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.)

When we asked him if he had any editorials he would be willing to share with us, he forwarded the following essay prepared in advance of the January 2009 inauguration. While you may not agree with Dr. Newdow’s theology, his views on religious equality are thought provoking.  What do you think?  Post your comments below.  Editor

By Michael Newdow, Esq.
Posted on ReligiousLiberty.TV with the permission of the author.

In 1892, the 1/8th black Homer Plessy was convicted of violating Louisiana law by sitting in a “Whites only” railroad car. He took his case all the way to the Supreme Court, where his conviction was upheld by an 8-1 margin. “A statute which implies merely a legal distinction between the white and colored races,” wrote the Court, “ … has no tendency to destroy the legal equality of the two races.”

The lone dissenter in that case was Justice John Marshall Harlan, who refused to buy into the majority’s logic. Although it was true that whites and blacks were treated “equally” in a literal sense (since the law prohibited whites from riding in colored cars just as much as the opposite), Justice Harlan focused upon the “real meaning” of the legislation: “that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens.”

It took fifty-eight years for the Supreme Court to recognize that Justice Harlan’s view was correct. In Brown v. Board of Education, the “real meaning” of “separate but equal”– i.e., that the nation’s white majority was using the government to affirm its self-proclaimed racial superiority – was put to an end. As a result, the whole of American society changed, so much so that we now have an African American poised to become the nation’s president. Surely, Barack Obama would never have been elected had Plessy remained the law of the land.

And yet not everyone has learned the lesson of Brown, including, of all people, Barack Obama. The message that “we” in the majority are “better” than some minority to which our Constitution guarantees equality is once again about to be sent. This time, rather than with race, it is in the realm of religion, as Mr. Obama plans to continue the practice, first introduced in 1937, of having clergy espouse the view that belief in God is superior to disbelief.

Mr. Obama plans to continue the practice, first introduced in 1937, of having clergy espouse the view that belief in God is superior to disbelief.

The hypocrisy of this “tradition” might best be seen by simply reading from his inaugural committee’s website. There one can read of a “commitment to … ensure that as many Americans as possible … will be able to come together to unite the country and celebrate our common values and shared aspirations.” With the official theme being “Renewing America’s Promise,” Mr. Obama is quoted for the proposition that “in America, we rise or fall as one nation and one people. That sense of unity and shared purpose is what this Inauguration will reflect.” Thus, in this inauguration, there is alleged “a commitment to organizing activities that are inclusive.”

Mr. Obama, a former constitutional law professor, is surely aware that (as Justice Scalia has written) “government may not … lend its power to one or the other side in controversies over religious … dogma.” After all, he was teaching at the University of Chicago Law School when the Supreme Court instructed the nation that “the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.” More importantly, having undoubtedly reviewed Justice Harlan’s dissent in Plessy on numerous occasions, the President-elect has to realize that the “real meaning” of such formal espousals of God’s supposed existence is to brand believers as “superior” and Atheists as “inferior” citizens, in precisely the same way as the “separate but equal” laws did barely half a century ago.  Actually, that’s incorrect. “Separate but equal” at least pays lip service to the notion of equality. There is nothing equal when the government explicitly chooses to place one belief system above another. It is only Monotheism that is provided with an official platform at the nation’s premier celebration.

There is nothing equal when the government explicitly chooses to place one belief system above another.

Does Mr. Obama really think that this divisive religious claim helps “to unite the country?” What message does he believe is conveyed when he asserts that proclaiming the glory of God is a “common value?” What could possibly lead him to argue that a “sense of unity and shared purpose” results from intruding into the inauguration a religious ideology that, like every religious ideology, is divisive? He’s a graduate of Harvard Law School, who must have reviewed the text and the history of the First Amendment numerous times. How can such a learned man reckon himself “inclusive” by paying homage to a Supreme Being denied by millions of those he represents?

Two months ago, when the American people chose Barack Obama to serve in the highest office in the land, it seemed that Homer Plessy’s dream had finally been realized. America, we thought then, truly stands for the justice and equality guaranteed in its Constitution. Yet, in a few days, as our new president steps up to the inaugural podium, the reality will be that government-sanctioned favoritism – now for religion, instead of race – will continue. Perhaps some day, as the leader of our nation swears “to preserve, protect and defend” the document upon which Homer Plessy’s dream was founded, he or she won’t simultaneously be ripping it … and us … apart.

The oath is in the news now that California atheist activist Michael Newdow — last seen in the headlines trying to knock “Under God” out of the Pledge of Allegiance (full story) — is suing to drive all mention of God out of Barack Obama’s inauguration Jan. 20. A U.S. District Court judge will hear the case next week.

Read the full story at http://www.usatoday.com/news/religion/2009-01-07-washington-oath_N.htm

Visit Michael Newdow’s official website at http://www.restorethepledge.com/

From http://frontrow.bc.edu/program/newdow/ 

October 18, 2006 – Boston College – Boisi Center for Religion and American Public Life

Every day millions of schoolchildren pledge allegiance to the American flag and “the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all.” Michael Newdow is a lawyer, physician, and First Amendment activist whose legal challenge to the inclusion of “under God” in the pledge reached the Supreme Court in 2004, where Newdow personally argued his appeal to the justices (it was later dismissed on a technicality).

In this panel discussion, Newdow presents his case against “under God.” Joining him in discussion are Wendy Kaminer, a lawyer and social critic whose most recent book is Free for All: Defending Liberty in America Today (Beacon, 2002); and Phillip Munoz, an assistant professor of political philosophy and American Constitutional law at Tufts University, who is currently completing a book on religious freedom and the American founders.

The discussion is moderated by Alan Wolfe, professor of political science and director of Boston College’s Boisi Center for Religion and American Public Life.

Panel Discussion – 55 minutes

Broadband 

Audio only 
 

Watch at http://frontrow.bc.edu/program/newdow/