Wednesday, May 15, 2013

Handling those who mishandle Freedom From Religion Foundation challenges

I suppose it was inevitable since I live in the Southeastern US--a Freedom From Religion Foundation (FFRF) legal challenge came relatively nearby. Predictably, a local paper published the story, and predictably Christian Supremacists argued to "put prayer back in" where it hasn't even been taken out. Equally predictably, atheists and secularists (not all of whom are atheists) argued with the Christian Supremacists--many of whom bizarrely think that the Constitution is an "unwanted outside influence" because the FFRF happens to be located in Wisconsin. I want to write a short piece here highlighting how to handle these situations better.

First, let me note that it is imperative for everyone involved, particularly secularists, to remember that the full weight of the law and legal precedent falls on the side of secularism, barring the bizarre ruling in Texas regarding bible verses on high school cheerleading banners. The Establishment Clause of the First Amendment of the American Constitution has been clearly interpreted for decades to mean that it is unfairly exclusionary and thus illegal for public schools, county or city councils, school boards, etc., to open their meetings with a sectarian prayer of any sect or creed. The Equal Protection Clause of the Fourteenth Amendment has been consistently interpreted, with numerous examples of precedent, to be the legal backbone of this issue, and this is where we'll find the correct argument to make.

The point is clear, then. The point is equal protection before the law, consistent with the Fourteenth Amendment as applied to the First Amendment.

Since the law is relatively unambiguous in this case, the Christian Supremacists intent on making prayer a part of every meeting have only one main goal: cloud the discussion with red herrings to prevent anyone from focusing upon the law. This behavior is exactly what we see, and often, wanting to keep the records straight, secularists and particularly atheists seek to step in and correct these fallacies--which pulls the discussion further away from the proper focus: the law. I'll list a few of the most common red herrings involved here and how they pull the discussion off course.

The Founders (or Framers) Intended: This is almost always the first go-to argument among any relatively savvy defender of the illegal behavior: claim it was part of the original intent of the Founders of the United States and the Framers of the Constitution. This is a black hole. Do not go into it.

First of all, it doesn't matter what the Founders, Framers, or any other 18th century person thought about these matters, intended, wanted, or planned. Their vision, whatever it was, has been clearly elaborated upon and interpreted to mean--with the full weight of law and legal precedent--that the prayers are illegal. Thomas Jefferson himself could speak from his grave and say that's now how he wanted it to go, and it wouldn't matter because Thomas Jefferson would be on the wrong side of American law if he said so. Attempting to argue about their intent gives unwarranted credence to the idea that their intent matters. It doesn't. Point this fact out as often as necessary and don't engage the irrelevant argument itself.

Second, a monolithic original intent of fifty-five disagreeing men from the 18th century cannot easily be determined. Since it cannot be determined without enormous study, a substantive case cannot easily be made via "Founder's intent." We might ask: Which founder? At what point in his life? Why? Good answers to these questions will be very hard to come by and highly contentious. Even with good answers, though, none of this matters. The Christian Supremacists make their case because they cherry pick and appear to sound knowledgeable while distracting from the real legal point at the center of the discussion. This means that they will not respect a carefully researched argument about original intent if it disagrees with their position, and again the idea that the original intent matters is reinforced.

Third, the Founders are relevant to a time, place, and audience that is not timeless: 18th century white men of privilege, primarily. They did not believe in equal protection before the law, in fact, or at least a substantive case can be made that they did not. African slaves weren't freed until the 1860s and didn't get the first shake of anything like equality, particularly in the South, until the 1960s, a battle they still have to fight today. Women weren't even on the map in the late 18th century, having to wait until 1920 to earn suffrage and still having to fight for equality with men today. The Founders did not encode equal protection before the law to all citizens, which had to wait until the Fourteenth Amendment to get any legal traction for men and the Nineteenth Amendment for women. It still doesn't exist in full. We need not listen to the Founders on this point.

The point of this line of argumentation often includes that the First and Fourteenth Amendments have been interpreted against the Founders' original intentions or wishes. So what? The Founders' (here, Thomas Jefferson's, specifically) original intentions included "let later generations figure out the problem of slavery." Later generations figured it out by writing the Fourteenth Amendment (along with Thirteen and Fifteen), which applied to the First Amendment gives us what we're talking about here.

The "Founder's Intent" argument is a red herring used to distract the focus from the law of the land and its legal backing in judicial precedent. Our goals in advancing secularism, atheist or otherwise, have to keep our eyes on the ball: the illegality of the behavior being challenged.

The religion is/isn't true! Yes, we know. They don't, though, and this argument is often intractable. More importantly, it is a red herring from the relevant point about the illegality of the behavior. It doesn't matter if the religion is true or not in a secular society, and if a secular society could exist with a religion that is demonstrably true, it wouldn't even matter then. The law gives no preference to any sect or creed and thus no difference in treatment to anyone holding any sect or creed. This argument, then, is an unnecessary distraction that requires very little attention.

How would you like Muslim prayers? This is an often-given rebuttal by secularists, not an argument made by the Christian Supremacists themselves, and while we might hope that it would drive home an important point with them, it usually doesn't. Meanwhile, it creates another tangential discussion that distracts from the point about the legality of the matter.

It's important to note, because many Christian Supremacists will raise the point that in a different situation they'd be okay with Muslim (or other) prayers, that any sectarian prayer is still illegal for the same reason. It doesn't matter what they'd be okay with. What matters is that the core of secularism says that it is not okay at all for any sect, majority, minority, or otherwise. If this point comes up, it can be used to remind the point that all sectarian behavior is inappropriate, so the point they're trying to make is moot.

The only exception is if they were to offer equal time for prayer or invocation from every sect. There are tens of thousands of them. To represent all of them with one minute each would require more than a month with no breaks at the beginning of every meeting and would still exclude all nonreligious people. This is obviously impossible and still illegal because it excludes all nonreligious people.

Waste of valuable time and money: Indeed, it is. So since the law is unambiguous, instead of arguing this point, we should simply urge our agencies to concede to the FFRF challenges, follow the law, and stop wasting time and money. In a secular society, no one pays taxes--including the few dollars that might go toward facilitating a thirty-second prayer before a city council meeting--for the promotion of any sect. In fact, no one can pay taxes for that even if they want to because it would require a law directing taxpayer money for sectarian use. Engaging this point beyond a reminder of the law is unnecessary, however obvious it is that the cost of the lawsuit (which the local government will lose based on the clarity of the law and legal precedent) is an utter and irresponsible waste of taxpayer money.

Prayers don't have to be engaged in, so freedom is preserved:  This is less a red herring and more an attempt to reframe the discussion to be about religious freedom instead of about equality under the law. It needs to be addressed as it is actually key to understanding the proper legal argument. In fact, this argument carries some red herring with it because the argument is not over "freedom" but rather over equal treatment before the law.

So, no, freedom isn't preserved. The relevant freedom is that everyone in the country gets equal treatment before the law. This is impossible to maintain when a sectarian prayer, rite, ritual, etc., is engaged in or sectarian symbolism is displayed in a public place since by definition "sectarian" implies that there is an in-group (the sect) and an out-group (everyone else). It is not possible for a person of Group B (another sect or none) to have full confidence in the idea of equal protection before the law if the commission explicitly engages in behaviors that indicate a commitment to Group A (here, some brand or another of Christianity) at any point during the meeting. Equal treatment has already been compromised the instant anything gives even an ambiguous indication that there may be sectarian preference.

The correct argument:

The focus should stay on the law, and arguments that arise should aim to keep that focus clear. The law is not ambiguous. The Establishment Clause of the First Amendment has been interpreted via the Fourteenth Amendment to extend equal treatment under the law. Any attempts to include a sectarian prayer automatically violate this legally protected and worthy principle, and ignoring the FFRF challenge will result in a costly, wasteful lawsuit that will be lost after wasting taxpayer money and bringing embarrassment to the community.

My goal with this has been to urge secularists, religious and nonreligious, theist and atheist, to keep the focus on the proper aspect of the discussion when these discussions arise. The law is on our side.

1 comment:

  1. Very sound advice I'll be sure to remember, James.

    ReplyDelete