Hein v. Freedom From Religion Foundation: The Bagel Debate

Cream cheese and lox, anyone?

The case of Hein v. Freedom From Religion Foundation concerns whether or not an individual taxpayer has the right—the “standing”—to challenge expenditures made by President Bush in funding his Faith-Based initiatives. The case is NOT about whether the President’s expenditures were constitutional or unconstitutional. My earlier post gives some background.

While we're waiting for the bagels, here’s my favorite moment from today’s oral argument.

Solicitor General Paul D. Clement was, of course, arguing against taxpayer standing.

Justice Scalia: I’ve been trying to make sense out of what you’re saying.
General Clement: Well, and I’ve been trying to make sense out of this Court’s precedents. And the best that I can do—the best that I can do, when I put together Flast...
Justice Stevens: Do you think we have a duty to follow precedents that don’t make any sense?

From the questions and answers, I would guess that Breyer, Souter, Stevens, and Ginsburg will grant standing. Roberts and Alito sounded like they're against it. Thomas, as usual, asked no questions, and so gave no clue to his position. Kennedy was difficult to read, but, unfortunately, his sentiments might well be reflected in the following question he asked Andrew J. Pincus, the attorney for the FFRF.

Justice Kennedy: It seems to me unduly intrusive for the courts to tell the President that it cannot talk to specific groups to see if they have certain talents that the Government may use to make sure that all of their energies are used properly by the Federal Government. It’s almost like a speech rationale....[I]t seems to me that there’s a standing concern here, ... that we would be supervising the White House and what it can say, what it can—who it can talk to. And it seems to me that’s quite intrustive from the standpoint of standing purposes.

As usual, Scalia had the best lines. He was sharp with both parties. For instance, he got into this colloquy with Clement, in which he appears to be amazed at the Solicitor General's position:

Clement: ... [W]here the real injury is the spending ... that’s an Establishment Clause injury, then it makes sense to say that people that provided that money in the first place have a distinct injury.
Justice Scalia: But not if the President just gives the money out of a general appropriation, authorizing him to give money to people who are helping in the programs that the Faith-Based Initiative was designed to help?
Clement: Well—
Justice Scalia: If the President hands over the money, that’s okay?
Clement: Not necessarily, Justice Scalia, but it’s important to focus on what this case is about.
Justice Scalia: Why, why not necessarily? I thought that was your proposition, that it has to be a congressional violation, not an executive.
Clement: Right. And it would depend a little bit on about where the President is getting the money. I think the way that we would look at it—
Justice Scalia: He’s getting the money from Congress under a general appropriation. If he takes this money and he says “here, use it for a religious purpose,” that’s okay?
Clement: He—
Justice Scalia: As far as standing is concerned, he can’t be sued?

On the other hand, Scalia jumped on Pincus when the lawyer argued that only “central,” not “incidental,” expenditures for religious purposes should be subject to a taxpayer’s challenge. This got Pincus into trouble, as you’ll see.

Justice Scalia: You really want to condemn the Federal courts to deciding case by case at the insistence of all these people who feel passionately about this, case by case, whether the expenditure was incidental or not? It doesn’t seem to me an intelligent expenditure of any sensible person’s time.

Pincus continued to try to define “incidental.”

Pincus: If someone’s claim is that people in the White House have five meetings in the course of a year that they’re upset about, it does not take much at the jurisdictional—
Chief Justice Roberts: Well, then, five meetings isn’t enough. How many?
Justice Scalia: What about ten?
Chief Justice Roberts: Twenty?
Justice Scalia: I was about to ask twenty.
Pincus: Well, Your Honor, our position—
Justice Scalia: We’ll litigate it. We’ll figure out a number eventually, I’m sure.

Later, Scalia seemed to ask Pincus if Flast didn’t go far enough in granting standing:

Justice Scalia: The problem here is ...: Is the Government doing stuff with money that’s been taxed from me that it shouldn’t do? I fail to see how it makes any difference to the people who care so passionately about this ... whether it’s just an incidental expenditure or whether it’s part of a target program. We don’t do that in any other area of constitutional law. If someone has been subjected to an unreasonable search and seizure, we don’t say, “Well, you know, it was just incidental. Yeah, we know how you feel badly about it, but this was just an incidental search and seizure, and you don’t have standing." It doesn’t make any sense, given the gravamen that you’re directing this law against to establish such a standard.
Pincus: Well, Your Honor, it is a standard that the Court established in Flast. It is—
Justice Scalia: And you also acknowledge we’re not here to try to make sense.

Pincus did not fare particulary well on the “bagel” issue you've been waiting for. He couldn't seem to give Scalia something to sink his teeth into. The interchange began innocently enough with Chief Justice Roberts still questioning Pincus's definition of "incidental."

Chief Justice Roberts: Incidental with respect to what? All of the money for a particular meeting, a particular breakfast, a particular whatever, is it incidental to that? Or is it incidental to however many times the President has breakfast if he goes to a prayer breakfast?
Pincus: It’s incidental to what—what’s the focus of the claim? The focus of the claim isn’t that bagels were served. The focus of the claim is there was a prayer and that it was a religious meeting....And so the expenditure that’s been identified is the bagels, it really is pretty tangential to the focus of what someone’s complaining about.
........
Justice Scalia: So there’s no standing to challenge a presidential directive which says we are going to buy bagels for all evangelistic Christian breakfasts?
Pincus: No, I think there would be standing.
Justice Scalia: Why would there be standing?
Pincus: Because there the challenge is to the discriminatory purchase. It’s not about the prayer breakfast, it’s about the idea that the Government is purchasing bagels in a religiously discriminatory way
.........
Justice Scalia: How does that confer standing? How does that confer standing?
Pincus: The purchase—the idea that bagels are being purchased only for evangelicals and not for Jewish breakfasts?
Justice Scalia: Right. Right.
Pincus: Because the Government—
Justice Scalia: [I mean] Standing by Joe Doaks, not from somebody who’s starting a Jewish prayer breakfast and says, you know, “What could be worse than not buying bagels for a Jewish prayer breakfast?” With him, I could understand, he has standing. But I'm just talking about one of these many people who feel passionately about this just in general. You walk in and say, "he can't do this because I'm a taxpayer." And you say, "I'm sorry, being a taxpayer is not enough, we don't care how passionately you feel about it—"
Pincus: I don't think general passion is enough. I think what the Court said is there has to be a tie-in, and let me say that I think what's critical here is any test obviously is susceptible to hypotheticals ...

But didn't Pincus just say that he thought the JWB (Jews Without Bagels) would have standing? Oops.

Look: I would love my previous prediction to be wrong, wrong, wrong. Scalia is definitely the most entertaining, trap-setting justice on the Big Bench. He caught both attorneys in inconsistencies. I'm thinking (maybe only wishfully) that there's a possibility he'll vote for standing, and that he might even be the tie-breaker. Wouldn't that give us atheists something to chew on?

And the Survey Says ...

Some atheist bloggers have gotten themselves into an uproar about the scary poll at left.

The American public does, indeed, seem to think in stereotypes, so the results of the survey must tell us something. But what?

If you'll notice, each row fails to add up to 100%. That's probably because the question, as phrased, is way too simplistic. Perhaps the unaccounted-for respondents said, "Well, that depends."

So with the fence-straddlers in mind, I've created the following questionnaire:


If you were asked to choose between the following pair of hypothetical candidates, for which one would you be more likely to vote?

A lying Christian OR a truthful atheist?

A homosexual black woman who strongly opposes gay marriage OR a straight white man who strongly favors it?

A thrice-divorced candidate who claims he believes in the sanctity of marriage OR a candidate who has been happily wed for many years to his one-and-only wife, but who doesn't believe that the institution of marriage is sacred?

A 40-year-old Wiccan who supports the U.S. troop surge OR an 80-year-old Scientologist who wants to bring the troops home now?

A libertarian freethinker who doesn’t believe that the Establishment Clause precludes government vouchers for use in parochial schools OR a liberal Catholic who does believe that the Establishment Clause precludes government vouchers for use in parochial schools, but wants them anyway.

A Jew who panders to evangelical Christians OR an evangelical Christian who panders to Jews?

A Lutheran who prefers a 6-pack of Pepsi bagged in paper OR a Methodist who prefers a 12-pack of Coke bagged in plastic?

A hermaphrodite OR a candidate with no sexual organs?

A Nail Fungus who sells anti-infection tablets OR a Gob of Mucus who sells decongestants?

A Gallup poll-taker OR a reader of yak entrails?

Presidents Day Quiz

Since Monday is Presidents Day (please note that there is no apostrophe anywhere in the holiday’s name), here’s a little quiz on prezzes and their ideas about religion. You can find the answers by looking at the first comment to this post.

1. Who said:

I do not believe in the divinity of Christ, and there are many other of the postulates of the orthodox creed to which I cannot subscribe.

A. Grover Cleveland

B. Franklin Pierce

C. William Howard Taft

D. Rutherford B. Hayes

2. Which two presidents are quoted here?

[O]f course like every other man of intelligence and education I do believe in organic evolution. It surprises me that at this late date such questions should be raised.

Well, it’s a theory, it is a scientific theory only, and it has in recent years been challenged in the world of science and is not yet believed in the scientific community to be as infallible as it once was believed. But if it was going to be taught in the schools, then I think that also the biblical theory of creation, which is not a theory, but the biblical story of creation, should also be taught.

A. Franklin D. Roosevelt and George W. Bush

B. Woodrow Wilson and Ronald Reagan

C. John F. Kennedy and George H. W. Bush

D. Richard Nixon and Jimmy Carter

3. George W. Bush said:

I, in the state of Texas, had heard a lot of discussion about a faith-based initiative eroding the important bridge between church and state.

Two of our previous leaders, however, knew the difference between a bridge and a wall. Which presidents said:

Leave the matter of religion to the family altar, the church and the private school supported entirely by private contributions. Keep the church and state forever separate.

Whatever one's religion in his private life may be, for the officeholder, nothing takes precedence over his oath to uphold the Constitution and all its parts -- including the First Amendment and the strict separation of church and state.

A. Ulysses S. Grant and John F. Kennedy

B. William McKinley and Bill Clinton

C. Theodore Roosevelt and Franklin D. Roosevelt

D. James Garfield and Calvin Coolidge

4. Which presidents could have had the following debate?

We should live our lives as though Christ were coming this afternoon.

The Christian god is a three-headed monster; cruel, vengeful, and capricious ... One only needs to look at the caliber of people who say they serve him. They are always of two classes: fools and hypocrites.

A. George W. Bush and James Madison

B. Jimmy Carter and Thomas Jefferson

C. George H. W. Bush and Abraham Lincoln

D. Ronald Reagan and John Adams

5. Who said:

I have seldom met an intelligent person whose views were not narrowed and distorted by religion.

A. James Buchanan

B. Franklin Pierce

C. Herbert Hoover

D. Martin Van Buren

6. Thomas Paine’s Common Sense and The American Crisis were arguably the most important writings of the Revolutionary War period. Yet, two presidents disagreed about his heritage. Which presidents said:

[He] needs no monument made with hands; he has erected a monument in the hearts of all lovers of liberty.

... that filthy little atheist

A. Thomas Jefferson and Richard Nixon

B. James Monroe and Ronald Reagan

C. James Madison and Harry Truman

D. Andrew Jackson and Theodore Roosevelt

7. What president said the following, and what was the occasion?

In this way we are reaffirming the transcendence of religious faith in America's heritage and future.

A. George W. Bush on the funding of faith-based initiatives

B. Abraham Lincoln on the words “In God We Trust” being engraved on coins

C. James K. Polk on the spread of Protestantism as a result of our “manifest destiny”

D. Dwight D. Eisenhower on “Under God” being added to the Pledge of Allegiance

8. Who said:

I don't know that atheists should be considered as citizens, nor should they be considered as patriots. This is one nation under God.

A. George W. Bush

B. Franklin D. Roosevelt

C. George H. W. Bush

D. Theodore Roosevelt

9. Which president wrote:

My earlier views of the unsoundness of the Christian scheme of salvation and the human origin of the scriptures have become clearer and stronger with advancing years, and I see no reason for thinking I shall ever change them.

A. Abraham Lincoln

B. George Washington

C. Thomas Jefferson

D. Ulysses S. Grant

10. Which president's attitude about religion is expressed by:

Religious bondage shackles and debilitates the mind and unfits it for every noble enterprise, every expanded prospect.

A. John Quincy Adams

B. James Monroe

C. Warren G. Harding

D. James Madison

For these and many other great quotes, I highly recommend that you read 2000 Years of Disbelief by James A. Haught and The Quotable Atheist by Jack Huberman — or simply visit Positive Atheism.

Goldwater on Godpushers

In 1981, Senator Barry Goldwater spoke these words from the Senate floor:

I’m frankly sick and tired of the political preachers across this country telling me as a citizen that if I want to be a moral person, I must believe in A, B, C and D. Just who do they think they are? And from where do they presume to claim the right to dictate their moral beliefs to me? And I am even more angry as a legislator who must endure the threats of every religious group who thinks it has some God-granted right to control my vote on every roll call in the Senate.

These are the kinds of sentiments that John Edwards should have expressed about the Christian nutjobs who criticized some of his staffing choices. No matter. Yesterday, Amanda Marcotte resigned her position in his campaign. Her Pandagon site carries her announcement, as well as an enlightening update about the many enotes she received from the loving Christians who want to see her in hell and/or give her a "real good fucking" up the ass.

[BREAKING NEWS at 11:15 p.m.: Melissa McEwan just announced her resignation, as well. Read her explanation at Shakespeare's Sister.]

For more info and invective—and plenty of witty sarcasm—on the whole blogger/Edwards thing, you might want to read the latest posts by The Raving Atheist.

In the meantime, here’s my very brief summary of the most prominent 2008 candidates, vis a vis the theocrats:

Edwards: weasel

Obama: says he has a “personal relationship with Jesus”

Clinton: hired an “evangelical consultant” in December

McCain: has been puckering up big-time to the pulpiteers

Giuliani: is backpedaling as fast as he can on his pro-choice position

Romney: supports all the fundies' views—except their hatred of Mormons

If anyone can recommend a viable candidate who will get even half as incensed about the American ayatollahs as Goldwater did, feel free to leave a comment.

Re Marcotte & McEwan: What Edwards SHOULD Have Said

Anyone who has been following the Marcotte-McEwan hoo-ha, has probably read John Edwards’s namby-pamby response to the cat-lick fascists who are concerned about his bloggoddesses.

If he had any real political courage, he might have written:

The First Amendment of the Constitution guarantees that everyone in this country is entitled to believe in his or her own chosen religion—or not to believe in any religion whatsoever.

The Amendment also specifically states that the government “may make no law respecting an establishment of religion.” For many of us, those words clearly mean that the government cannot be involved in any way with religion. As Justice Hugo Black said: no law means no law.

I believe, therefore, that the government must be completely neutral about religion. The United States may neither favor nor disfavor any individual’s religious beliefs, nor may it favor or disfavor a general belief in religion or any religious entities.

Religious persons who strive to enforce a sectarian worldview through federal or state action, therefore, should be met with the strongest opposition possible. Although such opposition may appear to the offender as being “anti-Catholic,” “anti-Protestant,” “anti-Jewish,” “anti-Muslim,” or “anti-religious,” it most definitely is not. Instead, it is the religious zealot who is viciously anti-American.

Ms. Marcotte and Ms. McEwan will remain involved with my campaign. I've talked to Amanda and Melissa; they have both assured me that they will continue to combat those unpatriotic voices who seek to use our government as an instrument of religious propaganda.

We can dream, can't we?

Church Thanks God for 20 Dead, $Millions In Damage

The insanity of Christians is boundless. So is their smug lack of common decency.

In the early morning hours of Friday, February 2, tornadoes hit Central Florida, killing twenty people, destroying or damaging hundreds of homes and buildings, devastating property, and causing over $50 million worth of damage. One of the edifices that did not survive the intelligently designed weather was the Lady Lake Church of God.

Yet, on Sunday morning, the congregation of more than a hundred Jesus junkies arrived for an outdoor service led by pastor Larry Lynn. Local media covered this alleged feel-good story in a pious gush of enthusiasm. Lynn spread his idiocy standing in front of and between the church’s large broken wooden cross and an American flag, both icons looking as if they had been raised amidst the rubble of a momentous battle against the forces of evil. The significance of the flag was not explained, but perhaps the attendees were supposed to believe that an unnamed Middle Eastern cabal had attacked our great christian country with their faithless winds.

Pastor Lynn intoned: "I'd like everybody to take a deep breath, and let everybody who has breath today praise God.” And before you could say, “moron,” there they were, mumbling their hosannas in the wake of a terrible disaster for which no one in his or her right mind conceivably could have been grateful.

“Hey, thanks a lot, pal. You did good. Sorry you murdered my neighbors while they were asleep, but I trust you must have had a reason, even though I can’t think of one. Maybe they didn’t pray hard enough, huh? By the way, I appreciate your sparing me. How much do I owe you?”

In one TV report, the minister did manage to find a bright spot among the wreckage. According to him, the church was in need of improvements anyway.

In other words, his deity massacred a score of innocents and caused financial and personal ruin to thousands of others, just so that the church could be given an excuse to expand. Not one so-called newsperson dared to point out that all the money spent rebuilding the church could, perhaps, be much better used helping people rebuild their lives.

Also in attendance at the prayer meeting was Florida’s governor, Charlie Crist (no “h”), who canceled his Super Bowl visit to show up for the photo op. Crist praised and congratulated the congregation for coming together, as if it would have been a cosmic catastrophe for them to miss their obviously worthless weekly worship. While the Southern states may not actually endorse a particular brand of Christianity, they do what they can to encourage any and all examples of religious mumbo-jumbo.

Despite dozens of TV and radio reports about the twisters, none of the interviews broadcast so far has reflected any sentiments other than those, like Lynn’s and Crist’s, that are routinely trotted out in the aftermath of natural disasters. Survivors assert that god must have been watching over them—unaware of the implication, of course, that he chose not to protect those dismissible others, the ones who died.

Not surprisingly, television viewers and radio listeners have yet to hear someone say: “Gee, now that I think about all this, maybe there is no god, after all.”

Welcome to South Dakota, the Fetus State

The legislators of South Dakota should band together and take Jefferson’s face off Mt. Rushmore, replacing it with the bland effete puss usually used to represent Jesus. If they really get ambitious, they could scrape off the representations of the other presidents, too, and replace them with carvings of famous fetuses.

In November of 2006, the voters of South Dakota rejected—by a margin of 56% to 44%—a state law that banned abortion except to save the life of the mother. That law, deceitfully named The Women’s Health and Human Life Protection Act, had been signed the previous March by the Republican governor, Mike Rounds. Immediately, a petition to repeal the ban was circulated; it needed 16,7000 certified signatures to get on the ballot, and ultimately received more than twice that amount.

About three months ago, South Dakota's voting public spoke. Loudly.

End of story, right?

Of course not. That isn’t the way religious zealots work. A bomb—this one legislative, rather than physical—was called for. The theocrats within our country have never been the people’s representatives; they are the representatives of their odious imaginary god. The right of privacy be damned! And nowhere more so than in South Dakota, the offensive state motto of which is: “Under God, the people rule.” Maybe that should be changed to the more honest: “Under God, the rulers peep!”

For, lo!, in the state congress, the godpushers have introduced an invasive new anti-abortion bill. Okay, the pious thugs said, we heard our constitutents. Let’s allow exceptions for rape and incest, as well as to preserve the woman’s health. But how about upping the maximum penalty for a doctor’s disobeying the law? Ten years in prison, for a felony, ought to do it! (In the original bill, the maximum sentence was a far-too-lenient five years only.)

Here’s the beauty part of the new bill for those determined to ram religion down the public’s throats (or up their privates, as the case may be). The onus is on the woman and her doctor to provide DNA evidence of rape or incest. In cases of rape, a woman would have to report the crime to police within 50 days of its occurrence, and her doctor would have to confirm that she had done this. Then, the doctor would have to work with law enforcement, offering blood from the aborted fetus for the authorities to test.

The incest provision is even more outrageous. Before an abortion could be performed, a doctor would have to get the pregnant patient to agree to report the incident as a crime and to provide the identity of the penis-owner. To date, no one has suggested that a cell phone photo of the offending member must also be presented.

To summarize the bill’s provisions: most abortions in South Dakota would be verboten, in direct contradiction to the Roe v. Wade decision. Abortions would be allowed when there had been a rape or incest, but only until the 17^th week of pregnancy, and the woman and her doctor would have to jump through holy hoops. Whenever the mother’s health might be a concern, a doctor could perform an abortion, but only after obtaining a concurring opinion from a colleague in another practice. This opinion, assumedly, would be charged to the patient. After the operation, the doctor would have to submit a written statement to the department of health, explaining the circumstances that justified his or her decision to abort the fetus. Use of thumbscrews and/or the iron maiden are, apparently, optional.

And the alleged purpose of this infuriating bill? Need you ask? The legislators hope that it will ultimately result in an overturning of Roe v. Wade by the Supreme Court.

You can almost hear the sounds of Antonin Scalia’s hands rubbing together in glee, and picture the anticipatory saliva drooling down Clarence Thomas’s face.