Judges Should Tell Atheists to Stand Down


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 a lawyer and editor of The University Bookman (www.kirkcenter.org)