Hey, remember Michael Newdow? He’s the prominent atheist lawyer who has spent the past decade (at least) arguing for the abolishment of things like “one nation under God” in the pledge of allegiance, and “in God we trust” on our currency here in the US. I’ve always been pretty meh about Newdow. I agree that those things don’t actually belong in a secular society that honors a wall between Church and State, but at the same time spending all that time and money pushing these things comes across as, well, douchey. It’s the sort of thing that can just inspire Christians to band together and pretend as though they’re being oppressed by mean old atheists.
Newdow has been working on the “in god we trust” case since 2005, getting stymied at the lower courts and continually appealing until he finally reached the Supreme Court. After 14 years, the case finally landed with the Supreme Court on Monday, and after all that time, they said, “nope.” They didn’t hear the case, and they didn’t even bother to say why. Just like that, poof, gone.
Newdow’s argument, specifically, was that “in god we trust” on our money was an attempt to establish a state religion. That seemed completely ridiculous to me — surely no one would ever think that that would qualify as establishing a state religion, and surely there are easier ways to argue that it’s unconstitutional. I’ve always been familiar with the “Lemon test,” so named after the plaintiff in the 1971 Supreme Court case Lemon v. Kurtzman. In that case, the court found that it was unconstitutional for a public school superintendent to reimburse private (mostly Catholic) school teachers’ salaries.
The court found that when it comes to government referencing religion, the statute must have a secular legislative purpose, the principal or primary effect of the statute must not advance nor inhibit religion, and the statute must not result in an “excessive government entanglement” with religion.
The problem is that a lot of legal types seem to find the Lemon Test to be too vague, and therefore confusing and unpredictable in how it is applied. This is my own unprofessional opinion, but it definitely seems like it’s most hated by the more conservative Christian types, who may not like that it applies to pretty much every incident in which Christians try to cram “God” into random aspects of public life. Clarence Thomas hates it, and Scalia called it “a ghoul in a late night horror movie”.
And now that the Supreme Court is stacked with mostly conservatives, we might be seeing the Lemon Test go away. The problem is, what will it be replaced with? The alternatives proposed by people like Luke Goodrich of the Becket Fund, which has argued against Newdow in favor of keeping the religious language on currency and in the pledge, don’t exactly make me feel optimistic about our country not becoming a theocracy.
SCOTUS is currently hearing arguments in American Legion v. American Humanist Association, in which the AHA is arguing that a cross at a WWI memorial is unconstitutional. And in those arguments, lawyers for the defendants are proposing new versions of the Lemon test, like “any government action that “coerces” religious conduct, either directly or indirectly, is unconstitutional.”
The Becket Fund lawyers suggested in a friend-of-the-court brief that “the question is whether the government’s actions share the characteristics of ‘an establishment of religion’ at the time of the founding.”
That’s a pretty big yikes but that is sort of what Newdow was arguing with “in god we trust.” The problem is that nothing short of an actual government building a church and making citizens attend it is going to pass that test.
Anyway, it sucks to be Newdow right now but I’m sure he has four more cases that he’s planning to push to the Supreme Court. But it seems increasingly like a pointless, even Sysphean task that’s only distracting him (and other atheists) from the real problem: a stacked SCOTUS that might be about to start chipping away at separation of Church and State.