30 May 2014

Sometimes The Law Is Just Plain Illogical

The life of the law has not been logic; it has been experience... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
- Oliver Wendell Holmes, Jr., "The Common Law" (1881) at 1.
We have never addressed the question of whether the inclusion of the words “In God We Trust” on United States currency violates the Constitution or RFRA and write today to clarify the law on this issue. Four other circuit courts have ruled on this question, however, and have found that the statutes at issue do not contravene the Constitution. . . . Gaylor v. United States, 74 F.3d 214, 216 (10th Cir. 1996) (holding that the “statutes establishing the national motto and directing its reproduction on U.S. currency clearly have a secular purpose” and that “the motto’s primary effect is not to advance religion; instead, it is a form of ‘ceremonial deism,’” and, therefore, the statutes do not violate the Establishment Clause).
- Newdow v. Peterson, Case No. 13-4049-cv (2nd Cir. May 28, 2014), Slip Op. at 3.

U.S. coins contain the national motto, "In God We Trust", which was adopted in the Eisenhower Administration in the 1950s, as motivated by the dominance and unity of large Christian and Jewish religious denominations, in contrast to the overtly atheist Communist enemies of the United States in the Cold War.  The same burst of religious motivation put Ten Commandments displays in governmental buildings across the nation and slipped "under God" into the previously secular Pledge of Allegiance to the Flag.

Under relevant U.S. Supreme Court dicta, the United States Court of Appeals for the Second Circuit concludes in a short per curiam opinion using reasoning succinctly summarized in the quote above, that doing so is not unconstitutional on the grounds that it constitutes the establishment of religious in contravention of the First Amendment to the United States Constitution. This is consistent with the past precedents and will probably not even be further reviewed by the U.S. Supreme Court. In other words, legally, this is probably a correct ruling.

A recent U.S. Supreme Court upholding expressly Christian legislative prayer sessions makes clear that the highest court in the land remains untroubled by this sort of anti-atheist expression (a move that provoked widespread criticism). Town of Greece v. Galloway, ___ U.S. ___, No. 12-696, 2014 WL 1757828 (May 5, 2014) (holding that the town’s practice of “offering a brief, solemn, and respectful prayer to open its monthly meetings” did not violate the Establishment Clause.) (a 5-4 decision cited in Newdow v. Peterson, supra at Footnote 4).

This said, the notion that “statutes establishing the national motto and directing its reproduction on U.S. currency clearly have a secular purpose” and that “the motto’s primary effect is not to advance religion; instead, it is a form of ‘ceremonial deism,’” as the 10th Circuit held in the Gaylor case in 1996 is still patently absurd.  All forms of so called "ceremonial deism" clearly support religion over atheism. They were enacted for this clearly religious purpose, a fact supported overwhelmingly by the legislative and social histories of the movements that put these laws in place.

There is simply no way to logically reconcile this conclusion with the more general legal standard that governs establishment clause cases:
The First Amendment of the Constitution provides that “Congress shall make no law respecting an establishment of religion.” In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court held that, in order to comply with the Establishment Clause: “First, the statute [at issue] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances or inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” Id. at 612-13 (internal citations and quotation marks omitted).
- Newdow v. Peterson, supra, Slip. Op. at 4.

The "ceremonial deism" exception to the Establishment Clause is nothing more or less than a blatant and absurd legal fiction in which the courts have chosen to deliberately favor the religious over the non-religious (and other non-monotheistic religious beliefs). It was adopted at a time when so few people shared this religious identification, publicly anyway, that the snub seemed benign and harmless.

Now, there are now almost as many people who identify as something other than Christian as there are people who identify as Roman Catholic in the United States, and given current trends that line could be crossed any day now. But, the precedents are there and the current U.S. Supreme Court seems disinclined to change its position any time soon.

The Second Circuit in Newdow v. Peterson picks up U.S. Supreme Court dicta suggesting that it is hard to be "neutral" as opposed to slipping into active hostility towards religion.  Newdow v. Peterson, supra, Slip Op. at footnote 2.

But, the ceremonial deism cases themselves, factually, make clear that a neutral secular stance doesn't hold water.  Removing "In God We Trust" from currency, and "under God" from the Pledge of Allegiance produce results that address the establishment clause concerns without any hostility towards religion.  Neutrality is easy to achieve in these contexts.

Newdow v. Peterson's ceremonial deism holding is simply a particularly clear case of a bad precedent continuing to make bad and illogical law, despite the fact that it is on its face crazy.  Unfortunately, this is how the law works.  Precedents talk, logic walks.  Fortunately, in this situation, while the bad precedent is offensive and illogical, it at least doesn't do much material harm to non-monotheistic Americans, who in much of the world would face far more oppression.  Many other terribly U.S. Supreme Court precedents do far more harm.

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