It’s been a long process, but the scholarly article that I wrote to follow up on “The Myth of Christian Charity” has finally been published.
In Darwin’s Cathedral: Evolution, Religion, and the Nature of Society (2002), David Sloan Wilson presents a case for the utility of religion. He claims that religious beliefs and practices arose and are maintained in human societies because such beliefs and practices are adaptive.
Something as elaborate—as time-, energy-, and thought-consuming—as religion would not exist if it didn’t have secular utility. Religions exist primarily for people to achieve together what they cannot achieve alone. The mechanisms that enable religious groups to function as adaptive units include the very beliefs and practices that make religion appear enigmatic to so many people who stand outside them. (p. 159–160)
Wilson’s argument depends on a controversial version of Darwinian natural selection, operating at the level of groups. He calls it multilevel selection, and quotes Darwin himself to vouch for its applicability to human cultural practices.
It must not be forgotten that although a high standard of morality gives but a slight or no advantage to each individual man and his children over the other men of the same tribe, yet that an advancement in the standard of morality and an increase in the number of well-endowed men will certainly give an immense advantage to one tribe over another. There can be no doubt that a tribe including many members who, from possessing in a high degree the spirit of patriotism, fidelity, obedience, courage, and sympathy, were always ready to give aid to each other and to sacrifice themselves for the common good, would be victorious over most other tribes; and this would be natural selection. At all times throughout the world tribes have supplanted other tribes; and as morality is one element in their success, the standard of morality and the number of well-endowed men will thus everywhere tend to rise and increase.
Thus did Darwin speculate, in The Descent of Man (1871), that natural selection, which generally operates through the differential survival of individuals, could operate on the level of groups, with fitter groups out-competing the others. And in the same, widely quoted paragraph, he reckoned that one way for a group to boost its fitness is for its members to be good. Tribes with a “high standard of morality” will be “victorious” over other tribes and therefore “supplant” them. This implies that the proportion of moral to immoral tribes in the world will increase over time, because moral tribes have superior evolutionary fitness.
It’s an appealing idea, but is this prediction true? Do the good guys tend to out-compete the bad guys? Has the average standard of morality in the world’s “tribes” risen over the long term? To test Darwin’s model we would have to understand, even quantify, what he intends by the word morality. On careful reading, the paragraph seems much too vague for this. It runs together altruism (giving aid to others) and self-sacrifice (“for the common good”), which are very different impulses. It seeks the source of these noble impulses in “patriotism, fidelity, obedience, courage, and sympathy”: a motley collection of other noble impulses. (Are they all good? Which of them leads to which? Do we have any idea?) It speculates that the combination of those two (or seven) traits will cause the tribe to be “victorious” over other tribes. Is it really true that more “moral” communities tend to wipe out the less “moral” ones? Why? What is the mechanism? And what’s so moral about slaughtering your neighbors?
This all seems especially weak in the light of the theoretical work done a hundred years later by George C. Williams and John Maynard Smith, who showed mathematically that group selection can only work under implausibly constrained conditions.
Also note that Darwin’s account does not mention religion. Darwin himself was an atheist, and certainly did not take for granted the idea that religion is, in general, beneficial. By quoting this passage in the context of an argument for the utility of religion, Wilson is implicitly claiming that if we replaced Darwin’s phrase a high standard of morality with the word religion, the passage would still have the meaning that Darwin intended. Darwin’s model—actually, it’s just a thought experiment, not a model—predicts a positive role for religion, only if religion is responsible for the winning groups’ high standard of morality—that is, only if religion makes people good. To assume that it does is to assume what Wilson wants to convince us of. Thus, his argument is circular.
This isn’t the only problem with Wilson’s argument. There are lots more.
First. That a process is natural does not make it a good idea. Maybe religion does help some tribes wipe out other tribes. Is that good? Is that something we want? Only if we have an independent reason for preferring the religious tribes over the secular-humanist tribes. (I wonder what David Sloan Wilson’s independent reason is.)
Second. Even if communities with lots of morality (or religion or parochial altruism or whatever) tend to defeat communities with less of those things, this does not tell us whether the people in the winning communities are happy. It could be that when it comes to warfare the most effective organization is a totalitarian misery-state where only the people who are not in the army are happy, and only twelve guys are not in the army. There is a difference between a moral society and a happy society, especially if morality is taken to mean following the rules, as it is in so many places—especially the religious ones.
Third. In the most-religious communities in this world, one’s participation is not voluntary, it is required on penalty of expulsion or death. Wilson assumes a quasi-economic model where people are free to choose their affiliations, but religion is in direct conflict with such freedom. The more powerful the religion, the less choice its “adherents” have. If such conditions do not violate Wilson’s assumptions, do we even care whether his model is predictive?
Finally, the model does not distinguish between “religion” and any other kind of strongly normative social structure based on persuasive falsehoods. How does religion come into it? Where does the religion part of his hypothesis come from? I will tell you. First, through the assumption mentioned a moment ago: that people are free to choose; therefore, they choose the religion that most benefits them. (But when religion is in the picture, they are not free to choose.) Second, through the assumption that “belief in God” is probably, in general, a good thing; the assumption that religion fosters both social cohesion and positive morality. This is circular logic, assuming what was supposed to be proved.
The brutal fact, D.S. Wilson’s own “problem of evil” if you will, is that what we see in vivo is nothing like this. We don’t see religion bringing out the best in everyone, or drawing people together in joyful brotherhood. What we see is amoral, charismatic leaders who leverage specialized memes and raw violence to control large populations for selfish reasons. Such leaders benefit from religion; no one else does.
Seemingly unaware of religion’s well-known (and not yet ended!) history of violence and injustice, within groups as well as between them, David Sloan Wilson has carefully built a case for the idea that religion is a Good Thing; that it is Good because it brings folks together; and that it brings them together because it is Good. I’m sure his funders at the Templeton Foundation are delighted.
There is an enormous confusion around what atheists are claiming. It is my belief that theists do not understand the proposition coming from the atheist side, “I don’t believe in any gods.” They literally don’t know what this means. Furthermore, most atheists do not understand the claim of the theist: “I believe in God.” So there is an almost perfect confusion between the two parties.
The root of the problem, in my opinion, lies in the peculiarities of usage of the word ‘belief’ (and of course its cognates ‘believe’, ‘believer’, and so on).
When the theist says to his atheist friend, “I believe in God; you believe that there is no God,” he sounds as if he is saying that there is a certain thing he does, that his friend the atheist does not do; and that this is the practical difference between their philosophies. But this is a misconstrual. What he has in fact done is to use the word ‘believe’ in two different ways in the same sentence.
Let me repeat the example from the atheist point of view, to show that the problem is exactly the same.
When the atheist says to his theist friend, “You believe in God; I don’t,” he has (implicitly) used the word ‘believe’ in two different ways in the same sentence. He seems to be saying that there is a certain thing his friend the theist does, that he does not do; and that this is the practical difference between their philosophies. But this is a mistake.
It is not true that there is a thing that people can do, called “believing in God,” with the difference between theists and atheists being that the first do it and the second do not. The “believing in God” that characterizes theism is a different activity from the “believing in God” that atheists do not do. If this sounds ridiculous, please bear with me a moment.
The problem is that the word ‘believe’ can be used with two, completely different senses.
When I, as an atheist, say I “do not believe” that any gods exist, I am talking about a (possibly tentative) conclusion I have come to about the world based on my experience. I’ve studied the issue, thought about it carefully, consulted with friends; most importantly, I have looked for evidence of these gods, and found none. When I say “I don’t believe,” I mean that as far as I can tell, I don’t see any good evidence.
The theist’s use of this word has a different sense—in fact, the opposite sense. When the theist says that he “believes in God,” he is referring to an opinion that depends not a whit on observational evidence. In religious parlance, my “belief” is something I hold onto no matter what. Nothing I observe in the world, ever, can obligate me to alter my “belief in God.”
So, you see, a theist and an atheist can be standing side by side, and the first can say, “I believe in God,” and the second, “I don’t believe in God,” and they are talking about completely different things. The theist means, “There’s a warm feeling in my heart that I will never give up.” The atheist means, “I’ve looked into it and the case is not strong.” These are not opposite opinions, they are opinions on distinct topics. The two witnesses are not on opposite sides. They don’t even really disagree.
I do not always agree with Russell Blackford but his new opinion piece on the site of the Australian Broadcasting Corporation is spot-on. It begins like this:
Religious teachings promise us a deeper understanding of reality, more meaningful lives, morally superior conduct, and such benefits as rightness with a Supreme Being or liberation from earthly attachments. One way or another, the world’s religions offer spiritual salvation, or something very like it. If any of their teachings are rationally warranted, it would be good to know which ones.
At the same time, however, religious teachings can be onerous in their demands; if they can’t deliver on what they promise, it would be just as well to know that. I take it, then, that there’s a strong case for rational scrutiny of religious teachings. Even if reason can take us only so far, it would be good to explore just how far.
And it ends like this:
When religion claims authority in the political sphere, it is unsurprising and totally justifiable that atheists and sceptics question the source of this authority. If religious organisations or their leaders claim to speak on behalf of a god, it is fair to ask whether the god concerned really makes the claims that are communicated on its behalf. Does this god even exist? Where is the evidence? And even if this being does exist, why, exactly, should its wishes be heeded, let alone translated into laws enforced by the state’s coercive power?
These questions are being asked more often, and so they should be. When they’re asked publicly, even with a touch of aggression, that’s an entirely healthy thing.
It just hit me. You know on those surveys? Where they ask people if they believe in God? If you pry a little you can find out exactly what the script is. And in the script it says, “Do you believe in God?” — with a capital G.
Human beings took our animal need for palatable food . . . and turned it into chocolate souffles with salted caramel cream. We took our ability to co-operate as a social species . . . and turned it into craft circles and bowling leagues and the Metropolitan Museum of Art. We took our capacity to make and use tools . . . and turned it into the Apollo moon landing. We took our uniquely precise ability to communicate through language . . . and turned it into King Lear.
None of these things are necessary for survival and reproduction. That is exactly what makes them so splendid. When we take our basic evolutionary wiring and transform it into something far beyond any prosaic matters of survival and reproduction . . . that’s when humanity is at its best. That’s when we show ourselves to be capable of creating meaning and joy, for ourselves and for one another. That’s when we’re most uniquely human.
And the same is true for sex. Human beings have a deep, hard-wired urge to replicate our DNA, instilled in us by millions of years of evolution. And we’ve turned it into an intense and delightful form of communication, intimacy, creativity, community, personal expression, transcendence, joy, pleasure, and love. Regardless of whether any DNA gets replicated in the process.
Dr. Michael Newdow is a practicing physician. He also has a law degree. Over the last several years he has taken on the federal government over high-profile First Amendment issues, sometimes going all the way to the Supreme Court. I spoke to Dr. Newdow at his home in Sacramento, California on 19 January 2010. The following transcript (about 6,000 words) has been edited for clarity.
RS: You were trained as a doctor?
MN: I was.
RS: Were you a practicing physician?
MN: I am. I work in emergency rooms, all over the country, at what are called locums.
RS: I’m embarrassed. I thought you were an ex-doctor.
MN: No, that’s how I make money. I’ve never made a nickel from law.
RS: Can you give me a capsule overview of the cases you’re working on? Your web site lists three of them.
MN: There are five cases total. In one, though, my involvement is only ancillary. It’s a case that was brought here by the Freedom From Religion Foundation; I’m just the local counsel. It’s challenging the tax exemption that “ministers of the gospel” get, according to the IRS.
RS: Which is one of the most ridiculous –
MN: Yeah. It’s really a very interesting case. For that one, as I say, I’m ancillary. Then there are two Pledge cases. One is here in the Ninth Circuit; I’ve brought another in the First Circuit, in case the Ninth Circuit rules against us. I have potential plaintiffs in every circuit. The Seventh Circuit has already ruled. The Fourth Circuit’s kind of already ruled. In the Ninth Circuit, we’re waiting.
In the First Circuit we have another case, for which we’re working on the appellant’s brief right now. It’s due February 1st. This is the one challenging the words “under God” in the Pledge of Allegiance. And I have another case in the Ninth Circuit, challenging the printing of “In God we trust” on our coins and currency. It’s the national motto too, but I don’t really have standing for that.
Lastly, there’s a case challenging the religious aspects of the inauguration. The presidential oath is the only passage in the entire Constitution that is meant to be recited verbatim; and here we have the Chief Justice of the United States changing it, adding the words “so help me God.” And then we have the chaplains.
RS: I remember two “invocations.”
MN: One’s an invocation, one’s a benediction. Of course I don’t know what the difference is, if there is a difference.
RS: I felt that having priests come up and do that was just outrageous. Unbelievable.
MN: The first time I saw it was in 2001, right here in this house. I had no idea. I just happened to be home at the time, and I thought, “I’ll watch the inauguration.” It was Franklin, what’s his name, Graham. The son of Billy Graham. They invited Billy Graham, but he was too sick. Franklin Graham prayed in the name of the Father, and of the Son, and of the Holy Spirit, and of the Lord Jesus Christ or something. And then Kirby John Caldwell came on and prayed in the name of all the other names. It was just incredible.
So I filed suit then. This was in 2001: Bush’s first inauguration. The federal government argued that I didn’t have standing. They said, “If you saw it in person there in Washington you’d have standing, but you saw it here on TV, so you don’t.” The case got appealed. Now, the magistrate in this case originally ruled that I did have standing. He said, “There’s no difference between going there or seeing it on TV. You were in the audience that was affected by it, so you have standing.” The Ninth Circuit reversed that, but without explanation; they just said “Newdow doesn’t have standing.”
I brought the case again in 2005. This time I got a ticket to go there, because I wanted to see the inauguration. Not to see this stuff; I didn’t want to see this stuff, I wanted to see the inauguration. They said last time I didn’t have standing, so OK, this time I’ve got a ticket. And this time the federal government argued, “Well, it’s really the same case, and since you didn’t have standing last time, you don’t have standing this time either”! And the judge actually bought into that! So I lost again.
Then I brought it again in 2009, this time with 250 other plaintiffs, and we’ll see. We just had the oral argument a month ago. December 15th.
RS: In San Francisco?
MN: No, this is in the D.C. circuit, in Washington. And the issue is just standing, because the lower court just said “You don’t have standing,” without explaining why. So we’ll see. The Court of Appeals mentioned that they can decide it on any ground. They can decide the whole thing. And if they do, they’ll obviously go against us – because we’ve never had an opportunity to really argue the merits! It’s always over standing. We had some opportunity when we moved for an injunction, to get them to not do it, but we lost there.
So basically there are four cases that I’m directly involved with.
RS: Do you think the “ministers of the Gospel” case might have the best chance of winning, since it’s so narrowly defined?
MN: They all have chances of winning. But you may be right, because statutorily, that one’s an exemption. Plus it just really seems off the wall. But to me they’re all off the wall, so we should win on all of them. But whether we will or not, that’s another issue.
RS: If you had to argue specifically about the standing, what would you say besides, “Hey, I’m a citizen”?
MN: Being a citizen doesn’t get you standing. That’s the whole point of standing, that you need more than that. You need to show that you were personally affected.
It’s actually a bogus thing. In Article III they talk separately about “cases” and “controversies”; and so the Supreme Court has said, “Alright, we’re going to interpret those words narrowly, because we don’t want just anybody to go bring a case. Or a controversy.”
To some degree they’re correct. A case called Baker v. Carr talks about this specifically. In this decision they say, we only want to hear people who have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” So the idea is that we want people who are really invested in the case; we don’t want just some Joe Schmoe saying, “Hey, I think you’re wrong,” and not doing a good job, because then they don’t have an opportunity to really understand. But my thought has always been, if that’s your point, then just make sure that people who bring cases do a good job; if they don’t, you can say, “You didn’t do a good enough job, we’re not going to decide this thing.”
RS: They can always just dismiss it, right? They can say, “You don’t have a case.”
MN: They can say, “You didn’t do a good enough job,” and they can have a rule that if you don’t present the case well enough, they’ll throw it out. You have to do it again, or something. Or you’ll be penalized. They can give you sanctions for not doing that. They can do a lot of things. But instead they have this “standing” thing.
RS: You’re saying: to prevent frivolous cases, impose a penalty for bringing them.
MN: And there are penalties. You already can get sanctions if you bring a frivolous case.
RS: So is Baker v. Carr now considered an important precedent?
MN: Well, they talk about it all the time. Standing is a huge issue. And you waste so much time on these issues of standing. If you did it the other way you wouldn’t have that problem!
RS: As the plaintiff, how do you describe the harm that you experience when the government proclaims these Christian messages?
MN: The way it’s phrased is “unwelcome exposure to a governmental sponsorship of religion.” That gives you your standing. If you go to a city council meeting, and they start off with a prayer, you’ve had unwelcome exposure. As opposed to, for example, just hearing about it. “I heard that the city council starts off their meetings this way; I think that violates the Constitution.” That doesn’t give you standing. But if you go to the meetings, not to have that conflict but just because you want to go to a city council meeting – just like I want to go to the inauguration, I don’t go there to see this stuff, I want to not see this stuff. I want to see, you know, Barack Obama. It’s a pretty historic thing. And then I had to be confronted with this stuff. And 250 other people did too.
RS: So it’s “unwelcome,” but you don’t have to show that you were emotionally injured or something.
MN: Well, you brought the suit, so obviously you were psychologically harmed. Something bothered you. That’s all the harm you need.
RS: In a smaller setting, say you went to a Lodi city council meeting and they started it with a prayer; would you say something right then? What would you say?
MN: You mean personally? Oh, I’ve done that. I went to a thing for Assembly member Dave Jones, our representative. Nice guy. He was giving a symposium or something – at a local church. Nice place to choose to begin with! – but OK. We don’t want hostility toward religion. So if he’s having things in various areas and a church offers, fine. But then they actually announced, “First we’ll have a prayer, and then we’ll start.” So I went up to the front, and I said, “Excuse me, you’re not allowed to do that. This is a government function.” And they didn’t do it. So that was pretty cool.
RS: So the way you phrased it was, “You’re not allowed.”
MN: You’re not allowed. You’re not here as a church, you’re sponsoring representative Jones’s meeting, and there are those of us who don’t want to hear this stuff. So they didn’t do it, which was a wise and a correct decision. The wrong decision was for them to think that that’s how we should start a government meeting.
RS: It seems not even to occur to people that there could be something wrong with it. But then if you challenge them on it, they can be tremendously resistant.
MN: Some people will. That’s why we have an Establishment Clause. Because the framers recognized that people love to have the government espousing their religious views. That’s exactly what you’re not allowed to do.
RS: Ideally, maybe the Constitution wouldn’t say anything about religion at all. And in fact they came close, didn’t they? But there were people who wanted very much to include religious language. Isn’t there a story about Benjamin Franklin asking, “Why aren’t we mentioning the Creator in this document?”
MN: Not quite. Not in the document. During the Constitutional Convention, one of the major issues was how to apportion representatives to the legislature. The big states said, “We’re bigger states, we should have more votes,” and the small states said, “We’re states, and we should have equal votes.” So they came up with the great compromise where we have two senators and a proportional number of representatives. I think it was at that point that Franklin said, “We haven’t had any prayers. Who doesn’t see that, when the sparrow falls and so on; if the Creator knows about that, He should be involved with this thing,” and he moved to have a prayer during the Convention. And they didn’t do it; he was voted down. But that wasn’t in the Constitution, just during the debates.
RS: So no one even moved to have –
MN: The only thing that I’m aware of is, in Article VI – the sixth of the seven Articles of the Constitution – it says: this is the supreme law of the land; all States are under the Constitution of the United States. And everybody – all the federal officials, all the state officials, every executive branch, legislative branch, judicial branch officer, everybody – has to take an oath to support the Constitution. But! “No religious test shall ever be required as a qualification to any office or public trust under the United States.” They threw in that language. And some people objected: “Wait a second, we might get people who don’t believe in God!” But it stayed, “No religious test”.
The oath of office for the president, in Article II, doesn’t say “so help me God”; there’s no God mentioned in the Preamble; it just isn’t in there. There are lots of other places it could have been mentioned, and it’s not. The only place where religion is specifically addressed is there in Article VI.
They ratified the constitution in 1788. In 1789, Congress met. One of the first things Congress did, spurred by Madison, was to get a Bill of Rights. Many people thought, “We don’t need a Bill of Rights. This is a Constitution of enumerated powers; if something is not in the Constitution, the government of the United States has no power to do it. There’s nothing in the Constitution about religion, therefore the government of the United States has no power to get involved in religious matters.”
But with the ratification pending, in a lot of the States, there was a tacit agreement: we’re going to get a Bill of Rights that lays out ways to keep this big new government out of our lives. And one of the things they wanted to protect was religion. So at that point they came in with the Establishment clause: “Congress shall make no law respecting the establishment of religion” – “or prohibiting the free exercise thereof”: the Free Exercise clause.
During that debate there were some arguments that we should bring in religion. Benjamin Rush was not in the legislature, but he wrote a letter to Adams – a week after Madison proposed the Bill of Rights – saying, “Many pious people wish the name of the Supreme Being had been mentioned somewhere in our new Constitution. Perhaps an acknowledgement of his Providence or Goodness may be made in the proposed Amendments.” There was a bigwig from Maryland, Luther Martin; there were scattered other people. They heard those arguments; they did the opposite. They said: “no law respecting the establishment of religion.”
RS: So it seems like the consensus on this point was actually very strong.
MN: It seems that way to me. Now there are people who disagree. Justice Thomas, for example, says that the Establishment clause wasn’t about an individual right not to have the government impose religion on anybody. It was a separation of powers issue. Nine of the eleven States that had constitutions had state religions in there. So Thomas says this had nothing to do with individual rights.
I think it’s a hard argument to adhere to. It may be correct, but even if it’s correct, the 14th Amendment – which is how we now have the federal Bill of Rights incorporated and applied to the States – those people certainly didn’t intend to have religion there; the States have Establishment clauses of their own. So it clearly wasn’t a separation of powers issue within the States, because there is nothing to separate there. But I don’t think it was correct even at the beginning, because first of all look where it’s sitting. It’s sitting in the First Amendment. All of those rights are individual rights. Why would they throw this jurisdictional thing in the middle of the First Amendment? They’d have put it out there in the Ninth or the Tenth Amendment if it was that kind of thing.
So it doesn’t make sense to me. But even if it’s correct, and even if you forget the 14th Amendment argument, everyone accepts now that we’ve set a limitation on the powers of the government. The justicies who would rule against me in the cases I have brought are basically saying, “That doesn’t really count”, or “It’s not that big a deal”, or “It’s ceremonial.” Basically, their argument is: “You don’t like it, but I like it.” But on the principle, except for Justice Thomas’s argument, there’s no conceivable reason why you would rule against me on any of these cases.
RS: Is there a problem with the First Amendment, in that it can be twisted by religious people, where they construe it as prohibiting “interference” with their religion, even if they do terrible things like, you know, murdering a doctor?
MN: I don’t think that’s quite right. There are two clauses, and those things always need to be kept separate. First, there’s the Establishment Clause: “Congress shall make no law respecting an establishment of religion.” That means, government has to stay out of the business of religion. It can’t take sides in religious matters. Justice Scalia has said, “The government may not lend its power to one or the other side in controversies over religious dogma.” But obviously they’re lending their power to the side that says God exists, when they allow “In God We Trust”! The rule is that government has to stay out of that. That’s the Establishment Clause.
The Amendment continues: “or prohibiting the free exercise thereof.” That means, government can’t interfere with anyone else’s religion. And those in the Religious Right who say, “You’re interfering with our religion,” are absolutely correct. Certainly we have other laws, and when there’s a conflict, then you have to chose which law counts more. We have laws against murder. That one, we have all agreed, supersedes your religious rights. There’s a conflict there. There are tensions, but usually one supersedes the other.
In the Establishment Clause arena, there is usually no tension. What they do then, and maybe this is what you’re talking about in terms of twisting things, is they take that Free Exercise clause, which says “we have the right to exercise our religion,” and then they say, “The way we want to exercise it is to get the government to espouse our views.” That’s the Establishment Clause area. That’s the specific thing you’re not allowed to do. There’s not even a tension there. Nothing in your Free Exercise rights gives you the right to get the government to do your bidding. If you want to do your own bidding, go ahead. If you want to go to school and worship on your knees and pray to Jesus, you have every right to do that. What you can’t do is to get the teachers to join you. And that’s where they twist things sometimes. That’s their argument that fails. Or it should fail; sometimes it doesn’t!
RS: Isn’t the Free Exercise clause kind of strange? Because the things we consider illegal are already illegal – murder, animal sacrifice, child abuse and so on – and if something’s not illegal, then it’s legal; so it seems like it’s already always going to be legal to exercise your religion, as long as you don’t do something illegal. So I guess I don’t understand the purpose of the clause.
MN: We’ve separated religion out as a special subject area. It’s become a Constitutional right.
We live in a democracy. So, normally, the way lays get passed is, you have legislators, you support your legislators, you lobby, the legislators vote, and a law gets passed. And if you don’t like that law – too bad. You can lobby more, donate, get your fellow citizens to protest, do whatever your want through the democratic process and maybe you’ll get the law changed; but you can’t go to court and say, “I don’t like this law.” If you were cited for going over 60 miles an hour, and you file a case saying that you think the speed limit is too low, they’ll throw it out. That’s not a right you have. That’s what the legislature’s for. Go lobby and maybe you can get the law changed, but you can’t do it in court.
But when we’re talking about fundamental rights, that whole ball game changes. So if you did have a religious tenet that said, “I have to be able to go 65 miles an hour; God called me and told me, ‘Drive 65 miles an hour!'” – if that was a sincerely held belief, you would have a claim! And the burden all of a sudden shifts. Before, you would get thrown out of court, but now, the government would have to say, “Joe Schmoe here has a valid claim, and now the burden is on us, the government, to show that we have a compelling interest. So we are going to say, for example: 20 extra people die per year because of speeding.” The burden would be on the government. That’s what fundamental rights do. So the fact that the Free Exercise clause is a fundamental right – after all, it’s in the Bill of Rights! – changes the whole ballgame.
So they’re correct to say that the burden has to be on the government. Well, that’s how it was, up until 1990. Then there was a case called Employment Division v. Smith – authored by Scalia, but it was a majority opinion. It’s an interesting case. I won’t go into the details, but basically the Supreme Court said, “We’re not going to have the burden be as hard as we made it before.”
It used to be that even a neutral law, that has nothing to do with religion – speeding, for example – could be challenged on the basis that it was interfering with free exercise. But the Supreme Court changed the rules in 1990, and said, “No. If it’s a neutral law, you don’t have any special claim.”
On the other hand, if they’re targeting you, the Smith decision doesn’t change that. For instance, you mentioned animal sacrifices. There was a case in Hialeah where the Supreme Court said exactly the opposite of what you just implied. They said, “You can’t make a law against animal sacrifice.” Because when you looked at the legislative history of that law in Hialeah, it was targeted against a group called the Santerians. And while they were outlawing animal sacrifice for the Santerians, they allowed it for kosher shops and all sorts of other things. So the Supreme Court said, “You are interfering with their exercise of religion; in fact, that was the purpose of your law.” That’s clearly unconstitutional. You can’t target a group for their religious beliefs.
But if it’s a neutral law, they said in Smith, you don’t have a right to go back and challenge it. In response to that, Congress got all bent out of shape – “Oh, no! Now they’re going to interfere with Christian rights!” – and they passed an act. This would have been a legislative, a statutory right, not a Constitutional right; but they “restored” the test to what it was before Smith – effectively saying, “You have to have a compelling interest. We are overruling the Supreme Court.” To which the Supreme Court came back and said, “You can’t overrule us, we’re the Supreme Court!”
The Smith decision means that the federal Constitution does not prohibit the government from making neutral laws that interfere with people’s free exercise. But what about the federal law that puts “In God We Trust” on all our coins and currency? That interferes with people’s rights of religion. We have a church. It met here last night. We pass the plate every time, but we can’t collect money, because we refuse to take money that says “In God We Trust” on it. So that’s a harm, and we think that the government should have to show a compelling interest to do it. That’s the argument in the case; we’ll see what they do. I don’t know how they can rule against us, unless they totally twist logic and stand it on its head.
RS: Which they can do.
MN: Sure. Judges always can do that. But we hope they don’t.
RS: If you were rewriting the Bill of Rights, would you be tempted to leave out the Free Exercise Clause?
MN: Not at all. It’s a great thing.
RS: So you do think that religion is a fundamental right.
RS: Did you say that your church doesn’t accept money that says “In God We Trust” on it?
MN: We refuse to use it. Make believe you’re a Jew and all the money has a cross on it and the words “Jesus is Lord.” Or, you’re a Christian and the words are “The Prophet Mohammed is God’s Chosen Person.” Would you carry that around?
RS: People have become so used to it –
MN: Some people. Some people couldn’t care less; some people are very upset. Some people think it’s exceedingly important. We know this because when the Mint decided to put it on the rim of the dollar coins, Congress got bent out of shape: it wasn’t prominent enough. “E Pluribus Unum”, “In God We Trust” and I think “Liberty”, too, were all on the rim. Those three mottoes are required by federal law to be on every coin. They were going to put them on the rim, and Congress passed a law that specifically took only “In God We Trust” and said: “This has to be on the front or the back so you can see it clearly.”
RS: That was recently, wasn’t it?
MN: The last couple years. And what’s the reason behind that? Obviously because the politicians know that if you talk about God, 90 percent of the people, those who believe in God, tend to like your views a little more. So you stand up for God. Concomitant with that is the notion that people who don’t believe in God are not as good as “we” are.
RS: So some of the people who are promoting religion in public life are doing it only because they want more votes.
MN: Well, some are. But there’s nothing wrong with religion in public life. Individuals and groups can get together and worship God and Jesus all they want. That’s what’s protected by the Free Exercise Clause. What they can’t do, what is prohibited under our Constitution, is to use the government to do that. And they keep mixing that up. So they say we’re “keeping religion out of the public square” if we don’t want “In God We Trust” on our coins and currency. And we say, No! The public square? Do anything you want! This is about the government square, and you are not allowed to get your religious views in there. Nor can I get my religious views in there. I can’t get my government to say “God is a myth.”
And I’m not asking for that. I just want the government to stay out of this business.
There’s a judge on the Ninth Circuit. He’s actually a really bright guy and writes beautifully. But when the Pledge case came out he wrote – there’s a thing called the rehearing en banc. When you bring a case you bring it to one judge, the District Court judge. That judge makes a decision. Say it gets appealed. There’s a three-judge panel, and when the three-judge panel rules, that becomes precedent for that circuit, forever – till it’s overruled either by the Supreme Court or what’s called a rehearing en banc, where instead of a three-judge panel you actually get 11 judges, and they all hear the case.
RS: In the same circuit.
MN: In the same circuit. And that’s really binding: almost as good as a Supreme Court precedent. The only thing that’ll overturn that is another en banc panel, which is highly unlikely, or the Supreme Court.
So when the Pledge case came out, and I won, the other side, the defendants, said, “Wait a second, this is really important stuff,” and they moved to have a rehearing en banc. When a judge asks for a rehearing en banc, it gets sent to all the other active judges, and they vote. So it was like 16 to 9, I think, to not have the rehearing; to leave the decision as it was.
And so this fellow wrote a dissent from the denial of the rehearing en banc. That is, he thought it should be heard en banc. And in the dissent he says, “This is favoring atheists.” What! How is this favoring atheists? All we were doing is getting rid of the favoritism for you people, who believe in God. It’s not favoring us, it’s getting rid of favoritism for you! And this is a really smart guy, you know? – who doesn’t see that. It’s pretty extraordinary.
RS: So, let me get this straight. The en banc didn’t happen.
MN: Did not happen.
RS: So the decision stayed.
MN: The decision stayed, until we went to the Supreme Court.
RS: So now it’s at the Supreme Court.
MN: No, it went to the Supreme Court in 2004, and I lost. They said it had to do with family law. It has nothing whatsoever to do with family law, but that was their excuse to not hear the case.
RS: I’m curious, do you follow the atheist blogosphere?
RS: You don’t interact with those people – P.Z. Myers and so on.
MN: Well, I agree with most things that they say. I’m certainly not averse to listening to them. As a matter of fact Myers is speaking in Davis on the 21st, and if I can, I’ll go see his talk, because I’ve never seen him speak and I’d like to hear what he has to say. But when people say, “You’re an atheist activist” – I’m not. I’m an equal protection activist.
There’s a case right now in the 9th Circuit, it was just heard en banc actually, called Catholic League. San Francisco has a policy where they think everybody, including gays and lesbians, should be able to adopt children. And the Catholic Church is obviously against that. They think that homosexuality is an abomination. So they wrote to all the Catholics and they got an official letter or whatever from the Archbishop or whoever it was, telling all the Catholics, “Vote against this. This is a terrible thing. This is doing violence to children, to have them with homosexual parents.”
The City of San Francisco came out with a resolution that specifically singled out the Catholic Church. It said, “The Catholic Church is bad. They have this horrible policy, and you Catholics should stop saying things like this.”I wrote an amicus brief in favor of the Catholics. Government is not supposed to get involved in religious matters. The government should not be saying, “This church is bad.” Now if they want to say, “We believe that homosexuals should be allowed to adopt,” they have every right to do that, and I encourage them to do that. But they cannot make a pronouncement that says, “You people, of that religion, you’re wrong. You’re bad. You should be castigated.” So I’m on the Catholic side there, because I think government should treat everybody equally.
RS: That’s where I get confused, trying to think through these issues. It seems like we don’t so much need a rule that you can’t interfere with people’s religions –
MN: But we do, because otherwise we get laws like the one that said, “You people can’t have animal sacrifice, because we don’t like you Santerians, and because we’re the majority.”
RS: What if the rule was that no law can say anything about religion?
MN: Well, we do have that, pretty much. I mean you can’t take a position in terms of religion. That’s exactly what the law says. That’s the Establishment Clause.
RS: So a law that prohibited animal sacrifice would be valid; a law that prohibited animal sacrifice by Santerians would be invalid, because it –
MN: How about a law that prohibits animal sacrifice and is targeting the Santerians, but we don’t put that in the law! That’s why we have a Free Exercise Clause.
RS: I guess in an ideal world you would only have to say, “Here are the laws, and don’t do the illegal things.”
MN: In an ideal world, you wouldn’t need a law – or a Constitution. Obviously we need something to fall back on when individuals do things that are discriminatory, etcetera.
You could say the same thing about the equal protection laws, in terms of Blacks and Whites. Why don’t we just not have any law regarding race? Because people are racist! So you need some protection. It’s the exact same thing.
RS: But we need that law because people behave badly with respect to race.
MN: Yes! It’s exactly the same thing. People also behave badly with respect to religions that they don’t adhere to. That’s why the framers put it in there. There’s no race in the bill of rights. There’s no gender, no sexual orientation, no anything else. The only thing that’s addressed is religion, because that’s one area, back then especially, where we saw all sorts of prejudice. And even today, look at Iraq or Northern Ireland –
RS: But couldn’t you say, in the case of religion, that it is religion itself that is creating these problems? We wouldn’t say that race is a problem; it’s racism. But religion is different. I kind of think that religion itself is the problem – because the conflict between religions is inherent in religion. That’s not true of races or sexes.
MN: Why do we have a law that it should say “In God We Trust” on our coins and currency? Why are we willing to put that there? Because people have religion, and think belief in God is great.
RS: So why should we protect the “free exercise” of this thing that we don’t want?
MN: That’s a separate issue. It’s the obverse of that problem. Take animal sacrifice. I think that’s a great case to show this point. The government says, “This has nothing to do with religion, we just don’t want animal sacrifice” – whereas we know what they were really doing. Take the Ten Commandments monument. They say, “This is not because of religion, it’s just historical.” Because the Ten Commandments have so much to do with our history! Which everyone still buys! I don’t see anything in our history that verifies this – but that’s their alleged claim. How do you prevent that, if it’s not religious? We want to be able to say: “You put that in there specifically so that the people who don’t believe in the Abrahamic religions are made to feel second-class.” If you have to bow when you go by there, for example, that interferes with people’s rights. There are all sorts of ways government can interfere, slyly, with people’s religions. That’s what the Santerian case was. We want to make sure that that’s prevented.
RS: I keep wondering if the way to address the root of the problem is to somehow prevent religions from having so much power. But I guess that’s impossible.
MN: We don’t want that.
RS: We don’t want to limit the power of religion?
MN: We don’t want that at all. If people want to believe that Jesus is Lord and came down and told them to do whatever, they should have the right to believe that. They just can’t impose it on the rest of us, even if they are 99 percent of the population and we are only one percent. We don’t want to interfere with people’s religions.
RS: But religion encourages people to impose their views on others. That’s part of what religion is.
MN: Individually. Not through the government, that’s all. You should be able to proselytize. If you think that this is the way to eternal heavenliness or whatever, you should be able to go out and tell people about that.
The Jehovah’s Witnesses wanted to go out in the street and, you know, tell people about Jehovah. And people wanted to make it illegal. The Supreme Court said, “No. You can’t interfere with those rights, just because you are the majority.” We do want to protect that right. Very much. At least, I do; and I think most people do.
RS: Honestly, I worry that religion has a special property that basically warps your mind.
MN: Sure you do. But they don’t think that. We all think that we have the right way. We, as atheists, think that using logic and science is the right way to come to truth. They think not. Who’s going to decide? Let everyone go out into the marketplace of ideas and make their arguments. We don’t want government getting involved in that, that’s all. We want everyone to be free to go into that marketplace and make their arguments.
We need to change the prevailing assumptions in the same way that public opinion has been reversed on drunk driving. When I was young, drunk drivers tended to be excused because, after all, they were drunk! Today, happily, we hold them doubly culpable for any misdeeds they commit while under the influence.
I look forward to the day when violence done under the influence of religious passion is considered more dishonorable, more shameful, than crimes of avarice, and is punished accordingly, and religious leaders who incite such acts are regarded with the same contempt that we reserve for bartenders who send dangerously disabled people out onto the highways.
- “Send money. It’s not for me, it’s for God!”
- “Of course, God doesn’t need money. So I’ll keep the money part, and just send God the glory you’ve included. He loves glory.”