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What exactly is blasphemy to an atheist?

For anyone who's missed the news, Michael Newdow is nothing if not persistent: he's gotten Judge Lawrence K. Karlton of the Federal District to rule that the Pledge of Allegiance is unconstitutional. The case may have gotten around the standing problem that led to his challenge being dismissed by the Supreme Court last year. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004). [1] Much of the legal argument has focused upon the district court's application of precedent. I submit without comment analysis by Howard Bashman and Eugene Volokh on whether the Ninth Circuit's ruling which was reversed for lack of standing in Elk Grove should apply to the district court. I'll leave that to more heads more skilled in the delicate art of precedent, and instead ask a slightly broader policy question: when it comes to "under God" and atheists, why should I care?

To be a little more serious (and a great deal less flippant, as I prefer), I'll confess to a bit of puzzlement as to why an atheist sincere in his beliefs would go to the extent of multiple court appeals on behalf of his daughter, all for the sake of the words "under God" in a pledge that all admit the daughter must only hear, not recite. What, precisely, is the harm he's avoidng?

The Ninth Circuit held that Newdow (on behalf of his daughter) had sustained an "injury in fact," but there it was using the legal term of art rather than giving an explanation. Newdow's injury was an interference in the right to direct the religious education of his child. See Newdow v. United States Congress, 292 F.3d 597, 602-603 (9th Cir. 2002). But injury as "violation of a right" is different from injury in the sense I'm considering, the actual negative consequence of the pledge being stated by a state actor in front of an atheist. Here I become less certain of the problem.

When it comes to church and state cases brought by the religious, in most cases the harm is fairly obvious. Take, for instance, Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940), in which the father of two Jehovah's Witnesses objected to the flag salute before the words "under God" were even added. (He lost, but the Court came around to his opinion in West Virginia Board of Educ. v. Barnette, 319 U.S. 624 (1943).) In that case, forcing the children to recite the pledge meant a choice between receiving an education and what was in the eyes of the parent (and presumably the children) the commission of idolatry. Whatever one thinks of the outcome of the case, the choice between compulsion and consequence is clear.

Similarly, I'd understand someone of a differing religious faith--say, for instance, a polytheistic one--objecting to being forced to state that this is a nation under a single God, particularly if their faith was one of a jealous set of deities who denied the existence of all others. (No such religion springs to mind, in fact, but it's not my area of expertise.) Giving the believer the most liberal benefit of the doubt--assuming that he is correct in what his deity or deities prescribe--then the fear of post-mortal consequence, be it damnation, particularly unpleasant circumstances for reincarnation, or even a less-than-ideal result in the afterlife seems worth challenging a law all the way to the Supreme Court.

That's not to say that atheism shouldn't be treated as a religious belief. In this I disagree with Jim Lindgren at Volokh, though we reach similar conclusions as to the Establishment Clause. The non-existence of God is no more a matter of empiricism than his existence. (At least, that's my belief as an agnostic.) Nevertheless, an atheist's belief in the nonexistence of God is of a different nature to the differing beliefs of those who believe in some intelligent creator. [2]

Hence the invocation of similar harm does not avail the atheist plaintiff. The atheist cannot object that he faces any compulsion greater than that of his own ego. Even giving the atheist every benefit of the doubt with respect to his belief, the harm is purely internal: an atheist mouthing the form of a religious ceremony is not blaspheming, there being no entity against which to transgress.

Which again brings me to question why Mr. Newdow keeps unfurling the banner of his Children's Crusade. I doubt his motive is of judicial significance, but given the political nature of the case it's relevant for a blogger to ask. We expect the beliefs of some Christian fundamentalists to be strong enough to withstand the teaching of evolution: does Newdow really suspect that his faith is so feeble that the invocation of two words in a pledge recited by rote can challenge them? Worth dragging that child through the publicity of a court case? Or perhaps Newdow does fear for his faith, given that he's not the custodial parent, but what about Jan and Pat Doe and Jan Roe, Mr. Newdow's new and anonymous fellow plaintiffs? They are custodians of their children, and presumably in near-daily contact. Do they really find their beliefs that threatened? Do they really see this as an issue risking... well, not the souls of their children, but some ineffable benefit in being theist free?

I have a hard time believing that, particularly when I consider the cost of a lawsuit and the ease of telling their children, "It doesn't mean anything. Just mumble." The conflict seems much more a stand for principle--separation of church and state for its own sake--than a desire to be free of painful oppression.

In any event, that's enough for now. There's another aspect of the case that interests me, and that's a comparison to international practices and my own experiences with "it doesn't mean anything, just mumble." But that will have to wait for tomorrow.

[1]: I'll fully admit that the citations in this piece are a mess. It's late at night and I'm without a Bluebook. Anyone who wants to make corrections is welcome to do so in the comments: never let it be said I'd deny my readers the fun of cite-checking. But this is a blog, not a law review, and I write it for fun: I'll fix citations tomorrow.

One interesting question does strike me, however. When I link to a case, I either use the most convenient--meaning usually the first hit in Google--source that looks reasonable, unless I want to support a given site. (For instance, I think Oyez is cool, so it gets quite a few links above.) Does anyone know of a list of "authoritative" sources that law-bloggers use for links?

[2]: I am using "atheist" here in its strongest sense, the denial of any greater being or conscious creative force: for sake of simplicity, the non-religious or non-mystical. Obviously what I say here would apply differently to non-theistic belief systems, but they're mostly irrelevant to the discussion at hand. The District Court doesn't make it clear in its statement of facts, but there's no indication that the atheists in question are non-theists.


Listed below are links to weblogs that reference What exactly is blasphemy to an atheist?:

» It doesn't Mean Anything from Crescat Sententia
Anthony Rickey asks why atheists get so worked up about non-coercive government establishments of religion. In the course of his discussion though, he gives Barnette and Gobitis as examples of harms that he thinks are real (forcing Jehovah's Witnesses ... [Read More]

» Blaspheming Atheism from De Novo
Though Will Baude's conclusion that "Metaphysically and legally, atheists are and ought to be just like everybody else for establishment claims" hit upon one of my objections to A. Rickey's post on why atheists who don't like "under God" in... [Read More]


Similar to my comment on an earlier post, I'll just point out that the reasons for such behaviour centres on the fact that - rightly or wrongly - the separation of church and state is perceived as somewhat under threat in the US. I don't mean that anybody is expecting a theocracy any time soon. But laws based around religious considerations, the possibility of religious theories being taught as science in schools, and even "under God" in the Pledge of Allegiance, all suggest that Americans are not as protected from the political influence of their religion as they are supposed to be. So it doesn't strike me as surprising that individual atheists are a bit over-sensitive on this point. Just because "under God" is effectively an empty phrase for an atheist, doesn't mean it couldn't be something they'd rather not have as part of the machinery of state. Whether it was worth the legal costs, that I couldn't tell you. I certainly wouldn't bother with it, were I a US citizen. Maybe this guy has more money than sense.
I'd find your fear more credible, Card, if you and I didn't both attend a publicly-funded university in which (at least at some colleges) every night in hall a public prayer was read by a student, and yet the heavens didn't fall. If the separation of church and state is under threat from "under God," then it's been dead in England forever. And yet some of the same folks muttering about "theocracy" in the U.S. (take Leiter, for instance) are usually completely fine with Oxford.
If the separation of church and state is under threat from "under God," then it's been dead in England forever. Is a nation with a state-approved church really the best comparison point for the U.S.?
In the sense that the church and the state aren't really separate in the U.K., perhaps not. In the sense that one can have a student-led prayer as a matter of tradition that goes on without unduly upsetting atheists, Buddhists, Muslims, or what have you, yes it is. As a practical matter, no one doubts that the U.K. is a secular state, generally more so than ours. It's the difference between the Establishment Clause being a rather pragmatic method of allowing us to live together, and its being a fetish. Admittedly, Oxford is not the example I'd use first, but it is relevant to the person who commented.
The UK appears to be more secular among the people, not as a matter of government; that is, while the state sponsors religion, people have become increasingly less interested in it. One of the arguments by religious people against too much intermingling of church and state is that government inevitably dilutes and dumbs down religion, which makes it less appealing. Probably part of the lack of upset to people of other faiths has to do with how little real religious force there is behind the traditional invocations of religion in British life, whereas "under God" is a relatively new addition and one over which there is an active fight because people think it means something. I bet little of only 50 years standing at Oxford is considered "traditional."
Hey, I didn't say it was my fear - I just don't think its as irrational as you're making out. After all, even though the heavens don't fall upon Oxford prayer-readings[*], I would regard Oxford and Cambridge as some of the most Christian universities in the country. I think the prayer-readings are indicative of that. All this is not insignificant, though it's hardly panic-raising. But in any case, the worry isn't about instant heaven-falling stuff; it's about the slow, waves-on-the-rocks type influence over society. * Though I would certainly regard such as a threat to my atheism, if it did happen.
Are you in Monaghan's class yet? A few thoughts: First, it's not clear whether you're arguing that there shouldn't be cognizable standing in such a case, absent a material injury, or whether it just doesn't make sense that Newdow would care. In the first case, the First Amendment does create interests that are cognizable; in the second, the doctrine of revealed preferences would seem to suggest that at least he finds something compelling about the situation. Second, it's hard for me to understand what point you're making by denying blasphemy against atheism. Blasphemy, strictly speaking, may not be the right word to apply when one thinks of an atheist, but it hardly seems obvious that a Christian could seek redress when the government contradicted his view of the afterlife but that an atheist could not. As you point out, "The non-existence of God is no more a matter of empiricism than his existence." If there's something internal to religious faith that makes Establishment a worthwhile goal, then it seems to reside in that statement of non-empiricism, doesn't it? (Or if not, then in analogous freedoms of conscience &c., which are enjoyed by the atheist as much as the Catholic.) Yet if Establishment is not concerned with some intrinsic feature of religious freedom, if there's no reason for it aside from preventing compelled blasphemy, then Establishment protects only those churches that accept a rule of positive canon law (namely, the first couple of Commandments). But that can't be true; if a Buddhist objected to a Christian prayer at a public school, the court wouldn't inquire whether the plaintiff thought she would go to hell if she acquiesced, and if not, dismiss the case. Third, it hardly need be pointed out, but the First Amendment that forbids establishment and protects free exercise does not operate only after giving effect to an individual's religion; the Amendment has its own criteria of what's permissible. That the litigant's own religion as properly understood, if you could prove such a thing, allowed compulsory school prayer wouldn't sway the court any more than if a litigant's rather imperious faith forbade members of other churches to pray differently than he. Finally, might I say I detect a certain crabbed view of religion in this entire post. Religious obligation is emphatically not mere obedience to an intelligent, supernatural master, nor the slight avoidance of an unpleasant afterlife. It's far more comprehensive a worldview, and faithfulness involves a heck of a lot more than just not committing idolatry.
Let me suggest another less common, but useful, meaning for atheism: a-theism, contra theism, that is, a belief that belief in god is dangerous and pernicious, maybe evil. The damage is not to so much to the specific children. The atheist agenda is to separate church and state; these kids are just the hook to have the minimal amount of standing to bring the case. The controversy has a history. That includes christians and lions, crusades, bloody mary, the evolution of the british right to bear arms as a means of avoiding religious progroms, a cold war against godless communists, the current crusades, religious-linked strife from belfast to dafur to fulan gong. Until recently, tax dollars were used to run protestant schools at the expense of catholic taxpayers. The "under god" debate is code for those who want for the majority to be able to use government to impose or subsidize majoritarian views. It is unfortunate that Newdow has framed this as atheists versus almost everybody; the suit would have a better chance if it were mainstream churches telling the government to butt out. There is much, if not universal, support among mainstream churches for separation of church and state. (if this posts three times, it is because it keeps rejecting my post for not having name and address, which it has)
I haven't even read the entire article here yet, but one line caught my attention... "That's not to say that atheism shouldn't be treated as a religious belief." Atheism should not be treated as a religious belief. The definition of "atheism" is "a disbelief in the existence of deity", as defined by Merriam-Webster. Religion is defined as "the service and worship of God or the supernatural; commitment or devotion to religious faith or observance", of which devotion to religious faith, religious defined as "relating to or manifesting faithful devotion to an acknowledged ultimate reality or deity". I am not a religious man in the traditional sense, but I do hold my own personal religious beliefs.

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