Atheists as Christians in Disguise

Over at Everyday Ethics, Jeremy Neill raises the critique of atheism offered by Nietzsche, in which he argues that atheists claim to have rejected "God" but nevertheless subscribe to Christian ethics.  Ostensibly the questions raised have to do with whether or not atheists are hypocritical as a consequence, and whether they are, in the words of Neill, parasites on Christian culture.  In Neill's words:

Now here’s where Nietzsche strikes and criticizes atheists. He says that atheists, who pride themselves on their belief that God does not exist, in fact are hypocrites because they are still drinking the Christian Kool-Aid. Take the value of equality as an example of what Nietzsche is saying. Virtually all atheists in America are going to tell you that they believe in the value of equality. But at bottom, according to Nietzsche, the value of equality is fundamentally a Christian value. It is Christian because it comes out of the Christian teaching that the weak should be privileged and that all persons are equal before God. There was no value like equality in the ancient Roman world, or the ancient Greek world, or any ancient culture before the rise of the Judeo-Christian worldview.

There was "no value like equality" anywhere before the rise of "Judeo-Christianity".  Mr. Neill is an Assistant Professor at Houston Baptist College, having graduated from the Christian Wheaten College and obtaining his Ph.D. in philosophy from St. Louis University.  He teaches ethics.  I wonder how it could be that Dr. Neill is apparently unaware that nearly five centuries before Christ, the Greeks had developed a sophisticated philosophy of legal and political equality ( which outdoes ours in some ways ).  They had articulated philosophies of equal representation under the law, equal representation in government, and equal opportunities to serve in government.  The Greeks had, by the seventh century BC, developed a kind of house of representatives to which no one was elected, but in which anyone could serve.  Greek ideas regarding equality are radical in some respects even by our standards.

These ideas were works in progress, of course, and the ancients still suffered the social inequalities prevalent in Bronze Age cultures.  Women could not vote nor hold office, voters initially had to be landowners, slavery was common ( which given the scientific and technological prowess of the ancient Greeks might well have delayed the arrival of the Industrial Revolution for two millennia ), and tyrants occasionally seized power.   But all these things were true too of Judeo-Christianity, and unlike Greek philosophy, this religious movement still clings to and promotes variations of these inequalities, such as requiring celibacy of priests, denying women leadership roles in many churches, and promoting policies which ostracize homosexuals and put them at risk of physical harm.  And of course Judeo-Christianity has long taken credit for the economic success of the West, and there is probably no other force in the West as responsible for creating inequality as capitalism.

So why did Dr. Neill raise the issue of equality in light of Nietzsche's argument?  He wants not only to credit Christianity for innovations it did not actually originate, but to deny atheists moral standing:

Atheists these days, for Nietzsche, are still largely adhering to legacy Christian moral values. They do not subscribe, say, to the values of the pre-Christian world. When atheists run around saying God does not exist, but then continue to subscribe to Christian moral values, they are, according to Nietzsche, deeply hypocritical. He means that they are continuing to act like functional Christians – or at least like legacy Christians – because they are continuing to subscribe to the very values of the belief system that they claim to reject.

He goes on to characterize Nietzsche's argument as demanding atheists "need to go back to an earlier, pre-Christian pagan world, when Christian teachings about the importance of serving the poor and not thinking of yourself all the time were non-existent."  Dr. Neill is apparently unfamiliar with the democratic reforms of Solon, which were agreed to by the aristocrats out of fear of revolt, or that Aristotle rooted eudaemonia in one's own best interests, which could not be served by treating others poorly.  Neill is right that Christ advocated caring for the poor, but was this really purely altruistic?

Christ said "I am the way, the truth, and the life: no man cometh unto the Father, but by me," and "[ If ] a man love me, he will keep my words: and my Father will love him, and we will come unto him, and make our abode with him.  He that loveth me not keepeth not my sayings".  ( John 14:6, 23-24 )  Interpretations about works or faith differ, but if the principles Christ identifies are true, then works - acting on his words - indicate faith.  The alternative to caring for the poor is, by this logic, damnation and eternal torment.  Thus Christians are induced, coerced even, to this "pure" altruism out of concern for their "immortal soul".  I think this alone is enough to refute claims like those made by Dr. Neill, we needn't reflect on the socio-political climate of Christ's day and how quietism and altruism were made possible and even necessary by the Roman Empire, and how Christ offered a radical way to assimilate in practical terms, but to remain set apart ideologically.

Why then should Neill argue atheists are forced to "go back to an earlier, pre-Christian pagan world"?  In part I think because he realizes this is impossible, and in part because he wants to insinuate that Christianity is the very definition of selfless altruism, and thus of morality.  It's a rhetorical ploy which depends on false claims and implication rather than evidence and reason and explication.

The Morality of God: A Fable ( FtA )

My atheist brothers and sisters will not find this fable particularly challenging, but perhaps rhetorically useful.  Originally posted at the RC, it only got 99 comments.  Strange, I thought at the time, that so few theists were willing to engage it.

One day for no obvious reason god creates little Johnny and Susan. Susan is made bright and kind and eats veggies, of which there is enough for her to last her lifetime. Johnny has claws and fangs and eats meat, of which Susan is the only kind around. God says to little Johnny "be good, and don't eat little Susan, or you shall surely suffer by me!" But little Johnny kills Susan and eats her all up.
God says to little Johnny: "You are a very bad boy, Johnny, for you have disobeyed me. I will therefore cause you incessant pain and hunger, and the longer you do not eat of the other children, the stronger the pain and hunger." So Johnny eats his fill of other children, and he is free of the pain of hunger.

So god says to little Johnny: "You are so worthless, little Johnny Creation, that I shall ensure you live on after death in unending suffering. But I am a gentle and forgiving god, therefore I give to you this promise: if you shall not eat of the children, and eat instead of the green veggies, I will spare you this terrible fate." But little Johnny was made to eat meat, and so he must, and so he does.
Of all the children only Johnny grows older, since the others never live long enough to become adults. Because Johnny eats them. One of them is Emily, an outspoken girl. As older Johnny begins to swallow her up, from her feet to her shoulders, little Emily shouts at god: "Why did you make him eat only meat, god? What have I done to be killed so terribly?"

So god replies to Emily: "Poor child! I offered older Johnny way out of this mess, but alas he did not choose it. But not to worry! Your suffering shall not be in vain.  If you have a copy of my promise to send you to heaven, of course.  Do you have that, my dear?" And Emily responds: "You never gave me a copy, god, and you created Johnny with the need to kill for meat. Why not just create steaks for Johnny to choose instead?" So god in its great high wisdom says to her: "Were it so easy to be god, dear child! But I cannot, for how could Johnny show his love for me by his own choice, if there were such an easy alternative? Would you rather I had made Johnny a slave?"

By then it was too late for little Emily to answer, as she'd been swallowed up to the tips of her long dark hair. If she could've answered, some of her friends still say, she would have said "Of course I would rather Johnny were a slave than a cruel murderer of me!"

When old Johnny finally died, many a child had been his meal, but no one remembered little Susan or Emily, or any of the others, because they were all too young. Then god saw that his veggie eating Creations had no fear, nor worry, for there was no Johnny to eat them and all the veggies they could want. So god cursed them, that they should have the freedom to really choose to love god, and destroyed the veggie forests, leaving only enough for one child in three. "Now you can be happy and saved at last!" said god. "You have only to eat in peace and not harm your neighbor, else you too will suffer like Johnny's ghost does now." And there was a great wailing from a lonely cave in a volcano many miles away, so great was it that all the children heard it, and were afraid.

And hungry. In time the children grew older, those that didn't starve to death. Some young men and women became so hungry they stole from others, such that the others died of starvation. Still others would actually kill their neighbors, so that they themselves might live.

In time many more of god's Creations lived in misery with Johnny than in happiness in heaven. But they were bad children, and the heavenly souls were good, and the suffering of the many made the few proud, and happier still. And god was pleased with the work it had wrought, and all the happy children praised its righteousness and love, though none of the living Creations could ever hear them.

And now you must choose the moral of this moral fable:  Do the Creations of god, the living and the dead, have the right to complain about their fates? Or are they justly rewarded or punished?

Cardinal Pell and the Redemptive Suffering of a Convicted Pedophile in Prison

Cardinal Pell has illegally distributed a hand-written letter to supporters, the ostensible purpose of which is to criticize the Amazonian Synod's proposed policy of Instrumentum Laboris.  The Synod would, by the adoption of this proposition, offer an Amazonian Church with "an indigenous face".  One key problem for this is, apparently, the lack of suitably unmarried and celebate Amazonian priests.  The solution would be to ordain so-called viri probati, or married men who've proved their value to the Church.  It appears these propositions do not sit well with conservative Catholics.

Much less problematic for them, apparently, is child abuse.  While they deem sexually monogamous married men inadequate to act as representatives of god's perfect goodness, they are more than happy to entertain the theological criticisms of a criminal convicted of forcibly fornicating with children.  It was Pope Benedict who, facing criticism of the Church's refusal to open itself up to public oversight of its handling of sexual abuse by priests, tacitly condemned secular law enforcement by demanding that we hold these priests to a higher standard.  That standard was, of course, forgiveness in the spirit of Christ.  So, in the spirit of Christ ( apparently ) many of these priests were simply reassigned

In part, this is what Pell was accused of having done.  During his trial he was asked about an incident in which a boy reported an episode of sexual abuse by a priest, about which Pell did nothing:

He admitted that in 1974, when a boy spoke vaguely to him of the pedophilic behavior of a Fr. Dowlan of the Christian Brothers, Pell did not inquire further or intervene. Asked by the prosecutor to explain his inaction, Pell was blunt: The boy “wasn’t asking me to do anything about it.”

This is a description of Pell's testimony by Julia Yost, at the anti-secular First Things magazine, meant as a defense of Pell.  His brazen honesty, "heedless" of the risk it posed him, demonstrates both the Cardinal's lack of interest in the sexually predatory activity of priests and the social fecklessness which would eventually cost him his freedom.  In the mind of Yost, Pell was wrongly convicted.  Wrongly because the conviction rests, she says, on the testimony of the sole accuser.  The conservative Catholic News Agency describes the problem with the accusation in much the same terms as does Yost:

Attention has also been drawn to the plausibility of Pell’s apparent crimes, in which he is supposed to have sexually abused two teenage boys simultaneously in the Melbourne cathedral sacristy after Mass, at a time when the space would have been both crowded with people and exposed to view.

The sacristy, as many of you will know, is a private room in which the priest prepares for mass, and in which vestments and other religious accoutrements are kept.  Here is a picture of this place, at the Melbourne Cathedral, where Pell was convicted of assaulting two children:

That door is the only door to the room, and it is at the end of a hallway.  It is not a room in which a priest typically meets parishioners, or anyone else.  But aside from those facts, it was totally crowded and "exposed" to view.  In this room Pell was convicted of forcing himself into the mouths of two altar boys who'd crept into the room to drink the communion wine, and of fondling them while he pleasured himself.

As the Guardian reports, Pell may be subjected to punishment as a consequence of his letter, which is illegal by Australian law.  And as Pell himself points out, "Cardinal G. Müller, formerly of the Congregation for the Doctrine of the Faith, has written an excellent critique."  Why should the CNA dedicate so much space to Pell's criticism then?  Because it affords them an opportunity to publicize their criticism of the conviction, of course.  It isn't Pell's comments on the Amazonian Synod that are important so much as the central message of his letter:

In the letter, dated from Melbourne Assessment Prison on August 1, the cardinal also says that he has been sustained in his incarceration by his faith and by the prayers of the faithful, and that he is offering his suffering in prison for the good of the Church.   

“The knowledge that my small suffering can be used for good purposes through being joined to Jesus’ suffering gives me purpose and direction,” Pell writes in the letter. “Challenges and problems in Church life should be confronted in a similar spirit of faith.”

Note that it is Pell's "small suffering" which joins him to Christ's sacrifice and that this should be a standard to which those in "Church life" should aspire.  In effect, then, the CNA, Julia Yost at First Things, previous Australian prime ministers, even Pope Francis who has not "defrocked" the convicted criminal are all engaged in a campaign to rehabilitate the Cardinal and to overturn his conviction.  The only words spared here by the lot of them for the victim of Pell's depravity are employed to attack and discredit him, and indeed all those like him, as according to Yost:

Lurking behind the kiddish prose is an attempt at coercion, in the grand tradition of the 1980s. “We believe the children” was the slogan of that decade, with its daycare scares and Satanic panics. All were obliged to show empathy for the victims—and empathy demanded belief... 

...In order to empathize with the victim of child sex abuse, we must first of all believe his claim that he is a victim of child sex abuse. Since we are not sociopaths, we arrive at the dogma “Children never lie”—which is absurd on its face and ruinous in application. In the 1980s, it required the conviction of preschool teachers for raping their charges in subterranean catacombs that did not exist; for sodomizing them with butcher knives, which mysteriously failed to inflict tissue damage; for abducting them in hot-air balloons; for administering magic philters and narcotic candy corn; and for whatever else a childish mind can dream up. We have since discarded the Halloweeny trappings, but the residue of this tradition endures. We retain the imperative of empathy, and its function as epistemological coercion. Feel what the children feel—don’t think about what they say.

And in this we see the point and purpose of Catholic rhetoric.  The "satanic panic" was the result of adults manipulating children for various reasons - and often those reasons were essentially religious in nature.  Pell's story is woven into those of these exploited children to redeem him, to literally equate him with the innocence of children who, by coaching and coercion, falsely accused others of the most heinous acts.  That is to say, Cardinal Pell, a man convicted of sexually assaulting two young boys in part by relying on the authority of the Church, has in fact been exploited by that surviving altar boy in the same way religious adults did to children all those decades ago.  All these crimes are the products of children's imaginations, which we'd know if we just listened to what those children actually said.

There is one problem with this, however.  Ms. Yost has no idea what that former altar boy said in his court testimony.  It is under court seal.  Ms. Yost, as with CNA and Pope Francis, must all assume the accuser is simply lying without hearing him out, which of course the convicting jury actually did do.  What Yost and the Church is actually saying, is don't believe the children, and don't listen to them either.  Now that's advice even Pope Benedict can get behind.

News from the Vault: Bladensburg, Revisited or That Old Rugged Cross

I asked not long ago in my conversation about the  appointment of Allison Jones Rushing if her view of "offended observer" standing would be consistently applied:

I wonder, however, what the consequences of such a view would have had on cases like Masterpiece Cakeshop v. the Colorado Civil Rights Commission. At a first approximation, it seems to me that Rushing's logic commits her to the view that the Roberts Court is in error. Has anyone seen any commentary or writing by her on this decision? Should I hold my breath in anticipation of logical consistency, and her forceful admonition of that decision? Or will I asphyxiate on hope?

The decision in  The American Legion v. American Humanist Association case offers some insight into its use in future cases.

The central argument running throughout the majority decision is this: do time and ambiguous motives relieve religious symbols of their religious character? Justice Alito affirms that they do. He argues that the passage of time obscures the motivation for the establishment of such monuments, and that it can alter citizens' perspective of the monument, obscuring religious sentiment and promoting a secular understanding of the context in which the monument appears. His criteria are twofold: on one hand there is the question of motive, and on the other of the point of view its audience has of the symbol. Alito will declare that the Bradensburg Cross is constitutional precisely because of the effects of time on these two criteria, but before he can do so must address the traditional test for such questions. He describes this test:

Under the Lemon test, a court must ask whether a challenged government action (1) has a secular purpose; (2) has a “principal or primary effect” that “neither advances nor inhibits religion”; and (3) does not foster “an excessive government entanglement with religion,” 403 U. S., at 612–613 

Now it's clear immediately that officially associating the memory of those who died in the First World War with the central and most important symbol in Christianity advances the religion by conferring on it the solemn reverence of the memory of fallen soldiers. It is to say that while these soldiers might have died in promoting our interests, their selfless sacrifice will be rewarded in heaven just as Christ's sacrifice on the cross has redeemed us all. This isn't merely a primary effect, it is the purpose of the symbol, which is only associated with Christianity. Thus the purpose of using crosses as a memorial is decidedly not secular, and the message here clearly demonstrates the dominance of Christian sacrifice over that of the only other symbol used, which was the Star of David. Justice Alito's decision clearly violates the Lemon test, as have many decisions by this and other courts, and so the test is simply repudiated as being unworkable. The Lemon test is no longer a precedent to guide future decisions by. Absent this contradiction, Alito's rationale based on the effects of time on understanding the motive for the monument and the audience's reception of it carries the decision, winning over seven of the nine judges.

Among the several supplementary opinions added in support of the decision, it is Gorsuch, joined by Thomas, who addresses "offended observer" status directly. In their view, dismissing the precedent of the Lemon test eliminates any confusion on the subject, and while they agree with the majority decision throughout, they add that this case has no standing to be heard in the first place:

This “offended observer” theory of standing has no basis in law. Federal courts may decide only those cases and controversies that the Constitution and Congress have authorized them to hear. And to establish standing to sue consistent with the Constitution, a plaintiff must show: (1) injury-in-fact, (2) causation, and (3) redressability. The injury-in-fact test requires a plaintiff to prove “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.”

As the American Humanist Association has argued that the cross implies the endorsement of the government to drivers passing by, they have no standing in the view of Gorsuch and Thomas. As the Lemon test is hopelessly ambiguous and subjective, it must dispensed with, and that being so "offended observers" have no standing to sue. Standing is explained by Alito as “'the psychological consequence presumably produced by observation of conduct with which one disagrees'” is not an injury-in-fact “'sufficient to confer standing under Art. III.'”

Note that Gorsuch rightly points out that the "'offended observer' theory of standing has no basis in law." He fails to note, however, that the "injury-in-fact" theory has precisely the same problem. The question of legal standing is addressed by Section 2 of Article III of the Constitution, which nowhere makes any mention of injury at all, much less a distinction between "injury-in-fact" and psychological offense. Gorsuch simultaneously argues that "injury-in-fact" is legitimate by precedent, but that "offended observer" status precedent is not. The reason for the latter is that this precedent was established by the Lemon test's criterion of a "reasonable observer's" understanding of the state's endorsement of religion, and that in dispensing with the Lemon test the Court also dispenses with its precedent.

In place of the Lemon test the Court offers a new criteria, drawn from Alito's decision:

In place of Lemon, Part II–D of the plurality opinion relies on a more modest, historically sensitive approach, recognizing that “the Establishment Clause must be interpreted by reference to historical practices and understandings.”

So where the Lemon test was a "misadventure" which failed because of its reliance on the subjective nature of the "reasonable observer's" understanding of the issue, the new and improved American Legion test relies on subjective interpretations of historical practices and understandings. This view of the Establishment clause, first articulated in the recent Town of Greece decision, is further clarified to mean:

The practice [ of opening Congress with a prayer ] begun by the First Congress stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.

Thus the Court seems to be arguing that the Lemon test is unworkable because it relies on subjective interpretation of the facts to determine if the context meets its criteria, and should therefore no longer offer precedent. Instead, courts should rely on The American Legion test which consists of interpreting historical facts to determine if the present case meets this subjective view of the historical record, which is itself impossible since the passage of time renders any knowledge of motive or contemporary interpretation of the issue at hand. Therefore the Court argues that where a given practice satisfies the conditions of having a "longstanding history" in "the tradition of honest endeavor to achieve inclusivity and nondiscrimination", then said practice is constitutional.

Justice Gorsuch is quick to point out the problem with this final criteria, however. He asks rhetorically how long ago should a practice have started to be considered historical? He points out that there is no definition, nor any basis to support such a claim from the Constitution itself. He concludes by offering a new standard in which all such practices are considered constitutional, and that "offended observers" having no standing to bring suit ought either pursue political solutions or "avert their eyes", an expediency which drivers passing by the Brandenburg Cross might well find results in "injury-in-fact".

Now if all this seems poorly reasoned, constitutionally unmoored, and for a case hinging on the Establishment clause fairly uninterested in the historicity of the First Amendment itself, I will warn you: it only gets worse from here. Not only is the logic of the majority decision incoherent, but its pertinent claims of fact happen to be untrue, as clearly and painstakingly revealed by Justice Ginsburg, and joined by Justice Sotomayor. Remember that Alito claimed the motivation in the creation of the monument was lost to history; Ginsburg shows us otherwise:

At the dedication ceremony, the keynote speaker analogized the sacrifice of the honored soldiers to that of Jesus Christ, calling the Peace Cross “symbolic of Calvary,” App. 449, where Jesus was crucified. Local reporters variously described the monument as “[a] mammoth cross, a likeness of the Cross of Calvary, as described in the Bible,” id., at 428; “a monster [C]alvary cross,” id., at 431; and “a huge sacrifice cross,” id., at 439. The character of the monument has not changed with the passage of time.

Now it isn't entirely clear if Ginsburg is referring to the original dedication, or the more recent rededication in 1985, though from the language quoted I suspect the former. Still, that there had been a recent, explicitly religious dedication is mentioned nowhere in Alito's decision, though this fact would clearly put it in a modern context open to the establishment of motives. More than that is the fact that Alito's claim of motivational ambiguousness is simply false, and one ought remember here that newspapers are as old as the Republic.

Ginsburg goes on to debunk the idea that these crosses were understood in any secular sense at the time, noting significant controversy about the distribution of crosses and Stars of David, and how the government initially intended to deal with the problem of unknown graves by distributing Stars of David in proportion to the death rate of Jews in the war, but eventually scrapped this plan out of concern that dead Christians might accidentally be labelled Jewish. She debunks the idea that crosses are prevalent symbols in memorializing the dead from WW1, pointing out that memorials with crosses represent only about 4% of the total number. Ginsburg refers directly to the founding fathers, Jefferson and Madison and Washington among them, to point out that the Establishment clause was explicitly intended to maintain the "wall of separation" Jefferson wrote about.

So the majority decision is logically incoherent and factually false. It's perspective, enjoining courts to consider historical perspectives while pointedly ignoring salient historical facts is itself ahistorical, a deception by omission. I am reminded of the Heller decision. In that case Scalia wrote the majority opinion which was in fact based in proper historical context, and logically and well argued. The dissent in that case was a meander through historical misrepresentation and a variety of non-sequiturs. In this case, however, the tables have turned. It is the poorly argued case which has won the court - and overwhelmingly so. As with the Trinity case, only Ginsburg and Sotomayor seemed to offer any real understanding of what the First Amendment actually means. Justice Thomas in his opinion actually suggested the Fourteenth Amendment did not apply to the First! And now the court has dispensed with the Lemon test and has opened the door for future rulings drawing on Rhenquist's precedent for refusing "offended observers" standing.

What can one say of such a poor attempt at justifying prior political ideology at the expense of constitutional law, history, and logic? It smacks of the same contempt for the public that the Trump cult revels in. The Supreme Court was designed to guard against populism, but today it explicitly serves the populist interests of the President - something which should damage Justice Kennedy's legacy quite seriously. It's lifetime appointments were designed to ensure the appointments wouldn't be political litmus tests, but today it ensures the political ideology of the appointments lasts for generations. It's time to end lifetime appointments, and to seriously consider impeaching sitting Justices like Thomas and Kavanaugh. I realize how unrealistic all this is, of course, which only points out the most important need of all, which is to end the supine coverage of the Court Americans get basically everywhere, to end the false belief that the Justice's decisions are consonant with what the Constitution actually means. The Constitution belongs to us, belongs to citizens, not the state. We should remind the Court and the court jester in the White House of that fact, soon.

News from the Vault: What the Judicial Appointment of Allison Jones Rushing Means for the First Amendment

Over at the RC, one mod offers an  interesting OP for conversation , and another  trash posts it and half her channels' audience. But the OP is correct in stating that

In her writings, she has rejected the separation of church and state while arguing that “village secularists” and other “offended observers” should not be allowed to challenge government actions that violate the Establishment Clause which guarantees the separation of church and state.

In fact, Allison Jones Rushing, nee Allison Jones, wrote in a 2005 paper published at Engage, a Federalist Society publication called  NOTHING TO STAND ON: “OFFENDED OBSERVERS” AND THE TEN COMMANDMENTS :

In Valley Forge Christian College v. Americans United for Separation of Church and State, the Court rejected the idea that the Establishment Clause confers to citizens a personal constitutional right to a government that does not establish religion.

In this she refers to the  Burger Court decision , written by Justice Rhenquist, that the plaintiffs represented by Americans United for Separation of Church and State lacked standing to sue the state for its gifting to Valley Forge Christian College of valuable public property. Justice Rhenquist denied standing on two grounds. The first is that as taxpayersthe plaintiffs cannot sue because the gifting was legally transacted via Article IV of the Constitution, which declares the state has the right to dispose of property, rather than by the authority to tax vested in Article I. The second is that the plaintiffs do not meet the requirements in Article III of the Constitution because they fail to meet any standards of "injury in fact":

Held: Respondents do not have standing, either in their capacity as taxpayers or as citizens, to challenge the conveyance in question. Pp. 454 U. S. 471-490.

(a) The exercise of judicial power under Art. III is restricted to litigants who can show "injury in fact" resulting from the action that they seek to have the court adjudicate. Pp. 454 U. S. 471-476.

(b) Respondents are without standing to sue as taxpayers, because the source of their complaint is not a congressional action but a decision by HEW to transfer a parcel of federal property, and because the conveyance in question was not an exercise of Congress' authority conferred by the Taxing and Spending Clause, but by the Property Clause. Cf. Flast v. Cohen, supra. Pp. 454 U. S. 476-482.

Indeed, it is on this basis - and solely on this basis as far as I can tell - that Jones Rushing based her view:

The Supreme Court could end many Establishment Clause disputes by enforcing Article III standing requirements on those bringing the lawsuits, who many times have no more stake in the issues than being “offended observers.”

Justice Rhenquist also rejected the concept of "offended observers" when he rejected the idea that the Constitution affords citizens personal constitutional rights on the grounds that

The plaintiffs in those cases plainly asserted a "personal right" to have the Government act in accordance with their views of the Constitution; indeed, we see no barrier to the assertion of such claims with respect to any constitutional provision. But assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. III without draining those requirements of meaning.

Here Justice Rhenquist pushes back on the idea that the Constitution is open to the arbitrary interpretations of its citizens, and that therefore these citizens do not have standing to challenge laws they perceive as violating their Constitutional rights without having demonstrated some "injury in fact", which Rhenquist implies but does not argue is not met by claims of personal offense. Given so much rides on the Court's reading of Article III, I think it's worth quoting the relevant passage here, which is the first entry of Section 2:

1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;10 —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Here the Constitution states that all cases within these various categories have standing before the court - that the court has the authority to hear them. But Rhenquist goes further, arguing that

Article III...is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power...

So the logic of Rhenquist's decision rests on his personal description of the Constitution limiting standing to only those case delineated in Section 2.1 of Article III, where the language of the Constitution says only "all" these categories have standing, and in his view that granting "personal offense" as a basis for standing "drains Article III of its meaning". This can only be true if we grant Justice Rhenquist's interpretation of the language of "all" as meaning "only", and if the plaintiffs context does not meet any of those prescribed. That includes the context of "Controversies to which the United States shall be a Party", which Rhenquist specifically addresses:

Article III of the Constitution limits the "judicial power" of the United States to the resolution of "cases" and "controversies." The constitutional power of federal courts cannot be defined, and indeed has no substance, without reference to the necessity "to adjudge the legal rights of litigants in actual controversies." Liverpool S.S. Co. v. Commissioners of Emigration, 113 U. S. 33, 113 U. S. 39 (1885). The requirements of Art. III are not satisfied merely because a party requests a court of the United States to declare its legal rights...The power to declare the rights of individuals and to measure the authority of governments, this Court said 90 years ago, "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy."

Thus for Rhenquist "controversies" with standing are distinguished from non-controversies without standing by dint of the former being "real, earnest, and vital", that Article III therefore has no meaning absent these characteristics, and that "assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently" cannot substantiate these characteristics, and that therefore citizens have no standing to sue the Federal government simply because they think their Constitutional rights are being denied them.

To be clear, as far as this writer can see, Rhenquist makes no attempt to justify his implication that "personal offense" does not rise to the standards of "real, earnest and vital controversy" either in law or in fact, but rather on his own particular jurisprudential view that

Implicit in the foregoing [ "offended observer" status ] is the philosophy that the business of the federal courts is correcting constitutional errors, and that "cases and controversies" are, at best, merely convenient vehicles for doing so, and, at worst, nuisances that may be dispensed with when they become obstacles to that transcendent endeavor. This philosophy has no place in our constitutional scheme.

Rhenquist is therefore arguing that violations of the Constitutional rights of citizens do not rise to "real, earnest and vital controversies" and that therefore suits brought against the government on this basis have no intrinsic merit, and thus no legal right to be heard. It is on this extralegal, non-Constitutional basis that Federal Judge Allison Jones Rushing had based her view of the Establishment clause, which is to say the she - and Rhenquist - believe the clause to have no intrinsic merit of its own, and hence to be functionally unenforceable.

I wonder, however, what the consequences of such a view would have had on cases like Masterpiece Cakeshop v. the Colorado Civil Rights Commission. At a first approximation, it seems to me that Rushing's logic commits her to the view that the Roberts Court is in error. Has anyone seen any commentary or writing by her on this decision? Should I hold my breath in anticipation of logical consistency, and her forceful admonition of that decision? Or will I asphyxiate on hope?

Trinity Lutheran v. Comer, revisited

So this is a long post, my apologies, but the subject is as dense with meaning as it is fraught with bad intentions.

In a thread at another channel about the meaning of the "separation of church and state" I noticed that the Trinity case was mentioned several times, and with a variety of claims about the nature of the decision involved there. What I found might surprise some, theist and atheist alike.

To understand the decision, however, one must understand the religious clauses of the First Amendment. As I've discussed this elsewhere I'll try to keep it brief, here:

1) The phrase "wall of separation" originated not in the writings of Thomas Jefferson, but in those of Roger Williams. Williams was persecuted for his Christianity by other Christians, ultimately being forced to flee Salem or be imprisoned. Imprisoned, that is, for what he thought, and as a consequence of what he said. Williams wrote of the need for secularism by distinguishing between the worlds of the minister and of the magistrate.

2) Jefferson, inspired by Williams as well as by Locke, articulated a precursor to the First Amendment in the Virginia Statute of Religious Freedom, in which he demonstrated the logic of religious liberty by pointing out that not only was taxation for the support of churches we don't agree with a violation of our personal religious liberty, so too is doing so for the support of churches we do agree with.

3) James Madison, in his Memorial and Remonstrance Against Religious Assessmentsprevented a state bill to collect taxes for the purposes of supporting clergy from passing, on much the same bases as his mentor, Jefferson. Madison illustrated the logic of religious liberty more succinctly than Jefferson, however, by pointing out that any concession for one must be an imposition on another. This tract was a significant contributor to the success of the passage of the First Amendment, which Madison also wrote.

4) All shared the conviction that religious liberty is an unalienable right invested in us in equal proportion by our shared origins in a common "Creator", and that they were as important, but no more important, than any of our other rights, and no one person's right to religious freedom was any more important than another's.

5) Jefferson exemplified in his Letter to the Baptists at Danbury the logic all shared regarding religious exercise, which was that its realm was confined to that of an individual's relationship to god, and that "acts" - that is, an individual's relationship to other individuals - was rightly a civil matter. Williams described these as the realms of the minister and magistrate, and all agreed that neither was to impose on the other.

Now consider that two of the first three major contributions to the First Amendment and American secularism were responses, at least in part, to proposals of taxation in support of the clergy. To those most responsible for our inheritance of religious liberty, and indeed the very writer of the First Amendment, taking money from citizens to give to the church was an explicit violation of that liberty. Williams and Jefferson were clear in their writings that religious liberty could not exempt one from one's civil responsibilities, since to do so would be what Madison described as imposing on others to satisfy the one. Thus tax exemptions for religious institutions is by definition a violation of religious liberty.

Now consider the core logic of Justice Roberts' decision in Trinity:

The Free Exercise Clause “protect[s] religious observers against unequal treatment” and subjects to the strictest scrutiny laws that target the religious for “special disabilities” based on their “religious status” he wrote, in reference to the Lukumi v. Hialeah decision. He goes on to reference Everson v. Board of Education:

In the course of ruling that the Establishment Clause allowed New Jersey to extend that public benefit to all its citizens regardless of their religious belief, we explained that a State “cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”

What Justice Roberts fails to mention is the passage in the Everson decision in which Justice Black rather flatly states

The "establishment of religion" clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."

Which, you might agree, is a rather odd decision to cite in support of Roberts' own decision explicitly demanding that the State must levy taxes in order to support churches. But Justice Roberts goes on to explain his decision in light of a previous SCOTUS case, Locke v. Davey, in which the state of Washington had made grants for tuition on the condition that such grant money would not be used for a "devotional degree". Davey, the student, sued on the basis of being denied his right of exercise, and lost the case. The difference between that losing suit and the winning suit brought by Trinity Lutheran was described thus:

Davey was not denied a scholarship because of who he was; he was denied a scholarship be- cause of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.

The emphasis is in the original, and by it Roberts marks a distinction between beingreligious and acting religious. You will note this comports with Jefferson's description, as well.

In part the failure of Davey's case is that the state would not discriminate between secular and religious classes, only between secular and religious degrees - at least according to Roberts, for this is what marks the difference in his decision between being and acting. It seems something of an oddity, however, that a case should be cited for precedent on the basis of a tertiary quality of a state law ( the distinction between mere classes and a degree ). That's a weak connection to the core issue of religious exercise, made weaker still by the Justice's failure to recognize that while there are secular religious classes ( which Jefferson supported ), there are also devotional classes which are not degree seeking. Thus the presumed connection between being and acting does not and cannot depend on any criterion so simplistic as degree seeking. Here I note for future reference that Trinity Lutheran offers "spiritual" guidance to its students and the children at the daycare.

As weak as this distinction is, however, Justice Roberts's distinction in the case of Trinityverges on the feeble:

The claimant in Locke sought funding for an “essentially religious endeavor . . . akin to a religious calling as well as an academic pursuit,” and opposition to such funding “to support church leaders” lay at the historic core of the Religion Clauses. Id., at 721–722. Here nothing of the sort can be said about a program to use recycled tires to resurface playgrounds.

Trinity Lutheran is a church which offers schooling and daycare for community members of any faith, and describes its own services developing children's spirituality through daily religious activities, and offers a curriculum guided by the Lutheran Church which intends that "children may be equipped as disciples of Jesus Christ." The curriculum guide offered by the church states its mission is to

to provide a solid, Christian education developed with standards that drive instruction so that every child can be reached with an effective education – one that centers on the LCMS faith. The Common Core State Standards may be considered a tool that would allow LCMS schools to more fully prepare its students for service and witness to Christ and the world.

It is Justice Roberts' opinion that educating children to "better service and witness to Christ" has nothing whatever to do with his distinction of acting rather than being, or with the Davey case's distinction between secular and devotional.

Now there are those who maintain, despite any logical arguments or accounting practices to the contrary, that paying for a playground resurfacing is not the same as contributing to the church's religious mission. As it happens, however, Trinity Lutheran disagrees:

In its application, the Center disclosed its status as a ministry of Trinity Lutheran Church and specified that the Center’s mission was “to provide a safe, clean, and attractive school facility in conjunction with an educational program structured to allow a child to grow spiritually, physically, socially, and cognitively.”

In other words, the church has explicitly tied its mission to offer devotional education to children to the playground by its improvement in the safety of the school, which is intended to make the school more attractive to parents.

For all this, the ultimate rationale for the Trinity ruling rests on Roberts's comparison of the Locke v. Davey case in Washington:

Washington’s selective funding program was not comparable to the free exercise violations found in the “Lukumi line of cases,” including those striking down laws requiring individuals to “choose between their religious beliefs and receiving a government benefit.” Id., at 720– 721. At the outset, then, the Court made clear that Locke was not like the case now before us.

Washington’s restriction on the use of its scholarship funds was different. According to the Court, the State had “merely chosen not to fund a distinct category of instruction.” Id., at 721. Davey was not denied a scholarship because of who he was; he was denied a scholarship because of what he proposed to do—use the funds to prepare for the ministry. Here there is no question that Trinity Lutheran was denied a grant simply because of what it is—a church.

Justice Roberts's decision here runs to roughly 4600 words. Of those, less than 300 are employed to describe Trinity Lutheran, and of those few, none are used to describe its self-avowed mission, which is to "prepare its students for service and witness to Christ and the world." Instead, there are two statements regarding the devotional character of Trinity Lutheran. The first was simply to assert that public funds were denied Trinity solely because it is a church. The second offers a rudimentary rationale, and reads in its entirety:

The Court in Locke also stated that Washington’s choice was in keeping with the State’s antiestablishment interest in not using taxpayer funds to pay for the training of clergy; in fact, the Court could “think of few areas in which a State’s antiestablishment interests come more into play.” Id., at 722. The claimant in Locke sought funding for an “essentially religious endeavor . . . akin to a religious calling as well as an academic pursuit,” and opposition to such funding “to support church leaders” lay at the historic core of the Religion Clauses. Id., at 721–722. Here nothing of the sort can be said about a program to use recycled tires to resurface playgrounds.

This passage offers the only justification for Roberts's decision. It is 118 words long. The vast bulk of the remaining 4500 words are dedicated to establishing the Court's rationale, which is founded in this supposed distinction between being and acting. That, and another component which is just as necessary, but much less argued - in fact, argued not at all. Consider the final decision of the Court:

The Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.

Given the density of language inherent in a Court's decision, this paragraph might seem relatively straightforward. It isn't. There is a claim being made about the rights of American citizens, which is no more justified than it is clearly identified by Justice Roberts. This claim is mentioned only five times throughout Roberts's decision, and yet without it the decision cannot stand. Most of you will already appreciate the point, which is that Roberts is affording the church itself the right to religious exercise.

As he had done in the Citizens United case, Roberts adduces right to legal entities such as businesses or organizations under the controversial and long disputed concept of "corporate personhood." Here the right of religious exercise is afforded the church, its school and daycare and, in the end, its playground. You might notice something odd about that, inasmuch as neither the church, nor the school, nor the daycare nor even the playground are capable of any religious exercise whatever. They cannot, in fact, act.

It is solely this fact, manufactured by Roberts with little more than a wink and a nod, which connects his rationale for the decision to his justification. A church cannot act, thus to deny it funds is by definition a violation of the First Amendment's exercise - if, and only if, a church is capable of having the right to religious exercise, to act in a religious way.

Here is the ugly heart of contemporary American jurisprudence at the highest levels. The Supreme Court has offered Americans a means by which the rights of citizens can be extended to their properties, and these properties can then impose their rights on citizens. In the case of Trinity v. Comer, this dilution of our inalienable rights is borne of an argument so tedious, so tendentious, so free of critical engagement, and in the end so dependent on outright incoherency, that I for one can find no other way to see it as but a very serious, very consequential joke. A joke on the Constitution, and at our expense.