Assuming you mean that a law adding the words now would be unconstitutional as violative of the First Amendment, why?
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?
Paleface, has it been determined that Newdown has standing in this situation? Anyone can file a complaint.
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?
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.
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?
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.
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).
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?
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.
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.
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
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
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.
Yeah. But not Buddy Christ’s God, so it doesn’t count.
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.”
: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.
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.
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.