Saturday, June 21, 2008

Is it a blunder to challenge establishment of monotheism?

We cannot know in advance how individual or groups of judges will decide any given dispute over constitutional interpretation anymore than we can know in advance the outcome of a tennis match or baseball game. However, such judicial decisions are unlike sport contests because of the prominent role of politics, precedent, and ethics in law. The ethical consideration can favor an Establishment Clause (EC) lawsuit while the strength of the political opposition and potentially long lasting bad precedent impact considerations can disfavor the same lawsuit. Furthermore, no matter how unfavorable the political risk and bad precedent impact considerations are, once such a lawsuit has been filed the issue of whether or not initiating such a lawsuit would be poor strategy due to unfavorable political risk and bad precedent impact considerations has operationally become moot.

This frames the controversy among civil libertarians over the Pledge of Allegiance "under God" and National Motto "In God We Trust" lawsuits and similar lawsuits challenging establishment of monotheism. Some civil libertarians who agree that technically the Pledge of Allegiance is a violation of the EC are nevertheless unwilling to publicly argue it is a violation on the grounds that the political climate is such that we cannot prevail. The argument against publicly opposing establishment of monotheism asserts that if the conservative leaning Supreme Court were to rule that the Pledge of Allegiance ritual in public schools violates the EC and/or that the Pledge of Allegiance or National Motto laws violates the EC then the Congress and the states would respond by voting on a constitutional amendment to establish monotheism that could pass. So it would be better if the Supreme Court ruled in favor of establishment of monotheism to avoid that political risk. Furthermore, the conservative leaning Supreme Court will probably rule that the Pledge of Allegiance public school ritual and the Pledge of Allegiance and National Motto laws do not violate the EC, thus entrenching establishment of monotheism as a legal precedent. So it would be better to not pursue such lawsuits at all. These arguments can then be generalized to oppose public advocacy for any controversial lawsuit that asserts a constitutional violation because the lawsuit is unpopular even though that lawsuit otherwise has merit.

Yet the fact remains that the Pledge of Allegiance and National Motto lawsuits are proceeding and there will be more decisions. Anyone can file such a lawsuit (although it takes lots of time and effort and is expensive to hire a lawyer), and if Newdow doesn't argue against the Pledge of Allegiance on behalf of his plaintiffs or against the National Motto then there will be other plaintiffs and other lawyers who will pursue such lawsuits, particularly as more states continue the ongoing trend of passing more laws establishing monotheism. Judges, in their written decisions, have asserted that disputed government laws and practices gain constitutional legitimacy simply by virtue of having gone unchallenged for a long time, thus becoming a national "tradition" beyond the reach of constitutional restrictions. So there is a "tradition" entrenchment cost to not challenging establishments of monotheism. Furthermore, the Pledge of Allegiance lawsuit has legal precedent merit, enough merit to have resulted in a favorable ruling by a 3 judge panel of the Ninth Circuit Court of Appeals in June 2002. Judge Alfred T. Goodwin accurately reasoned that the Pledge ritual in public schools violated the three most common tests used to analyze EC cases — Justice Sandra Day O’Connor’s endorsement test, Justice Anthony Kennedy’s coercion test, and the Supreme Court’s Lemon test from its 1971 decision Lemon v. Kurtzman. Arguing that lawsuits against establishment of monotheism should not be publicly defended because they are too unpopular to succeed is, by itself, a political argument that ignores the favorable legal precedents, the inherent uncertainty of outcome for such lawsuits, and the importance of the laws being rooted in universal ethical principles.

Government actions and laws that conflict with ethical principle, such as government establishments of monotheism, need to be publicly criticized because such public criticism is the right that all citizens in democratic society can exercise to change the prevailing opinion that prompts and protects the disputed government actions and laws conflicting with ethical principle in the first place. Ultimately, the argument that we shouldn't advocate for our civil liberties because we cannot win becomes a self-fulfilling prophecy. Our refusal to publicly advocate against establishment of monotheism entrenches the pro-establishment of monotheism political context that makes it appear to be impossible for establishment of monotheism to be defeated. To break that circle, we have to begin somewhere, and the only place to begin is always here and the only time to begin is always now. There is no easy, straight, guaranteed path to realizing civil rights for unpopular minorities such as atheists and polytheists. Civil rights for minorities have to be argued for, defended, and pursued against prevailing public prejudices relentlessly to eventually prevail.

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