Some thoughts on the Moore amicus brief

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I looked through the Roy Moore amicus brief that Reed Cartwright posted below. It makes a remarkable argument: that the evolution disclaimer could not possibly violate the Establishment Clause because “[a] sticker is not a ‘law,’” (p. 13), so it couldn’t possibly be a “law respecting an establishment of religion.” As far as those cases like Lemon v. Kurtzman, 403 US 602 (1971), which hold that any state action which endorses a religious viewpoint is a violation of the Clause, those cases were wrong and ought to be overruled.

The argument that a sticker is not a law is the worst kind of lawyerly manipulation. Of course a sticker is not a law, but it is not the sticker that is being challenged in this case; it is the school board’s resolution requiring school officials to place the sticker on the textbooks. That resolution has the force of law. If the school board ordered teachers to tell all their students that real baptism requires total submersion and any person who just sprinkles is going to Hell, one might say that a teacher telling students that isn’t a law—but the school board’s orders have the force of law.

Moreover, the First Amendment’s literal text is not strictly relevant to this case, because, strictly speaking, the First Amendment doesn’t have anything to do with the states; it applies only to Congress. It is incorporated to the states by the Fourteenth Amendment, which declares that no person shall be deprived of liberty without due process of law. By the time the Fourteenth Amendment was ratified n 1868, the disestablishment principle was seen as an individual right: that is, the concept of “liberty” by 1868 included the right to be free from established religion. Depriving a person of that right by putting the government’s endorsement on a competing religious view is not for the public benefit, and therefore is just a mere act of force—which means, it deprives a person of liberty without due process of law. The Fourteenth Amendment does apply the bill of rights to the states, but as Akhil Reed Amar so brilliantly shows, it acts as a lens, not a window. Moore’s brief doesn’t understand this, and so it ends up making silly, hypercritical arguments. The question isn’t whether the “sticker” violates the First Amendment, but whether the school board, in placing the sticker on textbooks, has deprive people of their right to be free from religious establishments. Moore can certainly answer that question “no” if he wants to, but he shouldn’t pretend that it isn’t the real question.

Moore goes on to argue that the sticker also isn’t about religion, because religion is defined as “the duty we owe our Creator.” (p.19). But the Supreme Court has never actually defined “religion”—something that is extremely difficult to do. See Note, Toward a Constitutional Definition of Religion, 91 Harv. L. Rev. 1056, 1063 (1978); Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion Clauses, 41 Stan. L. Rev. 233 (1989). And Moore’s proffered definition would be worthless: a government declaration, for example, saying “America is a Christian country and Muslims ain’t welcome” would violate the Establishment Clause by any reasonable interpretation—but not by Moore’s.

The rest of the brief is full of Moore’s Patented Politico-Religious Grandstanding. He considers it “invidious discrimination” (p. 20) for the District Court to have recognized that the disclaimer was adopted at the behest of religious fundamentalists who refuse to believe evolution and insist that their children be shielded from it; he claims that removing the sticker means “banning God from the discussion of the creation of life,” (p.22-23). Most amusing is his claim that the sticker doesn’t violate the Georgia Constitution because it doesn’t give money from the public treasury in support of any religious group. Who, then, paid the school employees that put the stickers on the textbooks? Evidently Moore thinks they volunteered. More, he rests this argument on a 1922 decision, Wilkerson v. City of Rome, 152 Ga. 762 (1922) which held that it was constitutional to require bible reading and prayer every day in public school classrooms—a proposition that is, shall we say, not exactly the law today.

Yes, I know it’s a waste of time responding to such sophomoric arguments; Moore writes like a first year law student with a Lexis password and no time to bother with trying to learn the big picture of what’s legal and what’s not. I won’t say I agree with Judge Pryor’s rejection of the brief—but I certainly understand it.

25 Comments

Moore goes on to argue that the sticker also isn’t about religion, because religion is defined as “the duty we owe our Creator.”

Does that mean that atheism is not a religion after all, since atheists don’t have a creator?

;) Paul

The argument that a sticker is not a law is the worst kind of lawyerly manipulation.

I respectfully submit there is nothing “lawyerly” about that brief.

Paul Flocken said: “Does that mean that atheism is not a religion after all, since atheists don’t have a creator?”

Atheism is most certainly not a religion.

Some lurkers to this and other evolution blogs are unapologetic atheists, myself included. For those like me, atheism is not an extreme endpoint of a continuum of religiosity, but is instead separated from that continuum entirely. To me, a person is or is not religious.

Most who post prefer to avoid any theism/atheism discussion, which is understandable, since the apparent intent of this blog is to share views on the body of evidence supporting evolution and, i suppose, the so-far nonexistent evidence contradicting it, and whatever social and political shenanigans might arise from all of that. We all like it when discussion stays on topic, and there’s probably plenty of atheism blogs out there anyway (I haven’t looked).

But just for the record, some of us hardline irreligious folks cannot help but read these discussions through a science-vs-religion filter. At least I’m on your side (or vice versa), right?

Very enjoyable analysis. I particularly like your point regarding the 14th Amendment.

Moore writes like a first year law student with a Lexis password and no time to bother with trying to learn the big picture of what’s legal and what’s not.

So true. What’s most troubling is that Moore could have risen to the position of Chief Justice of a state supreme court. I understand that Moore is grandstanding here, playing to the fundies in anticipation of a run for governor. Still, that he would even file such a garbage brief betrays a fundamental lack of respect for the rule of law. He belongs on some late-night cable access channel, where he’s free to proselytize all the pseudo-legal babble he wants, of course, but he has no place being anywhere where law gets made.

“What’s most troubling is that Moore could have risen to the position of Chief Justice of a state supreme court.”

Heck, if the fundies had their way (which fortunately they won’t), Moore would be the next Chief Justice of the United States Supreme Court!

If atheism is a religion, then bald is a hair color.

If atheism is a religion, then bald is a hair color.

Not to get excessively political and all that, BUT… Remember, Judge Moore could be the greatest gift to a certain political party since George C. Wallace.

Just sayin’

Run, Roy, Run!

You never know. There’s a joke about a little girl who drew her grandfather with blue hair, since she “didn’t have a bald crayon”

The argument that a sticker is not a law is the worst kind of lawyerly manipulation.

Almost as bad as the Thomas More Law Center’s argument that the Dover district isn’t “teaching” ID, just “mentioning” it . …

andrew burnes, it was a joke more than anything else, but yes we are on the same side.

djmullen, my favorite truism I have heard here is, I believe, from flint: atheism is a religion like not collecting stamps is a hobby.

The rest of the brief is full of Moore’s Patented Politico-Religious Grandstanding. He considers it “invidious discrimination” (p. 20) for the District Court to have recognized that the disclaimer was adopted at the behest of religious fundamentalists who refuse to believe evolution and insist that their children be shielded from it; he claims that removing the sticker means “banning God from the discussion of the creation of life,”

I’m curious, would Moore consider is ‘invidious discrimination’ if Egyptian fundamentalists, Greek fundies, Norse fundies, Hindu fundies, or Babylonian fundies were prevented from having stickers on the textbooks? Does he think it would be wrong to ban Re, Eurynome, Odin, Brahma, or Marduk from the discussion of the creation of life? Does he even know what religion is? I’m quite sure he knows he has his “religious rights” as guaranteed by the 1st, but does he really know that christianity is a religion just like any other? I don’t know how to verbalize this exactly. I will think about it some more until I can. I do know Moore is thoroughly ignorant. I’d love to see the blank look on his face if you asked him to identify those names above ;)

Sincerely, Paul

Fundie thinking involves such twisted, contorted doublethink that if one doesn’t already adhere to it, it is nearly impossible to wrap one’s brain around the ideas. However, I just read Lenny’s point about ‘mentioning’ is not ‘teaching’, and it gave me this idea. To fundies their belief is their BELIEF and therefore it is not religion because what everyone else believes is religion. They are two different words. Therefore they are different. Similarly christianity is not religion because they are two different words, therefore they are not the same. What we fundies believe in christianity but what everyone else believes in religion therefore it’s o.k. to have christianity in the science class because it’s not really religion.

Am I learning to doublethink like a fundie?

As I wrote on another thread, the Supreme Court is divided into those who regard Christianity as a religion, and those who simply regard it as right. So I agree, they see OTHER faiths as religion. They themselves don’t, really. They believe Truth instead, because it’s true. Why else?

They believe Truth instead, because it’s true. Why else?

ROFLM(vestigialtailbone)O And evolution is supposed to be the circular argument!!!!!

Thanks Flint, it took me a moment to find it, but I should have guessed you had already written it better than I could. Sincerely, Paul

Talking to your average fundie will reveal that “religion” means “the mass of rituals that false faiths have”, to them.

It’ll also reveal that atheism is a religion whereas True Christianity is a relationship.

Kay wrote:

Talking to your average fundie will reveal that “religion” means “the mass of rituals that false faiths have”, to them.

Kay, I am sure you do not mean to be insulting to Christians with the use of the term ‘fundie’. Your assessment of the difference between Christianity and religion is very nearly correct. Christianity is faith in the person of Jesus Christ while religion involves the keeping of a set of rituals in an attempt to please a deity.

Christianity results from God reaching down to touch mankind. Religion involves mankind reaching up attempting to touch God.

“Does that mean that atheism is not a religion after all, since atheists don’t have a creator?”

Some denominations of Buddhism lack a creator god. This has led to a never-ending discussion of ‘is Buddhism really a religion?’ I personally believe it is, and that ‘belief in a creator god’ is simply an inept definition of ‘religion’.

religion involves the keeping of a set of rituals in an attempt to please a deity.

So you don’t think Christianity is a religion??? I think this description fits many Christians…

A lot of churches here self-describe as fundamentalist and I’m too lazy to type five-syllable words normally. I’ve lived with that sort of kitty for a while and have learned tolerance, although as a rule a sizeable minority of them learned tolerance for me only after noticing that i can punch through a wall without apparently feeling pain.

jan Wrote:

Kay, I am sure you do not mean to be insulting to Christians with the use of the term ‘fundie’.

No, only to fundies.

So you don’t think Christianity is a religion??? I think this description fits many Christians …

Arden, You notice correctly. Many times Christians do get caught up in a legalism that says we must work to please and a few sects even teach that one must work. A part of this is our human nature combined with learned behavior. Albion was accurate with his description of Christianity as a relationship. While it begins with faith in the person of Jesus Christ, it is sustained by a relationship with Him. While the Old Testament presents the law, the New Testament presents the fullfillment of that law in the person of Christ. Christ, who knew no sin, became sin for us that we might become the righteousness of God in Him. Has God, then changed in what he requires of man? I do not think so. The Old Testament teaches that Abraham believed God and it was counted unto him as righteousness. The beauty of Christ and the Christian life is that when Christians keep the law, we are no longer keeping the law in order to appease God, but rather to honor His Son and our Savior.

Thank you Jan for showing so well what everyone here was discussing.

religion involves the keeping of a set of rituals in an attempt to please a deity

So, may I ask what qualifies you to make such sweeping generalizations about the religions ‘everyone else’ practices? Just something your pastor told you?

It’s hard not to think that the idea of not calling Christianity a religion is just some new strategy to get around the separation of church and state and to marginalize on other religions. ‘Hey, Christianity isn’t a religion, so the constitution isn’t violated by teaching it in schools!’

It escapes me how any of this is relevant to anything on the Thumb.

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This page contains a single entry by Timothy Sandefur published on June 27, 2005 11:43 AM.

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