Godless (52 page)
In December 2006, the Supreme Court announced that it would hear the government’s appeal. The justices would not have taken the case unless at least four of them wanted to decide it. Some observers thought the high court took the case to clear up conflicting circuit court precedent on the standing issue (as some of the appeals court judges recommended), but others were convinced it simply wanted to keep us out of court. Annie Laurie was horrified. Her quick head count of justices gave us only four sure votes. I was hoping Anthony Kennedy might be a swing vote, giving us a 5-4 victory. We would have to wait more than six months to know the outcome.
We flew to Washington, D.C., to witness the oral arguments before the Supreme Court in February 2007. Rich Bolton sat before the bench with D.C. attorney Andy Pincus, who volunteered to do the oral arguments for us
pro bono
, assisted in preparation by students at Yale Law School. It was admittedly exciting to be in the Supreme Court as plaintiffs in a significant lawsuit. Although somewhat esoteric in that it dealt with standing rather than the actual First Amendment complaint, the litigation was nevertheless being carefully watched by civil liberties groups around the nation. We knew a victory would send a strong message that the White House is not immune from judicial scrutiny over religious activities conducted by the government. But we also knew we could lose, with an outcome that would possibly make things worse than they had been before. The justices could simply overturn the appeals court and deny our standing to sue in this particular case, claiming there was no direct Congressional appropriation, or the court could go further and shut the door completely, overturning the
Flast
precedent. We were all nervous over the possibilities.
pro bono
, assisted in preparation by students at Yale Law School. It was admittedly exciting to be in the Supreme Court as plaintiffs in a significant lawsuit. Although somewhat esoteric in that it dealt with standing rather than the actual First Amendment complaint, the litigation was nevertheless being carefully watched by civil liberties groups around the nation. We knew a victory would send a strong message that the White House is not immune from judicial scrutiny over religious activities conducted by the government. But we also knew we could lose, with an outcome that would possibly make things worse than they had been before. The justices could simply overturn the appeals court and deny our standing to sue in this particular case, claiming there was no direct Congressional appropriation, or the court could go further and shut the door completely, overturning the
Flast
precedent. We were all nervous over the possibilities.
Major newspapers were on our side. On February 28, the day of the oral arguments,
The New York Times
opined: “The Bush administration is pushing an incorrect view of standing as it tries to stop the courts from reaching the First Amendment issue… Procedural issues like standing can have an enormous impact on the administration of justice if they close the courthouse door on people with valid legal claims. The Supreme Court has made it clear that taxpayers may challenge government assistance to religion. The justices should affirm Judge Posner’s ruling so the courts can move on to the important question: Do the Bush administration’s faith-based policies violate the Constitution?”
The New York Times
opined: “The Bush administration is pushing an incorrect view of standing as it tries to stop the courts from reaching the First Amendment issue… Procedural issues like standing can have an enormous impact on the administration of justice if they close the courthouse door on people with valid legal claims. The Supreme Court has made it clear that taxpayers may challenge government assistance to religion. The justices should affirm Judge Posner’s ruling so the courts can move on to the important question: Do the Bush administration’s faith-based policies violate the Constitution?”
Many state-church and civil liberties groups filed friend-of-the-court briefs on our behalf, including the American Civil Liberties Union, Americans United for the Separation of Church and State, the Baptist Joint Convention for Religious Liberty, People for the American Way, the Anti-Defamation League, Center for Free Inquiry/Center for Secular Humanism, American Atheists, American Jewish Congress & American Jewish Committee, and a group of prominent “historians and legal scholars” who detailed the history of sectarian divisiveness and intolerance that led to the religion clauses of the First Amendment. The United States’ friend-of-the-court briefs most notably included one from the ousted “Ten Commandments Judge,” Roy Moore, and another from televangelist Pat Robertson’s law school. (The briefs and media stories can be read at the Freedom From Religion Foundation’s Web page at
www.ffrf.org
.)
www.ffrf.org
.)
During oral arguments, we were initially surprised to hear Justice Antonin Scalia interrupt the U.S. Solicitor General to ask why the same action by the Executive Branch would be considered unconstitutional
with
Congressional appropriation but constitutional
without
it. “Yeah,” I thought. “Good question!” But we later realized that Scalia wants to eliminate
all
taxpayer standing over federal Establishment Clause violations. He and Justice Clarence Thomas want to overturn the
Flast
precedent. Some of the other questions hinged on trivial issues, such as exactly how many tax-funded bagels at the faith-based conferences would be unconstitutional. If the president has the intention to promote religion, it doesn’t matter
how
much money is spent—even “Three Pence” was too much, according to James Madison.
with
Congressional appropriation but constitutional
without
it. “Yeah,” I thought. “Good question!” But we later realized that Scalia wants to eliminate
all
taxpayer standing over federal Establishment Clause violations. He and Justice Clarence Thomas want to overturn the
Flast
precedent. Some of the other questions hinged on trivial issues, such as exactly how many tax-funded bagels at the faith-based conferences would be unconstitutional. If the president has the intention to promote religion, it doesn’t matter
how
much money is spent—even “Three Pence” was too much, according to James Madison.
Ours was the only case heard that day. After the oral arguments, it was quite fun to walk down the broad steps of the Supreme Court. ABC News filmed me and Annie Laurie stepping down to the bank of microphones and cameras to talk with the national media. The publicity generated so many hits to our Web site that it not only crashed our server but dozens of others as well. (Sorry, whoever you were!) The Freedom From Religion Foundation signed up 800 new members in just two weeks alone!
On June 25, my birthday, we got news that we had lost the case, by a vote of five to four. Annie Laurie was right (she usually is). Three justices—Roberts, Kennedy and Alito—insisted that
Flast
did not give us standing and denied our right to sue due solely to the fact that Bush used discretionary funds. Their three votes, combined with Scalia and Thomas, who vociferously urged the overturning of
Flast,
meant there was no way we could win. We couldn’t help noticing that the five justices who ruled against us were all practicing, conservative Roman Catholics. We now have a conservative majority on the Supreme Court that pledges a part of its allegiance to the Vatican.
The Los Angeles Times
opined the next day: “Two generations’ worth of common sense went by the wayside as the court, in a mere plurality opinion, allowed taxpayers to challenge such spending if it is done by Congress but barred them from seeking redress if it is the president who authorizes the money. The court’s reasoning was satisfying to no one and resulted in a strange fragmentation of the justices, with the chief leading two other colleagues in the main opinion, joined in concurrence by the bench’s two most conservative members. The largest group of justices speaking with one voice actually was in dissent, in which Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer all joined.”
Flast
did not give us standing and denied our right to sue due solely to the fact that Bush used discretionary funds. Their three votes, combined with Scalia and Thomas, who vociferously urged the overturning of
Flast,
meant there was no way we could win. We couldn’t help noticing that the five justices who ruled against us were all practicing, conservative Roman Catholics. We now have a conservative majority on the Supreme Court that pledges a part of its allegiance to the Vatican.
The Los Angeles Times
opined the next day: “Two generations’ worth of common sense went by the wayside as the court, in a mere plurality opinion, allowed taxpayers to challenge such spending if it is done by Congress but barred them from seeking redress if it is the president who authorizes the money. The court’s reasoning was satisfying to no one and resulted in a strange fragmentation of the justices, with the chief leading two other colleagues in the main opinion, joined in concurrence by the bench’s two most conservative members. The largest group of justices speaking with one voice actually was in dissent, in which Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer all joined.”
In his dissenting opinion, Justice Souter wrote: “Here, the controlling, plurality opinion declares that
Flast
does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in
Flast
will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent, and respectfully dissent.”
Flast
does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in
Flast
will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent, and respectfully dissent.”
Justice O’Connor had been the court’s true swing vote. Our lawsuit was Samuel Alito’s first case dealing with religion, and many were watching to see how the new court would shape up. O’Connor’s replacement by Alito—one of the lasting legacies of the Bush presidency—not only tipped the court but also appears to have stuck it in the wrong direction, like a broken compass. (The only defense we can muster for Kennedy was his concurring opinion’s firm refusal to go along with Scalia and Thomas in overturning
Flast.
) As a protest, on Freethought Radio the week after the decision, we played the song, “It don’t mean a thing if it ain’t got that swing.”
Flast.
) As a protest, on Freethought Radio the week after the decision, we played the song, “It don’t mean a thing if it ain’t got that swing.”
Since the decision in
Hein v. Freedom From Religion Foundation
dealt only with standing, not with the merits of our complaint, our loss does not mean that what President Bush did is constitutional. Nor does it mean that we cannot continue challenging violations of the First Amendment. It does mean none of us can challenge
this
particular violation. No American taxpayer, religious or not, has the right to challenge, on purely taxpayer grounds, a discretionary action that violates the Establishment Clause by the Executive. The religious right may have got more than it bargained for. If a future president or governor wants to use general funds to insult Christianity (as unlikely at that prospect may be), the
Hein
decision means that no Baptist, Methodist or Catholic taxpayer can stop it as a taxpayer. The bar has been raised. Shortly after the June 25 decision, the Freedom From Religion Foundation reluctantly had to back out of a strong lawsuit challenging a “God pod” at the women’s prison in Grants, New Mexico. The judge had indicated that if we lost the
Hein
case he would dismiss the lawsuit on standing, so we withdrew. We will revisit the violation with a stronger challenge in the future.
Hein v. Freedom From Religion Foundation
dealt only with standing, not with the merits of our complaint, our loss does not mean that what President Bush did is constitutional. Nor does it mean that we cannot continue challenging violations of the First Amendment. It does mean none of us can challenge
this
particular violation. No American taxpayer, religious or not, has the right to challenge, on purely taxpayer grounds, a discretionary action that violates the Establishment Clause by the Executive. The religious right may have got more than it bargained for. If a future president or governor wants to use general funds to insult Christianity (as unlikely at that prospect may be), the
Hein
decision means that no Baptist, Methodist or Catholic taxpayer can stop it as a taxpayer. The bar has been raised. Shortly after the June 25 decision, the Freedom From Religion Foundation reluctantly had to back out of a strong lawsuit challenging a “God pod” at the women’s prison in Grants, New Mexico. The judge had indicated that if we lost the
Hein
case he would dismiss the lawsuit on standing, so we withdrew. We will revisit the violation with a stronger challenge in the future.
There are three ways, at least, to continue challenging the faith-based initiative. First, if we can connect the program to a direct legislative appropriation, then taxpayer standing is solid. (We actually did establish in our Supreme Court brief that Congress for years had debated and voted on the faith-based appropriations we were challenging, but we had a stacked Court.) Second, we can sue with a plaintiff who has direct injury—not just a taxpayer, but someone who is personally affected by the program itself. This could be a prisoner, student, patient or recipient of service. Third, our favorite solution: Congress can stop the unconstitutional funding stream. Even the majority opinion agreed that “Congress can quickly step in” if it wants to.
The best hope for the world is secular government. There are enough real causes of social conflict on this planet without the manufactured cause of religious divisiveness. In a democratic, egalitarian society, we should embrace the freedom to disagree about religious opinions, which also means we should denounce the freedom to ask our government to settle the argument. The government, at all levels, must diligently remain neutral. Working to keep state and church separate is a task that is crucial to preserving tolerance and peace, and the only way to have a “heaven on earth.” It is certainly a more practical mission than what I was doing for 19 years: trying to usher people into an imaginary heaven.
Chapter Eighteen
Adventures in Atheism
In February 2008 I stood on the Brazilian coast at Cabo Branco, looking out across the Atlantic Ocean toward Africa. I had been invited to represent atheism at the annual Nova Consciência conference, a huge multi-cultural, interfaith “anti-Carnival” that promotes tolerance in the northeastern city of Campina Grande. After the five-day meeting, I especially wanted to visit Cabo Branco, the easternmost point of the Americas. Some of my new friends drove me there so that I could stand facing east with my arms stretched out and my back to the entire American continents. I can now literally say that I have taken atheism to the ends of the earth.
A year earlier, I was at the exact opposite spot in Africa, near Kribi, Cameroon, which corresponds to the point where Cabo Branco would have been connected with Africa 150 million years ago. I had stood on the African continent with my arms stretched out, facing west across the ocean that is being formed by the Mid-Atlantic Ridge. The geographical points are not due east-west because the continents have drifted somewhat southwest-northeast of each other. (As “proof” of continental drift, I did notice that Cabo Branco, a year later, seemed to be an inch further away, and I found the other half of a broken rock that I had spotted in Africa. Just kidding!)
There I stood, a medium-sized mammal on a spinning, evolving planet, orienting myself with a physical sense of place and geography, knowing how immensely long it took for all this to happen, and smiling at my earlier fundamentalist self who used to believe that the world was (at most) 10,000 years old.
As a child in Sunday School, I put pennies in a plastic bread loaf to help missionaries travel to “deep, dark Africa” to convert poor, lost souls to Jesus. I had wondered what it would be like to do something so grandiose and exotic, so whole-heartedly obedient to Christ. Fifty years later, I got to travel to Africa for the first time, but not as a Christian missionary. If going on a mission means spreading the “good news,” then that’s exactly what I did.
The Cameroon Freethought Association invited me to speak at the first international French-African conference of nonbelievers and humanists. I didn’t see any “poor lost souls” on the continent. I saw a people drenched in religion, from Protestants, Catholics and Muslims to local tribal believers. I saw an enterprising nation of hard-working people, though I did get robbed by the police while riding in a taxi ($70 for the gendarme beer fund is a small price to pay for a good story to tell). And while the standard of living is lower than in the U.S. and corruption is pervasive, I saw few beggars and no abject poverty. (I told them I think the only difference between Africa and the United States is that we Americans know how to hide our corruption better.) I met some wonderful freethinking university students and other enlightened nonbelievers who told me that the last thing their continent needs is more religion! It is encouraging to see how freedom of conscience is cherished all over the world. For me, it was a real adventure to play a small part in bringing the good news of atheism to Africa.
The same religious dynamic is true in Brazil. Although 90 percent of the population claims to be Catholic, in reality most of the people practice a syncretism of Afro-Brazilian religions mixed in with Christianity, plus Pentecostalism, Islam, Buddhism, Hare Krishna and dozens of other faiths. They don’t need any more missionaries. They need freethought. They need fair economic opportunities. I noticed that although many Brazilians struggle to put milk on the table, they all seemed to have enough money for Carnival, the lottery, beer and church. (“Beer” and “church” happen to rhyme in Portuguese:
cerveja
and
igreja.
It would make a good song!) Getting rid of the church would give everyone a 10 percent raise, for starters.
cerveja
and
igreja.
It would make a good song!) Getting rid of the church would give everyone a 10 percent raise, for starters.
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