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Jan 01 2009

On the Legal Philosophy of American Atheists by Edwin Kagin

On the Legal Philosophy of American Atheists

On the Legal Philosophy of American Atheists

As Supreme Court Justice Oliver Wendell Holmes, Jr. observed, the law “is not a brooding omnipresence in the sky…” Understanding this basic truth can prevent much confusion in thinking about the law.

Most people would not be so uninformed, or so foolish, as to think they know more than their doctor if told they need to have heart surgery or die. Yet the same people will, without skipping a beat, presume that they know what the law is, how the law works, and what a proper legal judgment should be. Everyone seems to have an opinion on the law, and if one’s grocer unlawfully provides legal advice, the average person is likely to give that view some undeserved merit. A few years ago, a young counselor at Camp Quest informed me, with proud conviction, that “possession is 90% of the law.” I told him that this was a testable hypothesis. All he needed to do was to take someone’s car without their permission, drive it around until he was stopped by the police, and then argue that the car was his by right of possession. He is now a fine young lawyer who does not now issue those kinds of incorrect generalities. Be assured that almost everything you think you know “for certain” about the law is almost certainly wrong.

It has fallen my lot in history, and it is my honor, as National Legal Director for American Atheists, to set forth the current legal philosophy for the organization. An understanding and acceptance of this will answer many questions, and hopefully prevent any hard feelings, in that the national office receives daily requests for legal advice and requests for help on issues involving matters of church state separation, only a fraction of which can be addressed. A process is required to aid in deciding with which cases American Atheists should become involved. This is not to say that a perceived problem is without merit. Most claims sent in do have merit. The problem is that there is not world enough or time or money available to deal with any but a few of them. The assaults on our First Amendment freedoms must be triaged.

What is “the law” anyhow? Even that is not a simple answer. For openers, it consists of written statutes and local ordinances, both federal and state. We have a system of United States Courts, created by the Constitution of the United States, that deals with matters of federal law. The judges are appointed by the President of the United States, to serve “during good behavior,” or essentially for life. Each state has its own laws, courts, and court rules—occasionally wildly at variance one with another. Behavior lawful in one state can get you thrown in the slammer in another. The judges are usually elected or appointed, or a combination of both, for a fixed term of years. Additionally, individual counties and cities can make their own laws, or ordinances, provided a grant of authority has been given by the state or federal government to do so. There are methods of appeal from the ruling of judges to higher courts. Each state has its own appellant system; the courts of the United States have another, both ending at the United States Supreme Court. One does not, despite their bravado, “take the case all the way to the Supreme Court.” No one “takes” a case to the Supreme Court of the United States (SCOTUS). One petitions SCOTUS to hear a case, and the odds are several thousand to one against a given case being granted review. If the high court does take a care, and makes a ruling, whether the case comes up through the federal or state system, the holdings of the court make legal rulings that become “precedents” that are binding in every court of the United States. A ruling of SCOTUS may not be correct, but it is final.

In addition to the written laws, the concept of “the law” also encompasses the “common law” as it has developed over centuries. This is the body of law, the corpus juris, as decided in actual justicible cases by courts of record, and the law requires that such rulings are to be followed until changed by a higher court. And the rulings of appeal courts do change. One day “separate but equal schools” may be constitutional and, upon a different ruling of SCOTUS, the law is changed, and separate but equal schools is an unlawful concept. One day abortion may be unlawful, while the next ruling might permit abortion, and SCOTUS has the power to reverse that ruling at any time.

The scope of a given court ruling depends on the “jurisdiction” of the court, or the area over which that court has power. A city court ruling might only affect the city in which it is made, and a state court holding, or a federal opinion, affects only the area served by that court. The appeal courts have a wider net. The Supreme Court of a state can make precedents that bind all courts of that state. A federal court usually covers a specific geographical portion of a state. A United States Court of Appeal covers several states. If, by way of example, a bad decision is made in a federal court in Louisville, Kentucky, it only has binding application in about half of the state of Kentucky. If that horribly bad holding is appealed to the Sixth Circuit Court of Appeals, which covers all of the states of Kentucky, Michigan, Ohio, and Tennessee, and that bad ruling should be affirmed, the party taking the appeal has thereby managed to expand a horror story from their own back yard into bad law for four states. If SCOTUS should take the case, and affirm the bad ruling, then a major legal disaster has occurred that affects the way the law will be decided in the future throughout the entire United States and in every court therein. If one has any concern for the future of our freedoms, one should proceed with caution. This is not a suitable sport for amateurs.

Bad facts make bad law. It should be considered an act of legal negligence for one to take a case to a higher court where it is completely predestined that the court will rule against a meritorious cause, and thereby make bad law not only in that case, in that region of the country, but, depending on which appellant court is chosen, make bad law for a much wider area, where the bad ruling will be the law until the case in question is ultimately, if ever, overruled. By building on bad precedents, in time the very concept of separation of religion and government could be destroyed. The religious right understands this. We would be well advised to understand it as well.

The elected legislative bodies, both nationally, and in each state, create the written statutory law. Judges, who are required to be fair minded and objective, rule on the interpretation of the laws passed by these legislative bodies and state, in appropriate cases, whether or not a given law is or is not unconstitutional. The Constitution of the United States, and its Amendments, is the supreme law of our land, followed by Treaties between nations, and then by statutory laws. An independent judiciary decides if a given law is constitutional and, if so, how it is to be interpreted. The Legislative and Judicial branches of government are both created by the Constitution, as is the third branch of government, the Executive, consisting of the elected President of the United States, or the Governor of a state or commonwealth. Neither the Congress of the United States, nor the legislative body of any state, may lawfully pass legislation that is contrary to the Constitution of the United States, nor may the Executive branch lawfully enforce such laws.

If all of this is not confusing enough, consider the fact that the prejudices, beliefs, politics, religion, etc. of the judges on a court determine in large measure how they will view a given legal question. They may or may not be conscious of these factors, but they are there nevertheless. It has something to do with being human. Thus judges with liberal backgrounds are likely to decide an issue one way and judges who are proudly conservative will decide the same issue another way. And there are many highly emotionally charged, and controversial, issues around these days, issues for which there is no plain and clear answer, like “gay marriage.” In such cases, only the personal architecture of the individual judges deciding the questions will form the basis for decision. The Constitution could not predict, and give answers for, every fact situation that might arise in our nation’s history. This is where mature, well grounded, legal judgment is needed. There can be law quoted to support any kind of idea, noble or base, that anyone might ever present to a court. Go to a law library and look at the rows of stacks of law books containing written decisions. Someone lost every one of those cases.

It is the philosophy of American Atheists to win cases and to create favorable law. This is a change from the policy of the organization in the past. That philosophy was to file the case, no matter how unlikely a court victory might seem, to make the point urged. If something was wrong, it was felt that action should be taken, regardless of the immediate outcome. That philosophy had merit when different people were on the higher courts of our land. In the 1960s, a lawyer could bring a case of civil rights violation before the courts, be quite sloppy in pleading practice and, in the interests of substantial justice, the courts might well carve out an opinion that granted relief and that comported with basis due process of law considerations and with the guarantees of our Bill of Rights. This was a golden age of civil rights litigation. And the religious right hated every moment of it.

Things have changed. The persons of high vision on our highest court have gone to honored places in the history of the law. Justices Black, Douglass, Warren, Marshall and many other great defenders of freedom are no more. By virtue of the philosophy of their appointers, persons of less noble character and less shining intellect, have taken their places. The past few years have seen an erosion of civil liberties, and a battering against the Wall of Separation between Church and State that is without equal in our history. Irreparable damage to the First Amendment has been done that may not be repaired within the life span of our republic. The forces that would establish a theocracy in our free land are not only beating on the gates of freedom, they are trying to pull down the wall of separation from within. Mean spirited people are in positions of power, and those who would destroy us are able to vote and to sit on juries. Sadly, many are able to rule on legal cases and to create binding precedent.

The Constitution is not a suicide pact. We do not have to take every wrong to court and thereby give some theocrat the right to say that the wrongful behavior is lawful and to let that vile ruling become part of the body of the law that future judges are required to follow. This is both the glory and the danger of the legal doctrine of stare decisis, which means to “stand on the decisions” that have gone before. Brilliant, bold, freedom friendly rulings of prior courts are being systematically swept away by courts that are rendering disastrous rulings in cases with poor facts that provide them with seemingly rational reasons to rule in abominable ways.

American Atheists declines to give those theocrats now in power the ability to destroy the dream of our founders that citizens of our nation would enjoy the right to not be religious.

We will respectfully decline to do battle on any issues other than those where the facts and the law will compel a favorable ruling, no matter how biased the court against us. And thus we will, brick by brick, rebuild the Wall.

For every case presented to us, we must ask, “Is this a hill worth dying on?”

Litigation is expensive. We do not need to waste thousands of dollars on lawsuits that, given the facts at issue, the state of the law at this time, and the disposition of a given court, are doomed to certain failure. And in losing such actions, we do not need to be in the position of creating even more bad law for our descendents to clean up. We cannot make good law and ensure freedom within our nation by litigating bad, or even marginal, facts. And we will not gain credibility by losing cases and thereby permitting the other side to mock our efforts and to laugh at us. “There go those Atheists again. They will lose like they always lose. When will they learn to sit down and shut up?” We must not give them that ammunition.

There are plenty of civil liberties abuses against Atheists around these days. Far more than we can handle. Many abuses are better addressed by protests, letter writing, political action, interviews, debates, oratory and by using all of the free speech options still left to us, rather than by reflexively resorting to legal actions.

We can afford to be picky and wait for those fact situations that fit clearly into the entire body of both written law and common law. In short, we should wait for cases that we can win based on the present state of the law. Then we can make some positive changes. We can cause even the most blinded-by-heavenly-light jurists to see that the actions complained of in our lawsuits are unlawful and are not to be permitted in a free nation that, in its founding document, prohibited its government from engaging in making laws “respecting an establishment of religion.”

There of course may be certain exceptions to this policy. We will litigate, regardless of consequences, if a situation should arise that is so egregious we cannot let it pass unchallenged. We will litigate if the perceived consequences of not litigating would be worse than the possible adverse consequences of litigating. This will have to be based on sound legal judgment and decided on a case by case basis.

There are in fact some hills worth dying on.

And the word will get out to those bent on imposing their religion upon us that, if American Atheists threatens a lawsuit, they had best pay attention. Because they will know from our record that American Atheists will probably win.

Because American Atheists has a history of winning.

And that is a lot more powerful than having a history of losing.

Edwin Kagin
National Legal Director
American Atheists.

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