January 7, 2009
Inauguration 2009: 'So Help Me God' At RiskBy Monte Kuligowski
With the approach of the presidential inauguration, America's most notorious atheist, Michael Newdow, is back in the headlines. Once again, he and an assortment of other plaintiffs are challenging the long-standing addendum, "So help me God," to the presidential oath of office. The lawsuit, filed by the American Humanist Association on Dec. 30, also challenges as unconstitutional, the pending invocation and benediction prayers to be offered respectively by Pastor Rick Warren and Rev. Joseph E. Lowery at the swearing-in ceremony of President-select Barack Obama on Jan. 20.
Scott Walter, of the Becket Fund for Religious Liberty, called the lawsuit a "publicity stunt," and further stated that, "Anybody who looks at it carefully can see there's not much there."
Though it is certain that the lawsuit will accomplish nothing but publicity for the separation of church and state cause, I'm sorry to say that the arguments Newdow advances are legally colorful.
Many words may be used to describe Michael Newdow, but unintelligent is not one of them. It is likely that most Americans view lawsuits against the religious expressions of inaugurations as frivolous and without merit, invoking the same type of ire against those challenging the constitutionality of the Flag pledge and the national motto. Dr. Newdow, however, knows something that most Americans do not.
Newdow knows that the legal precedent of the U.S. Supreme Court is actually on his side. He knows also that when it comes to judging his complaints, the Court has not been intellectually honest in the application of its precedent. So, he keeps at it (in 2002, the 9th circuit federal appeals court applied precedent and agreed with him, ruling that the Flag pledge was unconstitutional).
Bob Ritter, of the American Humanist Association and counsel for the inauguration lawsuit, recently said that the group could win "as long as the judges uphold the Constitution." Well, not exactly. The group could win so long as the judges uphold the Establishment Clause precedent of the U.S. Supreme Court.
Upholding the Constitution does not always mean upholding the case-law precedent of the Court.
The courts have divided the religion clause of the First Amendment in half; from which we get the Establishment Clause and the Free Exercise Clause. The religion clause reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
The religion clause of the First Amendment of the U.S. Constitution merely prohibits the federal Congress from passing law to establish religion and/or to prevent the people from enjoying free exercise. Under the protection of the Constitution, the feds cannot, by force of law, make you or your State subscribe to a religion and cannot prevent you or your State from carrying out religious expression. In short, the First Amendment ensures that the federal government has no jurisdiction over the religious affairs of the states and the people.
Then came the 1947 case of Everson v. Board of Education, in which the Supreme Court scuffled with the Establishment Clause, turning it on its head and setting it against the very states it was meant to protect. (Jurists refer to that feat as the doctrine of incorporation through which the Court uses the 14th Amendment as a handy tool to apply the Bill of Rights against the states.) Ironically, the clause meant to limit the federal government was used by the federal government to expand its power. Holding the Establishment Clause upside down in a full nelson, the Court forced it to cry Uncle Sam by reading into it a previously unheard-of doctrine: The requirement of government - federal, state and local -- neutrality toward religion.
We have reached the point in which the historic purpose of the Establishment Clause is practically irrelevant. No longer does a congressional law alone trigger a potential unconstitutional establishment of religion. Presently, a local school board may be substituted for the First Amendment's provision that "Congress" shall make no law. And since school boards don't write laws, any policy, unwritten practice or custom may be substituted for the word "law." Along those lines, "establishment" doesn't have to mean establishment and, for that matter, "religion," doesn't have to mean religion.
Thus, the federal government via the Court may ban, as "unconstitutional establishments of religion," municipal postings of the Ten Commandments; nativity scenes; common prayer in school; moments of silence in school; non-denominational prayer at graduation ceremonies, and so on.
As related to the questions of inaugural prayer and religious oaths of office, the case of Wallace v. Jaffree sums up the Court's establishment precedent by holding that government (and quasi government) is barred "from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." Additionally, in the interest of the "fullest realization of true religious liberty," the current state of the law requires that "government . . . effect no favoritism among sects or between religion and nonreligion [sic], and that it work deterrence of no religious belief" (Abington School District v. Schempp).
The moment the Court commanded the states and their localities to remain neutral toward religion in general, it was only a matter of time before they were required to maintain neutrality between religion and irreligion.
Starting from the Everson case of ‘47, the Supreme Court went on to develop the unworkable doctrine of complete government neutrality toward religion into a bizarre mishmash of inconsistent and unintelligible precedent. The inconsistency in applying its own precedent is a major factor as to why the Court's law on the subject is unintelligible.
When the Court wants to uphold law or policy that would otherwise "establish religion" under its neutrality precedent, it simply ignores its doctrine of neutrality altogether. The case of Marsh v. Chambers in 1983 in which the official, tax-payer supported prayers of Nebraska's legislative chaplain were upheld is the best example of the Court completely ignoring its establishment law precedent and Lemon tests of secular purpose; advancement of religion; and excessive entanglement with religion.
In my satirical article in the Duke Journal of Constitutional Law and Public Policy titled, "Does the Declaration of Independence Pass the Lemon Test?" it is shown that when subjected to the Court's neutrality precedent and its ever-increasing repertoire of establishment "tests" and subtests, even the U.S. Declaration becomes unconstitutional.
The federal court that hears the latest Newdow claims will likely pull a Marsh; thus upholding, in a select area, a principle that instinctively rings true with many Americans - voluntary expression of religion is constitutional under the actual Constitution.
At least with the questions of whether the presidential inauguration would unconstitutionally establish religion, we are dealing with the federal government and not a state legislature or some local school board. Nevertheless, no one would be forced by law (or otherwise) to adhere to any religious beliefs or tenets (even if Pastor Warren mentions the name "Jesus!") and no one's free exercise of religion would be infringed by the swearing-in ceremony.
The danger of Newdow's never-ending prosecution of seemingly frivolous claims is that, at some point, with the right justices, the Supreme Court might just follow its own "law" and apply the fabricated doctrine of government of neutrality toward religion.
Rather than perpetuating a confusing and selective jurisprudence, however, the Court would do well to get back to the actual purposes of the Bill of Rights and in particular, of the clause that protects the people in their free exercise of religion.
Monte Kuligowski is an attorney who writes on matters of faith, culture, policy and law.