November 19, 2005
Agnostic Defends Faithful Against Atheist
This case could not have come at a better time:
Atheist Now Sues to Take Motto Off Money
Nov 18, 2005
By David Kravets
SAN FRANCISCO, Calif. (AP) - An atheist who has spent four years trying to ban the Pledge of Allegiance from being recited in public schools is now challenging the motto printed on U.S. currency because it refers to God.
Michael Newdow seeks to remove "In God We Trust" from U.S. coins and dollar bills, claiming in a federal lawsuit filed Thursday that the motto is an unconstitutional endorsement of religion. [Emphasis added]
I believe the result of this case is obvious: the Supreme Court will rule against Newdow, probably on a 5-4 decision led by the Chief Justice.
Let's start with the specifics: there is no constitutional prohibition against an "endorsement of religion." There is a First-Amendment ban on establishing a religion, but establishing and endorsing are completely separate. To the extent that judges pretend there is such a ban (for example, the Ninth Circuit in Michael Newdow's first Pledge of Allegiance case), they are covertly amending the Constitution -- and they well know it.
For this to stick, however, you need a Supreme Court to go along with the game and pretend that merely mentioning the fact that the nation was founded by men who believed in God, or at least "Nature and Nature's God," and who did in fact put their trust in that deity, violates the Constitution written by those very same Founders. If that's a logical inference, then I am Marie of Romania.
This should perhaps ring a bell:
We, therefore, the Representatives of the UNITED STATES OF AMERICA, in GENERAL CONGRESS, Assembled, appealing to the Supreme Judge of the World for the Rectitude of our Intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly Publish and Declare, That these United Colonies are, and of Right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all Allegiance to the British Crown, and that all political Connection between them and the State of Great-Britain, is and ought to be totally dissolved; and that as FREE AND INDEPENDENT STATES, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which INDEPENDENT STATES may of right do. And for the support of this Declaration, with a firm Reliance on the Protection of the divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.
The Declaration of Independence is the foremost foundational document of our nation; all else, including the revered Constitution, was derived from this document. And this document itself was incorporated into federal law more than 125 years ago as one of the Organic Laws of the United States (along with the Articles of Confederation, the Constitution, and the Northwest Ordinance of 1787... and to answer Scott Johnson's question at the end of the Power Line piece, the Northwest Ordinance was the first piece of legislation from the Continental Congress -- predating even the Constitution -- that made it clear the United States would expand westward across the continent... and would do so by creating new states, rather than by making existing states larger; thus, it was every bit as influential on the "shape" of the United States as was the Constitution itself).
Sorry about the digression. Where was I? Oh yes, the primary foundational document unambiguously puts trust in God... hence the money motto. The phrase "in God we trust" is therefore historical, traditional, and descriptive; while the First Amendment only prohibits a prescriptive establishment of religion, such as the Church of England, and any proscription of the free-exercise of religion.
But Scott notes an important point in that Power Line piece I just linked, discussing the Ninth Circus Court of Appeals' agreement with Newdow that the Pledge was unconstitutional:
One interesting facet of the decision is that it only modestly extends the Supreme Court's misguided First Amendment jurisprudence on the subject of religion in the schools; I have read very little suggesting that the decision misapplies the jurisprudence.
So in fact, Newdow is making a good "paper bet" that the Supreme Court will play along with the charade; after all, it always has in the past. Even when they struck down the Ninth's decision, they did so on the weakest of all possible grounds: the Court simply found that Michael Newdow had no standing to sue on behalf of his daughter because he did not have custody. They never addressed the merits of the case.
So why is this the best possible time? Because we are virtually assured that this time, the case will actually be decided on the merits -- and that this time too, the Court will prune away that "misguided First Amendment jurisprudence on the subject of religion."
Not because of the changes in the makeup of the Court; Sandra Day O'Connor and William Rehnquist, replaced by Samuel Alito and John Roberts respectively, joined with Clarence Thomas the last time through, calling on the Court to decide the actual issue, rather than punting.
So why did they punt last time? I deduce it was because it would have ended up a four-four tie had they ruled on the merits.
The problem with the Pledge case was that Antonin Scalia recused himself, since he had given a speech on the subject of the case; so there were only eight justices hearing it. Now, let's suppose there were five justices ready to rule that the Pledge was indeed unconstitutional. In that case, I cannot imagine they would have gone along with booting the case on a technicality that they well could have ignored, or at least signaling in their opinions that if he refiles properly (as he now has done in Son of the Pledge of Allegiance), he'll be very happy with the results.
But by the same token, we know there were three justices who believed it was constitutional: Thomas, O'Connor, and Rehnquist. If there were two more, even without Scalia, then they would have done what they said they wanted to do: ruled on the merits and struck down the Ninth's decision more substantively.
Ergo, with my two lemmas above -- no five justices in favor of upholding the Ninth, nor five in favor of overturning it on substantive matters -- plus the Scalia recusal, I finally conclude that the score was 4-4... hence the compromise.
And that leaves Antonin Scalia. I believe that Scalia would have seen the light on the Pledge case and will do so in the coinage case: that the phrase is no more an establishment of religion than is the eye-and-pyramid seal an establishment of Freemasonry. Therefore, assuming Scalia can keep his piehole shut this time and needn't recuse himself, the case will probably hinge 5-4 in favor of sending Newdow away with a flea in his ear.
In fact, I think I can even name the five justices who will so rule: Roberts, Alito, Thomas, Scalia, and Kennedy. Ginsburg, Breyer, and Stevens (assuming he's still sucking air and not retired by then) will vote with Newdow... and David Souter is a coin-toss on this issue, in my opinion.
Hm, just as I thought: it was obvious, after all!
Hatched by Dafydd on this day, November 19, 2005, at the time of 5:17 AM
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The following hissed in response by: Xrlq
I don't put much stock in Scott Johnson's "Organic Laws" mumbo jumbo. It's rather basic constitutional law (read: high school civics) that Congress cannot amend the Constitution by statute, regardless of what that statute is called. Thus, to the extent that the Creator language of the Declaration of Independence conflicts with the U.S. Constitution, as interpreted by the courts, that makes the Declaration of Independence unconstitutional. It does not, as Scott Johnson ludicrously suggests, render the Constitution itself unconstitutional.
As to the outcome of the Newdow case, I think you're right about Roberts, Alito, Thomas and Scalia, and about Souter being a coin-toss. I could see Kennedy going either way, though I agree he's more likely to uphold the Pledge than to strike it down. I think Justice Breyer's a coin-toss, seeing as he was the only Justice who found a way to rule that public displays of the Ten Commandments are constituitonal in Texas but unconstitutional in Kentucky.
The above hissed in response by: Xrlq at November 19, 2005 1:17 PM
The following hissed in response by: vnjagvet
I think there will be a more lopsided victory for the motto.
The last Newdow case adhered to the old rule that SCOTUS avoids constitutional questions if at all possible.
The above hissed in response by: vnjagvet at November 19, 2005 2:30 PM
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