Disclaimer: Eddie Tabash is a civil and constitutional rights lawyer in Beverly Hills, California. He chairs the Center for Inquiry West, the Council for Secular Humanism in Los Angeles. He chairs the National Legal Committee for Americans United for Separation of Church and State . On March 7th of this year, he placed second out of four in the Democratic primary for the California State Assembly in the 55th District. He was the only open Atheist to be a major contender for a state legislative seat in this year's election cycle. He also sits as a part time judge for the Los Angeles County Superior Court system. The views expressed in this article are his own and not those of any non profit organization for which he may volunteer.
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Why Atheists Must Elect Al Gore as President
There are a variety of issues and interests that a conscientious social/political activist can use to determine how to choose among competing candidates. Given how precarious the condition of non believers is in our nation's current political climate, I now argue that we Atheists must choose who we will support for president based upon what is in the best interests of Americans who do not believe in god.
A recent Gallup Poll showed that the majority of American voters would sooner vote for a gay or lesbian candidate than for an Atheist. I know this to be true, firsthand, because in my first bid for the California Legislature in 1994, I was defeated in the Democratic primary by an openly lesbian candidate, Sheila Kuehl, who also used to be a nationwide television star from 1959 to 1963, playing "Zelda" on the Dobie Gillis Show. There is no characteristic about a candidate that voters would reject more completely than a lack of belief in god. Notwithstanding the intellectual firepower of our arguments, notwithstanding how cogently our philosophers have been able to establish the case for naturalism, notwithstanding the complete dearth of evidence of the supernatural in our world, the overwhelming mass of people in our country continue to believe in a fantasy creature and further believe that those of us who do not share the illusion are defective and immoral.
With this as a background, we non believers have been shielded from formally suffering second class citizenship by only one institution of government, the United States Supreme Court. It is the Court that has consistently held that no branch of government, state, local, or federal can favor belief over non belief. In our system of government, the Court is the final arbiter of all issues pertaining to the interpretation of the religion clauses of the First Amendment. Since all legislation, from any government body, anywhere in the United States, can be struck down by the Court, any and all efforts to favor belief over non belief, or believers over non believers, cannot survive if the Court rules any such enactment to be unconstitutional.
The only reason why local public school boards are not now composing and then imposing prayers is that the Supreme Court said that they couldn't, Engel v. Vitale, 370 U.S. 421 (1962). The only reason why religious devotional recitations of the bible cannot be formally orchestrated by public school administrators is because the Supreme Court has said that they can't, School District v. Schempp, 374 U.S. 203 (1963). The only reason why no branch of government can exclude any person from any public office who does not believe in god is because the Supreme Court has prohibited such discrimination against non believers, Torcaso v. Watkins, 367 U.S. 488 (1961). The only reason why various states don't today have laws that ban anything that is offensive to religion is that the Supreme Court has declared such laws to be unconstitutional, Burstyn v. Wilson, 343 U.S. 495 (1952)
If the losing side of any of the above cited cases had been able to command a vote of five justices, we would have now been living under a religious tyranny. Our legal freedoms as non believers, our very legal equality, exist only because we have been able to always hold onto, at least up through the present time, a majority on the Supreme Court that recognizes how the First Amendment does not allow non believers to be shunted off into second class citizenship.
Since 1947, there has always been a majority of justices who have held that no branch of government can favor belief over non belief, Everson v. Board of Education, 330 U.S. 1 (1947). A majority of Americans have always furiously disagreed with this. They do not understand the countermajoritarian thrust of the Bill of Rights. Most people see no evil in allowing the government to openly show favoritism to the dominant religion in a given region. The dangers inherent in majority imposed religion are lost on most people in our country.
The recent Gallup Poll, referred to earlier, shows that a majority of Americans have not evolved the type of enlightened awareness necessary to accept the equality of non believers. This backward majority sentiment would be implemented by most legislative bodies if it were not for 53 years of consistent Supreme Court rulings requiring government bodies to refrain from showing favoritism to religions belief over non belief.
The current Supreme Court has a majority of six justices who adhere to the principle that no branch of government may show a preference for belief over non belief. Three justices hold the opposite view. These are Chief Justice Rehnquist, and Associate Justices Scalia and Thomas.
If these three obtain just two more allies, they will have, for the first time ever, the five vote majority they need to reverse decades of constitutional law and institute a new constitutional interpretation that would, this time, permit government bodies at all levels to favor belief over non belief.
George Bush is pledged to putting people on the Court who would create that five vote majority to literally end the separation of church and state. Gore is pledged to putting people on the Court who would uphold the currently prevailing interpretation of strict government neutrality between belief and non belief. Bush has declared on numerous occasions that he would appoint Supreme Court justices like Scalia. Gore has declared that he would appoint justices like Harry Blackmun, the author of the Roe v. Wade, 410 U.S. 113 (1973), decision that legalized abortion. Blackmun was also one of the staunchest supporters of strict church/state separation.
In the Summer of 1999, Gore told me personally that he would say something publicly about the equal rights of non believers before the end of the year. In his debate against Bill Bradley in December of 99', Gore said that Atheists have the exact same right to participate in making public policy as anyone else. He kept his word to me.
Now, it is true that Gore and, particularly, Lieberman, have made verbal concessions to the role of religion in American life that are troubling for non believers. However, we must learn to play the pragmatic game of practical politics and look beyond form to substance. Because of the religion-crazed society we presently live in, no one can get elected president without making all sorts of verbal prostrations toward the biblical god. Any candidate who does not profess to being tethered to either the old testament, the new, or both, will lose. In 1992, then candidate Clinton denounced as having gone too far the Supreme Court decision, Lee v. Weisman, 505 U.S. 577 (1992), which prohibited any prayer given by any clergy at a public high school graduation. But, guess what? President Clinton, over the next two years appointed two justices to the Court who have voted to uphold the very principle on which this case was anchored. Had Bush, Sr., been reelected in 1992, we would no longer have church/state separation because he would have made the last two appointments to the Court, giving the religious right a 5 to 4 majority against us. Instead, because Clinton filled the last two vacancies, in 1993 and 1994, we currently have a 6 to 3 majority in our favor.
The practical lesson from this is that it does not matter what a presidential or vice presidential candidate says on the campaign trail. What matters is who each candidate will actually nominate to the Supreme Court as vacancies occur in the administration in question.
The next president will have from two to four vacancies on the Court to fill. The next two to retire will be Justice Stevens, on our side, and Justice O'Connor, also on our side on the precise issue of the impermissibility of government body's favoring belief over non belief. If Bush replaces these two, then Rehnquist, Scalia, and Thomas will have their two allies to now constitute a 5 to 4 majority in favor of allowing government bodies to officially favor belief over non belief. If Gore replaces Stevens and O'Connor, we will preserve our current 6 to 3 majority on this most crucial of issues.
Now, it's true that religious right wing sympathizing presidents have made "mistakes" in our favor. Bush, Sr. miscalculated and gave us David Souter in 1990. However, President Bush learned from his "mistake" and a year later got back at us church/state separationists by giving us Clarence Thomas. Bush, Jr. would give us more Clarence Thomas type justices. Gore never would. Now with the internet, and other improved means of researching a judicial nominee, there is less of a chance of Bush, Jr. giving us a church/state separationist by mistake than there was when his father was president. The Souter experience taught the religious right how to more thoroughly investigate a prospective judicial nominee and then advise their captive president with greater accuracy.
Today, there are six justices on the Court that have adopted Justice O'Connor's formula that no branch of government may send a message to non believers that they are outsiders, Santa Fe Independent School District v. Doe, 120 S.Ct. 2266, 2279 (2000). This degree of solicitude for us, such that government bodies may not undertake activities that make us feel like we are second class citizens, or in any way less preferred than believers, hangs by a margin of two votes. If Bush puts the next two voting justices on the Court, the protection that we have been officially receiving from the Court over the past several decades will vanish.
Thus, if we are going to be pragmatic in preserving our rights, it does not matter if Lieberman even circumcises bananas in public or if he frets over the absence of kosher food on campaign stops. What counts more than any other consideration is that Gore, and not Bush, makes the next round of appointments to the Supreme Court. We Atheists are supposed to be practical. We are supposed to base our actions on concrete evidence from the physical universe. It is mathematically beyond dispute that a vote for Ralph Nader will help elect Bush. Each state is on a winner take all system of electoral votes. Thus, if, in any state in which the election is close between Bush and Gore, Nader were to take enough votes away from Gore so that Bush gets more votes than any other individual candidate, all the electoral votes of that state go to Bush for the total count. Nader also cannot win this election. So a vote for him is not only wasted it actually helps elect Bush.
Realistically, then, only one of two men will be the next president of the United States, Bush or Gore. We Atheists frequently go back and forth in discussions and arguments with each other, sometimes seemingly endlessly. However, on the question of this election, there is cold hard closure. No realist can avoid the recognition that this election is only between these two candidates. Thus, no realist can avoid the recognition that either Gore or Bush, and no one else, will fill the next round of Supreme Court vacancies.
Once we understand how our system of government works, once we understand that everything related to preserving equal rights for non believers hinges ultimately on a minimum of five votes on the Supreme Court, we cannot avoid the conclusion that we must do everything we can to put Al Gore in the White House. If you still have doubts, please read and re-read this and then, think some more, and vote for Gore.
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