Roberts? You've Been Served [Archive] - Straight Dope Message Board

tim314

01-13-2009, 01:04 PM

Dunno. I'm usually on the side of a strong seperation of Church and State on these types of things (I think the God-talk should be removed from the Pledge, for example). But the oath is more of a personal thing, if Obama thinks it makes it more personally binding on him if he evokes a deity, I don't really see a problem with that. A Muslim president who wanted to evoke Allah for the same reason should be similarly able to do so.

I agree, Obama should be able to say it if he wants. I'd guess Newdow is arguing that Roberts prompting him to say "So help me God" amounts to the U.S. government endorsing belief in God.

I do think there's a difference between the President personally asking for God's help vs. the President-elect being instructed to ask for God's help before assuming the office of President.

I still don't think Newdow has any chance of winning his case, though.

villa

01-13-2009, 01:12 PM

I still don't think Newdow has any chance of winning his case, though.

Damn it, I cannot remember if an individual citizen has standing to sue for establishment clause violations or not...

Randy Seltzer

01-13-2009, 01:12 PM

Does anyone know whether the complaint is available online or on westlaw? I'd be very interested in reading it.

Simplicio

01-13-2009, 01:17 PM

I do think there's a difference between the President personally asking for God's help vs. the President-elect being instructed to ask for God's help before assuming the office of President.

I'm fairly certain I read earlier that Roberts is adding the phrase at Obama's request.

I actually think you could argue that the addition is unconstitutional not because of the establishment clause, but simply because the oath is dictated in the Constitution and that adding to it is thus a violation. But I don't think that's what the Newdow is saying.

An Arky

01-13-2009, 01:18 PM

::sigh:: There's always some wanker who through sheer ineptitude/madness/whatever almost seems like a ringer from the other side sent to marginalize.

Way to go, Nimrod Newdow.

I'm mostly atheist, believe firmly in Seperation of Church & State, Freedom from Religion, and all that, but I have never thought that the point was to try to erase every reference to this country's predominate religion/level of religiousness at every turn.

Simplicio

01-13-2009, 01:20 PM

Damn it, I cannot remember if an individual citizen has standing to sue for establishment clause violations or not...

I think this is the same guy that sued schools for requiring the God language in the Pledge. The case was thrown out by the SCOTUS because he didn't have standing, but because of some convoluted issue with his child custody, not because an individual can't sue on establishment grounds. I'm pretty sure if some such rule existed, he would never have gotten as far as he did with that previous suit.

Diogenes the Cynic

01-13-2009, 01:21 PM

villa

01-13-2009, 01:28 PM

I think this is the same guy that sued schools for requiring the God language in the Pledge. The case was thrown out by the SCOTUS because he didn't have standing, but because of some convoluted issue with his child custody, not because an individual can't sue on establishment grounds. I'm pretty sure if some such rule existed, he would never have gotten as far as he did with that previous suit.

Well when it was the pledge case, he claimed standing because of his child I thought. I have this memory from law school regarding paying taxes specifically not granting you standing to sue the government re how those taxes are spent. I also have a feeling that establishment stuff is exempted from that, but I can't remember.

Gfactor

01-13-2009, 01:32 PM

Does anyone know whether the complaint is available online or on westlaw? I'd be very interested in reading it.

This appears to be it: http://www.ffrf.org/legal/warrenComplaint.pdf

The case number is 1:08-cv-02248-RBW

The hearing is on 1/15.

The parties have already filed briefs, which you can view on Pacer if you have an account. If I get some time later, I'll try to download them and post them somewhere.

mlees

01-13-2009, 01:37 PM

I presume the Oath is intended to make the oath-taker aware that they are about to embark on something "serious", that has heavy legal and ethical resonsibilities, whether it be marriage vows, taking the witness stand, or an oath to serve in some governmental capacity.

It also assures the viewers that the oath-taker is aware of all this.

The most widely recognisable form of the oath is to swear "by God", as a cultural thing.

If Obama wanted to swear in whatever way he wishes to achieve that effect, that's up to him.

Swearing out an oath on the soul of your peanut butter sandwich would not inspire folks around you that you are being serious.

ElvisL1ves

01-13-2009, 01:47 PM

"So help me God" is not in the official text of the Oath of Office. It is added voluntarily by the oathtaker.

Not that any modern pol would dare omit it by now, of course.

Marley23

01-13-2009, 01:47 PM

Some past presidents have skipped the "so help me God" part, others have skipped the "swear" part and I think not all of them have used the Bible. Some of it is traditional but none of it is required as part of the oath.

Lantern

01-13-2009, 01:50 PM

Interesting. Is there a list of which President skipped what?

tomndebb

01-13-2009, 02:06 PM

I agree that it is a waste of time and enrgy.
I agree that, in this case, the matter should certainly be considered settled: as noted, using an oath that the oath-taker considers binding hardly seems to be prohibited by the Constitution.

I would still say that "ceremonial deism" is nothing but an ass-covering legal falsehood to allow SCOTUS to avoid taking a legitimate stand against putting religious phrases on the money, (or in the PoA), but swearing an oath is not a violation. (In fact, for those who want to pretend that there is an issue, since the Constitution actually uses the phrase "Oath or Affirmation," the addition of "so help me God" to the prescribed text is perfectly compatible. (Otherwise it would be only an affirmation.)

tumbleddown

01-13-2009, 02:11 PM

Well when it was the pledge case, he claimed standing because of his child I thought.
Yes, he did, but as it turned out, he had very limited custody (~20% of the time or something) and had not made any objection in family court over the fact that his daughter was actively receiving Catholic religious instruction and attending worship while with her mother. While the latter wasn't a part of what had his standing claim dismissed, it certainly suggested that he was not engaging in the pledge case to protect his child from religious values he objected to and therefore seeking redress of a personal harm, but that he was instead using the child as an entry into the courts in order to push an agenda.

Diogenes the Cynic

01-13-2009, 02:12 PM

Interesting. Is there a list of which President skipped what?
Franklin Pierce was the first president to use the word affirm rather than swear. Theodore Roosevelt did not use a Bible when taking the oath in 1901. Dwight Eisenhower, Harry Truman, and Richard Nixon swore the oath on two Bibles. John Quincy Adams swore on a book of law.[14] Lyndon B. Johnson was sworn in on a Roman Catholic missal on Air Force One.
wiki (http://en.wikipedia.org/wiki/Oath_of_office_of_the_President_of_the_United_States)

Marley23

01-13-2009, 02:19 PM

I would still say that "ceremonial deism" is nothing but an ass-covering legal falsehood to allow SCOTUS to avoid taking a legitimate stand against putting religious phrases on the money, (or in the PoA), but swearing an oath is not a violation.
I felt the same way about their ruling that Newdow didn't have standing.

Fish

01-13-2009, 02:37 PM

Rumor has it that both Kennedy and Lincoln skipped the part that says "cross my heart and hope to die." However, the karmic retribution from this omission has been thoroughly debunked. Lincoln hand-clapped with the Chief Justice and did the "say say o playmate" routine and Kennedy turned three times in a circle, threw salt over his left shoulder, and spat over his right shoulder.

villa

01-13-2009, 02:41 PM

Yes, he did, but as it turned out, he had very limited custody (~20% of the time or something) and had not made any objection in family court over the fact that his daughter was actively receiving Catholic religious instruction and attending worship while with her mother. While the latter wasn't a part of what had his standing claim dismissed, it certainly suggested that he was not engaging in the pledge case to protect his child from religious values he objected to and therefore seeking redress of a personal harm, but that he was instead using the child as an entry into the courts in order to push an agenda.

This is kind of what I am saying. He didn't have any independent standing for the matter, so it could be dismissed. Here he doesn't even have the mask of standing that he had before, so his sole basis will be that of a tax payer.

aruvqan

01-13-2009, 02:54 PM

Interesting. Is there a list of which President skipped what?

Wild ass guess, but wasnt Nixon as a quaker supposed to omit the whole god thing? I know some variants of judeo-christianity conisder swearing using the name of god as not quite proper...

Fish

01-13-2009, 03:03 PM

Nixon swore on the Precious.

Elendil's Heir

01-13-2009, 03:03 PM

Just about every President since George Washington has added "So help me God." It's part of a longstanding and historic civic ritual that is almost completely drained of religious content. It hurts no one. Newdow will, and should, lose.

And thank you, Bricker, for getting Roberts's exact title right. :D

Richard Parker

01-13-2009, 03:05 PM

This is kind of what I am saying. He didn't have any independent standing for the matter, so it could be dismissed. Here he doesn't even have the mask of standing that he had before, so his sole basis will be that of a tax payer.

Flast v. Cohen is the case that carves out taxpayer standing for Establishment Clause violations, but it seems to have been pretty much limited to its own facts. The Supreme Court declined to extend Flast to actions by the executive in Hein v. Freedom From Religion Foundation, 127 S. Ct. 2553 (2007). Reiterating their earlier decision in Valley Forge, the court wrote:

Flast limited taxpayer standing to challenges directed only at exercises of congressional power under the Taxing and Spending Clause

127 S. Ct. at 2566. Unless Congress is authorizing payment to Roberts specifically for this service, I doubt there is even a colorable argument that it fits Flast.

villa

01-13-2009, 03:38 PM

Flast v. Cohen is the case that carves out taxpayer standing for Establishment Clause violations, but it seems to have been pretty much limited to its own facts.

Thanks - I knew there was something out there. I just couldn't remember which way it cut on this. I remember Valley Forge, certainly.

Oakminster

01-13-2009, 03:44 PM

I agree, it seems silly. I presume the fact that the summons was issued means some judge somewhere has agreed to hearing the case though, right?

Not necessarily. I can file a lawsuit and serve process on one or more defendants without getting permission or approval from anybody. Depending on the type of action, I may be able to set it for a hearing. The rules may be different in other jurisdictions.

Bricker

01-13-2009, 03:48 PM

I'm not arguing that Obama shouldn't say it if he wants to, but it shouldn't be solicited by Chief Justice. It's not part of the oath.

It's not like I really care, though. I'm just noting that soliciting it as part of the oath technically violates the prohibition on religious tests for office.

Well, technically, it's ceremonial deism, "...protected from Establishment Clause scrutiny chiefly because [it has] lost through rote repetition any significant religious content."

Ocean Annie

01-13-2009, 03:49 PM

I don't believe this is a good use of our limited judicial resources, especially for what amounts to an absurd and settled question.

I agree. These extremes only provide fodder for right wing media and invigorate the paranoid fringe.

Gfactor

01-13-2009, 03:49 PM

Not necessarily. I can file a lawsuit and serve process on one or more defendants without getting permission or approval from anybody. Depending on the type of action, I may be able to set it for a hearing. The rules may be different in other jurisdictions.

Right. In every jurisdiction I've seen, the court clerk issues the summons. The only exception is forma pauperis cases (where the plaintiff asks the court to waive the filing fees and costs of service).

The issuance of a summons means nothing. In this case, though, the plaintiff has asked the court to issue a restraining order, the judge has ordered the defendants to respond and set a hearing for January 15. So there's a little more to it than just issuing a summons.

ElvisL1ves

01-13-2009, 03:55 PM

Well, technically, it's ceremonial deism, "...protected from Establishment Clause scrutiny chiefly because [it has] lost through rote repetition any significant religious content."
If it has no significant religious content, why does the Religious Right argue for its continuation and preservation, then?

Maybe because it does too have such content, and the ruling you're quoting is somewhere between disingenuous and a simple lie? :dubious:

Captain Amazing

01-13-2009, 04:01 PM

It's not like I really care, though. I'm just noting that soliciting it as part of the oath technically violates the prohibition on religious tests for office.

It only violates the the prohibition on religious tests if the person's failure to say "so help me God" makes it invalid. Since the person being sworn in becomes president regardless, there's no element of a test there.

Cliffy

01-13-2009, 04:19 PM

It hurts no one.

I'd argue that it hurts all of us, actually, but it certainly hurts me.

--Cliffy

FinnAgain

01-13-2009, 04:34 PM

Having just seen Pineapple Express, I am currently having great trouble not viewing Nedrow as Dale Denton.

Cervaise

01-13-2009, 05:04 PM

Well, technically, it's ceremonial deism, "...protected from Establishment Clause scrutiny chiefly because [it has] lost through rote repetition any significant religious content."Uh huh. As Elvis says, if it has no significant religious content, then why is it always the godbotherers who squeal whenever anybody suggests eliminating it?

Strassia

01-13-2009, 05:26 PM

If it has no significant religious content, why does the Religious Right argue for its continuation and preservation, then?

Maybe because it does too have such content, and the ruling you're quoting is somewhere between disingenuous and a simple lie? :dubious:

Uh huh. As Elvis says, if it has no significant religious content, then why is it always the godbotherers who squeal whenever anybody suggests eliminating it?

I will quote something I put in a different thread (http://boards.straightdope.com/sdmb/showpost.php?p=10688665&postcount=49) on a similar topic:
One thing I would like to add about the topic in general. In my political science class in college, the professor acknowledged that everyone knew that God on the money and other tradition religious entanglements should be struck down by the Supreme Court, but no wants to for the simple reason that if anyone pushed it far enough for the Court to actually take action, the backlash would probably be bad enough to force through an Amendment specifically allowing it, and perhaps a lot more.
If put to a popular vote right now, we would probably be declared a Christian nation.

Jonathan

Peanut Gallery

01-13-2009, 05:53 PM

wiki (http://en.wikipedia.org/wiki/Oath_of_office_of_the_President_of_the_United_States)Dwight Eisenhower, Harry Truman, and Richard Nixon swore the oath on two Bibles

I'm itching to ask "why the extra Bible?" ... but then I realize it makes just as much sense as the first! Religion is some funny shit. Obama should swear on three Bibles to be the most president-ing mofo to ever president. That'd show em.

Jackmannii

01-13-2009, 06:10 PM

Atheists need to learn to pick their fights. This one's a loser.

Cervaise

01-13-2009, 07:12 PM

\Newdow does not speak for all atheists. For my own part, I am 15% quietly snickering at Newdow for having both the hubris and the available time to waste on this pointless effort, 25% murmuring in support of the general principle despite the practical impossibility of winning such an argument, and 60% screaming in silence in my own head that despite the fact that he's absolutely right it still sucks that it's a nonstarter, and may turn out to be counterproductive because the godbotherers are such reactionary whiners. In a couple of days, I'll go back to 100% quiet smugness about being right while the majority of everybody else is stupidly wrong.

TWDuke

01-13-2009, 07:33 PM

Just about every President since George Washington has added "So help me God." It's part of a longstanding and historic civic ritual that is almost completely drained of religious content.Rumor has it that both Kennedy and Lincoln skipped the part that says "cross my heart and hope to die."Interestingly, Lincoln is the first president for whom there is a contemporary record of his adding "so help me God" after the oath.

Mr. Moto

01-13-2009, 07:41 PM

I'm itching to ask "why the extra Bible?" ... but then I realize it makes just as much sense as the first! Religion is some funny shit. Obama should swear on three Bibles to be the most president-ing mofo to ever president. That'd show em.

Well, Eisenhower used Washington's bible in addition to his West Point bible, Truman used the bible he had been sworn in on upon Roosevelt's death plus one given to him by the town fathers of Independence, and Nixon used two family bibles.

Makes perfect sense in the individual cases - I don't know why you find it silly.

MEBuckner

01-13-2009, 07:50 PM

Since the Constitution itself doesn't include the "So help me God" in the President's oath of office, it is technically a matter of personal choice. A non-religious President could simply omit the phrase; a non-Christian President could say "So help me, Goddess" or "By the Sword of Kahless, may my own blood be shed if I violate this vow!" or whatever he or she pleases. I deplore the political reality that a canidate simply quietly repeating words of the oath of office proscribed by the Constitution (and only those words) would cause a great big brouhaha; but I wouldn't go so far as to say that religious believers should be unable to add some sort of solemnization that's personally meaningful to them at the end of the statement prescribed by the Constitution.

It's much more Constitutionally suspect that current U.S. law actually includes the phrase in the oath for other federal office-holders in the text of the law itself:
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law. -- 5 U.S.C. 3331 (http://www.law.cornell.edu/uscode/html/uscode05/usc_sec_05_00003331----000-.html)
The legally proscribed words for the enlistment oath for the armed forces (http://www.law.cornell.edu/uscode/html/uscode32/usc_sec_32_00000304----000-.html) also includes "so help me God" as part of the text of the law.

Since the Constitution clearly says that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" (and also that all such statements may be in either the form of an oath or an affirmation), Congress should never have included any specific religious language in the official wording any such oath required for a federal officeholder--leave it up to the individual doing the swearing to include some such if she or he deems it necessary to somehow make the official words fully binding on his or her conscience.

Mr. Moto

01-13-2009, 08:02 PM

Since the Constitution clearly says that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" (and also that all such statements may be in either the form of an oath or an affirmation), Congress should never have included any specific religious language in the official wording any such oath required for a federal officeholder--leave it up to the individual doing the swearing to include some such if she or he deems it necessary to somehow make the official words fully binding on his or her conscience.

Sorry, I disagree - for the reason that oaths and affirmations are often used to spell out to someone the full impact of a societal obligation they have - one that they may not have assumed 100% willingly. For conscription or compelling testimony we are imposing an obligation on people.

Appealing to their religious sense is appropriate if they are indeed religious - if they are not an affirmation is just fine.

MEBuckner

01-13-2009, 08:17 PM

Sorry, I disagree - for the reason that oaths and affirmations are often used to spell out to someone the full impact of a societal obligation they have - one that they may not have assumed 100% willingly. For conscription or compelling testimony we are imposing an obligation on people.

Appealing to their religious sense is appropriate if they are indeed religious - if they are not an affirmation is just fine.
If you feel that way, campaign to amend the Constitution, then. Because it doesn't say "no religious tests, unless they would be useful".

The practice of swearing oaths and making affirmations is itself an attempt to make a promise solemn and binding, as well as having greater legal force than just saying, "Yeah, OK, whatever you say, Jack". And if someone personally believes that invoking some deity or deities or lofty philosophical principle at the end of the thing will make it more meaningful and hence more binding, fine. Let them do so.

Proscribing a specific religious ritual by law, in addition to being unconstitutional and un-American, just runs the risk to letting off the hook any member of a religion which doesn't use that particular ritual or form thereof, who happens to have been conscripted or subpoened or whatever. "....So help me God. Hah, the fools! Since they didn't make me swear by Cthulhu, their oath means NOTHING to me! I can freely desert at the earliest opportunity/perjure myself without incurring Its dread wrath!"

And, more seriously, Americans who are atheists, agnostics, Wiccans, Buddhists, Hindus, etc., should have the same rights and the same duties as Americans who are Christians or Jews.

Mr. Moto

01-14-2009, 05:47 AM

[QUOTE=MEBuckner;10689642]If you feel that way, campaign to amend the Constitution, then. Because it doesn't say "no religious tests, unless they would be useful".

Wouldn't need to - four times in the original 1787 document the phrase "oath or affirmation" is used - including the section containing the prohibition of religious tests. This phrase requires such for federal officeholders, and an oath has a religious component.

Now, by permitting an affirmation instead, there is no religious test, but oaths are expressly permitted.

Bricker

01-14-2009, 08:57 AM

Uh huh. As Elvis says, if it has no significant religious content, then why is it always the godbotherers who squeal whenever anybody suggests eliminating it?

Because the goddisbelievers want to.

Because while the phrase itself is void of actual religious significance, the elimination of it it not religiously significant. This does not mean that ignorant people on the religious side believe there is religious significance -- after all, ignorant people on the atheist side obviously believe it has religious significance, and why should the atheists have a monopoly on ignorance?

As a matter of settled law, it's clear.

villa

01-14-2009, 09:08 AM

I think you might have left out a negative somewhere in there, or I am misreading it.

I don't think anyone denies that ceremonial deism is settled law. But that doesn't mean it isn't bad, illogical law.

Cervaise

01-14-2009, 09:28 AM

Because while the phrase itself is void of actual religious significance, the elimination of it it not religiously significant. This does not mean that ignorant people on the religious side believe there is religious significance -- after all, ignorant people on the atheist side obviously believe it has religious significance, and why should the atheists have a monopoly on ignorance?

As a matter of settled law, it's clear.Translation: "It's a lawyer's world, the rest of us just have to suck it up and live here."

Bricker

01-14-2009, 09:42 AM

Translation: "It's a lawyer's world, the rest of us just have to suck it up and live here."

I don't know about "world."

But when we're discussing a LEGAL issue like a LAWSUIT involving a JUDGE and his LEGAL obligations under the Constitution, the supreme LAW of the land... yeah, color me crazy, but I'm thinking there might be a tiny bit of relevance to what the law says.

tim314

01-14-2009, 10:08 AM

This does not mean that ignorant people on the religious side believe there is religious significance -- after all, ignorant people on the atheist side obviously believe it has religious significance, and why should the atheists have a monopoly on ignorance?What is the measure of something having "religious significance", other than people believing it has religious significance?

When the Court says "This phrase has lost all religious significance," aren't they making a statement about whether or not the average person still considers it religiously significant? What are they basing their determination of "no religious significance" on, if not that? And if that is what their determination is based on, then isn't evidence that people do still consider it religiously significant evidence that the court ruled incorrectly?

ElvisL1ves

01-14-2009, 10:21 AM

Because the goddisbelievers want to.

Because while the phrase itself is void of actual religious significance, the elimination of it it not religiously significant. This does not mean that ignorant people on the religious side believe there is religious significance -- after all, ignorant people on the atheist side obviously believe it has religious significance, and why should the atheists have a monopoly on ignorance?

As a matter of settled law, it's clear.
As a matter of clarity and coherence in expression, no it ain't, not hardly.

Dumbguy

01-14-2009, 10:46 AM

As a matter of settled law, it's clear.Then why open the thread? Is this just some legalese gotcha bear trap for anyone doltish enough to think that any group of nine people might occasionally be wrong?

villa

01-14-2009, 10:53 AM

It's not just that. I'll lay dollars to donuts this case won't be decided on ceremonial deism. It will get tossed for lack of standing or some other procedural defect. So the settled law as to ceremonial deism is not strictly relevant to a thread on this case, or at least any more relevant than the fact that successive Courts have stuck their heads far up their own asses to create this area of law, because they fear the consequences of ruling otherwise.

Mr. Moto

01-14-2009, 11:03 AM

Simpler than that - as I said before, how can something be unconstitutional when it is plainly written in the Constitution? I will directly quote the relevant portion of Article VI here:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

An oath or affirmation is required of the president - case closed.

Richard Parker

01-14-2009, 11:05 AM

An oath or affirmation is required of the president - case closed.

Don't quit your day job.

ElvisL1ves

01-14-2009, 11:09 AM

An oath or affirmation is required of the president - case closed.
Case not understood. :rolleyes: This is about the invocation of God, not the existence of an oath of office.

Mr. Moto

01-14-2009, 11:14 AM

Case not understood. :rolleyes: This is about the invocation of God, not the existence of an oath of office.

Oath - a solemn usually formal calling upon God or a god to witness to the truth of what one says or to witness that one sincerely intends to do what one says.

http://www.merriam-webster.com/dictionary/oath

Jack Batty

01-14-2009, 11:30 AM

There's a lot of wiggle room in there for you to be claiming your argument to be iron-clad. Firstly, an oath in which the president invokes the name of God or a god isn't mandatory, despite Mirriam-Webster saying that's usually how it's done.

Secondly, not even an "oath" is required; an "affirmation" is perfectly acceptable.

That being said, I don't see the point of the suit. It's Obama's choice how he handles it. He can invoke the name of The Great Gazoo if he feels like it. The "so help me God" part isn't codified.

Mr. Moto

01-14-2009, 11:38 AM

There's a lot of wiggle room in there for you to be claiming your argument to be iron-clad. Firstly, an oath in which the president invokes the name of God or a god isn't mandatory, despite Mirriam-Webster saying that's usually how it's done.

I didn't say it was mandatory - I said an oath or affirmation was required and that an oath was constitutional. Considering what is there in pretty clear language it seems quite a bit of a stretch for people to claim that it isn't - even going so far as to suggest that I should petition for a Constitutional amendment to permit the word "God" in an oath.

Given the language present, opponents of such language would be forced to change the Constitution to prevent that.

Fish

01-14-2009, 11:41 AM

I still think Obama's oath of office should start with the word "look."

42fish

01-14-2009, 11:50 AM

I still think Obama's oath of office should start with the word "look."

I think it should start with "Excuse me while I whip this out."

ElvisL1ves

01-14-2009, 12:06 PM

Oath - a solemn usually formal calling upon God or a god to witness to the truth of what one says or to witness that one sincerely intends to do what one says.

http://www.merriam-webster.com/dictionary/oath

We're talking about the specific oath of office that an incoming President takes. :rolleyes:

Come on now, you're better than this.

Mr. Moto

01-14-2009, 12:38 PM

Come on now, you're better than this.

So are you. Words have meaning - and when the framers required an oath or affirmation they did so fully aware of what both words meant - especially since this had been an issue in English law.

Some time before this, the testimony of Quakers would routinely be disregarded because they refused to swear oaths - not only that, but they would often be jailed for concealing felonies as a result of this.

R. v. William Brayn, 1678. (http://www.oldbaileyonline.org/browse.jsp?id=t16781211e-37&div=t16781211e-37)

This problem led to the passage of an act permitting affirmations in 1695.

When the Framers drafted the Constitution, religious liberty was an issue - Quakers were a significant minority in the country and some founders were Quakers. So affirmations were specified in the document - but oaths were not banned. Indeed either an affirmation or oath is required for several things - as I stated before, this construction is used in the original Constitution four times.

ElvisL1ves

01-14-2009, 12:48 PM

What part of "President" ... ah, screw it.

Mr. Moto

01-14-2009, 01:38 PM

Right - the oath of office in Article II?

After it is sworn, a president may say what he wishes. The phrase in question is an addition to the oath - and since nothing is removed from the oath the oath still has constitutional standing.

Bricker

01-14-2009, 01:47 PM

Then why open the thread? Is this just some legalese gotcha bear trap for anyone doltish enough to think that any group of nine people might occasionally be wrong?

Well, my thesis is made pretty clear in the OP. Are you sure you read it?

Bricker

01-14-2009, 02:00 PM

What is the measure of something having "religious significance", other than people believing it has religious significance?

When the Court says "This phrase has lost all religious significance," aren't they making a statement about whether or not the average person still considers it religiously significant? What are they basing their determination of "no religious significance" on, if not that? And if that is what their determination is based on, then isn't evidence that people do still consider it religiously significant evidence that the court ruled incorrectly?

You raise a good point.

I guess I would say that the touchstone should be whther it's reasonable for someone to attach religious significance to the practice. I may claim that the practice of alcohol consumption has religious significance, but that doesn't mean I can mount a First Amendment challenge to DWI laws.

Cliffy

01-14-2009, 02:46 PM

You raise a good point.

I guess I would say that the touchstone should be whther it's reasonable for someone to attach religious significance to the practice. I may claim that the practice of alcohol consumption has religious significance, but that doesn't mean I can mount a First Amendment challenge to DWI laws.

Are you expounding the thesis that the explicit invocation of divine assistance in matters of state has no religious significance? Because that's fucking moronic. Given that I know you're not a fucking moron, you are either being disingenuous or you're allowing your religious preference to cloud your reasoning.

--Cliffy

Bricker

01-14-2009, 03:14 PM

Are you expounding the thesis that the explicit invocation of divine assistance in matters of state has no religious significance? Because that's fucking moronic. Given that I know you're not a fucking moron, you are either being disingenuous or you're allowing your religious preference to cloud your reasoning.

I appreciate the ...eh... vote of confidence.

Yes, I am in fact contending that an explicit invocation of divine assistance in matters of state has no genuine religious significance. It's simply ceremonial, in the same way that an explicit request from me for an update on your general condition ("How ya doin'?") is not remotely an invitation for you to tell me how you're doing. Even though I just asked you how you're doing, I really don't want to know and don't want you to tell me.

Mr. Moto

01-14-2009, 03:19 PM

ElvisL1ves

01-14-2009, 03:23 PM

Yes, I am in fact contending that an explicit invocation of divine assistance in matters of state has no genuine religious significance. Then you should have no objection at all to removing it.

Jack Batty

01-14-2009, 03:30 PM

Then you should have no objection at all to removing it.

In fact, try to mandate it being removed and you'll see how much religious significance it does have.

Mr. Moto

01-14-2009, 03:46 PM

Then you should have no objection at all to removing it.

I think you need to read your Constitution again - it leaves it up to the individual whether he wants to use an oath or affirmation. I'm not going to mandate it either way, and I don't think it is your place to do so either.

Diogenes the Cynic

01-14-2009, 03:50 PM

For me the issue isn't what the person being sworn wants to say, but what he's asked to say.

ElvisL1ves

01-14-2009, 03:52 PM

The reference that time was to "ceremonial deism" as a concept, nonsensical though it is.

This isn't an easy topic for you, is it?

MEBuckner

01-14-2009, 04:43 PM

Wouldn't need to - four times in the original 1787 document the phrase "oath or affirmation" is used - including the section containing the prohibition of religious tests. This phrase requires such for federal officeholders, and an oath has a religious component.

Now, by permitting an affirmation instead, there is no religious test, but oaths are expressly permitted.
Again, I'm not talking about the President's oath of office. The Constitution says the President must take either an oath or an affirmation; it gives the words which must be subscribed to, but leaves off the specific religious component, since that would be up to the conscience of the individual taking the oath of office. Most Presidents for the foreseeable future will say "So help me God", but some future President is left free to say "So help me Goddess" or "In the Name of Allah" or whatever form speaks to his or her conscience.

But Congress has denied this to other federal officeholders. A neo-Pagan devout worshipper of the Goddess who has been nominated to be undersecretary of something (or has been commissioned in the Air Force, or has enlisted in the Army) has to choose between making a secular affirmation (which may not really square with her personal religious belief that such solemn statements should in fact be sworn to by the Goddess), or with using someone else's religious component to her oath.

This is wrong. The framers of the Constitution got it right--specify the statement may be in either the form of an oath or an affirmation; specify exactly what must be subscribed to; leave the specific religious affirmation (if any) up to the person whose conscience we're presumably trying to bind. Congress got it wrong, and they really should change the law.

Bricker

01-14-2009, 04:46 PM

In fact, try to mandate it being removed and you'll see how much religious significance it does have.

Depends on the reason for its removal.

I have a huge objection to it being removed on the theory that it's violative of the First Amendment, because it isn't.

If someone wishes to propose removing it because they don't like it, because it's meaningless, my reaction is: "Meh. Go ahead; fine with me."

villa

01-14-2009, 05:01 PM

Captain Amazing

01-14-2009, 05:16 PM

In other words, can something over time become ceremonial deism, losing its religious significance?

Isn't that the whole idea behind ceremonial deism?

Fish

01-14-2009, 05:35 PM

What if the President says "bless you" after someone sneezes?

Clovernook

01-14-2009, 06:11 PM

I still think Obama's oath of office should start with the word "look."

This is awesome.

villa

01-14-2009, 06:28 PM

Isn't that the whole idea behind ceremonial deism?

I would say so, but then I am neither a textualist, nor a person who believes that ceremonial deism has any legal basis. I was trying to understand how people support it as a theory.

ElvisL1ves

01-14-2009, 06:35 PM

I have a huge objection to it being removed on the theory that it's violative of the First Amendment, because it isn't.Only because you have declared a priori that it has no religious meaning - an assertion which you are having quite a bit of difficulty supporting, obviously.

villa, its "support as a theory" is its being a rhetorical rationalization for doing exactly what it (and its supporters, like Bricker) superficially purports not to do. That's it entirely.

IOW, Bricker. cut the crap.

Bryan Ekers

01-14-2009, 07:41 PM

Let him express the oath for his second term in interpretive dance; right now there's some necessary pandering to do.

crowmanyclouds

01-14-2009, 09:30 PM

Bricker

01-14-2009, 10:03 PM

Locrian

01-14-2009, 10:16 PM

Why can't it be "so help me America"?

I'm all for the omission of the phrase in inaugerations,
the Pledge of Allegiance and especially courts.
When the nation's leader uses this phrase it only opens
doors for religion and politics to mix fable and current events.
America's founders rejected this type of mix from the get go.

MEBuckner

01-14-2009, 10:31 PM

Bricker, would you say that, in a hypothetical situation where "In God We Trust" had never been added to the currency, a bill adding it now would be unconstitutional as a violation of the First Amendment?

In other words, can something over time become ceremonial deism, losing its religious significance?

Of course.
But--doesn't this allow nine black-robed, unelected, etc., etc. judges the power to arbitrarily decide what is and is not "ceremonial deism" and thus a violation of the actual words of the Constitution?

Algher

01-14-2009, 10:56 PM

Why can't it be "so help me America"?
America's founders rejected this type of mix from the get go.

No, they did not. The founders regularly invoked God in a variety of settings while acting in an official capacity.

What they rejected was a Federal church. They also rejected a religous test. They did not EVER reject the actions of individual.

Obama is not being forced to say, "so help me God" by the government. He is effectively forced to do so if he wants to keep the support of a significant part of the US population - but that is politics, not state coercion.

Nzinga, Seated

01-14-2009, 11:06 PM

What if the President says "bless you" after someone sneezes?

I wish a Christian might bless me after a sneeze. I will cut out their bloody hearts.

Bricker

01-14-2009, 11:37 PM

But--doesn't this allow nine black-robed, unelected, etc., etc. judges the power to arbitrarily decide what is and is not "ceremonial deism" and thus a violation of the actual words of the Constitution?

Yes. No.

Locrian

01-14-2009, 11:48 PM

No, they did not. The founders regularly invoked God in a variety of settings while acting in an official capacity.

What they rejected was a Federal church. They also rejected a religous test. They did not EVER reject the actions of individual.

Obama is not being forced to say, "so help me God" by the government. He is effectively forced to do so if he wants to keep the support of a significant part of the US population - but that is politics, not state coercion.

So it's the "significant part of the US population", eh?
That doesn't make me feel any better.

Exactly why would he lose the support of those who
need to hear this phrase uttered if he chose not to? Did they vote for Obama
because he likes god? I think not being Bush would have more to do with his
success in the polls, not to mention his campaign for a better America.

If he doesn't say the phrase, and does lose this support over
something as small as this, then voting isn't all that great.

villa

01-15-2009, 07:46 AM

Of course.

Assuming you mean that a law adding the words now would be unconstitutional as violative of the First Amendment, why?

Paleface

01-15-2009, 08:10 AM

Concerning "standing", there is an illustration of judicial activism.

Michael Newdow has standing to challenge "So help me God", "One nation under God", and "In God we trust"?

But Phillip Berg does not have standing to challenge the President Elect Obama's constitutional qualifications to serve as POTUS?

villa

01-15-2009, 08:26 AM

Paleface, has it been determined that Newdown has standing in this situation? Anyone can file a complaint.

Mr. Moto

01-15-2009, 08:58 AM

But Congress has denied this to other federal officeholders. A neo-Pagan devout worshipper of the Goddess who has been nominated to be undersecretary of something (or has been commissioned in the Air Force, or has enlisted in the Army) has to choose between making a secular affirmation (which may not really square with her personal religious belief that such solemn statements should in fact be sworn to by the Goddess), or with using someone else's religious component to her oath.

This is wrong. The framers of the Constitution got it right--specify the statement may be in either the form of an oath or an affirmation; specify exactly what must be subscribed to; leave the specific religious affirmation (if any) up to the person whose conscience we're presumably trying to bind. Congress got it wrong, and they really should change the law.

Congress didn't get it wrong - the oaths you mention work just fine for the overwhelming majority of people, and for most of those that they do not work for the affirmation works quite well. In the era in which they were written they covered the range of belief pretty comprehensively.

Now, I am in agreement with you that in this era of greater religious pluralism this may need to be revisited. However, if done properly this will add a greater range of choices of oaths and affirmations - it shouldn't prevent anyone from using the traditional oath of enlistment, commissioning or office.

All this can be accomplished with a simple legislative fix - especially as I have demonstrated that oaths are constitutional and that their use does not present any sort of establishment clause or religious test issue.

Agreed?

Jack Batty

01-15-2009, 09:10 AM

Did they vote for Obama
because he likes god?

Short answer: Yes.

All else being equal, if Obama had gone on national TV in October of last year and stated, "My fellow Americans, I am an atheist," he wouldn't have gained a single electoral vote. If he was running against a pile of bricks and bowl of tapioca pudding for veep, it still would have been a landslide loss.

Bricker

01-15-2009, 09:36 AM

Assuming you mean that a law adding the words now would be unconstitutional as violative of the First Amendment, why?

Because the whole concept of ceremonial deism says, "We've been doing this so long that it's simply tradition and history now, void of any actual religious significance."

If we're not doing and propose adding it, then the argument cannot be "We've been doing this so long that it's simply tradition and history," because it isn't. So what would the motive be to add it, then, if not religious significance?

ElvisL1ves

01-15-2009, 11:11 AM

Truthfully now, do you yourself really believe that there is or can be such a thing as deism that has no religious significance? :dubious:

Mr. Moto

01-15-2009, 11:37 AM

Truthfully now, do you yourself really believe that there is or can be such a thing as deism that has no religious significance? :dubious:

Sure. Even atheists will say bless you or use Christ's name in a curse - these are cultural deist holdovers that are not indicative at all of religious belief or practices either way.

That said, however, banning cursing or the blessing of people wouldn't be acts neutral to religious liberty, as a second's thought would show.

villa

01-15-2009, 11:39 AM

Because the whole concept of ceremonial deism says, "We've been doing this so long that it's simply tradition and history now, void of any actual religious significance."

If we're not doing and propose adding it, then the argument cannot be "We've been doing this so long that it's simply tradition and history," because it isn't. So what would the motive be to add it, then, if not religious significance?

What I can't get past is that the same words on the currency, with the same words in the First Amendment, are either constitutional or unconstitutional depending on the passage of time. And in particular, it seems your justification of it being unconstitutional if done now is based on legislative intent.

I don't have a problem with that as such based on my theories of legal/constitutional interpretation. But I don't see how a textualist justification for Ceremonial Deism is possible. Though we do see textualists invoke it all to often.

My personal opposition to it stems from my view that it isn't simply ceremonial, and nothing involving the state endorsing religion can be simply ceremonial (using endorse in a general sense, rather than the strict legal definition here, as it appears clear that by definition, under current law, something that is ruled as ceremonial deism simply cannot be an endorsement of religion).

Fish

01-15-2009, 11:53 AM

Mtgman

01-15-2009, 11:54 AM

Fact 1 - Clergy-led prayers have only been an official part of the Presidential Inauguration Ceremony since 1937.

Fact 2 - The de facto addition of "so help me God" to the Constitutionally mandated Presidential Oath of Office occurred at the same time. Before 1937 a Chief Justice recited the oath as written and left it up to the free exercise of the individual being sworn in to add the phrase if they so chose.

That having been said, Newdow will lose, and probably rightfully so. His suit overreaches and uses tons of loose logic, including the ever popular "won't someone think of the children!" tactic.Plaintiffs “Unnamed Children” are children in their formative years, who will watch as the government alters the sole constitutionally prescribed oath by adding “so help me God” to it, and as the government gives Monotheistic clergy unique access to the grandest ceremony in our national existence solely for the purpose of praying to God.If he simply said "Recite the oath as written, with no religious component" I think he'd still lose, but he'd get more traction. Instead here is what he is shooting for I. To declare that unauthorized addition of “so help me God” to the constitutionallyprescribed
presidential oath of office by the individual administering that oath to the
President violates the Establishment and Free Exercise Clauses of the First Amendment,
as well as 42 U.S.C. §§ 2000bb et seq. (Religious Freedom Restoration Act (RFRA));
II. To declare that the government-sponsored use of any clergy (much less an openly
Christian clergy) at a presidential inauguration violates the Establishment and Free
Exercise Clauses of the First Amendment, as well as 42 U.S.C. §§ 2000bb et seq.
(Religious Freedom Restoration Act (RFRA));
III. To enjoin Defendant Roberts, in his official capacity and in his individual capacity, from
altering the constitutionally-prescribed text of the presidential oath of office while
administering that oath to the President-elect at the January 20, 2009 inauguration, as
well as at any future presidential inauguration;
IV. To enjoin the remaining Defendants – and/or similarly situated government officials –
from utilizing any clergy to engage in any religious acts at the January 20, 2009
inauguration, as well as at any future presidential inauguration;
V. In the alternative, to enjoin these Defendants – and/or similarly situated government
officials – from utilizing clergy to engage in overtly Christian religious acts at the
January 20, 2009 inauguration, as well as at any future presidential inauguration;
VI. To allow Plaintiffs to recover costs, expert witness fees, attorney fees, etc. as may be
allowed by law; and
VII. To provide such other and further relief as the Court may deem proper.Strip it down to just III.(with a side of VI and VII perhaps) and I'd probably get behind it. The rest of it overreaches and is going to get the baby thrown out with the bathwater.

That all having been said, "Ceremonial Deism" is every bit as dodgy a legal justification as rights "emanating from penumbras" or Substantive Due Process and sometimes you've gotta take the good with the bad when dealing with judges who are human and who are working with a society made up of humans.

Enjoy,
Steven

magellan01

01-15-2009, 11:56 AM

Newdow is still Constitutionally correct, no matter how trivial it may seem.

If the phrase was changed to "so help me Allah," millions of people would have a fit.

Not the same thing. Allah is a God. God is not an Allah. One can be generic. One is a subset of the other.

Captain Carrot

01-15-2009, 12:10 PM

Not the same thing. Allah is a God. God is not an Allah. One can be generic. One is a subset of the other.

Allah is a God? What the fuck? No. Allah is the Arabic word for God.

Jack Batty

01-15-2009, 12:13 PM

Yeah. But not Buddy Christ's God, so it doesn't count.

Bricker

01-15-2009, 12:19 PM

What I can't get past is that the same words on the currency, with the same words in the First Amendment, are either constitutional or unconstitutional depending on the passage of time. And in particular, it seems your justification of it being unconstitutional if done now is based on legislative intent.

I don't have a problem with that as such based on my theories of legal/constitutional interpretation. But I don't see how a textualist justification for Ceremonial Deism is possible. Though we do see textualists invoke it all to often.

Well, I'm merely explaining the reasoning in support of the law as it stands; I'm not claiming it's based on rock-solid analytical principles.

If we were using rock-solid analytical principles, however, we would reach the same result for a different reason: that the mere act of saying or inviting "So help me God" is not a "law respecting an establishment of religion."

Mr. Moto

01-15-2009, 12:24 PM

I don't have a problem with that as such based on my theories of legal/constitutional interpretation. But I don't see how a textualist justification for Ceremonial Deism is possible. Though we do see textualists invoke it all to often.

:dubious:

The phrase was devised by Eugene Rostow, dean of Yale Law School. He was raised by socialist parents and was a lifelong Democrat himself. This construction he used was cited in Supreme Court opinions by Justices Brennan and O'Connor - neither of whom was any sort of textualist.

If it is cited it is because it is precedent.

villa

01-15-2009, 12:38 PM

:dubious:

The phrase was devised by Eugene Rostow, dean of Yale Law School. He was raised by socialist parents and was a lifelong Democrat himself. This construction he used was cited in Supreme Court opinions by Justices Brennan and O'Connor - neither of whom was any sort of textualist.

If it is cited it is because it is precedent.

Well done!

Yes it is used by non-textualists. They are wrong when they do. But it is also used by textualists, who are not only wrong when they do it, but they are also contrary to their professed legal philosophy. Which doesn't surprise me at all, given my view of the intellectual consistency of textualism, but that doesn't mean it shouldn't be pointed out.

villa

01-15-2009, 12:44 PM

Well, I'm merely explaining the reasoning in support of the law as it stands; I'm not claiming it's based on rock-solid analytical principles.

If we were using rock-solid analytical principles, however, we would reach the same result for a different reason: that the mere act of saying or inviting "So help me God" is not a "law respecting an establishment of religion."

Which is why I talked about a law requiring "In God We Trust" on currency, not "the mere act of saying or inviting..." I can respect that people don't necessarily view such a law as "an establishment of religion." I don't agree, but it is at least a logically coherent position. But my problem comes when people on the one hand espouse textualism, but on the other hand justify things through ceremonial deism, which, I think, is completely logically inconsistent with a textualist analysis.

Even if it was, as Mr Moto so helpfully points out, invented by a dirty stinking pinko.

Mr. Moto

01-15-2009, 12:45 PM

Well done!

Yes it is used by non-textualists. They are wrong when they do. But it is also used by textualists, who are not only wrong when they do it, but they are also contrary to their professed legal philosophy.

Not really, for the simple reason that I am explaining to you what the law is as it stands, not what I would wish it to be. And for better or worse Rostow's formulation has crept into case law.

villa

01-15-2009, 12:50 PM

Not really, for the simple reason that I am explaining to you what the law is as it stands, not what I would wish it to be. And for better or worse Rostow's formulation has crept into case law.

Believe me, I know what the law is as it stands. And as I have said, the law as it stands will, I imagine, be utterly irrelevant to the outcome of this case as it will be decided based on standing.

But I was talking about the philosophical underpinnings of ceremonial deism.

Bricker

01-15-2009, 12:51 PM

Well done!

Yes it is used by non-textualists. They are wrong when they do. But it is also used by textualists, who are not only wrong when they do it, but they are also contrary to their professed legal philosophy. Which doesn't surprise me at all, given my view of the intellectual consistency of textualism, but that doesn't mean it shouldn't be pointed out.

I don't too many textualists who believe we should toss out every case back to Marbury v. Madison and start over. Textualists may well quote cases that rest on such dubious conceits as substantive due process simply because, wrongly decided though they may be, their progeny now form the foundation of case law.

Why is textualism a wise approach in the first place, after all? Answer: predictability. Thw law works best when we can be confident that similarly situated persons are treated similarly. Textualism seeks to accomplish this by removing, to the extent feasible, the judge's desire for a particular outcome and replacing it with the simple meaning of the language the judge works with. It would be strange indeed if an adherent of textualism championed an approach which would destroy far more predicitablity than he gained.

Bricker

01-15-2009, 12:52 PM

Which is why I talked about a law requiring "In God We Trust" on currency, not "the mere act of saying or inviting..." I can respect that people don't necessarily view such a law as "an establishment of religion." I don't agree, but it is at least a logically coherent position. But my problem comes when people on the one hand espouse textualism, but on the other hand justify things through ceremonial deism, which, I think, is completely logically inconsistent with a textualist analysis.

Hopefully, my previous post sheds some light on this seeming inconsistency.

Gangster Octopus

01-15-2009, 12:54 PM

I apologize if this has been mentionmed, but isn't Newdow arguing that it should not be part of the Chief Justice administering the oath, but that Obama is free to add it in if he so wishes?

Bricker

01-15-2009, 01:11 PM

I apologize if this has been mentionmed, but isn't Newdow arguing that it should not be part of the Chief Justice administering the oath, but that Obama is free to add it in if he so wishes?

Among other arguments, yes. Newdow says:

1. Roberts has no authority to ask Obama to say the words, although Obama can say them if unprompted if he wishes.

2. Warren and Lowery's invocation and benediction should be forbidden.

Bricker

01-15-2009, 01:15 PM

And apparently there's an proposed amicus brief (http://www.oag.state.tx.us/newspubs/releases/2009/010809amicus_brief.pdf) in the matter signed by all fifty state attorneys general and the AG for the US Virgin Islands opposing Newdow's cause.

Gfactor

01-15-2009, 01:17 PM

Here is Newdow's Motion and supporting Memorandum: http://www.gfactorconsulting.com/Newdow/Newdow%20Motion.pdf

the Opposition filed by Roberts: http://www.gfactorconsulting.com/Newdow/Roberts%20Opp.pdf

and

Newdow's Reply: http://www.gfactorconsulting.com/Newdow/Newdow%20Reply.pdf

This is by no means a complete collection of the papers filed with the court.

ElvisL1ves

01-15-2009, 01:49 PM

the simple meaning of the language Begging the question. You continue to insist on claiming that's an absolute, unchangeable, objective thing, independent of context at any time, and therefore that any and all reasonable persons would reach the same conclusion.

You do know better - just as you do know that deism does have religious significance. You are certainly entitled to an opinion about what the words mean, but not to claim objectivity in your conclusions superior to that of those who reach different ones. You are also not entitled to dismiss context or justice in your quest for an objective, immutable, obviously-right position.

villa

01-15-2009, 01:55 PM

I don't too many textualists who believe we should toss out every case back to Marbury v. Madison and start over. Textualists may well quote cases that rest on such dubious conceits as substantive due process simply because, wrongly decided though they may be, their progeny now form the foundation of case law.

Why is textualism a wise approach in the first place, after all? Answer: predictability. Thw law works best when we can be confident that similarly situated persons are treated similarly. Textualism seeks to accomplish this by removing, to the extent feasible, the judge's desire for a particular outcome and replacing it with the simple meaning of the language the judge works with. It would be strange indeed if an adherent of textualism championed an approach which would destroy far more predicitablity than he gained.

This does make it clearer. This probably isn't the thread for an all out discussion of the merits, or lack thereof, of textualism. I just had never thought about ceremonial deism in textualist terms before, and it struck me as completely unsustainable, especially because it almost begs you to use legislative intent to interpret a new law.

Sex and religion seem to bring up huge inconsistencies in the law, which I guess shouldn't surprise me as they are areas where a judge is most likely to come to the table with preconceived ideas as to how a case should come out, and therefore be most likely to bend the law to suit those ideas.

If I believed that textualism provided the benefits you ascribe to it, I might be persuaded to be a textualist. It's practical application (including this example), however, makes me doubtful that is going to happen.

mlees

01-15-2009, 02:01 PM

Among other arguments, yes. Newdow says:

1. Roberts has no authority to ask Obama to say the words, although Obama can say them if unprompted if he wishes.

2. Warren and Lowery's invocation and benediction should be forbidden.

Regarding the first, I must have missed something. Has Roberts indicated that he is going to require Obama to say the verbotten words?

Regarding the second, is Warren and Lowery there at the behest of the Government, or Obama? I mean, if Obama wanted to have The Greatful Dead perform a few songs before the swearing in, that's up to him, right? Was Obama given the priviledge to invite guest speakers?

Bricker

01-15-2009, 02:31 PM

Regarding the first, I must have missed something. Has Roberts indicated that he is going to require Obama to say the verbotten words?

As I understand it, Obama has asked Roberts to add, "...so help me God," at the conclusion of the oath, at which point Obama will repeat it.

Regarding the second, is Warren and Lowery there at the behest of the Government, or Obama? I mean, if Obama wanted to have The Greatful Dead perform a few songs before the swearing in, that's up to him, right? Was Obama given the priviledge to invite guest speakers?

As I understand it, Newdow's claim is that their offering prayer at an official government function is per se improper. This claim is (or should be) foreclosed by Marsh v. someone, the Nebraska legislature prayer case.

Richard Parker

01-15-2009, 02:32 PM

Marsh v. Chambers (http://supreme.justia.com/us/463/783/case.html)

CurtC

01-15-2009, 03:07 PM

the Opposition filed by Roberts: http://www.gfactorconsulting.com/Newdow/Roberts%20Opp.pdf

I didn't read the whole thing, but early on it uses language that the "so help me God" is not part of the oath, but something said after the oath. It refers to "the wishes of the President-Elect to be prompted 'so help me God' once he takes the oath of office." So it's Roberts giving the oath, then after it's done they both say whatever they want, which in this case will likely be "so help me God."

Sounds like Newdow's only choice will be to stand an applaud loudly as soon as Obama finishes the phrase "preserve, protect and defend the Constitution of the United States."

Captain Carrot

01-15-2009, 03:14 PM

Marsh v. Chambers (http://supreme.justia.com/us/463/783/case.html)

Hijack: are Supreme Court cases usually that interesting, or is just the issue involved?

villa

01-15-2009, 03:35 PM

Nowhere near. Free speech/religion cases can be fun to read. Overwhelmingly, though, SCOTUS cases turn on points of law that put lawyers to sleep, let alone those who have no financial incentive to read the damn things.

Mr. Moto

01-15-2009, 03:45 PM

Begging the question. You continue to insist on claiming that's an absolute, unchangeable, objective thing, independent of context at any time, and therefore that any and all reasonable persons would reach the same conclusion.

You do know better - just as you do know that deism does have religious significance. You are certainly entitled to an opinion about what the words mean, but not to claim objectivity in your conclusions superior to that of those who reach different ones. You are also not entitled to dismiss context or justice in your quest for an objective, immutable, obviously-right position.

Pardon me, I am not Bricker. But I will say that personally I would find these arguments worth considering if they weren't coming from someone who was bickering over something so simple to define as the meaning of the word "oath".

If I can't pin you down on that subject, how can we hash anything else out?

Cervaise

01-15-2009, 03:54 PM

Why is textualism a wise approach in the first place, after all? Answer: predictability. Thw law works best when we can be confident that similarly situated persons are treated similarly. Textualism seeks to accomplish this by removing, to the extent feasible, the judge's desire for a particular outcome and replacing it with the simple meaning of the language the judge works with.What is the simple meaning of the word "God"?

Bricker

01-15-2009, 04:09 PM

What is the simple meaning of the word "God"?

A being or entity believed to have more than natural attributes and powers.

pravnik

01-15-2009, 04:16 PM

A being or entity believed to have more than natural attributes and powers.The Green Lantern?

:D

Cervaise

01-15-2009, 04:17 PM

Not small-g god. Big-G God. What is the simple meaning of Big-G God?

Bricker

01-15-2009, 04:25 PM

Not small-g god. Big-G God. What is the simple meaning of Big-G God?

I stand by my answer. Some people undoubtedly would add additional attributes, such as "...the only entity..." or "...one entity in three aspects..." but there is no particular consensus on what the more detailed definition might be.

MEBuckner

01-15-2009, 04:36 PM

Congress didn't get it wrong - the oaths you mention work just fine for the overwhelming majority of people, and for most of those that they do not work for the affirmation works quite well. In the era in which they were written they covered the range of belief pretty comprehensively.
In the past politicians tended to blithely assume that all Americans were Protestant, Catholic, or maybe Jewish. They could get away with it then, but they should stop doing that now.
Now, I am in agreement with you that in this era of greater religious pluralism this may need to be revisited. However, if done properly this will add a greater range of choices of oaths and affirmations - it shouldn't prevent anyone from using the traditional oath of enlistment, commissioning or office.

All this can be accomplished with a simple legislative fix - especially as I have demonstrated that oaths are constitutional and that their use does not present any sort of establishment clause or religious test issue.

Agreed?
Done properly--I'll take the oath of allegiance for naturalized citizens (http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=71da1e6f9db8abdddfdde32de82df57f)as the example--it should probably look something like this:
I hereby solemnly swear [or affirm]1, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen;

that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic;

that I will bear true faith and allegiance to the same;

that I will bear arms on behalf of the United States when required by the law;

that I will perform noncombatant service in the Armed Forces of the United States when required by the law;

that I will perform work of national importance under civilian direction when required by the law; and

that I take this obligation freely, without any mental reservation or purpose of evasion.2

_____________________________________________________

Notes to those administering the oath or affirmation of allegiance:
1The applicant may make the declaration in the form of either an oath or an affirmation.
2Applicants making the declaration in the form of an oath may here add such phrases as are consistent with their religious beliefs in declaring their acceptance of these obligations.

Or something like that. Trying to list all of the known forms of oaths of the world's religions would be quite pointless; just let the people administering oaths and affirmations know that some people may say various religion-y things at the end.

Algher

01-15-2009, 04:41 PM

Would the concept of ceremonial deism encompass prayer in school? Would it encompass the President accepting the sacrament before taking the oath of office? Would "ceremonial deism" successfully defend the idea of marriage defined as only between a man and a woman?

If the President wants to hold a Mass first - that is his personal choice.
If the people vote on the definition of Marriage, that is their choice (though the Constitutional issue of discrimination needs to be reviewed.)
If the President reads the Bible ever night, and uses the stories in there to inspire his actions - that is his choice. If his actions are bad, then we can vote him out.

What he can NOT do is declare that he will only hire Baptists, or that Presbyterianism is the religion of America.

It seems to me that "who cares if it's religious, we've always done it that way" is a poor justification for wedging religion into the behavior of government. The religious folk crammed "under God" into the Pledge of Allegiance in 1951, so "ceremonial deism" couldn't have been their defense.

It was more the anti-commies who wedged "Under God" into the Pledge wasn't it? That was the big deal when ranting about the Godless commies.

Mr. Moto

01-15-2009, 04:52 PM

Or something like that. Trying to list all of the known forms of oaths of the world's religions would be quite pointless; just let the people administering oaths and affirmations know that some people may say various religion-y things at the end.

What - so we're just down to hashing out the form of an oath now? Far cry from amending the Constitution, right?

Glad to see you came around. ;)

MEBuckner

01-15-2009, 04:58 PM

Far cry from amending the Constitution, right?
Well, we don't need to amend the Constitution. The Constitution never fucked this up. It's the Congresscritters who started jamming "So help me Gods" into the U.S. Code.

And as for "coming around", it was my position from the start that Presidents can add whatever religion-talk at the end of the Presidential oath of office as fits their personal religious beliefs.

Gfactor

01-15-2009, 05:31 PM

Injunction denied: http://voices.washingtonpost.com/inauguration-watch/2009/01/judge_references_to_god_okay_d.html

ElvisL1ves

01-16-2009, 10:43 AM

Pardon me, I am not Bricker. But I will say that personally I would find these arguments worth considering if they weren't coming from someone who was bickering over something so simple to define as the meaning of the word "oath".

If I can't pin you down on that subject, how can we hash anything else out?

If you can't be bothered to comprehend that we're talking about a particular oath and its particular text, then no, nobody can hash anything else out with you.

Do try to keep up. :rolleyes:

Bricker

01-16-2009, 11:09 AM

Well, this waste of judicial resources will undoubtedly appeal the denial of his injunction, and his appeal will undoubtedly be dismissed as well, and then he may try to move forward on the merits, and THAT will be denied, and...

...I hearken back to what I said in the OP: I don't believe this is a good use of our limited judicial resources, especially for what amounts to an absurd and settled question. Newdow should cut it out.

Mr. Moto

01-16-2009, 11:21 AM

If you can't be bothered to comprehend that we're talking about a particular oath and its particular text, then no, nobody can hash anything else out with you.

Forgive me for saying so, but I have come to the conclusion that you have no idea what you are talking about.

Let's assume for the moment that President Obama were to omit "so help me God" but was to place his hand on the Bible and say the constitutionally prescribed words, including the operative phrase "I solemnly swear...."

That makes it an oath - what is more, it makes it an oath to God, as Obama is a Christian and is swearing on a Bible. The religious implications of this are so clear that right from the beginning of our founding, affirmations have been permitted for people unable to swear oaths because of their particular beliefs, whatever they happen to be.

The fact that this is constitutional is undeniable - it is there in plain sight, and the case law doesn't seem to back up your view of the subject.

Now, you don't have to like it - there are a few things in the Constitution I'm not keen on myself. But you can't reasonably deny what is right there in front of you.

Unless, of course, you get off on being unreasonable.

ElvisL1ves

01-16-2009, 11:36 AM

I don't believe this is a good use of our limited judicial resources, especially for what amounts to an absurd and settled question. Newdow should cut it out.
The lawyer's bubble again ... Newdow isn't really doing this as an actual, legitimate judicial issue, is he? This is all about publicity for a broader political cause - one which no one here btw is calling actually wrong Constitutionally, just trivial and misguided - and he's getting it.

I take it you simply have no reply either to a challenge about the legitimacy of the "ceremonial deism" dodge or to one about the existence of the "true meaning" of the text of the Constitution.

MM, scroll back up to the top and read a little slower. Maybe that will help.

Mr. Moto

01-16-2009, 11:52 AM

He's getting publicity - but a lot of people have been patiently explaining why he is wrong.

Including some of our atheist members, incidentally.

As for you, ElvisL1ves, I doubt any amount of rereading at any speed will improve your argument. So I'm going to ask you flat out - given the fact that an oath or affirmation is required of the new President, what is your opposition to the oath of office?

ElvisL1ves

01-16-2009, 12:00 PM

It's worse than I thought - you really do think that's what my concern is, don't you? Wow ... :rolleyes:

Nope, the Oath of Office (notice the caps; the rest of the class is discussing a specific oath) does not invoke religion and is not in violation of the Constitution's wise requirement for separation of church and state. The conversation the rest of us here have been having has broadened into the existence of numerous other instances where that requirement has been violated, and yet been rationalized as meaninglessly (:rolleyes:) "ceremonial".

Mr. Moto

01-16-2009, 12:24 PM

...the Constitution's wise requirement for separation of church and state.

Interesting. Can you point out this phrase for me in your copy of the Constitution? I can't find it in mine.

I can find the establishment clause, the free exercise clause and the no religious test clause - but these don't add up to a separation, and indeed many Supreme Court decisions declare right off that these spheres of life cannot be totally separable and the goal must be reconciling them with the rights of others in mind.

ElvisL1ves

01-16-2009, 12:38 PM

Interesting. Can you point out this phrase for me in your copy of the Constitution? I can't find it in mine.There is no value in such deliberate obtuseness. That, as you must certainly know, is the common expression for the religion clause in the First Amendment.

Do you really wish to argue that there is no such thing as a SOCAS requirement ?!

Mr. Moto

01-16-2009, 12:39 PM

From Marsh v. Chambers:

The practice of opening sessions of Congress with prayer has continued without interruption for almost 200 years, ever since the First Congress drafted the First Amendment, and a similar practice has been followed for more than a century in Nebraska and many other states. While historical patterns, standing alone, cannot justify contemporary violations of constitutional guarantees, historical evidence in the context of this case sheds light not only on what the drafters of the First Amendment intended the Establishment Clause to mean, but also on how they thought that Clause applied to the chaplaincy practice authorized by the First Congress. In applying the First Amendment to the states through the Fourteenth Amendment, it would be incongruous to interpret the Clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government. In light of the history, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.

From Lynch v. Donnelly:

(a) The concept of a "wall" of separation between church and state is a useful metaphor but is not an accurate description of the practical aspects of the relationship that in fact exists. The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. Anything less would require the "callous indifference," Zorach v. Clauson, 343 U.S. 306, 314 , that was never intended by the Establishment Clause. Pp. 672-673.

(b) This Court's interpretation of the Establishment Clause comports with the contemporaneous understanding of the Framers' intent. That neither the draftsmen of the Constitution, who were Members of the First Congress, nor the First Congress itself, saw any establishment problem in employing Chaplains to offer daily prayers in the Congress is a striking example of the accommodation of religious beliefs intended by the Framers. Pp. 673-674.

(c) Our history is pervaded by official acknowledgment of the role of religion in American life, and equally pervasive is evidence of accommodation of all faiths and all forms of religious expression and hostility toward none. Pp. 674-678. [465 U.S. 668, 669]

(d) Rather than taking an absolutist approach in applying the Establishment Clause and mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith, this Court has scrutinized challenged conduct or legislation to determine whether, in reality, it establishes a religion or religious faith or tends to do so. In the line-drawing process called for in each case, it has often been found useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. But this Court has been unwilling to be confined to any single test or criterion in this sensitive area.

Mr. Moto

01-16-2009, 12:43 PM

Do you really wish to argue that there is no such thing as a SOCAS requirement ?!

I think you need to justify your absolutist views on this subject. This isn't supported by the Constitution or by case law.

Your opinion of how things ought to be isn't quite enough, no sir.

Mr. Moto

01-16-2009, 12:53 PM

I will note, too, that these opinions seem relatively straightforward in their entirety - no ceremonial deism. In the first it is noted that if the Founders saw no constitutional issue with paid chaplains and public prayer, than this shouldn't trouble us now, at least not on constitutional grounds. In the second it is a simple religious accommodation issue - no ceremonial deism invoked, but the Court's balancing test is revealed a bit.

ElvisL1ves

01-16-2009, 12:58 PM

You have provided examples of existing violations of the SOCAS requirement of the First Amendment, examples which the rest of us have been discussing already. As I already said, scroll up.

Perhaps you think the existence of violations, or their duration and history, or of rationalization of those violations, means there is no such requirement?

There's no such thing as SOCAS ... incredible ...

Mr. Moto

01-16-2009, 01:11 PM

There's no such thing as SOCAS ... incredible ...

What - I'm not permitted to disagree with something Jefferson wrote in a letter?

I believe there should be no religious test for office, I believe in the free exercise of religion so far as it does not interfere with other rights, and I do not believe there should be an established church or one preferred in law.

However, a strict wall of separation isn't required by the Constitution, it isn't supported by case law and it isn't favored by most people. So no, I don't want that.

ElvisL1ves

01-17-2009, 08:32 AM

What - I'm not permitted to disagree with something Jefferson wrote in a letter?
You're permitted to disagree with whatever you like. To pretend it doesn't exist, no.

Just ftr, are you joining the proudly self-proclaimed "textualist" Bricker in claiming that "In God We Trust" and "under God" in fact do NOT mean what those texts say? :dubious:

Mr. Moto

01-18-2009, 12:27 PM

You're permitted to disagree with whatever you like. To pretend it doesn't exist, no.

Well, read Lynch then and stop pretending that doesn't exist.

Just ftr, are you joining the proudly self-proclaimed "textualist" Bricker in claiming that "In God We Trust" and "under God" in fact do NOT mean what those texts say? :dubious:

They say what they say - but they don't constitute any kind of establishment of religion or interference of free exercise. For you to claim that they do flies in the face of established custom and case law.

ElvisL1ves

01-18-2009, 12:39 PM

They say what they say - but they don't constitute any kind of establishment of religion or interference of free exercise. So use of the word "God" does not, in fact, invoke God.

Good grief.

Mr. Moto

01-18-2009, 01:42 PM

Look, I said before you need to justify your views somehow. Your posts are awfully thin on citations, and as your opinion isn't the one currently held by controlling law, it is up to you to justify it better than you have until now.

Until you do so, you might want to cut the snark - it isn't becoming of someone who understands this subject so little. Not that I'm any kind of constitutional scholar, or even a lawyer, but at least I did some legwork here to understand the topic better.

villa

01-18-2009, 03:08 PM

Come on. We know Ceremonial Deism is the law at the moment, but it is pretty much logically indefensible. Establishment/free exercise jurisprudence is tough, I'll be the first to admit it - the two parts often seem in opposition to one another. But there are logically consistent ways to rationalize things such as "In God We Trust" on the currency. For example, you can claim that the purpose of the establishment clause is to prevent a single, state church.

But Ceremonial Deism really doesn't work. It strikes me as a cop out - a hand waving to avoid making difficult choices. And that is why it is popular on both sides of the fence. Christmas being a federally recognized holiday, for example, would be very tough to justify under a strict interpretation that prevented the marking of the currency. So would chaplains in the military.

The simple fact is the overwhelming majority of people want things like Christmas to carry on being recognized, including those who want a strict interpretation of the religious clauses. And Ceremonial Deism allows courts to pretend there isn't a problem there. But that doesn't make it any better law.