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
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Posted by: PG | October 6, 2005 3:04 PM