Saturday, August 22, 2009

Netroots National Convention and Bruce Ledewitz promote bad EC arguments

The Netroots Nation Convention panel meeting in Pittsburgh drafted a proposal concerning the future of the separation of church and state in America. The proposal blatantly first assumes the conclusion that government establishment of monotheism is constitutional and then tries to justify that conclusion instead of starting with the constitutional principle and then trying to reach the proper conclusion:

"The old liberal vision of a total separation of religion from politics has been discredited. Despite growing secularization, a secular progressive majority is still impossible, and a new two-part approach is needed--one that first admits that there is no political wall of separation. Voters must be allowed, without criticism, to propose policies based on religious belief. But, when government speaks and acts, messages must be universal. The burden is on religious believers, therefore, to explain public references like 'under God' in universal terms. For example, the word 'God' can refer to the ceaseless creativity of the universe and the objective validity of human rights. Promoting and accepting religious images as universal will help heal culture-war divisions and promote the formation of a broad-based progressive coalition."

Before proceeding I must digress a little to blast the call for "without criticism" censorship in the above paragraph. The fact is that when anyone proposes public policies based on religious beliefs those religious beliefs necessarily become part of the public debate and thus subject to criticism. This notion that somehow religious motivations for public policies, unlike all other public policy motivations, are immune from public criticism when debating the policy is an indefensible double standard. That is an intolerant and one-sided censorship on the debate and is completely unreasonable and unrealistic.

The Establishment Clause is not about religious believers and their religious beliefs, its about government and the law, so the burden here is on the law and government to avoid unnecessary religious partisanship in word and deed, the burden is not on religious believers to assert the universality of religious expressions and practices in the laws and government actions by substituting non-religious language that derives from their particular partisan religious beliefs. That should be obvious. Yet somehow a Professor of Law at Duquesne University School of Law named Bruce Ledewitz actually endorses this unbalanced and superficial approach. According to the Professor “As long as government plausibly justifies religious imagery in nonreligious terms, its use would be constitutional.” He gives an example:

1) The phrase “In God We Trust” can also mean that we acknowledge that there are binding standards of right and wrong.
2) IGWT is constitutional.

For a monotheist who believes that God is the source of morality, but not the source of immorality, and that God must be obeyed, it is indeed plausible to assert that almost any religious imagery consistent with those religious beliefs serves the dual purpose of upholding "moral standards". It is worth pointing out here that exactly what those "moral" standards are is going to vary with the religious beliefs and may not actually be ethical at all, there is much content in the bible and other holy books that is nasty, cruel, ugly and brutal. The key point here, however, is that Ledewitz is applying a partisan Christian compatible monotheistic methodology to constitutional interpretation of the Establishment Clause and consequently undermines his assertion of achieving universality to comply with Equality before the Law and the related Establishment Clauses of the constitution. As an atheist the notion that God is the source of morality and therefore references to God belief are synonymous with references to upholding morality is simply mistaken, its a non-starter, its not at all plausible just like the gods beliefs they are rooted in are not plausible. Furthermore, those theists who think gods are the source of immorality or that god(s) should not be obeyed would consider it wrong to assert IGWT. Bah humbug to the arrogant and ridiculous claim of universiality for his own partisan IGWT religious belief.

A central purpose of the EC is to carve out a sphere of freedom for everyone, especially for minorities in a democracy that tends to favor majorities, to be themselves without the interference of unnecessary government favoritism for or against their religious beliefs. We are not achieving that purpose if we start to call the exclusivist religious beliefs of a majority universal for no other reason that they can be rephrased into non-religious language by the people who hold those religious beliefs because those religious beliefs also claim various roles in the secular world. If most Americans believe that poverty, or illness, or natural disaster, is due to failure to worship the God properly then according to Professor Ledewitz we have a plausible secular justification for government to justify religious imagery promoting proper worship. Religious believers thus get to have their majoritarian religious beliefs laundered by the law into secular beliefs by self-declaration.

Isn’t it obvious that these are not secular justifications at all? They are partisan religious justifications for partisan religious phrases rooted in assigning a god particular attributes. It is only by making the partisan religious assumptions inherent in assigning particular attributes to a personal god that people can generalize that a partisan religious phrase is equivalent in meaning to a non-religious condition or event or outcome in the first place. And it is only by giving special privilege to majoritarian religious beliefs over the beliefs of minorities that such religiously partisan imagery backed by religious partisan arguments can be adopted into law.

Ledewitz’s method gets us nowhere with regard to first amendment jurisprudence, its a closed circle that starts and ends with the same legal privileging of majoritarian partisan religious beliefs it falsely claims to discard for EC purposes via the all-purpose, catch-all contrivance of substituting religious imagery with religiously derived non-religious imagery. Then, with a wink and crossed fingers held behind one’s back, Ledewitz's approach disregards the actual exclusivist religious imagery in dispute and the exclusivist religious derivation of the transformation to non-religious imagery while pointing to the remaining non-religious substitute in isolation and insisting that it be labeled as universal and be judged as constitutional as a proxy for the actual religious imagery. If would be a shame to our nation if our Supreme Court were to adopt Professor Ledewitz's blatantly disingenuous contrivance to avoid upholding the EC no less than it would be shame to our nation if our Supreme Court were to more directly endorse the same unfair result by adopting Scalia's unprincipled endorsement of inequality before the law with respect to the EC for "nonbelievers", Buddhists and Hindus.


  1. It's hard to disagree. Still, I think there may be an movement toward more religion-friendly interpretations of government neutrality in academic circles, in Europe as well as the US. Stating the more obvious problems with this, as you do, is not likely to be sufficient as a response.

    While I'm at it: large type size and the white on black color scheme makes the blog page quite hard to read.

  2. The not religion friendly argument consists of little more than complaints that it is unfair to not privilege the complainer's religious beliefs when those beliefs are majoritarian yet it is such government privileging of the majoritarian religious beliefs that the EC was written to prevent. Its not religion friendly for various minority religions when government favors an incompatible majority religion viewpoint. The notion that government neutrality is not religion friendly has superficial appeal to people who have become accustomed to government favoring their religious beliefs but on the substance it isn't persuasive. That being the case, I think we should say so. Isn't one of the functions of argument to try to identify problems and inconsistencies and fallacies and address them? Doesn't that describe the situation here? I think it does.

    Effectiveness requires time and effort, it takes many drops to fill the bucket, particularly when the argument is very unpopular to start with. The more people contributing the better. We can improve the quality of the debates that currently are often compromised by their exclusion of atheism and atheists. Scalia's execrable advocacy for disregarding people who don't hold Christian compatible monotheist beliefs is an accurate description of the status quo and the arguments of "secularists" like Ledewitz is a large part of the reason why.

    Maybe I will find a way to implement a javascript to let the reader change the font and background colors.

  3. Many disagreements, naturally, but I want only to mention two clarifications. First, the no criticism point does not mean, and was not understood to mean, no criticism of whatever policy religion was being invoked to justify. It only means that religious justification is not a special ground of criticism. So, for example, if a person opposes gay marriage, one might say that person is prejudiced against gay people. Whether the person's reason is the Bible or something else does not matter. The other point is a question. If you are asserting that the Establishment Clause means no religious imagery by government, why should the EC be interpreted to mean something it has never meant in the past? Obviously, America's public square has never been without its religious images. I am merely asking that they be justified without regard to their sectarian meaning. It is the case, as you say, that universal messages are contained in the religious image for the believer only if the religious image is true. But for the rest of us, the image can be reinterpreted without regard to the truth of the image. Why should a nonbeliever care whether God exists if the point of a government display is that there are binding standards of right and wrong?

  4. First of all, you seem to suggesting that public policy debate is not about the policy justifications, that somehow the policy justifications are off the table during the debate and the only thing that is debated is the policy itself. But that is not true. Debate over policies is virtually synonymous with debate over the merit of the policy justifications.

    Secondly, there is no clear distinction between criticism of a policy justification for being unsupported by evidence, opposed by the evidence, and being far-fetched and therefore without merit, and the fact that the policy justification is religious, because as far as I can see just about all of the fact claims that are religious in nature are unsupported by any valid evidence, opposed by all existing valid evidence, and often far-fetched. And in saying that, I am not singling out religious justifications for "special" treatment, as I would criticize any and all policy justifications that suffered the same failures regardless of whether or not they are religious. But from the point of the religious believer such criticism would constitute "religious justification is a special of criticism". From my point of view the criticism is fully justified and fully consistent with my approach to all policy justifications.

    Thirdly, 50% of the electorate say they wouldn't vote for atheists for no other reason that they are atheists. So we are not talking about an even playing field with respect to debate over public policy. Atheists are literally afraid to let their colleagues at work or in the community know that they are atheists because of ostracism and lost opportunities that could result. So the context in which religious justifications are debated is not a balanced one. Have you ever even considered this?

    The constitution specifies the presidential oath, and there is no reference to God in that oath even though references to God in oaths were very common in those days which was a radical thing for them to have done. You are understimating how radical the Founders were. We don't live in 1789 anymore. That pre-dates Darwin. Times change, knowledge increases, evidence is accumulated, and the weight of evidence takes us in new directions. So now there are atheists, and the original principle is the same, but whereas atheists were not a factor in those days, today we are. They didn't have an EQual Protection Clause in the constitution in those days, now we do. So what I am arguing is consistent with the legal concept of giving Equal Protection status to atheists in relationship to the EC. Was it really better in 1789 when only property owning whites males had full legal rights? Why in the world would that be our fixed standard forever? I seem to recall we fought a Civil War and that things have changed since then.

    The public square can include houses of worship and their property if they choose to function as such. Its insidious and dishonest to equate the public square with government law and actions. We do have public forums and there are no restrictions on debate or discussion or the like there for citizens acting as citizens. But public forums are not for governments to speak on or about religion, governments are to serve all the people without regard to religious beliefs, and that requires that the government remain neutral much like we expect government to remain neutral with respect to political parties and with respect to commercial enterprises. And that is ALL that we are asking, the same neutrality that government should uphold with respect to political parties and commercial enterprises should also be upheld with respect to religious beliefs, including dissents from the religious beliefs, including atheism. And that means that government has no role in advertising for religion via religious imagery at all much like it has no role in advertising for political parties or commercial enterprises via political imagery or commercial imagery. How religionists reinterpret the imagery is irrelevant.

  5. This wouldn't fit in the first post, I exceeded the maximum size, so here is part two:

    I don't care what religionists display as religionists, much like I don't care what political parties display or what commercial enterprises display, but I sure do care that our government not promote one political party over competitors, not promote one commercial enterprise over competitors, and not promote monotheism over atheism. Those are not a valid or appropriate government functions.

  6. The binding standards of right and wrong are the standards that we impose on ourselves, for ourselves, by ourselves. You don't seem to get the notion that that is an entirely different topic from government non-establishment, just like the topics of poverty, illness, and natural disasters are an entirely separate topic from government non-establishment.

  7. If we change the actual words of IGWT to the words "there are binding standards of right and wrong" in the published law then there is no non-establishment issue. Its not enough to say that some religious phrase CAN be re-interpreted as a secular phrase, it is also necessary to show that the religious content is there because without it the secular message is lost. I don't see how that could possibly be the case here, particularly since all of the words in your re-interpretation are absent from the actual message and because your re-interpretation is optional, its only a possibility, and one of many possibilities. Your re-interpretation is more like a selective re-writing.

  8. One more comment - you clearly want convey that you have good intentions. The problem is that that is not enough. People who denied women the vote had the best of intentions. People who oppose gay marriage have the best intentions. I don't doubt that many, in fact most, of the people who oppose non-establishment of monotheism have the best of intentions.

    We insist on absolute, total, complete, first class equality. We are not seeking to be tolerated or accepted on any other terms. We are not looking for charity or sympathy. Its Equal Protection Before the law for ALL and government non-establishment of religion for ALL. There is nothing in the constitution that says the EC is for Christians and Jews but not for Hindus, Buddhists, and atheists like Scalia claims.