Blasphemy for Atheists, Part II
Before I move on, I wanted to address some of the comments to my musings on Michael Newdow and his latest crusade to remove "under God" from the pledge. Besides the usual and pleasant debate in the comments, the thread was picked up by Will Baude and PG. Having read these, I realize that there are a few things that I didn't make clear enough.
(This is long because I'm thinking it out for myself. Unless you're quite interested, I suggest you skip to other topics. Part III will appear shortly.)
1. "Injury in fact" for purposes of standing does not always mean "injury" in a non-legal sense My musings on Newdow's case were not meant to concentrate on the question of whether Newdow (or his daughter) suffered harm sufficient to get standing in a courtroom. While a potentially interesting question, there are plenty of cases in which "injury in fact" may be sufficient to get a case into court that--with our legal blinders off--we'd most likely agree don't belong there. A curmudgeonly old fellow who, after yelling at his neighbor's children to get off his lawn, makes his way to the local courthouse to file a trespass claim might very well have suffered an "injury in fact." Assume, arguendo, that the state in which he resides has no de minimus exception to his right not to have his land walked upon by neighbor children: he may demonstrate an injury sufficient to get into court. Nevertheless, his neighbors would be correct in calling him a cantankerous old coot, whatever his legal standing.
Now, we can alter the facts in order to make the damage the fellow experiences sufficient that his neighbors would probably find his resort to the courthouse justified: perhaps the children are treading on his flowerbeds, and his attempts to get their parents to restrain them fall on deaf ears. Or maybe the parents continually pay him for the cost of the lost flowers, but he's too old to want to be replanting them all the time. Whatever, there exists some line beyond which a non-legal observer to a court case will consider a complaint to be justified--the plaintiff to have actually been injured as opposed to an "injury in fact."
The question is not, as Baude puts it with what I assume is his trademark flippancy, whether "there is absolutely no harm done when the state forces people to profess belief in things they find abhorrent," but at what degree of harm is it worth literally making a federal case of it?
2. The way in which atheism is unique In attempting to find some way to divide Establishment Clause injuries between those that seem serious concerns and those that I would consider more petty complaints, I suggested that the line should be something like: is the believer forced to perform an action for which some force beyond his own conscience would impose a penalty? In this sense, atheism is unique only because an atheist cannot point to any force beyond his personal preferences that he could suffer. That's not to say that a religious person isn't able to be similarly affronted, or would find it impossible to raise a similar complaint to an atheist. Just as the old crank can be somewhat fetishistic about the importance of his property line, so others may place a stress on the importance of the Establishment Clause beyond the practical. In this sense, Will Baude's wish to analogize to Lee v. Weisman, 505 U.S. 577 (1992), misses the point somewhat.
I didn't bring up the Weisman case precisely because on the facts of it I couldn't tell which side I'd be on. In Weisman, a Jewish father objected to a prayer being offered at a middle school graduation ceremony. In the year in question, the school had chosen a rabbi to deliver a non-denominational prayer to the graduating class. What the Supreme Court does not address--nor could I find through Google or a brief look at the record--is why the father objected. [1] It might be that Weisman's complaint falls on one side of the line: there is a religious reason why taking part in a ceremony in which a rabbi delivers a non-denominational prayer is contrary to religious commandment. I'm not an expert in Jewish law, and frankly would feel uncomfortable venturing into that territory.
Some things are true whether Weisman holds a religious or a secular objection. In either case, he certainly suffered an "injury in fact" sufficient in standing, and since Kennedy and four other members of the Court agreed, well, he suffered a violation of his rights, and now there is a legal cause of action if any middle school has the temerity to suggest a clergyman give a benediction at a graduation ceremony. Kennedy's interpretation of Establishment is, after all, now the law of the land. So much is not in dispute.
Yet it is completely possible that Weisman's reasons for bringing the case are exactly the same as Newdow's, notwithstanding the fact that Weisman was not--at least so far as the record goes--an atheist. In which case--and contrary to what Will seems to suggest I cannot have the temerity to be saying--yes, I would say that Weisman was making a federal case over not much at all. Like the old man and his flowerbeds, just because the law is on his side doesn't mean it was wise to go to the courthouse.
The uniqueness of the atheist I mentioned, then, was not that a religious person could never raise the objection of the atheist, but that the atheist can never raise the objection available to a theist. For purposes of the dividing line I suggested, that's significant, although it's not significant in the way some critics suggested. [2]
That's enough for the day: it addresses most of the questions I received last time. Part III will come sometime after I've finished my week's reading, and will deal with why I chose that particular dividing line, and some examples of church-state entanglement that I find pleasant, harmless, or even beneficial, and which I feel would be protected by my proposed rule.
[1]: This is, of course, a question with an answer, and anyone who knows it or researches it is welcome to comment. I've left it unanswered both to explain why I chose the cases I did (rather than the ones Will found more appropriate) and because assuming that the answer is indeterminate, it illustrates quite well the point I was making.
[2]: As an aside, one thing that has amused me about the conversation is the absolute insistence of some of my correspondents over email that it be conducted upon their terms. For instance, one emailer suggested that the problem in Gobitis was fundamentally a problem of enforced speech, specifically that there was no difference between asking a Wiccan, a Catholic nun, a Jehovah's Witness, or an atheist to recite the pledge.
This is simply untrue as a matter of doctrine. I can't speak for any particular Wiccan, but for the others the nature of the harm would be very different. For the students in Gobitis, the problem was idolatry, specifically the act of saluting the flag. It was not, as it would be for the atheist, asking them to state something which they didn't believe. As I understand it doctrinally, they would be similarly affronted to have to pledge to a flag if the words contained "under God" (which they didn't) or were a reading of the second commandment. For the Catholic, it might be different still, although I'm not venturing into those waters as I don't know the doctrine well enough.
Comments
Posted by: cardinalsin | September 27, 2005 8:04 AM
Posted by: A. Rickey | September 27, 2005 9:54 AM
Posted by: Tony the Pony | September 27, 2005 2:12 PM
Posted by: A. Rickey | September 27, 2005 2:57 PM
Posted by: Tony the Pony | September 30, 2005 4:43 PM
- Tony says X, explains that he's not speaking legally but normatively
- TtP then points to a legal doctrine, usually of a procedural nature, to object
- Tony reiterates that he's speaking normatively but not in a legal sense
I think it's fair of me to wonder about your tendency to resort to law. Contrary to your assertion above, not all normative arguments, or even most of them, are legal arguments. Even substituting that for the above, it would not change my argument, presuming you mean, "The case should be heard by a judge." I'm not questioning what should happen when the case gets to the courthouse: I'm questioning what should happen in the community, in public, among those who speak, when someone brings a case like this. It does not implicate standing doctrine at all. That you don't often speak about it does not mean that's what I'm speaking about. But I am not making a normative judgment about the state of the law as such. I'm making a statement about the bringing of a lawsuit, and there is no reason those two things are necessarily connected. We may wish to make the legal standard for bringing a lawsuit very low, as "injury in fact" often is. (Lujan raises the bar a little bit, but only slightly.) Because legal procedures are administered by human beings, we may wish to make the rule we set very low, so as to avoid barring one meritorious suit at the expense of allowing a large number of non-frivolous but still doomed ones to be heard. This question bears little relation to the social norm. Someone whose first gut reaction when hit with any slight is to run to the courthouse may pass muster for standing one-hundred percent of the time. We may still consider them foolish, and being thought foolish by their peers may keep such people from the courthouse. I don't mind you pointing it out, but I'd appreciate you pointing it out with a little more specificity. Where, exactly, did I say that theists have interests protected by the First Amendment in places that atheists didn't? I don't think I should respect an atheist bringing his case to the courthouse, because he can't make a case that there is--to my mind, and by this rule I'm discussing--any injury greater than to his own ego, and with that I don't think we should be particularly concerned. As the Lee v. Weisman case points out, though, there's nothing that says that a theist can't make a similar (and to my mind trivial) complaint. This doesn't mean that the plaintiff doesn't get past the courthouse door, nor did I ever say he wouldn't. I did not disagree with you the first go around, because I was never having the argument you seem to want to have. There is a separate question of whether I think my standard should, for instance, replace the Lemon test. That's a little beyond where I've thought thus far, though: I think the test is workable, but perhaps not fantastic. Or, for that matter, a religious person bringing a case motivated purely for enforcing a "wall between separation of church and state," rather than addressing any particular consequential harm from an actual policy. (This may or may not be the case in Lee.) It's worth looking at the discussion I'm having with PG over at De Novo, which is typical of the form: quite a lot of things objected to (some of the behavior of the school in Santa Fe, for instance) that is non-trivial, but not the subject of the suit, and then when asked what the actual harm of the subject of the suit is--usually having to listen to something--silence. So yes, that's the question I'm asking about any such litigant. Please note, however, that this applies only to litigants, which are not the vast majority of atheists. Nor is it a mistake to say I know more Newdows and Leiters than thoughtful, respectful atheists. That doesn't mean I believe most atheists aren't thoughtful and respectful, but merely that I'm unlikely to meet them. Or it might be fairer to say that I'm sure that most of the atheists I meet are respectful, thoughtful, and don't talk about their atheism with me at all, simply because it doesn't come up. My guess is that there are a large number of atheists who wouldn't want to sue--a guess sustained by the fact that there are a large number who don't. Nor would it apply to someone wishing to campaign to take "under God" out of the pledge through the democratic process. Sure, it may be a "trivial" harm, but we legislate all sorts of trivial things every day. (Inclusion of the words "under God" would serve as one example.) But that's different from going before the Court, and saying that not only is it unwise to put two words in the pledge (a stance with which I might agree) but that it's illegal, and therefore wrongful. A decision from a Court to strike down such things not only says, "I would prefer this be some other way, out of respect for our diversity yadda yadda yadda," but also, "I have been personally wronged, personally harmed, personally aggrieved." The latter seems silly to say over something trivial, even if it is unwise, and I wonder that atheists would wish that to be their public face.Posted by: A. Rickey | September 30, 2005 7:24 PM
Posted by: Tony the Pony | October 2, 2005 5:22 PM
Posted by: A. Rickey | October 2, 2005 6:59 PM
Posted by: A. Rickey | October 2, 2005 10:46 PM
Posted by: Tony the Pony | October 3, 2005 6:38 PM
Posted by: A. Rickey | October 3, 2005 6:57 PM
Posted by: PG | October 6, 2005 3:04 PM