Atheism and Civil Rights
There’s an interesting discussion going on over at Science Blogs about whether atheism is a civil rights issue. (You can read some of the discussion at Framing Science, Pharyngula, Evolution Blog, and Pure Pedantry.)
My answer is yes and no. That seems self-contradictory, so I'd like to note the difference between a civil rights "issue" in the vague sense and a civil rights movement, which is more concrete. Discrimination of any kind is a violation of civil rights, regardless of whether the discrimination is perpetuated against a member of a minority or a majority. (Discrimination against caucasians is just as much a civil rights issue in that sense as discrimination against African-Americans.) Fighting discrimination is an admirable goal and one to which we should all be committed.
A civil rights movement, on the other hand, is a completely different subject. Civil rights movements are aimed at removing legal impediments to equal rights, including laws that actively promote the violation of civil rights and laws that deny protection of a particular group's civil rights. Civil rights movements are also concerned with ensuring that the law acknowledges the civil rights of a particular group. For African-Americans, women, gays, etc., inequality was/is codified, legal, and enforced by the government.
Under existing local, state, and federal laws as well as standing Supreme Court precedent, discrimination based on religion is a crime. These laws are enforced by the government both to protect religious minorities and to protect the nonreligious minority. Attacking someone based on religion or lack thereof is characterized as a special type of crime, hate crime or "bias-motivated" crime. Hate crimes against atheists are prosecuted under these laws.
Laws and practices which violate the separation of church and state do not specifically target atheists but instead affect all religious minorities and those in the religious majority who oppose them. As these issues are not atheist-specific, the atheist movement does not fall under the definition of a civil rights movement.
Under the majority of existing local, state, and federal laws, discrimination based on sexual orientation or gender identity is legal. In most parts of the country, there is no recourse to the law for those who are denied employment, housing, education, health care, etc. based on sexual orientation or gender identity. In most parts of the country, hate crimes laws do not protect those who are attacked for being gay or transgender. Then, we have to consider the laws that specifically prevent gay people from giving blood, marrying, adopting children, retaining custody of their non-biological children after the death of their partner, retaining visitation rights to their non-biological children after a separation, sponsoring their foreign-born domestic partners for a visa, etc. These laws are gay-specific and do not apply to other groups.
Under existing law, gay people are a separate, unprotected class specifically denied equal protection by force of law. The same can be said of women and racial/ethnic minorities in the recent past. This cannot be said of atheists today. Atheism is therefore not a civil rights issue in the sense of requiring a civil rights movement to ensure the legal acknowledgement and protection of atheists' civil rights.
UPDATE:
From Volokh In 2001, for instance, the Mississippi Supreme Court upheld an order giving a mother custody partly because she took the child to church more often than the father did, thus providing a better "future religious example."
From Nolo: In MacLagan v. Klein, 123 N.C. App. 557, 473 S.E. 2d 778 (1996), a North Carolina court ruled that, since a young girl had identified as Jewish since age three, exposure to the Methodist religion might interfere with her Jewish identity and adversely affect her emotional well-being. Based on its concern that the girl might suffer harm in the future, the court gave the Jewish father sole control over the child's religious education.
Also from Volokh: Likewise, through the past decades, parents have had their rights limited or denied partly based on their racist views, advocacy of Communism, Nazi sympathies, advocacy of pacifism and disrespect for the flag, advocacy of polygamy, defense of the propriety of homosexuality, defense of adultery, advocacy of (or inadequate condemnation of) nonmarital sex, fundamentalism, teaching of religions that make it hard for children to “fit in the western way of life in this society” or that are “non-mainstream,” and teaching of religious intolerance.
In his full paper "Parent-Child Speech and Child Custody Speech Restrictions", Eugene Volokh cites the following cases:
Melinda here: It is my opinion, considering this evidence, that religious considerations in child custody are not restricted to atheism and are thus not specifically an atheist rights issue. They are, in my opinion, an unconscionable violation of freedom of religion and the separation of church and state.
American Atheists has an interesting explanation of how the Supreme Court and federal courts have extended the legal definition of "religion" to include atheism, secular humanism, etc. and have applied freedom of religion to them as well.
Rieux, in the comments, cites a recent Supreme Court decision as being "against atheist," however, this is a highly questionable interpretation. The Supreme Court's majority opinion in Hein v. Freedom from Religion Foundation was that the atheist group that initiated the challenge to Bush's faith-based office did not have legal standing.
From The Pew Forum on Religion and Public Life:
This decision to deny standing was not based on the fact that the group was an atheist group, only on the fact that they were taxpayers, who cannot challenge federal decisions based solely on their role as taxpayers.
This decision becomes even less an atheist issue when one considers the groups that filed friend-of-the-court briefs on behalf of the Freedom from Religion Foundation:
American Civil Liberties Union
Americans United for Separation of Church and State
The Baptist Joint Committee for Religious Liberty
People for the American Way Foundation
Anti-Defamation League
Center for Inquiry
American Jewish Congress
American Atheists
Center for Secular Humanism
Of these organizations, two are Jewish, one is Christian, three are neutral and only four (including FFRF) are atheist. Yes, atheists are discriminated against for their beliefs, but so are Wiccans, Jews, Muslims, Mormons, Jehovah's Witnesses, fundamentalists (in some areas), etc. Trying to make the separation of church and state and religious freedom "atheist" issues is an insult to the tens of millions of American citizens of all religions and none who fight to protect our way of life from the encroachments of the the current government.
UPDATE 2: Thanks to an anonymous comment and a little googling, I discovered that the "Center for Inquiry" was incorrectly listed as the "Center for Free Inquiry" on the Freedom from Religion Foundations's website and thus, on this blog. I also discovered that the Center for Secular Humanism filed jointly with the Center for Inquiry. I corrected the link for CFI, added a link for CSH, and updated the numbers in the final paragraph. However, we still have only 4 atheist organizations out of the 10 involved. So, my point stands.
My answer is yes and no. That seems self-contradictory, so I'd like to note the difference between a civil rights "issue" in the vague sense and a civil rights movement, which is more concrete. Discrimination of any kind is a violation of civil rights, regardless of whether the discrimination is perpetuated against a member of a minority or a majority. (Discrimination against caucasians is just as much a civil rights issue in that sense as discrimination against African-Americans.) Fighting discrimination is an admirable goal and one to which we should all be committed.
A civil rights movement, on the other hand, is a completely different subject. Civil rights movements are aimed at removing legal impediments to equal rights, including laws that actively promote the violation of civil rights and laws that deny protection of a particular group's civil rights. Civil rights movements are also concerned with ensuring that the law acknowledges the civil rights of a particular group. For African-Americans, women, gays, etc., inequality was/is codified, legal, and enforced by the government.
Under existing local, state, and federal laws as well as standing Supreme Court precedent, discrimination based on religion is a crime. These laws are enforced by the government both to protect religious minorities and to protect the nonreligious minority. Attacking someone based on religion or lack thereof is characterized as a special type of crime, hate crime or "bias-motivated" crime. Hate crimes against atheists are prosecuted under these laws.
Laws and practices which violate the separation of church and state do not specifically target atheists but instead affect all religious minorities and those in the religious majority who oppose them. As these issues are not atheist-specific, the atheist movement does not fall under the definition of a civil rights movement.
Under the majority of existing local, state, and federal laws, discrimination based on sexual orientation or gender identity is legal. In most parts of the country, there is no recourse to the law for those who are denied employment, housing, education, health care, etc. based on sexual orientation or gender identity. In most parts of the country, hate crimes laws do not protect those who are attacked for being gay or transgender. Then, we have to consider the laws that specifically prevent gay people from giving blood, marrying, adopting children, retaining custody of their non-biological children after the death of their partner, retaining visitation rights to their non-biological children after a separation, sponsoring their foreign-born domestic partners for a visa, etc. These laws are gay-specific and do not apply to other groups.
Under existing law, gay people are a separate, unprotected class specifically denied equal protection by force of law. The same can be said of women and racial/ethnic minorities in the recent past. This cannot be said of atheists today. Atheism is therefore not a civil rights issue in the sense of requiring a civil rights movement to ensure the legal acknowledgement and protection of atheists' civil rights.
UPDATE:
From Volokh In 2001, for instance, the Mississippi Supreme Court upheld an order giving a mother custody partly because she took the child to church more often than the father did, thus providing a better "future religious example."
From Nolo: In MacLagan v. Klein, 123 N.C. App. 557, 473 S.E. 2d 778 (1996), a North Carolina court ruled that, since a young girl had identified as Jewish since age three, exposure to the Methodist religion might interfere with her Jewish identity and adversely affect her emotional well-being. Based on its concern that the girl might suffer harm in the future, the court gave the Jewish father sole control over the child's religious education.
Also from Volokh: Likewise, through the past decades, parents have had their rights limited or denied partly based on their racist views, advocacy of Communism, Nazi sympathies, advocacy of pacifism and disrespect for the flag, advocacy of polygamy, defense of the propriety of homosexuality, defense of adultery, advocacy of (or inadequate condemnation of) nonmarital sex, fundamentalism, teaching of religions that make it hard for children to “fit in the western way of life in this society” or that are “non-mainstream,” and teaching of religious intolerance.
In his full paper "Parent-Child Speech and Child Custody Speech Restrictions", Eugene Volokh cites the following cases:
"Collier v. Collier, 14 Phila. 129, 144, 149 (Pa. Ct. Common Pleas 1985) (giving father only weekend custody, partly because of his fundamentalist lifestyle and attitudes- such as “disapprov[al] of most popular music as ‘satanic’”-which were seen as likely to lead to “serious problems for the children in adolescence”)"
Decree of Dissolution of Marriage, Jones v. Jones, No. 49D01-0305-DR-00898, at 4 (Feb. 13, 2004), available at http://www.law.ucla.edu/volokh/custody/jones.pdf (directing parents “to take such steps as are needed to shelter [the child] from involvement and observation of these non-mainstream religious beliefs and rituals”) rev’d, 832 N.E.2d 1057,1061 (Ind. Ct. App. 2005)" This case was also in reference to fundamentalist religious beliefs.
Mendez v. Mendez, 527 So. 2d 820, 821, 823 (Fla. Dist. Ct. App. 1987) (Baskin, J., dissenting) (taking view that lower court’s denial of custody to Jehovah’s Witness was based on expert evidence that being raised as Jehovah’s Witness would make it hard for children to “fit in the western way of life in this society”)
Melinda here: It is my opinion, considering this evidence, that religious considerations in child custody are not restricted to atheism and are thus not specifically an atheist rights issue. They are, in my opinion, an unconscionable violation of freedom of religion and the separation of church and state.
American Atheists has an interesting explanation of how the Supreme Court and federal courts have extended the legal definition of "religion" to include atheism, secular humanism, etc. and have applied freedom of religion to them as well.
Rieux, in the comments, cites a recent Supreme Court decision as being "against atheist," however, this is a highly questionable interpretation. The Supreme Court's majority opinion in Hein v. Freedom from Religion Foundation was that the atheist group that initiated the challenge to Bush's faith-based office did not have legal standing.
From The Pew Forum on Religion and Public Life:
"It has long been established ... that the payment of taxes is generally not enough to establish standing to challenge an action taken by the federal government," Justice Samuel Alito wrote for the majority, joined by Chief Justice John Roberts and Justice Anthony Kennedy.
"If every federal taxpayer could sue to challenge any government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus," Alito wrote.
This decision to deny standing was not based on the fact that the group was an atheist group, only on the fact that they were taxpayers, who cannot challenge federal decisions based solely on their role as taxpayers.
This decision becomes even less an atheist issue when one considers the groups that filed friend-of-the-court briefs on behalf of the Freedom from Religion Foundation:
American Civil Liberties Union
Americans United for Separation of Church and State
The Baptist Joint Committee for Religious Liberty
People for the American Way Foundation
Anti-Defamation League
Center for Inquiry
American Jewish Congress
American Atheists
Center for Secular Humanism
Of these organizations, two are Jewish, one is Christian, three are neutral and only four (including FFRF) are atheist. Yes, atheists are discriminated against for their beliefs, but so are Wiccans, Jews, Muslims, Mormons, Jehovah's Witnesses, fundamentalists (in some areas), etc. Trying to make the separation of church and state and religious freedom "atheist" issues is an insult to the tens of millions of American citizens of all religions and none who fight to protect our way of life from the encroachments of the the current government.
UPDATE 2: Thanks to an anonymous comment and a little googling, I discovered that the "Center for Inquiry" was incorrectly listed as the "Center for Free Inquiry" on the Freedom from Religion Foundations's website and thus, on this blog. I also discovered that the Center for Secular Humanism filed jointly with the Center for Inquiry. I corrected the link for CFI, added a link for CSH, and updated the numbers in the final paragraph. However, we still have only 4 atheist organizations out of the 10 involved. So, my point stands.
posted by Melinda at
11:12 AM
7 Comments:
Hello again, Melinda. I tried to post the comment below at Nisbet's blog, but it was either eaten by the SciBlogs software (entirely plausible) or censored by Nisbet; either way, it has not shown up on the blog.
Since my comment is centrally relevant to your post here, I think it's worth submitting:
--
Melinda wrote (at Nisbet's blog):
I've read the [Volokh child-custody] information to which you linked and I agree that these are violations of civil rights. My point is still that there is legal recourse for overturning these decisions based on existing law and Supreme Court precedent.
And what I've been trying to get across is that you are specifically mistaken about this. There is no statute barring discrimination against atheists in custody disputes. There is no "Supreme Court precendent" barring discrimination against atheists in custody disputes. You refer to "legal recourse" that we atheists have in this matter, but what I'm trying to tell you is that concrete law to protect us only exists in your imagination.
In the case of gay people, this is rarely if ever the case.
Well, you do have Lawrence v. Texas, Goodridge v. Department of Public Health, and various states' non-discrimination laws, which ain't chicken feed--but I certainly agree that the U.S. needs a lot more legal protection for GLBT people.
I'm just trying to point out that your "legal recourse" for trying to marry your partner and my "legal recourse" for trying to retain custody of my children in a (theoretical) divorce from my Christian opposite-sex spouse are exactly the same. In both cases, our only hope is to stomp into an appeals court and point at the First Amendment (and analogous state-constitutional provisions), the Fourteenth Amendment (ditto), and the Full Faith and Credit Clause of Article IV, Section 1. Unless you are in Massachusetts, neither one of us has any "existing law and Supreme Court precedent" that, in terms, protects our rights.
I'm not trying to downplay the need to get the government to enforce existing law....
No, you're failing to notice that in the cases Volokh has cited there is no "existing law" to prevent this particular variety of disgusting discrimination against nonbelievers. Atheist parents are just as vulnerable to bigotry in custody disputes as gay parents (thousands of whom, as you no doubt know, have had their children taken away from them by in-laws or ex-partners) are.
So we really are in the same boat legally, Melinda.
As to the current post specifically, you are once again failing to notice the very real law that has been established that specifically licenses discrimination against nonbelievers.
Again, Eugene Volokh's law review article is Exhibit A here--he found seventy-two American court cases in which a court decided that one parent's atheism or apathy regarding religion was a reason to deny that parent custody of his/her children. Those decisions are law, Melinda. Bigoted law that is currently subject to no pending challenges. I do not understand how you can treat it so cavalierly.
You wrote:
Under existing local, state, and federal laws as well as standing Supreme Court precedent, discrimination based on religion is a crime.
Indeed it is. But several courts have found that discrimination against atheists does not constitute "discrimination based on religion," because we have no belief in gods, no "religion." Just such a case (a court opinion--which is law) was cited in the Nisbet comment thread. Again, you seem to have missed it.
Those decisions notwithstanding, of course discrimination against atheists is religious discrimination that ought to be overturned by any authority that reviews it. But by exactly the same token, marriage/ adoption/employment/hospital visitation/etc. laws that discriminate against GLBTs are, of course, violations of bedrock constitutional principles such as equal protection and full faith and credit. Does that mean there's no problem?
No. As you're well aware, the problem with the above logic is that these bedrock constitutional principles are not self-enforcing. Hell yes, DOMA is unconstitutional--but somehow I suspect your state's legal authorities will still deny you the right to marry a woman you love. The atheists involved in the cases Volokh cites are in precisely the same boat. It does us little good to read your wan assurances that antidiscrimination law is on our side. Gee, thanks.
These laws are enforced by the government both to protect religious minorities and to protect the nonreligious minority. ... Hate crimes against atheists are prosecuted under these laws.
Please, find me a single case in which religious nondiscrimination laws or hate crimes laws have been applied to discrimination or hate that has been perpetrated against atheists. I'm skeptical that you can.
A few such cases do exist, of course--but not nearly as many as you imply. Governmental authorities are in fact very reticent to apply nondiscrimination policies to atheists. (Just like they are to gays.) Again, your people and mine are in the same boat: we have our handful of low-level victories, while you've got Lawrence, Goodridge, a few other court decisions, and various nondiscrimination statutes. So when you write:
Under existing law, gay people are a separate, unprotected class specifically denied equal protection by force of law.
...I can cite Lawrence (and Romer v. Evans); no, the U.S. Supreme Court has specifically said in those cases that you cannot legally be "specifically denied equal protection by force of law." But I think you've noticed that those decisions haven't destroyed all homophobic government actions, any more than the pro-atheist principles you cite have made my kind fully free.
It's clear that you are very familiar with the many (and severe) ways that the government discriminates against you, Melinda. So am I; I've been marching and litigating on behalf of GLBT rights for many years. But the distinctions you are trying to draw here are fundamentally based on your lack of understanding of the ways in which, and the extent to which, American governmental entities do in fact discriminate against nonbelievers. Please do not dismiss suffering and injustice that you do not understand.
This is very complicated, but I'll try to explain it.
Is there a specific Supreme Court precedent for religious discrimination in child custody? No. However, the Supreme Court did decide that atheism should be counted as a religion for legal purposes, a precedent which is binding on all courts in this country. The SC and lower courts have applied this precedent broadly to a variety of cases. (See Torcaso v. Watkins, 1961; Wisconsin v. Yoder, 1972; Malnak v. Yogi, 1979; Lindell v. McCallum, 2003; et al.) It is almost certain that, once a case goes forth, the SC, the federal courts or any state high court would apply this precedent to religious discrimination in child custody is unconstitutional and would protect atheists as well as other religious minorities.
Gay people denied custody have no such precedent which places them within a protected class. We cannot ask for an existing precedent to be applied (which can be done at any level), but must instead seek new laws and ask the courts to create a precedent.
You cited Lawrence v. Texas, but that precedent applies solely to sexual privacy (the acts themselves) and has no broader applications by design. It was not decided on equal protection grounds. It was the hope of gay activists that we could find a way to apply it in this way, but so far attempts to apply Lawrence v. Texas outside of its narrow precedent have failed.
In Romer v. Evans, the Supreme Court made clear that Amendment 2 was a "special" case not decided upon normal rational bases and thus this precedent cannot be applied to other laws. In fact, when Cincinatti passed the similarly worded Ballot Issue 3, the Federal Appeals Court upheld it despite Romer v. Evans. The Supreme Court refused to hear the appeal, allowing it to stand.
Goodridge applies solely to Massachussetts, which has been able to sidestep the ruling to some extent by imposing state residency requirements on gay couples that do not apply to heterosexual ones. Also, with the existence of DOMA on the federal and state levels, Mass. gay marriages will not be acknowledged by the federal govt. or by the states.
Although gay people are protected by "some" state and local laws, most states do not offer protection and federal protections are non-existent. Currently, 38 states have DOMA and nearly two dozen have constitutional amendments banning gay marriage, and in some cases, domestic partnerships, civil unions, and any contract which grants the benefits of marriage. There is no Supreme Court precedent that could be readily applied to laws that discriminate against gay people or include gay people in a protected class. We are in the position of having to create precedent and overturn laws from fresh ground every time.
So, in child custody, you would be asking an appellate court to apply a broadly applicable Supreme Court precedent. We would be asking an appellate court to create a precedent from whole cloth with no guidance from the Supreme Court, which has intentionally avoided applying equal protection requirements to gay people and has intentionally avoided creating precedents which would offer broader protections for gay people.
Now, as for the court opinion/law issue. Judicial precedent is only binding on courts lower than the one issuing the opinion and within that court's region of influence. Decisions made in custody cases are generally made at the lowest court level, are not binding on other courts and do not carry the force of law.
Finally, I'll point out here that the religious discrimination in child custody trend affects many religious minorities, not just atheists, and is thus not specifically an atheist rights issue. It would fall under the umbrella of intrusions on the separation of church and state. Since this is true, we cannot then say that this trend makes the atheism movement specifically a Civil rights movement. Instead, it is part of a greater movement to ensure the separation of church and state for the benefit of all Americans.
Do people/governments discriminate against atheists? Absolutely. Usually, however, this discrimination is part of a larger discrimination against religious minorities or a larger intrusion on separation of church and state. I can tell you for a fact that Christians who would discriminate against you as an atheist would discriminate against me as a Jew, because we are the same thing in their minds.
I can tell you honestly that I feel more at risk as a gay person than as a Jew, because I know that I can be protected as a Jew and that I cannot be protected as a gay person.
This is very complicated, but I'll try to explain it.
I’m a civil rights litigator. I think I can probably handle the complexity. [Rolls eyes]
However, the Supreme Court did decide that atheism should be counted as a religion for legal purposes....
I’d like to see a cite for that, because none of yours supports your statement:
The SC and lower courts have applied this precedent broadly to a variety of cases. (See Torcaso v. Watkins, 1961;
That case is about notary publics; it has nothing to do with child custody and contains no statement that “atheism should be counted as a religion for legal purposes.”
Wisconsin v. Yoder, 1972;
Compulsory education for Amish children. Doesn’t even mention atheism. (Though it does denigrate the notion that “secular” ideas can be the grounds for a Free Exercise claim. This case doesn’t help us, it hurts us.)
Malnak v. Yogi, 1979;
Transcendental Meditation in public schools. Doesn’t address atheism. (In fact, the opinion provides a test for protection under the religion clauses that would clearly exclude atheism. It’s another case that cuts against us.) It’s also from the Third Circuit, which includes neither your state nor mine.
Lindell v. McCallum, 2003; et al.
Prisoner professing “Wotanism” complains about prison administration. Seventh Circuit opinion that doesn’t address atheism.
It is almost certain that, once a case goes forth, the SC, the federal courts or any state high court would apply this precedent to religious discrimination in child custody is unconstitutional and would protect atheists...
“Almost certain”? I think you’re wrong. I think it’s entirely clear that the modern Supreme Court (and plenty of other jurisdictions’ high courts) is perfectly willing to tie itself in knots in order to avoid reaching otherwise-unavoidable decisions that would favor atheists. A relevant cite to that end is Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).
On one hand, I have presented you with an article listing thirty years’ worth of cases in which atheists have been explicitly discriminated against by judges--and not a single one of these decisions has been overturned. On the other hand, you haven’t found us a case decided in the last forty-five years that favors an atheist litigant. Under those circumstances, why should I accept your “almost certain” guess?
Gay people denied custody have no such precedent which places them within a protected class.
There is no precedent that “places” atheists “within a protected class.” All you’ve cited is Torcaso, which held that people can’t be forced to accept the government’s religion as a condition for acquiring a notary license. That has no direct application to child custody, or to plenty of other situations in which nonbelievers are discriminated against.
We cannot ask for an existing precedent to be applied (which can be done at any level), but must instead seek new laws and ask the courts to create a precedent.
As you conceded above, exactly the same condition applies to atheists. Because there is no precedent barring discrimination against atheists in child custody, our only recourse is to argument by analogy from other precedents (such as Torcaso). We try. As Volokh has documented (and you refuse to notice), we fail. Continually. Do you care?
Moreover, Volokh’s cites cover thirty years of custody cases. Over all that time, no one has succeeded in getting any of these bigoted decisions overturned--or even noticed--by a high court. Doesn’t that suggest that there might be something wrong with your account?
Finally, as I’ll discuss below, those of us who actually litigate gay rights cases have certainly not given up on the very real pro-gay precedents that you are about to badmouth:
You cited Lawrence v. Texas, but that precedent applies solely to sexual privacy (the acts themselves) and has no broader applications by design.
My goodness--if you’d ever like to be treated equitably by the state of (!) Virginia, I suggest you don’t let a federal judge hear you say that. Lawrence is the greatest victory the gay-rights movement has ever won in the federal courts. It is sure as hell at least as applicable to current controversies as Torcaso is.
It was not decided on equal protection grounds.
So what? The Due Process Clause has plenty of application to gay-rights issues, far beyond sex. As the Lawrence Court held, “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” I see one or two issues in that list that sure seem to me rather relevant to GLBT rights. (And there are plenty of other reasons Lawrence remains valuable. Read Scalia’s dissent, for goodness’ sake; he certainly sees what’s coming.)
It was the hope of gay activists that we could find a way to apply it in this way, but so far attempts to apply Lawrence v. Texas outside of its narrow precedent have failed.
Whereas atheists are having resounding success citing Torcaso and keeping custody of our kids? (“Success” as in zero wins and seventy-two losses. That we know of.)
In Romer v. Evans, the Supreme Court made clear that Amendment 2 was a "special" case not decided upon normal rational bases and thus this precedent cannot be applied to other laws.
And you’re going to concede that Virginia’s anti-gay crapola is rational? Surely you’re joking.
You’re denigrating the greatest precedential weapons that gay-rights legal advocates (like me) have! Are you crazy?
("Special," my eye. Lack of rational basis was the winning argument in Goodridge, too. And Goodridge cited Romer on precisely that point! I'm sure glad Mary Bonauto didn't give up on Romer as easily as you do....)
Goodridge applies solely to Massachussetts, which has been able to sidestep the ruling to some extent by imposing state residency requirements on gay couples that do not apply to heterosexual ones.
Not for long....
Also, with the existence of DOMA on the federal and state levels, Mass. gay marriages will not be acknowledged by the federal govt. or by the states.
Yes, fine. You are intimately familiar with the absurd roadblocks that homophobes in positions of power have thrown up to prevent the recognition of GLBT rights that are obviously contained in the Fourteenth Amendment and the Full Faith and Credit Clause. Those roadblocks (despite your inexplicable concessions above) are bullshit, and non-homophobic judges will hopefully sweep them away one day.
But, Melinda, atheists have exactly the same problem. We have our obvious Constitutional rights sandbagged by absurd legal obstacles (such as the “Newdow can’t sue on his daughter’s behalf” idiocy) in exactly the same way you do; as far as I can tell, the only real substance of your disagreement with me is that you are ignorant of the bullshit roadblocks that get in the way of my rights. The Supreme Court just erected a brand-new obstacle for atheists early this week; did you notice?
So, in child custody, you would be asking an appellate court to apply a broadly applicable Supreme Court precedent.
Which you have not cited and I don’t believe exists. How can you concede that there is no decision barring discrimination against atheists in child custody disputes and then claim that there is “a broadly applicable Supreme Court precedent” that does exactly that?
We would be asking an appellate court to create a precedent from whole cloth with no guidance from the Supreme Court,
Baloney. Lawrence and Romer are every bit as on-point as any case about atheist rights is. You just need to quit listening to homophobic judges explain what those cases do and don’t say. (Or else you can listen to seventy-two atheophobic judges explain what rights atheists do and don’t have. Either way, you still haven’t distinguished homophobic law from atheophobic law.)
Now, as for the court opinion/law issue. Judicial precedent is only binding on courts lower than the one issuing the opinion and within that court's region of influence.
Indeed (which makes it a bit mysterious that you cited Third and Seventh Circuit cases above, given that neither you nor I live in those circuits). But there is such a thing as persuasive precedent as well--and trial courts cite one another’s decisions all the time.
Decisions made in custody cases are generally made at the lowest court level, are not binding on other courts and do not carry the force of law.
Melinda. Read Volokh’s article. Please. A huge chunk of the cases he cites are from appeals courts.
Finally, I'll point out here that the religious discrimination in child custody trend affects many religious minorities, not just atheists, and is thus not specifically an atheist rights issue.
Again, you have just obviously not read Volokh’s article. What he documents is seventy-two instances in which a judge explicitly, in writing, held that a parent’s irreligion justified denying him or her custody. I defy you to find me a single case in which a judge has written anything close to that about a parent’s Judaism, Islam, Hinduism, or any other faith. That makes this a materially different issue than “religious discrimination in child custody” in general--this is explicit, open religious discrimination. Which went utterly unnoticed by commentators and high courts alike (thanks to bullshit roadblocks you know nothing about).
I have to admit that your attitude about Volokh’s article bothers me. I have spent a sizeable chunk of my life litigating and advocating so that your rights as a lesbian are recognized in federal and state law. (My office sure hasn’t given up on Lawrence and Romer!) For you to show such disinterest in my rights--you clearly have no time for Volokh--while at the same time you spin stories about how easy it is for me to vindicate them in court... well, that frosts the hell out of me.
I guess I should be thankful that my GLBT co-counsel (and clients) aren’t as disinterested in other folks’ oppression as you are.
It would fall under the umbrella of intrusions on the separation of church and state. Since this is true, we cannot then say that this trend makes the atheism movement specifically a Civil rights movement.
Non sequitur. No one has claimed that “the atheism movement” (the what?) is “specifically a Civil rights movment.” All that anyone has claimed is that discrimination against atheists is a civil rights issue. That’s it.
I can tell you honestly that I feel more at risk as a gay person than as a Jew, because I know that I can be protected as a Jew and that I cannot be protected as a gay person.
How nice for you. Unfortunately for millions of us, atheophobia is much more socially (and legally) acceptable than anti-Semitism is.
I regret that you care so little about injustice that you think doesn’t affect you.
rieux,
If you actually read the post, you'd note that I said that it is an "issue" in the sense that these are violations of human rights but that it simply does not make the atheist movement a civil rights movement per se. I think atheist rights are bound with those of religious minorities as a group and bound to our absolutely necessary separation of church and state. Those who would come for you would come for me in a heartbeat.
As for the legal cases I cited, they're from a page on American Atheists. I was going to post a link within the comment, but to be honest I'm not very good at html. I'll post them as an update to the post. I cited lower court cases, b/c they represented applications of SC precedent in this matter according to American Atheists. I'm sorry that I didn't have enough time to read every single SC decision on the matter.
Now, let's get to the personal stuff.
You don't know me, so don't presume I don't care about other people's rights. I've spent nearly fifteen years of my life fighting in a variety of social and economic causes, risking arrest and even my life on multiple occasions. I've stood up for atheists many times in my writing and in my life.
And if you think anti-Semitism isn't still a huge problem in this country, you're obviously deluded. Ever heard of the American NeoNazi movement, Aryan Nation, Nation of Islam, Ku Klux Klan, etc. How many secular humanist meetings have been firebombed? How many atheist organizations have had swastikas painted on their buildings? Those fundamentalists who are out for you, Well, they think the only way for their Messiah to return is for Jews like me to be forcibly converted or killed.
I literally have had to go through metal detectors to go to synagogue. My synagogue here doesn't allow any bags (including purses) to be brought into the building for security reasons. Get it? We live in fear. And I still feel safer as a Jew than I do as a gay person.
I think when you mention Center for Inquiry and link to it, you mean to link to http://www.centerforinquiry.net not http://cfi.hanover.edu/ Center for Inquiry is the think tank advancing reason, science and secular values, and publishing the magazines for seculars and atheists. The other group is a thing at Hanover College concerning itself with liberal arts education, not secularism or atheism at all. Just FYI.
The FFRF website lists the "Center for Free Inquiry" not the "Center for Inquiry. The only "Center for Free Inquiry" I could find was the one at Hanover University. I note on the site that they filed a joint brief with the Center for Secular Humanism, so I'll add the Center for Secular Humanism. I'm trying to download a copy of the brief so that I can clear up the confusion with the Center for Free Inquiry.
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