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Judges Should Tell Atheists to Stand Down Print E-mail
By Gerald Russello   
Thursday, 10 July 2014

Justice Antonin Scalia gave a famous lecture at the Harvard Law School arguing that the rule of law is a law of rules. He was making the point that the Anglo-American system has expressed a preference that text and tradition should restrain judicial decision-making. As Ralph Rossum describes it, “where the text embodies a rule, judges are simply to apply that rule as the law.”

Although Scalia was speaking mostly about the constitutional text, the same interpretive approach assists in other issues. For example, the common law developed over time numerous rules to govern and discipline the legal process. Bypassing such rules in the hope of achieving the “right” legal ends results in arbitrary diktats of the judiciary that are unpredictable and subject to passing political fancy rather than enduring principles.

The jurisprudence of Earl Warren, which embodies this approach, remains the favored interpretive tool for liberals, though by different names at different times. You can see it in the embrace of “empathy” by judges like Justice Sotomayor. But one rule, the ancient doctrine of standing, may help preserve religious liberty – as a recent case suggests.

“Standing” sets out who can sue for injury. If you are hit by a car, you can sue the driver for compensation for your injuries. If you enter into a contract and the other party breaches that contract, you are able to seek redress. But the question becomes more complicated when what is at issue is a more tenuous kind of “injury.”

What should be the standard when your injury is simply that you’re offended by some government action? Courts have developed rules about standing for such cases too. In a pluralist society, all sorts of people feel injured by diverse government actions, but allowing them all to have standing to sue the government would dissolve the social order. Yet that is exactly what one group is seeking to so.

In a long running case, the federal appellate court in New York – thanks to the Becket Fund for Religious Liberty – has asked a group of atheists to explain why they have standing to sue the Port Authority over the placement of the so-called World Trade Center Cross, a cruciform piece of fused metal found at Ground Zero, at the National September 11 Memorial & Museum, where it now resides.

The atheists complain that they are “insulted” and “offended” by the cross, and argue that its placement in the museum is unconstitutional. It needs to be removed, they say, or at least contextualized by a random selection of “atheist” objects, albeit not ones found at the Ground Zero site. That these individual plaintiffs have not actually visited the Museum seems to be of no moment. If a religious symbol is out there, somewhere, they believe the Constitution gives them a right to remove it.

We ought to note the pettiness and sheer civil rudeness of these claims. Earlier in this case, the atheists went after Father Brian Jordan, who was at Ground Zero after September 11 and gave comfort to the rescue workers there. The atheists claimed he was a “state actor” and thereby constituted the “establishment of religion.” That effort failed, but they continue trying to undermine a symbol in which many rescue workers and victims’ families find solace. The Cross was found on the site, not put there by mean-spirited Christians attempting to exclude others; the Cross, the court has pointed out, is as much as any other an historic artifact of the September 11 attacks.

          The Cross (center left) at the National September 11 Memorial & Museum

The Becket Fund rightly saw in this argument an endless expansion of claims that would allow “the most cantankerous adherents to the most extreme separatist views of the Establishment Clause to challenge even the tiniest manifestation of religion anywhere in the public square.” Late last month, the appellate court specifically asked the plaintiffs to “clarify both the injuries alleged and the legal theories relied on to support standing.”

The atheists’ argument is not constitutional in any recognizable sense, or even a true legal argument. It is essentially a moral argument. The atheists – like the shrill opponents of the Hobby Lobby decision - want their constitutional utopia, regardless of congressional statute or real “injury.” A decision against them cannot be explained simply by a balancing test that preceded this case and requires judgment and some adherence to the text and interpretive rules.

Doctrines such as standing exist precisely to prevent the courts from becoming arenas for every perceived slight, though atheists may be forgiven for thinking otherwise, given the dominance of a jurisprudence that believes strong conviction should trump, for the “right” causes of course, neutrally applied legal rules.

The Supreme Court has held that people have no free-form right to be free of offense or to have all speech in public places conform to their approved range of acceptable opinion. In a 1982 case, the Court held that the Establishment Clause does not give people “a special license to roam the country in search of governmental wrongdoing,” especially where that wrongdoing stems from confronting ideas with which one disagrees.

Yet that is what atheists want: a veto over how much religion is allowed in the public square – lest they be offended. This position is nonsensical, which may explain the atheists’ mid-case course correction. Now they seek only to provide additional non-theistic context for the World Trade Center Cross.

As the Becket Fund argued, this is equally untenable. If you claim to be so “offended” that display of the World Trade Center Cross requires judicial redress to remove it from public sight, then the mere addition of other items does not cure that supposed injury.

This switch really gives the game away. The atheists’ constitutional claims are an obvious cover for what they really want – to eliminate through judicial fiat the centrality of religion in the history of the United States, and the fact that in times of national tragedy, people turn to their faith for comfort and meaning.

Let’s hope the courts see these claims for what they are.

Gerald J. Russello is an attorney and editor of The University Bookman.

The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.

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Comments (10)Add Comment
written by John Willson, July 10, 2014
A fine and persuasive piece, Gerald. Might I suggest that the "atheists" involved are not "offended," rather, their agenda is simply to injure religious freedom and thus undermine the foundations of the republic for their own secularist agenda?
written by gerald russello, July 10, 2014
Thanks, John. I see yuor point. I was trying to use the legal language they are using to squeeze their claim into the constitutional framework. Gerald
written by schm0e, July 10, 2014
...otherwise Catholics might be able to sue for offense taken by the City's adverts in the subway depicting a happy teen "couple" -- happy because of "her birth control pills and his condoms"...
written by Mr. Levy, July 10, 2014
Excellent article. Thank you.

Far too few are aware of the daily "lawfare" waged by the anti-religious. Even if these lawsuits do not succeed in court, they succeed in exhausting the defenders of religious liberty and intimidating others into mute compliance.

Might one go even further and argue that not only should such suits be dismissed but the plaintiffs and counsel fined or otherwise sanctioned - or is there not a solid judicial basis for such a response? (I put aside the question of the likelihood of judges' actually doing so.)
written by Hominid, July 11, 2014
It's not their atheism that drives the campaign of such people - it's their Liberal-Leftism. Most atheists support freedom of conscience and don't seek to banish it from public inspection.
written by nestofsalt, July 11, 2014
I am an atheist who lost several friends @ WTC1 on 9-11. If some of their families get comfort from seeing a cross in these I-beams, that's fine. There's a long list of offensive actions by religious groups (9-11, for example), but this isn't one. There are some "jihadists" in the atheist community, but most of us really don't care what's displayed at the 9-11 museum.
written by jimbino, July 11, 2014
As and atheist and scientist, I feel I have to stand up for former teachers who are no longer with us, like Galileo, Jon Hus, Giordano Bruno and many others who are no longer with us because they were castigated or murdered by the Roman Catholic church.

Just as the Jews and other righteous persons should have stood up to the Nazi sloganeering, swastikas and racist signs and celebrations, we righteous persons should act now to nip signs of public religion in the bud before it's too late. We can't afford to let up at least until we get a self-acknowledged non-believer in high office and a Protestant, Muslim or non-believer on the Supreme Court, which is now make up of 6 Roman Catholics and 3 Jews.
written by Joe Blow Jr, July 13, 2014
"Yet that is what atheists want: a veto over how much religion is allowed in the public square – lest they be offended. This position is nonsensical..."

Of course it is nonsensical. It is nonsensical because it is not what any atheist actually argues.
written by Sld, July 14, 2014
What a horrible argument that both misrepresents the Atheist position and distorts history by arguing that we are trying to overturn precedent, when in fact it is your group that is trying to change the law to have us denied standing. The Supreme Court ruled that ordinary citizens can have standing on separation issues decades ago, overturning that law will harm the religious freedoms of all of us, not just atheists. Do you really think that if we no longer have standing to sue over CSS issues, that we will then only have generic Christian symbolism placed in the public square? The Baptists that control so many southern states will not stop there. Standing is what protects us from a theocracy of the tiniest majority.
written by Fr. J, July 14, 2014
jimbino, uh those you mentioned were not atheists. Galileo believed in God for example. The Nazi's however did hate Christianity as well as Judaism.

Sid, I don't think theocracy is much of a danger. On the other hand atheist regimes have uniformly persecuted religious people.

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