Dr. Michael Newdow, an attorney and physician famous for his litigation on church-state issues from an atheist perspective, and and previous article contributor to ReligiousLiberty.TV, has now published an important law review article for the Capital University Law Review that discusses the history of American religious freedom and tolerance and why the majority should carefully consider the rights of the minority.  Although one might disagree with his religious viewpoint, Newdow argues for people to be treated equally, regardless of what religious viewpoint they hold.

Here is an excerpt:

In reviewing the history of the religion clauses of the Constitution, onecan take two paths. One supports the basic ideal underlying ourconstitutional framework: equality, which is inclusive and is based onrespect for all religious opinions. The other leads to exclusion byadvocating for one or more non-universal religious views. The first reflects the Framers' goals for guaranteeing liberty to all. The other guarantees liberty only to those who muster the political might to use the state's machinery to advocate for their religious beliefs. The first exists to protect every individual. The other focuses on the fact that the white, male, property-owning Framers believed in God, and thus concludes thatthe magnificent document they created "permits the disregard" of religious minorities with alternative beliefs.

Why would anyone choose that latter path? Why go out of the way to"permit the disregard" of a minority when such a notion is nowhere to be found within the text of the Constitution, and a historical reading can as readily and more nobly support the equality principle? What sort of American patriot, citizen, or public servant would work towards such an end?"

The entire article, which is well worth reading, is available in PDF format for free download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1594374 (Click on "One-Click Download" once you follow this link to download the entire document for free.)

ACADEMIC ABSTRACT:

In June 2005, Justice Antonin Scalia contended that 'the Establishment Clause…permits the disregard of devout atheists.' This statement is extraordinary inasmuch as it appears to reverse an inexorable (albeit, at times, wandering) trend toward true equality. Thus, where individuals had previously been treated as less than equal on the basis of race (e.g., Dred Scott v. Sandford), gender (e.g., Bradwell v. State) and national origin (e.g., Korematsu v. United States), those odious decisions are no longer good law. In his McCreary dissent, it seems that Justice Scalia sought motion in the opposite direction: toward overturning equality, in the one constitutional arena where the Supreme Court had not previously proclaimed such a manifest animus toward minorities: religion.
This article takes three approaches in considering the Justice's argument. First, recognizing that Justice Scalia prides himself on being a 'textualist,' it considers the Establishment Clause's text ('Congress shall make no law respecting an establishment of religion'). Next, because Justice Scalia, in McCreary, used specific historical events to support his thesis, those events are analyzed to see if they were selected in a fair manner, and if they really stand for the proposition he claims.

Finally, in Part III, Justice Scalia's brand of analysis is applied to his own Catholicism. It is shown that the United States of America was born of a literal hatred for Catholics, which was pervasive and persistent. One may well conclude, therefore, that under his approach, the Establishment Clause permits the disregard of his own religion.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1594374 (Click on "One-Click Download" once you follow this link to download the entire document.)

 
 

9 Comments

  1. Matt McMearty says:

    I read most of it. Newdow is strictly construing the face of the constitutional text, but I would not build the meaning of the religion clauses on that alone. I think everyone should give consideration to the debates and records of the framers at a minimum and then proceed to what he does. If the two approaches conflict, then it does not stand. If the two approaches harmonize or at least do not contradict each other, then it should stand.

    Newdow seems to want to prove Justice Scalia wrong and with that I am in full harmony with what Newdow wrote. In terms of his construing the clauses meaning from the evidence of the framers' debates in Congress, that is another matter. The first objection made in the House to the Select Committee's revision of Madison's establishment recommendation was this:

    The house resolved itself into a committee of the whole, and resumed the consideration of the report of the committee on the subject of amendments.

    Mr. BOUDINOT in the chair. [New Jersey; member of the Select Committee]
    The fourth proposition under consideration being as follows:
    Article 1. Sect. 9. Between paragraph 2 and 3 insert no religion shall be established by law, nor shall the equal rights of conscience be infringed.

    "Mr. SYLVESTER [New York]
    Had some doubts of the propriety of the mode of expression used in this paragraph; he apprehended that it was liable to a construction different from what had been made by the committee, he feared it might be thought to have a tendency to abolish religion altogether."

    And a few minutes later, something similar was stated:
    "Mr. HUNTINGTON [Connecticut]
    Said that he feared with the gentleman first up on this subject, that the words might be taken in such latitude as to be extremely hurtful to the cause of religion."

    It seems clear to me that the establishment clause was not intended to be used as a whisk broom to sweep away all vestiges of religion in the states. I base this on the fact that the whole House debate was to get wording that would prevent that idea from happening. Now that the Supreme Court has incorporated the religion clauses in the 1940s and applied them to the states, this has become the long term meaning of the establishment clause. Separation of church and state, originally designed to protect the states from federal interference with their religious freedom protections and encouragements of religion as well as limiting the role of religion via Congressional laws and the latter from interfering with religion, has now become the very instrument of purging religion from the states and Newdow wants to be sure of that. On the federal level, purge away. On the level of the states, allow some. Here the Supreme Court has struck the balance over time in allowing some state delving into civil religion to exist.

    So I share Newdow's passion against Scalia to prove him wrong. I do not share his goals in regard to purging religion from the states. I do share it in regard to the federal government being free of religion. Hope this is helpful.

    I do not share Newdow's enthusiasm in this regard and am glad he has failed in a number of his efforts.

  2. Thank you for sharing this very nice information.

  3. Thank you for sharing this very nice information.

  4. Mike Newdow says:

    I realize this is a late response (I just came across Mr. McMearty's comment), and no one may ever read what is written here. However, regardless of what one thinks about the application of the Religion Clauses to the states, the fact is that it is the NATIONAL Motto, the NATIONAL Pledge of Allegiance, and the NATIONAL presidential inaugurals that have been challenged.

  5. Mike Newdow says:

    I realize this is a late response (I just came across Mr. McMearty's comment), and no one may ever read what is written here. However, regardless of what one thinks about the application of the Religion Clauses to the states, the fact is that it is the NATIONAL Motto, the NATIONAL Pledge of Allegiance, and the NATIONAL presidential inaugurals that have been challenged.

  6. Matt McMearty says:

    Newdow makes a good point! Although it is a national pledge of allegiance as he points out, it is required by state laws. I see the national precedents that he cites as places to press the crowbar for adding more religion into government, which such efforts I oppose in theory and for practical purposes. They also serve as places for atheists to eliminate religion, which I agree in theory, but not for practical reasons. The only problem is by trying to get rid of these token national religious precedents, atheists get the ire up of the very people they oppose getting their religious agenda in government. So for all practical purposes, Newdow's crusade is keeping the Religious Right alive and well. Either way it is a Catch-22 but I think leaving those national precedents alone is better than getting rid of those national religious aspects.

  7. Matt McMearty says:

    Newdow makes a good point! Although it is a national pledge of allegiance as he points out, it is required by state laws. I see the national precedents that he cites as places to press the crowbar for adding more religion into government, which such efforts I oppose in theory and for practical purposes. They also serve as places for atheists to eliminate religion, which I agree in theory, but not for practical reasons. The only problem is by trying to get rid of these token national religious precedents, atheists get the ire up of the very people they oppose getting their religious agenda in government. So for all practical purposes, Newdow's crusade is keeping the Religious Right alive and well. Either way it is a Catch-22 but I think leaving those national precedents alone is better than getting rid of those national religious aspects.

  8. Edwin Reynolds says:

    The establishment clause is often misinterpreted by reading it from the perspective of modern English rather than the English of its day. To say that "Congress shall make no law respecting an establishment of religion" was not meant to be taken that Congress shall make no law with respect to the establishing of religion, that is, to prevent Congress from making any law that deals with religion or is religious in nature. Rather it was meant to be taken that Congress shall make no law that shows a preference for one establishment of religion over another, that is, to prevent Congress from showing partiality toward any particular religious entity or belief system. Congress must deal equitably with all matters of faith and practice (or lack thereof, including atheism). Unfortunately, in many recent court decisions, particularly those of activist lower courts, atheism has been favored over religion on the grounds of a misinterpretation of the establishment clause according to the first view. The founders were trying to prevent the kind of coercive powers that had brought many settlers to the new world in the first place, where states exercised religious power to persecute conscientious believers who represented a minority view. The purpose of the establishment clause was to explicitly forbid the government from becoming oppressive toward minority religious beliefs, requiring it to treat all belief systems equally before the law. We desperately need to understand this original purpose and bring the legislative and judicial systems of our government in harmony with it.

    Edwin Reynolds

  9. Edwin Reynolds says:

    The establishment clause is often misinterpreted by reading it from the perspective of modern English rather than the English of its day. To say that "Congress shall make no law respecting an establishment of religion" was not meant to be taken that Congress shall make no law with respect to the establishing of religion, that is, to prevent Congress from making any law that deals with religion or is religious in nature. Rather it was meant to be taken that Congress shall make no law that shows a preference for one establishment of religion over another, that is, to prevent Congress from showing partiality toward any particular religious entity or belief system. Congress must deal equitably with all matters of faith and practice (or lack thereof, including atheism). Unfortunately, in many recent court decisions, particularly those of activist lower courts, atheism has been favored over religion on the grounds of a misinterpretation of the establishment clause according to the first view. The founders were trying to prevent the kind of coercive powers that had brought many settlers to the new world in the first place, where states exercised religious power to persecute conscientious believers who represented a minority view. The purpose of the establishment clause was to explicitly forbid the government from becoming oppressive toward minority religious beliefs, requiring it to treat all belief systems equally before the law. We desperately need to understand this original purpose and bring the legislative and judicial systems of our government in harmony with it.

    Edwin Reynolds

 
 
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