I looked through the Roy Moore amicus brief that Reed Cartwright posted below. It makes a remarkable argument: that the evolution disclaimer could not possibly violate the Establishment Clause because [a] sticker is not a law, (p. 13), so it couldnt possibly be a law respecting an establishment of religion. As far as those cases like Lemon v. Kurtzman, 403 US 602 (1971), which hold that any state action which endorses a religious viewpoint is a violation of the Clause, those cases were wrong and ought to be overruled.
The argument that a sticker is not a law is the worst kind of lawyerly manipulation. Of course a sticker is not a law, but it is not the sticker that is being challenged in this case; it is the school boards resolution requiring school officials to place the sticker on the textbooks. That resolution has the force of law. If the school board ordered teachers to tell all their students that real baptism requires total submersion and any person who just sprinkles is going to Hell, one might say that a teacher telling students that isnt a lawbut the school boards orders have the force of law.
Moreover, the First Amendments literal text is not strictly relevant to this case, because, strictly speaking, the First Amendment doesnt have anything to do with the states; it applies only to Congress. It is incorporated to the states by the Fourteenth Amendment, which declares that no person shall be deprived of liberty without due process of law. By the time the Fourteenth Amendment was ratified n 1868, the disestablishment principle was seen as an individual right: that is, the concept of liberty by 1868 included the right to be free from established religion. Depriving a person of that right by putting the governments endorsement on a competing religious view is not for the public benefit, and therefore is just a mere act of forcewhich means, it deprives a person of liberty without due process of law. The Fourteenth Amendment does apply the bill of rights to the states, but as Akhil Reed Amar so brilliantly shows, it acts as a lens, not a window. Moores brief doesnt understand this, and so it ends up making silly, hypercritical arguments. The question isnt whether the sticker violates the First Amendment, but whether the school board, in placing the sticker on textbooks, has deprive people of their right to be free from religious establishments. Moore can certainly answer that question no if he wants to, but he shouldnt pretend that it isnt the real question.
Moore goes on to argue that the sticker also isnt about religion, because religion is defined as the duty we owe our Creator. (p.19). But the Supreme Court has never actually defined religionsomething that is extremely difficult to do. See Note, Toward a Constitutional Definition of Religion, 91 Harv. L. Rev. 1056, 1063 (1978); Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 Stan. L. Rev. 233 (1989). And Moores proffered definition would be worthless: a government declaration, for example, saying America is a Christian country and Muslims aint welcome would violate the Establishment Clause by any reasonable interpretationbut not by Moores.
The rest of the brief is full of Moores Patented Politico-Religious Grandstanding. He considers it invidious discrimination (p. 20) for the District Court to have recognized that the disclaimer was adopted at the behest of religious fundamentalists who refuse to believe evolution and insist that their children be shielded from it; he claims that removing the sticker means banning God from the discussion of the creation of life, (p.22-23). Most amusing is his claim that the sticker doesnt violate the Georgia Constitution because it doesnt give money from the public treasury in support of any religious group. Who, then, paid the school employees that put the stickers on the textbooks? Evidently Moore thinks they volunteered. More, he rests this argument on a 1922 decision, Wilkerson v. City of Rome, 152 Ga. 762 (1922) which held that it was constitutional to require bible reading and prayer every day in public school classroomsa proposition that is, shall we say, not exactly the law today.
Yes, I know its a waste of time responding to such sophomoric arguments; Moore writes like a first year law student with a Lexis password and no time to bother with trying to learn the big picture of whats legal and whats not. I wont say I agree with Judge Pryors rejection of the briefbut I certainly understand it.
25 Comments
Paul Flocken · 27 June 2005
E-mart · 27 June 2005
The argument that a sticker is not a law is the worst kind of lawyerly manipulation.
I respectfully submit there is nothing "lawyerly" about that brief.
andrew burnes · 27 June 2005
Paul Flocken said:
"Does that mean that atheism is not a religion after all, since atheists don't have a creator?"
Atheism is most certainly not a religion.
Some lurkers to this and other evolution blogs are unapologetic atheists, myself included. For those like me, atheism is not an extreme endpoint of a continuum of religiosity, but is instead separated from that continuum entirely. To me, a person is or is not religious.
Most who post prefer to avoid any theism/atheism discussion, which is understandable, since the apparent intent of this blog is to share views on the body of evidence supporting evolution and, i suppose, the so-far nonexistent evidence contradicting it, and whatever social and political shenanigans might arise from all of that. We all like it when discussion stays on topic, and there's probably plenty of atheism blogs out there anyway (I haven't looked).
But just for the record, some of us hardline irreligious folks cannot help but read these discussions through a science-vs-religion filter. At least I'm on your side (or vice versa), right?
Gary Hurd · 27 June 2005
Very enjoyable analysis. I particularly like your point regarding the 14th Amendment.
Dan · 27 June 2005
Moore writes like a first year law student with a Lexis password and no time to bother with trying to learn the big picture of what's legal and what's not.
So true. What's most troubling is that Moore could have risen to the position of Chief Justice of a state supreme court. I understand that Moore is grandstanding here, playing to the fundies in anticipation of a run for governor. Still, that he would even file such a garbage brief betrays a fundamental lack of respect for the rule of law. He belongs on some late-night cable access channel, where he's free to proselytize all the pseudo-legal babble he wants, of course, but he has no place being anywhere where law gets made.
Aagcobb · 27 June 2005
"What's most troubling is that Moore could have risen to the position of Chief Justice of a state supreme court."
Heck, if the fundies had their way (which fortunately they won't), Moore would be the next Chief Justice of the United States Supreme Court!
djmullen · 28 June 2005
If atheism is a religion, then bald is a hair color.
djmullen · 28 June 2005
If atheism is a religion, then bald is a hair color.
moioci · 28 June 2005
Not to get excessively political and all that, BUT...
Remember, Judge Moore could be the greatest gift to a certain political party since George C. Wallace.
Just sayin'
Run, Roy, Run!
Marek14 · 28 June 2005
You never know. There's a joke about a little girl who drew her grandfather with blue hair, since she "didn't have a bald crayon"
'Rev Dr' Lenny Flank · 28 June 2005
Paul Flocken · 28 June 2005
Paul Flocken · 28 June 2005
Fundie thinking involves such twisted, contorted doublethink that if one doesn't already adhere to it, it is nearly impossible to wrap one's brain around the ideas. However, I just read Lenny's point about 'mentioning' is not 'teaching', and it gave me this idea. To fundies their belief is their BELIEF and therefore it is not religion because what everyone else believes is religion. They are two different words. Therefore they are different. Similarly christianity is not religion because they are two different words, therefore they are not the same. What we fundies believe in christianity but what everyone else believes in religion therefore it's o.k. to have christianity in the science class because it's not really religion.
Am I learning to doublethink like a fundie?
Flint · 28 June 2005
As I wrote on another thread, the Supreme Court is divided into those who regard Christianity as a religion, and those who simply regard it as right. So I agree, they see OTHER faiths as religion. They themselves don't, really. They believe Truth instead, because it's true. Why else?
Paul Flocken · 28 June 2005
Kay · 28 June 2005
Talking to your average fundie will reveal that "religion" means "the mass of rituals that false faiths have", to them.
Albion · 28 June 2005
It'll also reveal that atheism is a religion whereas True Christianity is a relationship.
Jan · 28 June 2005
Arden Chatfield · 28 June 2005
Kay · 28 June 2005
A lot of churches here self-describe as fundamentalist and I'm too lazy to type five-syllable words normally. I've lived with that sort of kitty for a while and have learned tolerance, although as a rule a sizeable minority of them learned tolerance for me only after noticing that i can punch through a wall without apparently feeling pain.
NDT · 29 June 2005
Jan · 29 June 2005
GCT · 29 June 2005
Thank you Jan for showing so well what everyone here was discussing.
Arden Chatfield · 29 June 2005
Timothy Sandefur · 29 June 2005
It escapes me how any of this is relevant to anything on the Thumb.