But if you do, I’ll be first in line to buy a ticket.
Jodi. I think maybe you are having a different conversation than the rest of us, if you really are only concerend with what SCOTUS has ruled (or failed to rule) concerning IGWT. I don’t think anybody is arguing that it is unconstitutional. That is a brief conversation, since the Court’s position is abundantly clear. Some of us, however, are saying that it probably should be unconstitutional, and that the reasoning behind the various court decisions seems little more than a thin veil of rationalization drawn over the face of religious a religious expression.
“In God We Trust” is a specific statement about the relationship of the people of this country and a Supreme Being. The relationship between men and God(s) is quite clearly the millieu of religion. Not of a specific religion, obviously, but of religion nontheless.
First things first: I erroneously stated on the first page of this thread that the Sixth Circuit found “With God All Things Are Possible” to be constitutional. This is flat wrong; they found it unconstitutional as being inseparable from its New Testament origins. A large error on my part and one I’m half tempted to not mention since no one else noticed it, but I’d rather look like a bit of an idiot than have anyone think I am intentionally misrepresenting the law. Plus, it does let me know that despite all the interest evinced in the debate, the only one bothering to read the cases is me.
MEBRUCKNER –
And who decides that the “reasonable observer” thinks? You? No. The courts. They evaluate what the fictitious “reasonable person” would do or think or say, and your coming up with one or two or ten or twenty or two hundred opinions to the contrary does not change that. You apparently feel that the courts are not equipped to make such a determination, which is of course a whole 'nother debate. How else do you determine what the “reasonable person” thinks? Take a poll? How big a poll? (And I don’t mean you personally; you apparently determine what the “reasonable person” thinks by an Internet seach, cutting and pasting the positions of people that you simultaneously proclaim to be “reasonable persons” but nevertheless don’t agree wiht yourself – making you, one presumes, an unreasonable person. But don’t worry; if the inconsistencies of your position do not bother you, I won’t let them bother me.)
Judges are the arbiters of what is legal or not and constitutional or not “out in the real world.” Not you, despite your self-evident desire to make those decisions, and not me.
I don’t know – how many? Do you understand that just because two people disagree, that does not mean that either of them are “unreasonable”? Do you understand that the law recognizes that reasonable minds might differ but that decisions must nevertheless be made? Do you understand that the “reasonable person” is not a real person, like, say, you, or your cousin Bert, but a legal fiction invented to attempt to quasi-objectively quantify something that is at bottom subjective? Do you understand that a judicial determination of what the “reasonable person” thinks or does or says does not mean that other people might not do or think or say differently – and reasonably? We have strayed pretty far from the topic, but if you are unclear of the role of the “reasonable person/reasonable observer,” maybe you should start a thread on that.
Though how you could be confused about it is beyond me. The Gaylor case – the exact case you quoted and directly after the passage you quoted[b – goes on to say:
Gaylor, 74 F.3d at 217 (internal quotations and citations omitted; italicized emphasis in original; bolded emphasis added).
Yep, one more. That brings you up to, what?, twelve? Be sure to forward you findings to the circuit courts with instructions to revise their opinions, because if you disagree with them on how a reasonable person interprets the motto, then they must be wrong.
MINTY –
A single belief is not a religion, correct.
Totally wrong. And wrong because you’ve got ahold of the wrong end of the stick. The courts do not asess the propriety of an enactment by trying to determine whether or not something is or is not religion or religious – and why would they wade into that quagmire? – they apply the Lemon test: (1) Does the enactment have a secular purpose? (2) Does the enactment have the primary purpose of advancing or inhibiting religion? or (3) Does the enactment excessively entangle the government with religion?
Surely you can see that your hypotheticals would fail at least two out of three. IGWT, on the other hand, arguably does not: It serves a secular purpose (ceremonial and historical); it does not serve to advance or inhibit religion; and it doesn’t excessively entangle government with religion. Even if you could argue, based on the fact that one single belief does not equal religion, that your hypotheticals do not run afoul of (2), they still run afoul of (1) and (3).
Wrong. You have read Lemon, right? I wouldn’t expect it of just anyone, but you are a lawyer and it is the seminal case on this issue.
Hyperbolic rhetoric that is both irrelevant and indefensible.
Then I’d suggest you take a larger view of establishment cases than assuming that they turn on whether or not something is or is not a “religion.” I would also suggest that you forbear from assuming that because you cannot convince me of the justice of your position under one set of facts, you could never convince me of the justice of any position. You seem to be implying that I am being close-minded here, and while I must agree that it appears that one of us is, I’m afraid it isn’t me.
I understand this, but if you leave the courts out of it, then what you have is an argument that is nothing more than an exchange of opinion. The argument goes like this: “Does IGWT advance religion?” “Yes, it does.” “Why do you say that it does?” “Because I think it does.” Okey-dokey. Are we through?
My point is that I do not think it does and the courts – the arbiters of what is or is not constitutional – agree with me (or, rather, I agree with them). In response to this I hear:
The courts are totally wrong as to what a “reasonable person” would think. (Unproven, and unprovable.)
The courts have some nefarious pro-religion agenda that means they are not considering cases fairly – i.e., they don’t truly think that what they say is right is in fact right. (Unproven, and unprovable.) All of them? Yes, all of them.
The courts are so totally incorrect that there is no way to even see a legitimate argument in their favor – despite the fact three circuits have similarly ruled. (But wait! They’re all religion stooges (see 2, above).)
I am personally so misguided that if I don’t think you all are correct in this case – as manifestly I don’t – then I must not think there can possibly an establishment problem ever ever ever, reactionary theist that I am. (Unproven, unprovable, flat-out wrong, and insulting to boot.)
Again, it is not enough for something to be within the “milieu” of religion to be found unconstitutional. You may think that ought to be enough, but it isn’t. And what people think the constition ought to mean, or how it ought to be interpreted, is again a matter of pure opinion if the person holding the opinion does not have a shred of legal authority to back it up. I realize you are entitled to your opinion and I respect it; I just get frustrated when people act like I am not entitled to mine – as if disagreement does automatically mean that one of us is being unreasonable or, more particularly, that I am being unreasonable. It is at that point that I say, “Yeah, silly me and the circuit courts.”
And I would also add that I personally would be far less likely to wade into this repeatedly if people were clear that what they are saying is their opinion and not legal fact – if, in other words, they said, as SPIRITUS does, “it has been held to be constitutional, but in my opinion it should not be,” as opposed to stating, baldly and wrongly, that it is unconstitional. It is that statement – IGWT is unconstitional – that time and again prompts me to post to point out that no, as a matter of law, it probably is not, since it has never been so found.
I especially recommend DSYOUNG’s post which, agree with it or not, is a very good elucidation of the Court’s analysis of establishment cases.
And, in further defense of my enormous, egregious error of totally misrepresenting the holding in ACLU-Ohio, you will note tha the OP’er in that thread also initially misread the case as upholding the constitutionality of the state motto, when in fact the court struck it down.
Actually, yes, a poll would be an excellent suggestion. I believe the FFRF sought to introduce evidence of that sort, but as the court said “…we reject the Foundation’s insistence upon further factfinding at the trial level, including the introduction of expert testimony and polling data. We need not engage in such empirical investigation…” because, well, because a bunch of judges have said they don’t think IGWT has anything to do with religion. I mean, if you can’t trust Bob the Clerk, who can you trust?
A poll big enough to determine what the average American actually thinks IGWT means. Is it “religious”? Does the fact that our national motto is IGWT mean that this is a “religious nation” or a “Christian nation”? People do stuff like this all the time, you know. If you want to find out what most people think about an issue, it is possible to do so. I’m not saying there aren’t numerous pitfalls to polling, but it would certainly beat having a bunch of federal judges cite each other’s opinions on the subject.
To the extent the people I was quoting believe that “In God We Trust” is a religious statement, and essentially a Judeo-Christian one, I do agree with them. Their perception, on that one point, strikes me as being more “reasonable” than all this “ceremonial deism” mumbo-jumbo. I suspect that the people I quoted have a better grasp of the original intent behind the legislative acts which established IGWT as a motto on our coinage, and as the “national motto”, than the honorable judges. From the U.S. Treasury’s fact sheet on the motto, we have this quotation from the letter by the Rev. Watkinson which set the whole thing off:
I strongly suspect that the U.S. Congress in the 1950’s had similar motives going beyond “formalizing our medium of exchange” (whatever the hell that means) and that Congress rather wanted to convey the message that Americans are a good, God-fearing, Christian folk, unlike those damned atheistic Communists.
So, yes, I have to say that on this narrow question of fact, I find all the assorted letter writers and editorialists to be more “reasonable” than the courts. Of course, I disagree with those people about many other things; for example, they believe (rightly) that IGWT promotes religion in general and Christianity in particular, and that it is a good thing for the government to do this. With that last part, I strongly disagree.
Let’s see, now. Why the hell was I quoting all those people in the first place? I said:
To which you replied:
My point all along was not that IGWT is being used by other judges–you seem to feel that only judges and lawyers exist, an occupational hazard, I guess–to justify state-sponsored prayer in school or posting the Ten Commandments in public buildings or stoning heretics. My point was that it is widely used by ordinary people (and their elected representatives) to argue that organized school prayer should be okay, and that this is a “Christian nation”. Because of that last especially, the motto patently does have the effect of advancing religion, and furthermore that is the effect it was intended to have in 1863 and in 1956 and in 2001 by those who have supported and currently support its ever-growing role as a state-sponsored expression of religious faith. Which is why the courts ought to declare its continued use and promotion by the state to be unconstitutional.
I was not referring to any particular opinion brought up in this thread in commenting that “common sense is not a standard requirement for Supreme Court Justices” but a general attitude regarding some of the more bizarre holdings over the years, from Antonin Scalia’s views on the constitutionality of teaching creation science to William O. Douglas’s views that trees have standing to sue in federal court in matters touching on conservation practices. I trust you would not object to an opinion of mine founded on those and similarly outre opinions?
You, DSYoung, and Sua Sponte hold professional opinions as to what might be held as unconstitutional in the event of a case reviewing such a subject. Tracer and I and the others posting cogent comments here hold educated amateur opinions along the same lines. It is, I would think, obvious that, until and unless one of us is named to the Court and can achieve a majority on the issue, or can convince a majority on the Court, as to the validity of our views, such opinions are nothing more than personal opinions (as opposed to “Opinions” in the legal sense – binding views set forth by the court). However, it is your, my, and everyone else’s privilege as citizens to be able to have such views and to express them, hopefully intelligently and with deference to precedent. For example, I am staunch in my view that “DOMA is an unconstitutional law” – while acknowledging that as a duly passed Act of Congress signed into law by the sitting President and not yet ruled upon by the Courts, it is certainly at present a valid law under the Constitution. My opinion means that I believe that a Court operating under the standards for judicial review should decide that the law flies in the face of Article IV of the Constitution and should be ruled void on those grounds, and that someone should bring a case before the Court arguing that viewpoint. I trust that this principle, of citizens interested in constitutional law holding views and respecting the Court’s rulings, is precisely within your own scope of logic, and that the remarks in recent posts are simply outlining what happens when people not versed in the law begin confusing what they think should be the case with what is in fact the rulings of the court. Are we in agreement here?
The fact that there is occasionally an opinion you consider bizarre at the Court does not mean that the Court as a body regularly displays a lack of common sense egregious enough to support a comment such as “common sense is not a standard requirement for Supreme Court Justices.” You take the most odd examples you can find and from them extrapolate what appears to me to be an indefensible implication that the Court as a whole lacks common sense.
Even the examples you cite are, with all due respect, not very good ones. Justice Douglas’s assertion that inanimate natural objects, such as trees, should have standing to have suit brought on their behalf is itself based on a law review article – he did not pull it out of his ass. It is, moreover, an idea very much in vogue in the more liberal environmental circles, where it has been alleged that an injury to an actual human being – as opposed to nature – should not be a prerequisite to bringing suit. I do not say you must agree with it – I personally do not – but only that the idea may not be as bizarre as it at first appears. Similarly, Justice Scalia’s “views” of creation science are grounded in deference to the states in interpreting their own laws and school curricula. They therefore raise a legitimate issue regarding federal v. states’ rights, regardless of what you think of his take on evolution. Moreover, in both cases you are quoting dissenting opinions – opinions not adopted by the majority of the Court – which under your own argument ought to show that it possesses the common
sense you claim is lacking in the positions it rejected.
Don’t get me wrong: I fully accept your right to disagree with these opinions, court opinions on IGWT, and any other judicial decision. I just dislike seeing things labelled as “bizarre” or “defying common sense” or whatever, when the truth is that there are two defensible sides to almost every story. Judges are not automatically prejudiced or stupidity just becuase their opinions do not coincide with yours (and, no, I’m not referring to you personally). Unless, of course, they do coincide with yours – in which case, they are of course paragons of wisdom and restraint.
Of course.
The problem is that there is no deference to precedent. Shoot, nobody in this thread has even bothered to read precedent, except me. The argument specific to IGWT is this: Any mention of God constitutes an establishment of religion. The end. That is where it will end up; that is where it has always ended up, in every discussion I’ve ever had about it here, where we leave out those pesky court decisions because we don’t like what they say. I said as much in my very first post.
I confess that I don’t know what “DOMA” is, or my brain is not working fast enough to decode it. Yes, you can argue that it (whatever it is) is unconstitutional. Heck, you can argue that having black kids and white kids in the same schools is unconstitutional. If you ignore precedent, then you are left with interpreting the Constitution however you personally like. That is the problem with having constitutional arguments that devolve to dueling opinions.
Has “DOMA” been reviewd by a court and had its constitutionality upheld? I would submit that if it has – by at least one circuit court or more, and with the Supremes having repeatedly denied cert. – then your argument that it is as a matter of law (as opposed to opinion) unconstitutional becomes much more difficult to make.
You will I hope forgive me if I decline to explore this tangent with you. If you attack decisions relying upon the reasonable person/reasonable observer as indefensible in that reliance (in other words, if you reject that standard), then you are not limited to attacked the courts’ decisions regarding IGWT – there are literally thousands of cases, from every jurisdiction, you can therefore argue are invalid. This is because the “reasonable person” standard is universally accepted and utilized in the United States (at least, I am unaware of a single jurisdiction disavowing it). So if we throw it out, we throw out a lot of law. As I said, the utility of that standard is IMO another thread.
Good idea! And then when a case comes up asking whether a reasonable person would pull up on a sidewalk to avoid hitting a person in the street, we’ll take another poll! And then when we’re asked whether a reasonable person would believe that ownership rights to property include the right to minerals as yet undiscovered at the time of the sale, we’ll take another poll! I’m sure you can see why many people might consider this unworkable.
And you, of course, are right, and I, and the others in the “ceremonial deism mumbo-jumbo camp” are wrong – because you are the arbiter of reasonableness. But I wonder if the reasonable person would consider you the arbiter of reasonableness? uick! Take a poll!
You suspect this based on what? The fact that judges pull opinions out of their asses (none of that pesky legal research, historical checking, or searching the legislative histories for them), or the fact that the average American takes such pains to educate him- or herself before participating in a poll?
I’m sure you have a citation for your strong suspicion, because you, as an average reasonable American, have taken pains to educate yourself before essaying an opinion, right?
Ah, so they’re reasonable on some things, but unreasonable on others. So we cannot even count on an actual reasonable man to remain reasonable from subject to subject. Sounds like we’ll need to commission a lot more polls.
Ah, an aside for a gratuitous shot at me. I wonder if I should feel offended. I’d better arrange a poll.
And my point is that ordinary people can argue that it is okay because the Great Pumpkin said it was okay. That does not mean that it is really okay. Who decides what is really okay regarding the constitution (i.e., what is constitutional)? The courts. You can show me 400,000 opinions that IGWT means we are a Christian nation and I will reject every one as being indefensible, both as a matter of law and a matter of fact.
Because lots of people think it does, then it does? This actually would be a pretty persuasive argument, except that the courts have of course held that most people do not so view the motto. And as evidence that they are wrong, you have, again, a few dozen people.
Wrong. The effect it was intended to have in 1863 and 1956 and in 2001 is as a unifying expression of the ceremonial deism that innocuously occupies the fringes of our government – from mottos on buildings to the opeing of Congress – and which always has.
In other words, you disagree with them. And I disagree with you. I trust we are therefore near to being done.
(N.B. This was from the debate concerning adding the words “under God” to the Pledge of Allegiance.)
I think “Congress rather wanted to convey the message that Americans are a good, God-fearing, Christian folk, unlike those damned atheistic Communists” pretty well sums it up. I think the conflation of the acts making IGWT the national motto and adding “under God” to the PoA is reasonable–both were cut from the same cloth. (There were two separate IGWT acts of Congress, one mandating that the motto appear on all money, and another officially making it the national motto.)
From the Congressional Record (June 7, 1955, pp 7795-96) we find that one of the two IGWT bills was introduced with reference to “serving as a constant reminder” of “faith in God and the desire of Americans to live by His will and by His guidance”. We aren’t just talking about expressing a vague belief in a generalized Higher Power, but seeking to promote “faith in God” and a “desire to live by His will and by His guidance”. If that’s not religion, then I really don’t know what the hell is.
And I would just like to emphasize something from the PoA debate:
This is why many atheists get so angry about this stuff.
MEBRUCKNER – IGWT has been on money since the 1860s. May I therefore assume that it is okay on coinage?
Because a Congressman or Senator in 1955 declared that you cannot be both atheist and American – a statement ridiculous on its fact, both then and now? :: Shrug :: As I’ve said before, everybody’s gotta be pissed about something.
Well of course they don’t start with inquiring whether a practice is religious or not. It’s generally patently obvious. You know, something like declaring that the state really trusts God. But if the practice ain’t religious (as you keep insisting this generic monotheism is not), then there will be no problem getting past ye olde Lemon test.
So let’s run my hypothetical through Lemon. Here’s the set-up: the feds pass a law requiring everybody in the country to affirm their belief in a generic, godlike higher power. And we’re using your definition of religion, which excludes generic monotheism from religion.
[ul][li] Does it fulfill a secular purpose? Hmmm, it ain’t religious, so it must be secular. Check. This oath must be something about how cool we all think America is. So what’s your beef, Mr. Atheist?[/li]
[li] Does it have the primary purpose of advancing on inhibiting religion? Well it just doesn’t involve religion, so how can it possibly advance or inhibit religion? No problem here. Swear away, you weirdo Buddhist, because this oath must be about patriotism or something like that.[/li] Excessive entanglement of state and religion? No religion, so no entanglement. Bailiff, get this whiny Taoist out of here and lock her up until she gets it through her head that generic monotheism has nothing to do with religion.[/ul]Obviously, how you define religion potentially has everything to do with whether or not a state enactment will violate the establishment clause.
As far as the original intent of the laws go, it’s already been pointed out that “IGWT” was intended to promote Christianity over “heathenism” from the get-go. It’s always been about promoting religion, in 1863, in 1956, and now.
Those quotes demonstrated the original intent of the legislators passing the laws, which a “reasonable observer” considering the “purpose, context, and history” of the assorted acts of Congress would take into account.
If by “reasonable observers,” you mean the court, they did take original intent into account, but that has never been the only factor looked at, or the most persuasive. (An act’s effect is always considered more important than its intent, for obvious reasons.) And in the 1860s, it was not considered a bad thing to promote religion over “heathenism” – nor was it a bad thing in the 1780s, for that matter. You are free to judge every government action in history by your own personal, modern standards, but I am not required to. I am perfectly able to recognize that IGWT is okay on money in large part because it has been on money for 130+ years and the vast majority don’t give it a second thought, much less give a shit. And you may feel that the U.S. ought to be a purely atheistic society, but I am not required to agree with that, either.
What an amazing thread. I couldn’t understand it until I realized Jodi was a lawyer. It really does take legal training to so vehemently deny the obvious.
Well, gosh, its funny there’s ever any establishment question ever, isn’t it? I mean any mention of God is obviously “patently obviously” a religion. End of story!
Only if you engage in the results-oriented, back-forming reasoning you display:
Okay. And the question is whether the enactment advances a religious belief.
Wrong. You do not get to make the decision (“it doesn’t advance religion”) and then fit the test around it. The question is “Does it fulfill a secular purpose?” If it does, what is it? If you cannot articulate one, you lose. Note that a new enactment probably does not have the recourse to “ceremonial deism” or historical usage that IGWT does. But “it isn’t religious so it must be secular” does not cut it. And that is not the reasoning employed by the courts, as you would know if you bothered to read the cases.
Again, you cannot assume it is okay, and therefore announce that it must be okay. (“It must be about patriotism or something like that.”) I don’t object to you “running it through the Lemon test,” but it would be preferable if you made a serious effort at doing so.
Let’s say the question is, Is killing someone felony premeditated murder? And the test is: 1. Was the killing unlawful? 2. Was the killing premeditated? 3. Was a weapon used? You would apparently apply the test as follows:
“Was the killing unlawful”? Well, we know the killing in question was not a murder, so it must not have been unlawful.
“Was the killing premeditated?” We know the killing wasn’t murder, so it must not have been premeditated.
“Was a weapon used?” We know it wasn’t a murder, so a weapon must not have been used. See? It’s easy to defeat the test when you start with an ultimate result and let that dictate your conclusions.
Wrong, because anything that even might be religious (not just religion) comes under scrutiny – just as IGWT has come under scrutiny but has nevertheless been found constitutionally sound. That does not serve to transform one belief into a religion, your assertion to the contrary notwithstanding.
And allow me to say, if your above analysis is any example of the results-based way you would apply the law, the people of Texas ought to thank their lucky stars you’re not a judge.
Oh, yeah, it’s so flipping “obvious” that only three circuit courts of appeals and several district courts agree with me. :rolleyes:
s I have said before, I have no problem with people disagreeing with this analysis, but when people post as if they cannot even see the argument (implicit in saying the opposite conclusion is the “obvious” one), then I suspect a person is posting either through disingenuousness or obtuseness. Not knowing NED, I can’t say which it might be. But thanks for stopping by to add such a substantive and illuminative comment to the thread.
Hmmmmmm, at last the truth rolls out. Jodi in her last post brings to the fore the real trouble with all the court cases on the issue: this IS a Christian country, ruled by Christians, most of whom don’t view the mention of Christian viewpoints in governmental contexts as infringing on the rights of those who are not Christian. Thus, as a Christian, Jodi objects to the concept of totally removing reference to religion by government in this country, a position advocated by people like DavidB and others.
Now, don’t get me wrong. To those who would like to think that the motto “In God We Trust” on our money violates the First Amendment, I simply point out that nothing in either the plain language of that amendment, nor in the interpretation of that language for the last 200-plus years requires, or even commends such a conclusion. In short, like it or not, the First Amendment doesn’t guarantee us an a-religious government. It never has, and likely, it never will.
Having said that, let’s stop trying to avoid the true conclusion one derives from this fact, as applied to our majority-Christian society: We are a Christian nation and we continue to act as one in most of our policies. We continue to celebrate Christmas, a Christian feast. We usually let our children off of school for an extended period at Easter, a Christian festival. We make reference to God, not god on our money, in our Pledge of Allegiance, and in other ways. We continue to allow prayer to initiate the meetings of our highest legislative body, a practice specifically held to be constitutional by our Supreme Court (citation upon request; likely Jodi knows it). And while we dress such occaisions up these days to try and be ecumenical, we all know inside of us that this is, at best, pretense to allow the practice to continue, because our Christian legislators WANT such prayer. And, last but certainly not least, a large segment of our country continues to actively practice a variety of borderline and not-so-borderline Christianity promoting practices, including various attempts to continue the practice of prayer in schools, the introduction of Christian religious ethics in courthouses, and the thinly-veiled attempts to throw monetary lifelines to private schools, the vast majority of which are sponsored by Christian churches.
It is with this concept of our government that those here arguing against the concept of allowing “In God We Trust” on coins and paper money disagree. Unfortunately for them, the First Amendment is no support for their demand that government become a-religious.
Um the post I refer to by Jodi is actually three back, where she says: “And you may feel that the U.S. ought to be a purely atheistic society, but I am not required to agree with that, either.”
