More on the National Prayer Day case

As I reported about a week ago , a federal District Court in the US recently struck down a statute providing for a "national day of prayer": Freedom from Religion Foundation v. Obama (15 April 2010). At the time, I said that I had no idea whether the administration would appeal, but it soon became obvious that an appeal would be lodged. Sure enough, this has now happened.

This case still strikes me as a no-brainer. An institution such as National Prayer Day clearly gives government endorsement to a form of religion, and any statute that underpins National Prayer Day is to that extent repugnant to the US Constitution - more specifically the First Amendment, which forbids any law concerning an establishment of religion.

Nonetheless, there is some room for the argument that certain relatively minor endorsements of religion by the government are constitutionally acceptable. Given that fact, and given that the administration is under political pressure to defend National Prayer day and other government-level endorsements of religious belief, it is not surprising that an appeal was filed. I'm not especially troubled by this - all litigants have a right to appeal and test the law - but there's one aspect that does worry me. The appeal does not merely dispute Judge Crabb's opinion on the merits. Much worse, it attempts to deny the Freedom from Religion Foundation's standing to pursue its case against National Prayer Day in the first place.

This is an appalling development because it has the potential to render laws that breach the Constitution almost invulnerable to legal challenge whenever the breach is a mere endorsement of religion by the government and doesn't compel any conduct from citizens. While more tangibly oppressive laws might still be open to attack in the courts, in appropriate cases, an unconstitutional law whose forbidden effect is "only" government endorsement of a religious viewpoint, affecting all citizens in a relatively inchoate way, would not be. This would create injustice.

A law with broad effect on everybody in the society, but not damaging anyone in particular, should be open to challenge from any concerned citizen. Otherwise, the legislature is free to enact whatever unconstitutional laws of this kind it wishes, and no one will have standing to do anything about it in the courts. Surely that can't be right.

My fear, however, is that the courts might be tempted to go along with such an approach, since it would enable them to dodge the merits of many unconstitutional but popular laws. That temptation should be resisted. The constitution is the consitution, the legislatures of the US have no business in enacting laws that contravene it, and the courts should face up squarely to cases where contraventions are alleged. A law whose unconstitutionality affects every citizen, rather than altering the rights of some particular category of persons, must not be saved by the contrivance that there is no class of people with standing to challenge.

As the current batch of cases works its way through the courts, some American laws that endorse religion may end up surviving on the basis that they do not "really" endorse religion at all. Rather, goes the argument, they merely use high-blown traditional rhetoric: they make reference to an unspecified god in order to provide a ceremonial aura of solemnity. This argument can be applied to the expression "In God we trust" on the legal tender of the United States of America, to the words "under God" in the Pledge of Allegiance, and to the use of religious language and ritual in various formal settings, such as prayers and invocations of God in legislative chambers and courtrooms. The courts are not willing to say that any constitutional breach is de minimis (trivial) so they prefer to find a doctrine to support the claim that there's no breach at all. Hence, they have been developing a doctrine of "ceremonial deism" to cover some of these situations.

At the moment, we don't know which words and practices (if any) will be saved on the basis that they merely use the language of ceremonial deism to impart a sense of solemnity. The idea of ceremonial deism is still at an early stage and has not been fully thought through; we'll need to see more decisions from the courts, especially the US Supreme Court. Clearly, many religious people will not be happy if cherished words such as "under God" in the pledge survive only as ceremonial deism, because such words do have religious, not merely ceremonial, significance for many Americans. If the courts save some words and practices on the basis that they are ceremonial and don't literally mean what they say, that's a somewhat Pyrrhic victory for the religious. Nonetheless, it is likely that this doctrine will be developed and applied to various factual situations, if only because it provides the courts with a pragmatic way to save some laws that are too popular to strike down without risking social unrest.

Be that as it may, the present case is not one where the law can be saved on the basis that it is merely ceremonial. National Prayer Day and its supporting legislation don't provide a case where flowery traditional language is attached to something of independent seriousness and importance, such as a pledge of allegiance to the nation, or the nation's legal currency, or the functioning of organs of government such as courts and legislatures. Rather, National Prayer Day stands alone as a call to the citizens to engage in acts of prayer, presumably to a deity that answers prayers or takes some gratification in hearing them. While there is always a modicum of doubt available, particularly when the relevant legal doctrine is so undercooked, National Prayer Day seems more straightforward than the other obvious cases. As Judge Crabb said in her opinion:

It goes beyond mere "acknowledgment" of religion because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context. In this instance, the government has taken sides on a matter that must be left to individual conscience.

Exactly so, and the government should not be doing that. The impugned law has no plausible secular purpose whatsoever, not even a ceremonial one. On its face, easily confirmed by the legislative history, it clearly amounts to government urging of citizens to engage in a distinctively religious practice. If the courts can save National Prayer Day, they can save almost anything, since this is such a weak case for the ceremonial deism theory or anything like it.

Judge Crabb was right to find that the National Prayer Day legislation is unconstitutional. The appeal court - and the Supreme Court if the case ends up there - should have the integrity and courage to reject the administration's appeal.

Oh noes, Hans Küng is too evident!

The renowned Catholic intellectual Hans Küng is too damn evident. In the French sense, of course. Not only did he buy himself a (gasp!) nice car nearly over 40years ago at the time of Vatican II; he has now said what many others are thinking about the morally and intellectually bankrupt Catholic Church.

His advice is probably good, but les salauds (to use another French expression) won't take it.

Jenny sells a new story to Cosmos magazine

News like this could cause earthquakes and other dramatic geological events. Read all about it on Jenny Blackford's Living in the Past blog over yonder.

Sean Williams catches a flea

Sean's take on David "the Flea" Hart is a bit more concise than mine.

Marke but this flea

After the publication of The God Delusion by Richard Dawkins, many quick, opportunistic books were written in reply. Dawkins responded by referring to their authors, among them David B. Hart, as his "fleas", referencing a poem by W.B. Yeats.

Well, Hart has now published a long rant at the theocratic apologetics site FirstThings, which advertises itself as advancing "a religiously informed public philosophy for the ordering of society." Hart's piece stands as a sort of review of 50 Voices of Disbelief: Why We Are Atheists (surprise! surprise! he didn't like it), but it goes on to attack the "New Atheism" more generally, with particular attention to Richard Dawkins, Christopher Hitchens, and A.C. Grayling. 

Much of the rant consists of an attempt to defend the hopeless Argument from Contingency. All things that we see are contingent: i.e., they might not have existed. Sure, there might be causal explanations for their existence, but if you trace those causes back far enough, you still come to something that (logically speaking) might not have existed, so eventually (it's claimed) you need to postulate something that "necessarily exists" in order to explain the whole shebang. This is God, or so the argument runs. 

But for a start, even if God does exist he (logically) might not have. Turning this around, it's logically possible, even in a world where God exists, that he mightn't have existed. There's nothing self-contradictory about a description of a world with no omnipotent, omniscient, angry, wine-loving, shellfish-abominating being. (Note: by "world" here we don't mean "physical universe"; we mean the entirety of reality including whatever spooky, non-physical ontology it might have.) The concept "God", however exactly we define that concept, is not instantiated in the actual world as a matter of logical necessity any more than the concept "neoconservative wanker" is (the world just happens to contain a lot of neoconservative wankers; as far as logic is concerned, it might not have). Even if God happened to exist, it would still be logically possible that "God" is an uninstantiated concept.

Meanwhile, there's no reason at all to worry that it's logically possible that whatever things do happen to exist might not have, or that it's logically possible that different things might have existed. Sure, the world - including any spooky ontology it might involve - could (where "could" refers to logical possibility) have been different. So what? It's a brute fact, not something required by logic, that the world is as it happens to be. Who would ever think otherwise, unless in the grip of a religion? Even Hart ultimately distances himself from the argument, sensing its sad lack of legs. The Argument from Contingency gets nowhere, and it acquires whatever thin veneer of plausibility it might have only by relying covertly on archaic concepts of necessary being and the like.

Alas, you can have a concept, and attach to it the high falutin' formula "absolute actuality", but you do not thereby guarantee that the concept is instantiated in the real world. Thus, God would be just as contingent as anything else. 

You'd think the numerous historical failures (including that of Goedel!) to get an ontological argument off the ground for more than a few confused seconds would provide enough warning as to why contingency arguments inevitably crash down in flames. If ontological arguments fail, you don't have a necessarily-actualised concept of God, but if you don't have that you don't a decent argument from contingency. The Argument from Contingency is parasitic on the Ontological Argument.

Ontological arguments always fail, once they are carefully picked apart, because you can't just take the concept of some sort of substantial, if spooky, thing that is imagined to have various specific properties - e.g. being omnipotent, loving wine, hating shellfish, ordering genocides, prying into people's bedrooms, and so on - then define the concept into being actualised. It doesn't work that way. Commenters at Dawkins' site are having a field day with Hart.

Talk at Macquarie University

Tomorrow - or technically today, since it's after midnight - I'll be popping down to Sydney to give a talk at Macquarie University, to the redoubtable Macquarie University Atheist League.

This is the same student organisation that recently hosted a debate between Dan Barker and Cardinal George Pell, when Barker was visiting Australia (there were a couple of other debates, too, involving Barker, who gave very generously of his time).

My topic is "Church/State Separation and the Harm Principle", and I'll be sweeping through history and philosophy to argue for a purely secular state that protects worldly things ... rather than trying to discover and enforce the all-things-considered "right" morality. I'll begin with the political triumph of Christianity in the later centuries of the Roman Empire, describe the spirit of intolerance and persecution that the churches have displayed ever since, hit some high spots with John Locke and John Stuart Mill, and segue into a few observations about the culture war that we are involved in today. The case I'll be making should appeal not only to atheists and other secular folks, but also to Christians who are prepared to consider it seriously. After all, Locke developed his ideas for the benefit of the Christian churches and sects of his time, who'd been at each other's throats for 170 years since Luther's challenge to the Catholic hegemony in the early decades of the previous century. Indeed, Locke thought that there perfectly good secular reasons to persecute atheists!

But when the Lockle's ideas are taken to their logical, and very plausible, conclusion, they have much to offer atheists and rationalists, as well as thoughtful Christians. Indeed, they have the potential to prove more than contemporary theoconservatives are ready to stomach - that's one reason, it seems to me, why we have a culture war.

I'm looking forward to this gig, so before I go to bed I'll be praying to Apollo - who seems like the right god on this occasion - that it all falls into place.

Who will the Catholic Church blame today?

Find out here. 

Look, seriously, who are we going to blame for the all rape and other sexual abuse of children - not to mention other kinds of horrible cruelty to them? Who should be blamed that so many in the religious orders of the Catholic Church have done so much to defenceless kids, have done things that ordinary, decent, compassionate people of the same faith, or other faiths, or no faith at all, can't even get their heads around? Why did this happen? And why was it covered up so heartlessly and for so long? The Vatican hierarchs and their lackeys will blame anyone and anything ... apart from their own secretive institutions of governance, their morbid attitudes to sex and the body, their absurd and damaging system of religious celibacy, their delusions of moral superiority.

Stop it!

There are many kind, goodhearted Catholics out there who must be troubled by the events as they've unfolded, tormented as they try to sleep at night. How did this happen within the True Church? You're not to blame, folks. I may disagree with you about many things, but I don't say that you are bad people. Most of you had no idea what was going on. Still, you've been duped and betrayed - and it's time to vote with your feet. Just leave the Church. Stop giving them your money. Stop giving them your support. Stop listening to their excuses; and whatever you do, don't protect them. Just leave. Go anywhere at all, within reason, because you can't do much worse.

Walk away. Just. Leave.

Spread the meme.

H/T John Wilkins.

"Did thee feel the earth move?"

H/T to big sis for finding the article and to Elaine Miller for suggesting the title.

Sexy dressing leads to earthquakes. By posting this photo of Anna Kournikova, I could be dooming the entire eastern seaboard of Ausralia to disaster.

Capistrano case - qualified immunity

Here is the opinion of Judge Selna, back in September 2009, which ruled that Dr James Corbett had qualified immunity in respect of the one statement he made that was previously held to be a constitutional breach. As a result, he ultimately won the case, in the sense that he was held not to be liable for any remedy or for the costs of the student concerned.

This was the case in which a student took his history teacher to court over various remarks that were supposedly disparaging of religion.

Note that qualified immunity may or may not apply in any future such situations. It is important that an element of the finding is that the law was unclear in 2007 when Corbett made the remark. Still, the judgment is worth reading in the light of recent discussion in the blogosphere of the rights of teachers in US state schools who may be at risk of litigation for saying something that is held to be disparaging of religion. It shows the court taking a reasonable approach, and that teachers will not lightly be subjected to some kind of legal liability for a statement that was not deliberately intended to disparage religion. Law suits brought by plaintiffs seeking to harass teachers will be brought at a high risk of gaining no remedy and accruing substantial costs.

These paragraphs from the concluding comments are useful:

Public officials have no choice about interacting with the public; that is their job. Unlike interactions in the private sector, every interaction brings into play potential Constitutional rights and the possibility of infringement of those rights. Perhaps this is most clearly seen in the context of law enforcement where advisements of Constitutional rights, search and seizure issues, and the use of lawful force are a part of a police officer’s daily responsibilities. But the same is true of a teacher presenting a challenging subject such as Advanced Placement European History which cannot be fairly treated without discussing religion, just as Corbett was doing during the fall of 2007.

Public officials must be able to do their jobs without fear that every misstep, however slight, will subject them to liability and the paralysis which goes with such a fear. Thus, the doctrine of qualified immunity looks to whether there was a clearly established right in issue. Here, the Court has found that there was not, and thus Corbett is shielded from liability–not because he did not violate the Constitution, but because of the balance which must be struck to allow public officials to perform their duties. The law as it existed in the fall of 2007 did not make clear that a single statement in an area of the law which lacks precision could violate the Constitution. The decision here on the merits advances the clarity of Farnan’s right to be free of anti-religious comments, but the extent of the advance and the results of future applications of the doctrine of qualified immunity in this area are for another day and another court.

It does seem on the current state of the law that only statements that are deemed by a court to be gratuitous will, all by themselves, attract potential liability. Notice that the comment that caused the most trouble for Dr Corbett was made to students in class about another teacher (a Creationist); it was not part of the structured content of a history lesson: "I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense." Accordingly, the judge says:

The Peloza statement had no relationship to Corbett’s AP class; it was a gratuitous divergence which cannot be saved by the fact that it was made during the AP class. That statement was the proper focus of the Court’s analysis.

A comment with a proper pedagogical purpose within the course of a lesson, or a mere word or two in a paragraph (or even the whole paragraph) of a textbook will not be looked at in isolation. The overall intent and effect of the lesson or book, or whatever it may be, will be considered (though the courts will surely not apply this idea in a way that allows premeditated contrivances).

A teacher who actually sets out to disparage religion, or a religion or doctrine - or a fellow teacher's religious beliefs! - as part of lesson may be asking for trouble. But given the resolution of this case to date there's no need for teachers who are acting in good faith to panic. Indeed, the opinion cites some very comforting authority from a Ninth Circuit case:

The Ninth Circuit has recently explained that "because whether a public employee’s speech is constitutionally protected turns on a context-intensive, case-by-case balancing analysis, the law regarding such claims will rarely, if ever, be sufficiently ‘clearly established’ to preclude qualified immunity." Dible v. City of Chandler, 515 F.3d 918, 930 (9th Cir. 2008). The present case is not one of those rarities.

The whole case is now on appeal, and perhaps some more clarity will emerge when the appeal court decides it more authoritatively. Then we can have better informed discussions about how much American teachers really need to watch their backs when the subject matter relates in some way to religion.

New look for Butterflies and Wheels!

Check it out!