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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.


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It sounds like you're saying that atheists are perfectly justified in being affronted by the required "under God" but that it isn't a big enough deal to take to the federal court. Is that right?
To be precise, that it's not big enough a deal to respect someone for going to a federal court.
See, Cardinal points at a problem that I think remains in your post: It remains unclear what line you think you're drawing and what difference it makes. You're obviously not saying that Newdow shouldn't be empowered to bring suit (or that he has no standing), but what you are saying isn't really clear. You respond somewhat in your comment above, but I think you fail "[t]o be precise." What, exactly, are you saying about an atheist who goes to court over this? Not that he may not seek redress; but are you saying that he should not, or that in his position you yourself would not, or what? The problem I see is that you're either making a normative claim about Newdow's behavior ("he oughtn't"), or you're making a non-normative claim ("I wouldn't, but why not?"). Now, normative rules don't translate perfectly into legally-justifiable rules (we agree that everyone ought to be a good friend, but there shouldn't be a law that says so), but in questions of standing and procedure? A case that shouldn't be brought usually means a case that shouldn't be allowed to be brought. It's hard to see you making a normative claim about Newdow without also implying that the standing rules are too lax if they would entertain this case. On the other hand, if you're making a non-normative claim, it seems rather curious what you're saying at all: You don't think it's a big deal, but we can infer from the amount of trouble that goes into litigating an appellate case that Michael Newdow thinks it's worth something. And if that's the conclusion, what's the motivation for your concern? There are many rules of contract law that apply to cases I'm not particularly concerned with, but if the particular promisee wants to litigate I'm perfectly happy to let them do so without comment. So that doesn't seem to be what you're saying either, and I'm left not knowing exactly what you think the significance is of your point on the non-seriousness of Newdow's supposed injury. [On Lee v. Weisman: Oddly, the rabbi in that case was at the time the rabbi at my old synagogue, although I have no particular connection with the parties in the case, nor do I know whether an observant Jew is forbidden from participating in a non-denominational ceremony (I wouldn't be surprised from what I know of Orthodox Judaism if that were, indeed, a valid rule; however I would be terribly surprised, from what I know of Providence RI, if anyone there actually were that observant). If I could speculate, I might suggest that Moses Mendellsohn's philosophy (summed up once as "Be a man in the streets, and a Jew at home") inspires some of the feeling that public religiosity isn't proper. Mendellsohn's view isn't uncontroversial, but many Jews are predictably (given our history) inclined towards a thorough scrubbing of the public sphere. ] Now, onto the substantive point: If it's really your position that theists have interests protected by the First Amendment that atheists simply don't have, I have nothing to say other than the Supreme Court and the authors of all constitutional textbooks have a contrary understanding. In addition to neutrality among religions, the government is bound to treat religion and non-religion equally; it's achieved the status of maxim at this point. And I should point out again, that what the Constitution takes as important about religion is emphatically not what religion would say is important about religion. Eternal reward in the afterlife; serenity here on earth; the imperative duty of obedience to the All-Mighty---all these are contemplated by different religions as being the point of religion. (I don't think all three of them would satisfy your test, btw.) The First Amendment does not ask these questions. The problem of defining "religion" for purposes of the Constitution is a live issue, but whether atheism counts is not. Frankly, I still don't see where you're going with this.
TtP: Sometimes I wonder if I will ever be able to draw you out of your insistence upon looking at things as if the law is the only lense we have. It's a temptation I understand among lawyers, but one I think we fall into all too easily. Specifically, you reject the idea that I'm making a normative claim because I refuse to collapse the question of whether a case ought to be brought with whether a case ought to be allowed to be brought. The two questions are very different, and there are numerous reasons why the scope of the first should be narrower than the second. I thought I had explained this with my reference to the cantankerous neighbor and trespass: yes, he ought to be able to bring his claim, but normatively he ought not to do so. The difficulty that you're having is that I'm not discussing the legal norm of Newdow's case, but questioning his reasonableness as a citizen (and as a man of faith). If one has a legal right, one may have the right to express it aggressively, but if one chooses to do so, there is the entirely non-legal question of whether one is being a jerk. I agree with you as a matter of First Amendment law, but it's entirely irrelevant to what I'm discussing, which is whether non-theists should want someone like Newdow--an aggressive, insistent plaintiff who seems willing to make federal law out of trivial harm--as the public face of their belief. Just as many Christians will distance themselves from Oral Roberts or Pat Robertson, I wonder if there isn't some rule or standard of behavior that should say, "Mike Newdow is acting within his rights, but not acting as a citizen should act in the public sphere. In my life I've been privileged to know a number of sincere and respectful atheists, but they have, by and large, been the exception: there are far more Brian Leiters and Mike Newdows. On the other hand, it strikes me as strange that most atheists don't mind the public face of their belief being such people. In any event, my question is normative, but I don't share your assumption that the only reasonable norms to ponder are the legal. I think it's both acceptable and laudable to question whether someone bringing a suit about "under God" in the constitution is--notwithstanding his status as a litigant--bringing forth a rather pathetic case.
Cute. What is it with conservatives that inspires so many to respond to disagreements by accusing the other side of stupidity? This is the second time today for me. (Maybe it's me.) In fact, I specifically disavowed the interpretation you'd like to put on me---just before I clumsily wrote something I didn't mean to write. Perhaps I should have phrased it: "a case that shouldn't be heard often implies that the case shouldn't be allowed to be brought." What I meant was that we don't often speak about jurisdiction being too broad without implying that the proper legal recourse is to narrow such jurisdiction. Normative statements about the state of the law usually imply the propriety of some change/non-change in the same. (Contra less serious topics like sports, where of course all good men are Red Sox fans, but there oughtn't be a legal insistence upon that fact.) Perhaps the distinction to be drawn is between normative judgments about the state of the law, and normative judgments about more concrete matters, but I really haven't thought this through. I am glad you agree with me (now) as to the First Amendment, but you'll forgive me for pointing it out, as we didn't agree on that point the first go-round. And I would only point out that, as you've presented it, every objection you have to Newdow bringing this case is applicable to every atheist bringing such a case, and agnostics too, for that matter. Do you think any such litigant would be a "jerk"? You query: whether non-theists should want someone like Newdow--an aggressive, insistent plaintiff who seems willing to make federal law out of trivial harm--as the public face of their belief But you've said yourself you think any atheist who objects to public acknowledgment of God is objecting to a "trivial harm." You've called Newdow distasteful for reasons that apply to all these "non-theists" and if applied across the board would lead you to call every litigious non-theist by similar terms, yet you wonder why they don't object to having such a distasteful spokesperson? (This is logically necessary if we're asking only what atheists who want to sue would care about the public image of, well, atheists who want to sue; but you seem to confirm it's empirically accurate, too, as there are more Newdows in your experience than gentlemanly atheists.) If we're to take you at your word, they're all of them distasteful; why should they mind?
TtP: This argument makes so many false assumptions that it's best to go through it one by one:
Cute. What is it with conservatives that inspires so many to respond to disagreements by accusing the other side of stupidity?
I have, of course, done no such thing. However, given that a large number of our conversations are of the form:
  1. Tony says X, explains that he's not speaking legally but normatively
  2. TtP then points to a legal doctrine, usually of a procedural nature, to object
  3. 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.
Perhaps I should have phrased it: "a case that shouldn't be heard often implies that the case shouldn't be allowed to be brought."
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.
What I meant was that we don't often speak about jurisdiction being too broad without implying that the proper legal recourse is to narrow such jurisdiction.
That you don't often speak about it does not mean that's what I'm speaking about.
Normative statements about the state of the law usually imply the propriety of some change/non-change in the same.
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 am glad you agree with me (now) as to the First Amendment, but you'll forgive me for pointing it out, as we didn't agree on that point the first go-round.
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.
And I would only point out that, as you've presented it, every objection you have to Newdow bringing this case is applicable to every atheist bringing such a case, and agnostics too, for that matter.
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.
Where do we disagree on the First Amendment question? I could be cute and use this: In this I disagree with Jim Lindgren at Volokh, though we reach similar conclusions as to the Establishment Clause. for double duty, since unlike Prof. Lindgren (and you, I assume), I (a) believe the First Amendment does apply to the states under Incorporation Doctrine, and (b) think the Establishment Clause prohibits more than the creation of a state religion. But I'll go further and explain my confusion here: 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. This is where I took off on our First Amendment disagreement. It appears I mistook you; I had thought you were making an argument that was merely incorrect, rather than trivial. What is the sum total of your argument, given your latest concessions, if it is not "Atheists have no rights under the First Amendment, except of course the rights they have." Look, there's two ways to interpret your denial of an injury in these cases. One is to think of it in the absence of a concrete material harm. But there is never a material harm in Establishment cases! (And so your reference to any litigant suing over insubstantial harms refers to all Establishment litigants, other than the odd taxpayer suit, I suppose.) And yet the courts keep deciding as they do, because the Amendment creates its own legal rights. That's the trivial interpretation, the erroneous one being the argument that the First Amendment creates no such rights. I had thought you were mistaken in what you were saying; erroneously, it seems, because it doesn't seem you were saying anything at all. Now, you make a few new assertions in this latest comment. First, that it would make sense for atheists to care enough about "under God" to campaign on the issue, but it doesn't make sense for them to litigate. This is nonsense for several reasons, only one of which is blindingly obvious. Another is that one needs to campaign for a cause only when settled law doesn't already support your side; happily for Mr. Newdow, the federal judiciary disagrees with Prof. Lindgren and thinks that the First Amendment does indeed mean the government doesn't get to tell you when to pray. Second, what if the minority atheists were to persuade the majority to respect their rights; they would still need to enforce them. Would you then still have the same reaction toward any litigants pressing in court their recent legislative victory? If it was a trivial harm before then, it would be a trivial harm afterwards. So I take it that you weren't really being serious when you distinguished between legislative methods and litigation ones and were instead following that tired conservative rhetorical device of appealing to the judgment of the people, rather than of the courts. You wonder about my resort to legal questions; I think I can actually clarify this: Only if I interpret your argument as a positive legal argument does it address my confusion. If you're making a legal argument, you're incorrect. You insist you're not making a legal argument, but if you're not making a legal argument you're not saying anything at all. Further, I'm still confused as to why you would even care. That confusion still hasn't been cleared up and perhaps needs to be put more concretely: What on earth gives you the confidence that you (a non-atheist) have any idea what atheists want? Further still: confidence enough to deny the likely inference from Newdow bringing the suit in the first place, that he actually thinks this is a case worth bringing and winning? I won't call it arrogance, but mystifying chutzpah fits the bill. The only clue to your reasoning I can find is this: 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. [Most blacks who experienced segregation didn't go to court, either; this is clearly insufficient as statistical evidence for your conclusion. ] So, I'm still curious: Why do you care? You tell me it's not because you think the law is being applied incorrectly, yet that is the only sensible objection I imagine you could have. (You claim it's not enough to worry about, but the litigants themselves clearly disagree. You claim that most atheists wouldn't approve of suing to enforce the rights of atheists, yet you claim that most atheists you've met are like Mr. Newdow.) So, what am I missing?
Wow, TtP. You've transcended the merely insulting all the way to what has to be intentional obliviousness. Do I have to resort to H1 tags to get your attention on this point? I am not making a First Amendment argument. I am not making an argument about the legal rights of Newdow whatsoever, and your attempts to create one are not a result of me being "trivial" or "incorrect" in any sense, but merely your insistence that on this blog I must discuss what you wish I were discussing. You give every evidence of thinking I should apologize for discussing my own topics on my own blog, and then talk of someone else having "chutzpah?" Let me make it plainer than I already have, which given the amount of time I've wasted on this discussion already seems overkill. It is not "saying nothing at all" to discuss whether someone should go to a courthouse with a complaint merely because I don't wish to say anything about the right of standing. Such discussion touches upon the role of a citizen in a civil society, the way that citizens should behave towards one another, and to put it bluntly, what we think is the behavior of a jerk. That this is not a matter you wish to discuss is irrelevant. As for a distinction between the settlement functions of legislation and judicial action, you may wish to put aside a complete school of legal thought, but then, I won't suppose you will as that would seem an act of... what, chutzpah? It's not entirely revolutionary to think that there is a difference between seeking to enforce a change in statutory code that has been settled after an election, and asking that a far broader condition be interpreted into law through the evolution of common law. That's not a "tired conservative rhetorical device" unless your entire view of statutory interpretation is particularly blinkered. But of course, the question-begging nature of your rhetoric doesn't help you here:
Second, what if the minority atheists were to persuade the majority to respect their rights; they would still need to enforce them.
And of course, there's the rub. Under your analysis, the minority atheists have a "right" that they convince the majority to respect. But of course, whether they have such a "right" is precisely what is being debated in the courts at the moment. In a very technical sense, at present they have that right in one area of one circuit. If the Supreme Court strikes this decision down later, are you now going to be telling me that the minority atheists have no such "right"? On the other hand, if they have in hand a statute saying, "The Pledge of Allegiance shall not say 'under God'", then whether they have such a right is not actually in question. I know, of course, that admitting that there is greater difference as to whether a right exists under a specific legislative act or a more vague constitutional provision is a "tired conservative rhetorical device" to some, but to others it does make a bit of difference. As for your discussion of my actual suggestion, further consideration is mostly irrelevant, as you seem to be paying no attention to the thrust of these posts:
One is to think of it in the absence of a concrete material harm. But there is never a material harm in Establishment cases! (And so your reference to any litigant suing over insubstantial harms refers to all Establishment litigants, other than the odd taxpayer suit, I suppose.)
Of course, your argument here gets difficult to parse. "Insubstantial" is not a term I would use, nor so far as I can see did use, since it could mean either "lacking in physical substance" or "non-important." Your use of this, and "concrete material harm," seem either deliberate red-herrings or mistaking my point entirely, since I at no point stated that the harms could be concrete or material. That's not only nowhere in my argument, but precisely the opposite of what I'm saying. I have been discussing a difference in importance between two types of harms that are not concrete at all. The pricking of one's ego at being forced to listen to something one does not believe is no more or less concrete than the fear of a future consequence from violating a religious prohibition. This doesn't imply that the two are the same or of similar importance. The fact that I mentioned no "concrete" harm in that sense might have suggested to you--were you listening--that I wasn't worried about such. (That's taking "concrete" to mean physical, though you might mean something else. "Concrete material harm" is, of course, a term of your own devising, and just another sense of you making the argument over a dividing line that I have not drawn, and thus will not in any sense bother to defend.) As for "material," that's a legal term, so I'll avoid it, because as I have said, repeated, and probably in italics, I'm not having a discussion on the legal doctrine of standing. But there is nothing that says that those two harms--even if both are "material"--are of equal importance, or that a man seeking redress for a violation of them should be seen as equally aggrieved or wounded by his fellow citizens. Of course, you might mean "concrete [and] material" to mean "consequential" as I mean it, which is to say: assuming the believer is metaphysically right, is forcing upon him the given activity likely to result in an adverse consequence to him beyond his own attitude to the problem? But if this is the case, you can't deny the distinction. What you seem to be saying is that I can't defend a dividing line you've drawn, which is of course correct. Either that, or that I can't find that dividing line in current Establishment Clause jurisprudence, which is also correct, but a bit perplexing, as I made no attempt to do so. Of course, making such distinctions seems difficult for you:
[Most blacks who experienced segregation didn't go to court, either; this is clearly insufficient as statistical evidence for your conclusion.
No. However, there were a very large number of blacks who experienced segregation who started a political movement that has in many sense altered the foundations of our Republic even beyond the immediate concerns of the movement. Some of the leaders of that movement--MLK Jr., for one--have become iconic in stature, and actually the movement itself is pretty iconic in its own right. King's March on Washington has become a standard by which other acts of protest can be judged. Given that, and the fact that access to the political and judicial process was implicated in segregation, my guess would be that many, if not most, blacks in the segregated South would have wanted to sue, at least if they thought they would win and had the resources to do so. Now, all of this other detail is absent in the pledge case, something which perhaps I could have mentioned, but thought didn't really need stating. Also absent is a harm that anyone reasonable would compare with the tribulations of segregation. So while in both cases you are correct that the fact that only few people do sue, and that this alone is clearly insufficient to support a conclusion, it makes me wonder: a) if you didn't catch me describe my statement as a "guess" rather than a conclusion, or if you are of such iron-willed certainty that you only make guesses when you have already come to conclusions; and b) if you really felt that the situations were so similar in context that one would make the same guess in both situations? Now, perhaps your confusion comes from an overstatement of mine: I believe it unlikely that most atheists I meet are like Newdow. I explained this in my last reply, but perhaps again I should put it more simply. The vast majority of atheists I meet I am unlikely to identify as atheists. I could probably name more Baptist leaders than I could name friends who I am confident are Baptists. I can certainly name more CoE leaders than I can name actual CoE churchgoers. And I can name a lot of Michael Newdows and Brian Leiters, by dint of the fact that they end up in the papers quite a lot. I probably meet far more atheists than this. That entertaining woman at the checkout at Nussbaum & Wu? She might be. Neither you nor I know. My guess--admittedly a guess, but a good one--is that there are more atheists in the world who I don't know than ones that I know of. I'm making a guess as to the nature of that silent majority, a guess sustained by the lack of (a) other lawsuits and--because apparently it needs formal statement for you--the lack of similarity to the civil rights movement. Finally, why do I care? Largely because I think it's important to discuss the non-legal boundaries that we impose upon ourselves as a society, rather than to stubbornly insist that if it can't be boiled down to a legal doctrine, it's obviously not important for discussion. Suppose that as a matter of positive liberty, a man decided that he had an inherent right to spit on the sidewalk, and that there was good reason under some newly-expanded provision of the 14th Amendment why he should be allowed to do so. It would still be worth examinging whether spitting on the sidewalk was the act we consider good and right for a citizen of our society to engage in. Newdow almost certainly has an "injury in fact" sufficient to get into court. And to make it clear: I think that under current Supreme Court jurisprudence, he's got better than even chances on prevailing in his suit should he ever get past the standing argument. But it is not the same thing to say that having a right makes it appropriate to assert it. To use your segregation example, I think being forced to stand in a bus--by any measure a concrete and material consequence--is an appropriate situation. I think making a federal case out of "under God" is a petulant waste of time driven by what one might call a fundamentalist atheist who makes a fetish out of an "iron wall of separation." And my rule is an attempt to draw a reasonable line between where assertion of a right is appropriate, and where it is not. Now, you might not think that an important thing to be talking about. One notes, however, that I don't vet my postings through you before deciding that something goes up on TYoH.
Yipes! I apologize to anyone who clicked through to the site that was here a bit ago: the comment was spam to a pornography site, but since it was in Japanese, I didn't notice what it was for a while. Now deleted.
First, I think I should---no, first, let me say I don't know whether I'm regretful or glad that I missed the secret porn spam. I suspect the latter. Second, I think I should apologize; I don't think I carefully considered my own posts and persisted in erroneous reasoning far after it should have been abandoned. I was wrong, and I guess that's all I can say about that. You say that, although most blacks didn't litigate most would have wanted to; it seems to me that same presumption could apply to atheists today. You could suppose one way in one case and the other in another, or the same in both; it seems to me that any of them would be a reasonable conclusion if not ultimately correct. In any event, I don't think it's been shown that Newdow doesn't speak for more atheists; that's what I was trying to say there. But I'm starting to suspect that it's beside the point. I suspect that we agree on the substance of Newdow's claim, although you don't want to talk about it, and I apologetically agree with you that it's rather boorish of me to try and force the issue. But assuming arguendo that Newdow could possibly prevail in the Supreme Court, and inferring (reasonably, I think) that he thinks it's worth his time and the time of the Court to try and do so, I'm mystified where you derive this principle that we nonetheless ought to condemn him for pursuing what it looks like he wants to pursue. I'm simply aware of no such rule of polite behavior that, if a person has a good legal right and thinks the matter is worth pressing, he nevertheless ought to abstain unless you can articulate some externalized cost of the litigation (it compromises someone else's more promising litigation, say, or it casts the issue in a bad light a la Massachusetts gay marriage). But here I'm at a loss to see some external cost. I see no burden he's placing upon anyone else---if he loses, nothing at all other than the slight strain on a judiciary that never leads us to condemn other litigants for asserting their rights; and add to that only the burden of obeying the law if he wins. I suspect that is in fact what you really object to, the thought that "under God" could be removed from the Pledge, but again you don't want to have this conversation. So (if you'll indulge my rather tardy attempt to address the issue at hand) I don't see any justification for such opprobrium other than a rather illiberal moralism.
TtP: Unless you know Japanese, I doubt the porn spam would have done much for you. I was mostly concerned because once I figured out it was porn (and not, say, a comment from someone who happened to run a porn site, which I might leave), I realized that I hadn't a clue most of the site was about, which concerned me. Hence the apology. You say that, although most blacks didn't litigate most would have wanted to; it seems to me that same presumption could apply to atheists today. I could presume it, but I don't see why I would suspect it to be the case, or even conclude that. No one has suggested that the "injustice" done to Newdow rises to the level of segregation, and one suspects that the willingness of any group subjected to an injustice to litigate rises with the severity of the wrong done them. Then there's the fact that blacks under segregation faced a significant economic and political challenge in getting to court, both because of de jure segregation and because they were economically and politically disadvantaged. This is not really the case with atheists, who are certainly no more poorly-educated, less-likely to have access to resources, etc. than anyone else. (At least, I've seen no one making that claim.) So perhaps we could make an equivalence as a presumption, but it doesn't really convince me as an argument. I'm mystified where you derive this principle that we nonetheless ought to condemn him for pursuing what it looks like he wants to pursue. If I were a libertarian, I'd agree with you, but of course I'm not. We socially condemn all sorts of people for pursuing things that they wish to pursue, and I don't see why use of the legal system should be any different. Suppose, as stated above, that the cantankerous old man suing the neighbor's children for trespass lived in your neighborhood: are you truly arguing that your feeling would be, "Well, you know, he's within his rights, and it's not hurting anyone, so what the heck?" As for the external cost, that's mainly a subject for the long-awaited third post, but to give you a preview... my contention is that in most situations, things like "under God", or the prayer that used to be given before dinner at Oxford, aren't particularly harmful at all, and that in the vast majority of cases, very few people give a damn either way. In some cases--say the pre-dinner prayer when I was in college--some of us find it a nice quaint tradition. The problem is, cases like Santa Fe get litigated because the real problem has nothing to do with a prayer led on a school ground and everything to do with the surrounding circumstances that don't get litigated. So far, so good, but then the decision is overinclusive: it doesn't only serve as a dividing line protecting the citizens of Santa Fe, but also deprives others of something they enjoy. Judicial rulings, at least at the Supreme Court level, are after all absolute and binding, even in those jurisdictions where there was little complaint nor problem. Hence it's important to ban the behavior that actually is harmful (in a real and not "injury in fact" way) rather than the red herrings. Anyway, it's a subject for another post.
Technical point: there can be a concrete material harm in establishment cases, at least ones that also involve free exercise. See Locke v. Davey, in which the WA statute presumably was written to avoid any hint of Establishment, but which Davey deemed to be a bar to Free Exercise. In this case, he really wanted free exercise, as losing the case meant he lost a scholarship that he otherwise was due on a merit basis.

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