Should Non-Believers Fight the Inaugural 'So Help Me God'?

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Battling these instances of ceremonial deism may hurt the case against truly theocratic gestures

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Reuters/Mark Wallheiser


The Supreme Court has, not surprisingly, declined to reinstate a lawsuit challenging the constitutionality of adding the phrase "so help me God" to the presidential oath of office and including prayers in the inaugural ceremony. The suit, Newdow v Roberts, brought by Michael Newdow, the American Humanist Association's legal center, and a long list of non-theist organizations and individuals, was dismissed for lack of standing by the D.C. Court of Appeals. The plaintiffs never did secure a hearing on the merits of their claim. They would have lost on the merits, but their argument is worth examining anyway. It exemplifies what advocates of official religiosity have powerfully derided as an "offended observer" claim.

Citing the unique importance of inaugurations -- "the grandest ceremonies in our national existence" -- plaintiffs assert that they "have a right to view their government in action without being forced to confront official endorsements of religious dogma with which they disagree ... Prayers that declare there is a God exclude Atheistic Americans ... making them feel like 'outsiders' due to their personal religious beliefs." (Never mind that plaintiff's argument is based on their lack of religious beliefs.) They claim to have been injured by "being personally compelled," as the price of viewing the inauguration, "to endure government sponsored, clergy led prayer to a (Christian) God," and "to witness the Chief Justice, without any authority, alter the presidential oath ... so that it includes the purely religious phrase, 'so help me God.'" Some non-theists "have felt compelled" not to view the inauguration in order to protect themselves and their children from its religious rituals.

I'd draw the line at agreeing to tolerate publicly funded nativity scenes, Ten Commandment displays, or official sectarian prayers at football games, graduations, and school-board meetings, among other practices.

Strictly, constitutionally speaking, I agree with the plaintiffs that official pleas or shows of obeisance to a Deity violate prohibitions on establishing religion. But I consider the inaugural violations minimal and tolerable. Maybe I'm just resigned to them, but I'm grateful not to be burdened by the sensibilities that make my co-irreligionists feel oppressed by some ceremonial God-talk. Thanks to my insensitivity, their recitations of injuries (about government coercion and the necessity of "enduring" official prayers in order to view the inauguration or avoiding the inauguration to avoid enduring the prayers) sound a bit melodramatic to me.

This question of whether occasional instances of ceremonial deism inflict cognizable injuries on non-believers is not just part of the substantive constitutional challenge in Newdow v Roberts. It's the core standing question raised by the "offended observer" doctrine in establishment clause challenges to official religious symbols or practices. By attacking offended-observer standing, opponents of separating church and state reduce pleas to curb majoritarian religious establishment in the interest of minority rights into complaints about political correctness. It's a promising strategy. Even I might agree that trivial instances of ceremonial deism, like robotic references to God, are relatively innocuous (and arguably degrade religious belief nearly as much as they stigmatize atheists). The trouble is that, in some cases, plaintiffs are being denied standing as "offended observers" to challenge official deism that isn't merely ceremonial.

Imagine a continuum between ceremonial deism and theocracy. "In God We Trust" on dollar bills clearly falls on the insignificant, ceremonial side, while sectarian prayers at a public, governmental meeting belong on the theocratic side, as courts sometimes agree. In 2006, the Fifth Circuit Court of Appeals granted an injunction against Louisiana's Tangipahoa school board, which opens its public meetings with a prayer offered by someone chosen by the board. "The prayers often include references to 'Jesus' and 'Jesus Christ,'" according to Americans United. "Indeed, the School Board, by a vote of 9-0, rejected a proposal to limit the prayers to a 'brief non-sectarian, non-proselytizing invocation.'"

A three-judge panel of the Fifth Circuit enjoined this intentionally sectarian practice that the school board had affirmatively declined to correct. But the full court disagreed, without reaching the merits. In a divided ruling, it denied plaintiffs standing to challenge the prayers, finding no evidence in the record that they had attended school board meetings at which the prayers were offered. The dissent disagreed on the facts, asserting that plaintiff's presence at board meetings had been conceded.

But should the question of their attendance have mattered? Shouldn't any citizen taxpayer have standing to challenge an arguably unconstitutional exercise of official sectarianism? Not according to the Supreme Court. In a 2007 case, Hein v Freedom From Religion Foundation, involving the Bush administration's funding of sectarian social services, the Court held that we have no standing, as mere taxpayers, to challenge sectarian religious actions by the executive branch. If the Court eventually decides that we also lack standing as "offended observers" in establishment clause cases, it will be difficult for anyone who isn't actually forced to engage in official prayers or other forms of worship to challenge state-sponsored, (taxpayer-funded) sectarianism.  

Or so the opponents of church/state separation may hope. David French, a formidable conservative civil libertarian (with whom I agree on many issues not involving official establishment of religion) characterizes offended-observer standing as "pernicious ... one of the most divisive and biased procedural elements yet devised in constitutional law. Under this unique doctrine, a few plaintiffs can undo decades of community consensus and rip apart long-standing traditions -- not because they have been coerced in any way but simply because they were 'offended' when they heard a public prayer or saw a nativity scene on public land."

I understand French's exasperation. As long as people are free to look away from offensive religious displays, why should they be empowered to deprive their neighbors of whatever comfort the displays provide? But you might also ask why members of majority faiths should be empowered to impose their religious symbols or practices on minorities, who, as taxpayers, are required to fund them? It's a close question involving the balancing of harms.

Justice Scalia is sympathetic to "the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people" and indifferent to the interests of offended religious and irreligious minorities. In Scalia's view, the First Amendment "permits (the) disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists." I am sympathetic to the sense of alienation and exclusion experienced by minorities confronted with official majoritarian religiosity and indifferent to interests of the majority in obtaining official endorsements and expressions of their views. It is probably no coincidence that Scalia is a devout believer and (to say the least) I am not.  

Although I wouldn't bother challenging routine references to God on dollar bills, in the Pledge of Allegiance (which everyone has a right not to recite), or in the presidential oath of office -- partly for strategic reasons and partly out of indifference -- I'd draw the line at agreeing to tolerate publicly funded nativity scenes, Ten Commandment displays, or official sectarian prayers at football games, graduations, and school-board meetings, among other practices. Scalia would probably draw the line at requiring me to pray.

But if official religious practices can pose cognizable harm to religious and irreligious minorities, they also offer indirect, unintended benefits: a visceral respect for minority rights that can nurture a willingness to defend them and an understanding of your own outsider status as a secular, non-believer in a religious, predominantly Christian country.

Plaintiffs who unsuccessfully challenged the religiosity of inaugural ceremonies worry about protecting "impressionable young children" from the "coercive imposition of religious dogma," stressing that it "stigmatizes" atheists and "send(s) the message that God is part and parcel of Americanism." I agree. But the message, however offensive, is partly true. In the popular view, atheists are stereotypically un-American as well as immoral. I understand that non-theist groups are trying to change that view, and I wish them luck. But I doubt that initiating futile lawsuits against popular, rote references to God is the right strategy for effecting social change or shielding "impressionable" children from religious dogma. How might children be protected against official religiosity and the stigma of non-theism? Arm them with the emotional and intellectual independence not to take either too seriously. 


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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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