President-elect Obama’s picks of Rick Warren (Saddleback Church) and Joseph Lowery (SCLC) to deliver the invocation and benediction at his inauguration are most unfortunate for two reasons.

First, the selections show Obama’s disrespect for freedom of religion — namely, that government may actively endorse and promote religion — notwithstanding the fact that the Establishment Clause of the First Amendment prohibits such an entanglement.

Second, assuming that it is permissible to flagrantly disregard the Establishment Clause, then his picks are ill-advised because they are non-inclusive of humanist, freethinker, atheist, agnostic, Wiccan, Buddhist, Hindu, Islamic, etc. philosophies and religions.

Bottom line, Obama is starting off on the wrong foot. He should have “changed,” by dropping the religious invocation and benediction.

In response to the story UNC cuts Christmas trees from its libraries I was asked for my opinion about whether there is any legal problem with a library at a public university displaying a Christmas/holiday tree.

My answer was: “No, not as long as I don’t have to either put it up or take it down, or it doesn’t have religious ornaments on it.”

Strictly speaking, a tree with colorful lights, tinsel and beautiful ornaments can be legally put up in a public building any time of the year, including December. To this extent, it’s not a separation of church and state issue.

But if there is anything else on the tree or underneath it of a religious nature, then my answer is: “It all depends.”

There have been three Supreme Court decisions which collectively hold that (1) government cannot erect a display that endorses a particular religion and (2) if government permits a private party to put up a religious holiday display, it must let persons of different faiths or no faiths to put up holiday displays. (NOTE: a permit may be required and reasonable rules governing time, place and manner are permissible.)

As a continuation of our unofficial John Stuart Mill appreciation week here on Rant and Reason, I thought I would reflect for a moment on a quote from On Liberty that I read this morning in the most recent edition of International Humanist News:

Strange it is that men should admit the validity of the arguments for free discussion, but object to their being ‘pushed to an extreme’; not seeing that unless the reasons are good for an extreme case, they are not good for any case.

Ibn Warraq was quoting Mill to illustrate a point on free expression in his talk entitled Democracy vs. Theocracy, addressing the recent effort by many nations (most of them with predominantly Islamic governments) to curtail any criticism of religion by the newly formed UN Human Rights Council. I recommend following the link above and reading the entirety of his talk; the IHEU has been closely following this issue and speaking out in favor of freedom of speech and preserving human rights, including the right to speak out against abuses by religious and governmental authorities and the religious context within which those abuses take place.

But I am going to address the Mill quote in a different context, one that the American Humanist Association has been experiencing first hand recently here in the United States. As readers of this blog know, the AHA embarked on an advertising campaign in our nation’s capital, which is also where our offices are located. The advertisements, stating “Why believe in a god? Just be good for goodness’ sake” (see it here) appear on the exteriors and interiors of buses around Washington D.C. The ad campaign has received a lot of media coverage, and, predictably, a wide range of reactions. I wouldn’t expect anything less.

One consistent theme among many critics of the ad, though, has been that it is simply inappropriate or wrong to have it at all. For example, Deborah Simmons of the Washington Times wrote:

To even allow the specter of belief to be questioned on a public bus system that is heavily subsidized with public dollars is blasphemy.

That’s a really interesting connection she makes there. Apparently, in her view, public buses have an obligation to maintain religious correctness at all times. Indeed, allowing an expression of dissent to what she regards as the prevailing majority view is “blasphemy.”

Another comment, addressed to Metro and quoted by Human Events, illustrates my point even more directly:

Your city represents the United States, and to turn your system into a billboard for this organization is offensive to me and most American People. There is free speech but there is also responsibility to not offend a group of people in this country. Your acceptance of this advertisement is offensive to me as a Christian and I strong urge you to take them down.

That is exactly the attitude that Mill was addressing in his quote. To that commenter, free speech is all well and good, as long as it does not offend him or her. Again, he or she demands religious correctness and deference to the majority religion, simply because it is the majority and will not brook any dissent. This is a very flaccid definition of freedom of expression, essentially, “You are free to say anything you like, as long as you don’t offend me.” But it seems rather obvious that this is not the freedom of expression that Mill visualized. For what does free speech mean if it is to be regulated constantly by the will of the majority?

Of course, as I said, there has been a wide range of reactions, including the following:

A stay-at-home mother of four is poised to start a Metrobus ad campaign to counter ads from the American Humanist Association that question a belief in God.

JoEllen Murphy, a 39-year-old Catholic who lives in McLean, started a grassroots Internet campaign after hearing about the humanist ads that started appearing last month on Metrobuses.

Murphy’s ad shows an image from Michelangelo’s “The Creation of Adam” on the Sistine Chapel ceiling with the slogan: “Why believe? I created you and I love you, for goodness’ sake. – God.”

She says that she was offended by the AHA ad campaign, and decided to counter it by organizing an ad campaign of her own. In other words, in response to speech that she disagreed with, she decided that the answer was more speech and more debate in the public forum. That is freedom of expression at work.

When you see or read something that you strongly disagree with, then your best redress is to respond. Demands to censor the cause of offense are misguided and ignore Mill’s admonition that free speech must stand even in extreme cases if it is to mean anything at all. Certainly, debate can get messy at times. And I feel that there is a legitimate concern about access, because not everyone would be able to start a bus ad campaign in order to make their thoughts or concerns public. But free and open public debate beats the alternative, which is to bow to the majority or some kind of governmental standard to ensure that no offense is caused. That would render the First Amendment meaningless.

Tomorrow, some same-sex marriage supporters are “calling in gay.” The Day Without a Gay has been organized in opposition to same-sex marriage bans in California, Florida, and Arizona, and to demonstrate the economic power of the LGBT population–participants will call out of work for the day and refrain from spending money.

I’m a little ambivalent about the effects staying home from work will have on a large scale–I would imagine many people aren’t “out” at work and thus would probably shy away from explicitly calling in gay. Moreover, probably most employers don’t mind if their employees call out of work as long as they have the vacation time (and if someone didn’t have the time I’d question their prudence in risking their jobs when our unemployment rate is as high as it is and only growing).

I think where this particular aspect of the campaign went wrong was borrowing from the “Day Without a Mexican” without recognizing that there are important differences between the immigrant population and the gay population. When immigrants organized and refused to show up for work it crippled many industries that rely almost exclusively on immigrant labor. Whereas the gay working population isn’t even close to being as condensed in any given industry. Thus, the overall economy should be able to absorb the hit pretty well.

However, I do think refraining from spending money is a good way to demonstrate the power this group holds. Particularly in this bum economy it’s important to illustrate the money that can be withheld from, or conversely, pumped into the system. Especially when a great argument for legalizing gay marriage (besides the civil rights one, of course) is the money that would introduced into the economy. After all, how much money are people spending on weddings these days?

A recent Newsweek article sparked some discussion.  Lisa Miller makes the case that nothing in the Judeo-Christian Bible should prevent us from allowing gays to marry.  The biblical depiction of marriage is vague at best and undesirable at worst, as she cites the numerous polygamous or unfaithful role models in the Bible.  Two lines getting special attention are when she states:

Biblical literalists will disagree, but the Bible is a living document, powerful for more than 2,000 years because its truths speak to us even as we change through history. In that light, Scripture gives us no good reason why gays and lesbians should not be (civilly and religiously) married—and a number of excellent reasons why they should.

For unknown reasons, I subjected myself to online reactions and comments.  The most unintentionally thought-provoking comment was a poster who ranted against liberals who view the Bible and the Constitution as living documents instead of accepting the “established truth/original intent.”

I was struck by the fact that I could have said the exact same thing, but meant it in precisely the opposite way.  I consider it essential to view our governing documents as living so that we revisit them as we live and learn.  We have decided that even the poor should be allowed a vote.  We have decided that African Americans deserve to be full citizens – not three fifths.  We have decided that women are not merely their man’s property.  Insightful governing document it may be, but our Constitution was written in a very different time.

So was the Bible.  We need to treat it like a living document or we would still be telling slaves to “obey your earthly masters with deep respect and fear.  Serve them sincerely as you would serve Christ” (Ephesians 6:5).  We would proclaim that “When a man strikes his male or female slave with a rod so hard that the slave dies under his hand, he shall be punished.  If, however, the slave survives for a day or two, he is not to be punished, since the slave is his own property” (Exodus 21:20-21).  First Timothy states that slaves should work even harder if their master is Christian, because their efforts help a fellow believer!  There are passages allowing followers to enslave people of a different race, or allowing them to sell their daughters into slavery.

Thank goodness we were not stuck with the ‘established truth’ of the Bible or the ‘original intent’ of the Constitution.  There are certainly good passages in both documents, but we have found things that need revisiting.  We live and we learn.  When a person believes they already have the ‘absolute truth’, they continue living but stop learning.

“However unwillingly a person who has a strong opinion may admit the possibility that his opinion may be false, he ought to be moved by the consideration that however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth.” – John Stuart Mill

I don’t support violence, except in self-defense. I’m appalled at terrorism. And I’ve been a civil libertarian for five decades — since picketing a segregated movie theater as a youth in the 1950s.

In this context, the Becket Fund’s ad in the New York Times in defense of Latter Day Saints is baloney to me. Yes, I am very aware that churches, under the tax code, can lobby (to a degree) on issues of importance to their faiths.

But the LDS and representatives of the Catholic Church (also a sponsor of the ad) are, in some respects, America’s version of Islamic extremists, by their attempts to impose their religious views on others. Their enormous wealth and use of religious doctrine coercively are weapons, not merely a shield.

When five Supreme Court justices, all Catholics (Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito) in the 5-4 Gonzales v. Carhart (2007) decision, side with a papal edict and deny women their reproductive rights, its time to stop kidding ourselves that religion isn’t dangerous. As the Surgeon General would warn, “religion is harmful to individual rights.”

I am equally troubled by Gordon Gaddy, president of the Interfaith Alliance, letting the signatories of the ad off so easy when he said in a press release today (Dec. 5) that: “I agree with the signers of the ad that they have every right to their opinion. ” My problem is the term “right to their opinion.” Opinion yes, but throw their considerable weight around with the purpose of denying people their rights — NO. At least not if there is any such thing as fundamental rights that should not be subject to public whim.

My point simply is this. We humanists, atheists and freethinkers are in a cultural war as is obvious from public ads or posters by the American Humanist Association (“Why believe in a god? …”), Freedom From Religion Foundation, American Atheists and others. We are fighting for more than a place at the table (i.e., equality), we are fight for fundamental rights — religious rights, gay rights, reproductive rights — you name it.

Rather than sit idly on the side, we should engage religious intolerants in the public square with our message for human rights. And then engage again and again — until the day we are free, free at last.

The inspiration behind President Eisenhower’s push to insert “under God” in the Pledge of Allegiance, Rev. George Docherty, died recently on November 27 at the age of 97.

Rev. Docherty was concerned that the Pledge without a reference to a deity could apply as well to communist Soviet Union when he gave his February 7, 1954 sermon with President Eisenhower sitting in Lincoln’s Pew at the New York Avenue Presbyterian Church. He urged that the Pledge be amended: “To omit the words ‘under God’ in the Pledge of Allegiance is to omit the definitive factor in the American way of life.” (Rev. Docherty’s obituary in the Washington Post.)

Bills were introduced in Congress the same week and Eisenhower signed into law adding “under God” to the Pledge within four months. Call that the miracle of Communism.

Now that President Eisenhower, Senator McCarthy, the Soviet Union and Rev. Docherty are gone, it’s time to restore the pledge to its pre-1954 language — as we are not now or have ever been one nation under a god or gods.

The authority of our governments flows from the people, to be used for the benefit of the people. We are not, however, so conceited to change the Pledge to read “one nation under Ourselves” even though it’s the truth.

One “change” President-elect Barack Obama is not likely to effect early in his administration is a change in the ideological tilt of the Supreme Court.

The Court is very divided – frequently voting 5-4 on major cases involving socio-religious issues. This division is reflective of the cultural war gripping the United States.

Thus while Obama’s victory is a modest coup for liberals, it is widely believed that the first three justices to retire will be Justices Stevens, Ginsburg and Souter – all in the liberal camp – and therefore, replacement opportunities are not expected to have a significant impact on the direction of the Court.

Rather than wait for a vacancy to be created by a retirement of a justice from the conservative ranks, I have embarked on a mission to lay the foundation for overruling the Court’s horrendous decision in Van Orden v. Perry (2005) which held that the display of a donated Fraternal Order of Eagles Ten Commandments tombstone on the Texas state capital grounds did not violate the Establishment Clause.

I must admit that the task appears to be overwhelming. Indeed, I must be crazy to think that that I can persuade one member of the High Court’s majority to change his position on whether permanent religious symbols on public property violate the Establishment Clause.

And so, crazy as I am, I took the first step by filing a request with the Supreme Court on November 10, 2008 asking Chief Justice John G. Roberts to postpone oral arguments in Pleasant Grove City v. Summum until the Court publicly disclosed a literal translation of the Hebrew on the tablet Moses is holding in the South Wall Frieze of the courtroom.

Not surprisingly, Chief Justice Roberts ignored my request. But I did obtain a small victory. I believe that I forced Jay Sekulow, chief counsel for the American Center for Law and Justice, and the attorney who argued the case for Pleasant Grove, to admit during Summum oral arguments that “the words on the Court’s frieze are ‘steal,’ ‘murder,’ ‘adultery’ in Hebrew” (rather than “Thou shall not steal,” thou shall not murder” and “though shall not commit adultery”). This produced a startling admission from Justice Ginsburg in reply: “Yes.” (See transcript at page 9.)

What is the significance of all of this? The justices of the Supreme Court have taken an important first step in recognizing that the Ten Commandments are not displayed in its own courtroom as is often asserted in its own decisions and the briefs of Christian Right legal centers.

Hopefully, the friend-of-the-court brief I submitted on behalf of AHA and six other secular and religious organizations in Summum plus my recent letter will ultimately have a positive impact on judiciary’s recognition of an Establishment Clause violation caused by the presence of an Eagle’s donated Ten Commandments tombstone in Pleasant Grove’s Pioneer Park.

Crazy things keep coming out of Texas (where I once lived decades ago) – the Texas pledge of “one state under God,” public school Bible courses, Religious Viewpoints Anti-discrimination Act and now, defining a fetus (or unborn child to some) as a “person” for purposes of the capital murder statute.

My real concern is not with the bonus for prosecutors — two convictions for one murder. That’s right. Under TX Penal Code 1.07(a)(26), an “‘Individual’ means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.”

No, my concern is that the Texas legislature routinely drinks Christian right Kool-Aid, which can be seen from above example of its definition of individual being religious-based, not science-based.

Two weeks ago on Nov. 20, a Texas Court of Appeals affirmed the conviction of Jacob Eguia for capital
murder for causing the death of Ruby Elaine Garcia and her fetus during the same criminal transaction. Eguia was sentenced to life in prison, which was the only possible sentence since the State did not seek the death penalty.

Among other defenses, Eguia filed a motion to quash the indictment against him for causing the death of Garcia’s fetus because the Texas statute that defines an “unborn child” as a “person” for purposes of the capital murder statute is unconstitutional. In particular, he alleged that the definition violated the Establishment Clause of the First Amendment of U.S. Constitution because the definition “has the effect of endorsing religion as it is based solely upon a religious belief that life begins at conception.” (Eguia also complained of a violation of Texas’ constitution – “no preference shall ever be given by law to any religious society or mode of worship.” Tex. Const. Art I, § 6.)

In holding that the Texas law defining an “individual” did not violate either the U.S. or Texas Constitutions, the appeals court said: “A statute is not automatically rendered unconstitutional simply because it advances ideals that harmonize with religious ideals. Harris v. McRae, 448 U.S. 297, 319-20 … (noting that Judeo-Christian religions’ forbiddance of stealing does not preclude state or federal legislatures from outlawing larceny).”

The appeals court also said that Eguia also “fail[ed] to demonstrate how the statute’s principal or primary effect advances religion, or how the statute fosters excessive government entanglement with religion.”

I believe that the appeals court analogy with stealing is misplaced because, unlike stealing, the notion that life begins at conception is uniquely a religious viewpoint.

However, because I am not familiar with the trial record, it would be inappropriate for me to comment on whether or not the defendant sufficiently proved of his Establishment Clause violation claim.

Instead, I’ll close by saying that in our judicial system the deck is stacked heavily against those who claim a violation of the principle of separation of church and state and that complainants probably need two, three or four times as much evidence as they think would be sufficient. What is needed is a smoking gun (so to speak) where there is a record of a religious purpose for enacting the challenged legislation.