must challenge an existing law that commands or funds a religious expression" -- seems to rule out a huge number of church-state lawsuits, namely those in which a person in a position of governmental power (judges, teachers, Army officers, etc.) individually endorses religion, which you say is just dandy so long as there's no law requiring them to do so. So do you think it's morally wrong for atheists or other religious minorities to seek judicial recourse against any such abuses of governmental authority?

I can anticipate you coming back with "in those cases, there's an implicit threat of violence or at least coercion" (the judge will rule against you, the teacher will suspend you, the officer will give you more dangerous assignments than you non-atheist peers). But do you really think it's the atheist's burden to prove intent of violence, and any other endorsement goes? (For example, by your criteria, can a judge have a Ten Commandments monument or any other set of religious displays in his courtroom, so long as nobody can prove that he ruled against them because of his belief in corresponding religion?)

Newdow et al's complaint cites several previous Supreme Court cases where it has established the inappropriateness of government officials or "the government" endorsing religion, not just Congressional laws. Do you believe those previous rulings were unjust? If not, what's the difference here?

To be clear, Judge Roberts is reading the "so help me God" part of the oath as the representative of the American people, Obama is not just adding it individually. And the religious leaders who have been invited to speak are speaking at the public inauguration ceremony as far I understand it, not at some separate "Inaugural Prayer" event. And they were invited not just by Obama individually, but by Congress.

It seems that the government is using both its authority and taxpayer dollars to endorse religion here. So why do you think there should be no legal recourse?

I agree that this may not be a politically expedient move, but it seems pretty ridiculous to condemn individuals (which is exactly what you're doing) for pursuing appropriate, legal routes to get the government to actually obey the law.

Procrustes said...

Alonzo Fyfe,

You said:

"Using the courts counts as violence because, when the Court renders a decision, it is backed by a threat of violence."

Doesn't that mean that anyone who has ever been involved with the court system has acted in violence?

For example, I'm married. I had to file my marriage certificate in court. That certificate is backed by the state law on marriage, and people who violate the state law on marriage can be arrested (for fraud or other charges). Arrested by the police. Who have guns. So, by getting married, I acted in violence.

By your standard, is there anyone who could ever act not in violence?

Alonzo Fyfe said...

Zerotarian

I hold that teachers, judges, and army officers should be free to speak (and speak favorably) about their religious beliefs. I do not think that it is legitimate to use the courts to coerce them into silence on these issues. An abuse of power would require more than just speaking.

For many of these positions, there is an important distinction between when a person speaks as a representative of the state (this is the government's position) or as a citizen (this is my position). It would be proper to condemn an officer who endorsed a particular religion while in uniform. This is true in the same way that any employer has a right to control what an employee communicates about the company's official position on any issue.

But no employer has the right to prohibit the employee from expressing his or her own private opinion.

If the atheist wishes to counter these claims (or if the theist wishes to counter similar claims made by the atheist), then he or she should do so using condemnation and private actions - not the violence of threat of violence that lies behind the courts.

I agreed in my posting we have reason to protest an act whereby the Judge alters the phrase. The Judge is acting in his capacity as a public official. He has a constitutionally prescribed duty and is to give the oath as written in the Constitution.

The objection here is not religious in any way. The Constitution specifies an oath, that is the oath that shall be administered, and no other shall be substituted in its place - religious or otherwise.

Alonzo Fyfe said...

Procrustes

It appears to be to be quite obvious that if you put somebody in a position where, "If you do X (or you do not do Y), you will be visited by people with guns," then you are using the threat of violence to get people to do X or to not do Y.

Ultimately, at the bottom of every court case, there is the statement, "If you do X (or you do not do Y), you will be visited by people with guns."

Doug S. said...

Two things:

1) The actual oath of office, specified in the Constitution:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

No mention of God there!

2) It is quite possible to have a judge in a civil case rule that you must pay damages to someone, refuse to pay said damages, and never be visited by anyone with guns.

For example, Al Sharpton owes a lot of money to someone who successfully sued him. However, he has no assets in his own name and carefully ensures that he does not acquire any. (For example, his clothing is owned by a corporation he set up.)

A court can try to garnish wages or take other action, but, basically, if someone simply don't pay, collecting a judgment is a real pain in the ass.

Procrustes said...

State of Protest has an entry referring to this article here.

vjack said...

Obama is free to add "so help me god" if he wants. The issue is that Justice Roberts should not read this line as part of the official oath. Thus, Obama remains perfectly free to say whatever he wants.

Much like the pledge, I don't care if some random Christian decides to insert "under god" when they recite it; I do care about this phrase being in the official pledge.

X said...

There's no violence even remotely connected to a court constraining the president's speech. Either the president complies with the court's interpretation of the constitution he has sworn to uphold, or Congress impeaches the president to remove his powers (no violence there!). No president has ever been arrested or imprisoned for violating his oath of office.

X said...

Congress is using taxpayer dollars to hire clergy. Exclusively, christian clergy. How much more blatant can the Establishment Clause violation be?

X said...

It seems the case of SHMG in in the POTUS inauguration is utterly equivalent to a local judge deciding to buy a ten commandments monument and place it in his courtroom.