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Tuesday, February 17, 2009

Some More Thoughts on Michael Newdow

Jay Wexler has a post below discussing how Michael Newdow will be doing the theme song for his book -- am I crazy to wonder what that means? -- and asking what people think of him.  For me, it brought back some memories about the oral argument in the Pledge case.  I remember people being frustrated with Newdow (whom I've never met, btw) as the Pledge case was going up, especially with him deciding to do oral argument himself, going heads-up against Solicitor General Olson.  But that frustration was overblown.  Oral argument wasn't going to change minds (on the Establishment Clause issue, anyway).  And Newdow broke some ground.

Within the first minute of oral argument, I remember Newdow breaking out of the jargon: "I am an atheist," he said.  "I don't believe in God."  Not your ordinary oral argument.  And I think that's what made the oral argument: the obvious hurt below the surface of Newdow's presentation, the obvious fact that he was unavoidably a religious minority, and the obvious incompatibility between the Pledge and his religious beliefs.  It led to this weird dynamic.  A couple of the memorable moments:

At one point, the Chief Justice led Newdow backwards into making a point for his side.  Rehnquist asked Newdow what the vote in Congress was for the adoption of the Pledge, Newdow responded that it was unanimous, and the Chief dryly observed, "Well, that doesn't sound divisive."  There was some laughter.  But Newdow had a response -- he said the reason why it was unanimous was because no atheist could get elected to public office.  That caused much more laughter.  And applause.  The Chief had to threaten to clear the courtroom.  Newdow went on, pointing out that several states apparently still have laws on the books barring atheists from public office.  Justice Ginsburg tried to make him feel better, pointing out that those laws were unconstitutional -- but Newdow explained that his real point, which she surely understood the first time, was just that atheists are so far outside of the mainstream that they almost don't count politically.

But the part of the oral argument I remember most was this short, relatively obscure bit with Justice Breyer that I'm sure no one else still thinks about.  The Supreme Court has these two law-and-religion cases, Welch and Seeger.  They were Vietnam-era cases about draft exemption.  The relevant statute required conscientious objectors to profess a belief in a "Supreme Being" to get an exemption.  The Court both in Welch and Seeger works fairly hard to interpret "Supreme Being" so as to include nontheists.  (The right thing to do, but hardly consistent with the statute's text.)

Anyway, at oral argument in Newdow, Justice Breyer raises these cases and asks -- well, given Welch and Seeger, don't you think that "under God" can be interpreted broadly enough to include you?  I had to look up Breyer's exact phrasing, "So it's reaching out to be inclusive, maybe to include you . . . So do you think God is so generic in this context that it could be that inclusive?  And if it is, then does your objection disappear?"  That question has always has struck me as an amazing thing to ask a person who just said he was an atheist.

Posted by Chris Lund on February 17, 2009 at 11:52 PM | Permalink


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I would have thought that forcing the Justices to listen to Newdow arguing his "case" (I use the term purely in the technical sense) violated their Eighth Amendment rights.

Posted by: Simon | Feb 22, 2009 1:09:26 AM

i think you are right, patrick, to note the problems with a conception of neutrality that attempts to exclude all religious viewpoints from public institutions. this is really made clear when we understand atheism as at least the constitutionally functional equivalent of a religious viewpoint (i have no problem at all with your qualifications about "sacred" etc.. being meaningless to atheists). yet an inclusive neutrality, one in which the state attempts to give equal time to all "religious" viewpoints (again, functionally) seems practically unworkable. i am afraid that this may--as you, and malthus, seem to suggest--point to some kind of coercion test under the est. clause. what would this test look like? would newdow meet it?

Posted by: quibbler | Feb 19, 2009 2:39:23 PM

Religion, in both modern practice and original meaning of the word, encompasses more than belief. Genuflecting, ritual prayer, church attendance, participation in moments of silence, ritual circumcision, marriage and funeral ceremonies and pledging allegiance to a flag or even "affirming" are all religious rituals that a person in a free society would not be coerced to endure.

This government of this country is a very long way from adherence to the spirit of the First Amendment.

Posted by: Malthus | Feb 19, 2009 1:50:55 PM

In doing a bit of research this morning (well, it's research for me, for others it may be common knowledge), I learned of Justice Harlan's interesting concurring opinion in Seeger:

"[Congress could] eliminate *all* exemptions for conscientious objectors. Such a course would be wholly 'neutral.' [However], having chosen to exempt, it cannot draw the line between theistic or nontheistic religious beliefs on the one hand and secular beliefs on the other."

In the words of Stone, et al., "To do so would violate the establishment clause." The treatment of the "noncoercion principle" by Stone, et al in their casebook on constitutional law would also appear relevant, at least with regard to Newdow's original case (and setting aside the fact that unlike Lee v. Weisman [1992], it is not an issue of prayer per se but no less one of religious belief and expression).

Posted by: Patrick S. O'Donnell | Feb 19, 2009 8:56:10 AM

I think that is more than a minor point or quibble and one I haven't thought enough about (nor in fact know enough about), and thus am glad you raised it.

If one interprets the establishment clause as entailing "neutrality" on the part of the government toward religion it would appear to mean not only that government cannot favor one religion over another or others but that government cannot favor religion over secularism as well. In that sense, perhaps, we might speak of freedom "from" religion. Cf. Chemerinsky quoting Professor Douglas Laycock: "substantive neutrality means that 'the religion clauses require government to minimize the extent to which it either encourages or discourages religious belief or disbelief, practice or nonpractice, observance or nonobservance.'" Insofar, then, that government is not permitted to endorse religion, we have sufficient scope for protection of freedom from religion.

It may very well be the case that atheism is protected (in light of Welsh and Seeger) because it in effect functions as an absolute or at least axiomatic metaphysical conviction and thus might be said to "play the role of a religion and function as a religion" in one's life. This amounts, however, to merely a functional equivalency and thus need not be construed as a "religious viewpoint" or "an opinion or belief of a sacred kind, about a sacred topic" for such language relies on presuppositions and assumptions contrary to those found in an atheistic or agnostic worldviews (e.g., some sort of scientific humanism or non-religious existentialism). The use of the language of "worldviews" here would thus seem preferable as it can capture the functionality dimension without invoking concepts instrinsic to religion(s) as such.

So perhaps the two clauses can come together in a way that not only widens the definition of "religion" to encompass nontheistic *and* nonreligious beliefs but understands secular worldviews as protected by the government's substantive neutrality toward religion. This would at least have the virtue of bringing together a "functional" definition of religion available to both the free exercise and establishment clauses that protects non-religious worldviews. As Chemerinsky writes, "the broad definitions employed [in Seeger and Walsh] allow moral judgments to be protected whether they are based on religion or philosophy. This is desirable because it does not give special status to religious moral judgments over secular ones and thereby avoids an establishment clause problem." (In a note Chemerinsky does point out that the Court has also said that the Free Exercise clause only protects religious views and not purely secular ones!)

Posted by: Patrick S. O'Donnell | Feb 19, 2009 2:09:25 AM

Perhaps a minor point, but I'm not sure exactly where the idea that institutional separation of church and state (at least the American version) protects citizens *from* religion comes from. Certainly not the text, nor the first century and a half of American life. It was perhaps read in as a part of federal disestablishment in the territories, or later in the awkwardness of incoroporating the establishment clause against the states.

But if this is true, if we do now protect people *from* religion, that certainly conflicts with the intellectual roots of disestablishment, which sought to insulate religion from state precisely because it is religion--thus sacred and beyond civil competence. The tyranny to be prevented is that which forces a citizen to choose between a religious duty or belief and civil punishment--thus between jail and eternal damnation.

Indeed, on these terms, the reason that we give atheism protected status is because it is, in effect, a religious viewpoint. It is the absolute metaphysical conviction that there is no supreme being. For constitutional purposes, it is an opinion or belief of a sacred kind, about a sacred topic that is beyond the competence--and thus the reach--of the civil authority. You may notice that this is properly more a free exercise claim then a disestablishment one--which only points back to the doctrinal disasters that have followed, perhaps ineveitably, from incorporation.

Posted by: quibble | Feb 18, 2009 11:27:08 PM

"So it's reaching out to be inclusive, maybe to include you . . . So do you think God is so generic in this context that it could be that inclusive? And if it is, then does your objection disappear?" That question has always has struck me as an amazing thing to ask a person who just said he was an atheist."

Ahh, so we now have the answer over who would win in a fight between Michael Newdow and God. Trick question! Michael IS God!

Sorry ... couldn't resist.

Posted by: Bad Joke | Feb 18, 2009 4:26:34 PM

Indeed, and it blithely ignores the reason why the phrase "under God" was added to the Pledge in the first place:

The original Pledge of Allegiance, written in 1892 by Francis Bellamy, did not include "under God." The words were added in 1954 by a congressional act, following a campaign by the Knights of Columbus, a Catholic organization, and a sermon by Rev. George M. Docherty, pastor of the church that President Dwight D. Eisenhower attended in Washington D.C. Both Congress and the president thought adding "under God" would distinguish the U.S. from the Soviet Union. The congressional act declared the words would "deny the atheistic and materialistic concept of communism."

And consider the opening para. from the amicus brief of various Buddhist centers and organizations:

When children from Buddhist homes across the United States recite the Pledge of Allegiance, they utter a phrase that is inconsistent and incompatible with the religious beliefs and ethical principles they are taught by their parents, by other adults in their communities, and by their teachers at after school religious programs and at Sunday Dharma school.

In addition to Buddhists, Confucians and Daoists, for example, don't believe in God as a "supreme being" and the Advaita Vedantin notion of Brahman refers, in the end, to what is perhaps best termed "Ultimate Reality," as philosophers in this tradition took the trouble to distinguish this conception of (nirguna) Brahman from any theistic connotations (there is a 'god'--saguna Brahman--but this god is not equivalent to the God of monotheism and, with liberation, is shown to have been only provisionally and relatively real or true).

BTW: Newdow doesn't hold "religious beliefs," nor is he part of a "religious minority." He has, as far a I've been able to ascertain, a non-religious worldview.

As I wrote in an essay in support of Newdow about five years ago,

The institutional separation of Church and State allows the freedom if not flourishing of religion(s) as understood and practiced by citizens in civil society. It also permits the freedom *from* religion by those who dissent from the religious beliefs of the majority—-perhaps subscribing to alternative religious traditions or worldview—-or from religious beliefs of any sort, as do atheists (be they humanists, anarchists, communists, naturalists, what have you) and, somewhat obliquely, agnostics.

I've always thought it interesting that Theodore Olson described the pledge as a “ceremonial, patriotic exercise,” anxious, along with several justices, to differentiate the Pledge from religious prayer proper. But this amounts to the State's sanction of an indirect affirmation of a belief in God, in other words, the State's sanction of a fundamental tenet or axiomatic proposition of religious belief common to several but hardly all of the world's relgious worldviews. And Chief Rehnquist's reference to the phrase as "descriptive" was both question-begging and disingenuous: descriptive of what? for whom? In any case, children in our public schools not yet having attained the "age of reason" could hardly be counted on to appreciate the distinction between the descriptive and the prescriptive or normative: in fact, it seems the Pledge is part and parcel of the greater endeavor to to socialize our children into the beliefs and values of a constitutional, democratic republic. It’s a form of propaganda or indoctrination, perhaps perfectly proper and justifiable...if shorn of the reference to God, for our Constitution did not provide for the State’s endorsement of any specific religious belief or religion in general. As Newdow himself argued, the Pledge is an "oath of allegiance."

In the end, the Court effectively succumbed to an Anti-Federalist nostalgia for a shared Christian religion and a public opinon poll model of Constitutional interpretation.

Posted by: Patrick S. O'Donnell | Feb 18, 2009 2:04:13 AM

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