Peter Irons – God on Trial

July 27, 2007

Peter Irons is professor emeritus of political science at the University of California, San Diego. A noted constitutional scholar, historian, and lawyer, he is the author of the bestselling May It Please the Court; The Battle for the Constitution; War Powers: How the Imperial Presidency Hijacked the Constitution; and A People’s History of the Supreme Court. His newest book is God on Trial: Dispatches from America’s Religious Battlefields.

In this conversation with D.J. Grothe, Peter Irons discusses the legal issues involved in the church-state court cases detailed in God on Trial, the personalities involved in the various cases and their motivations, and how religion can be so divisive in society. He also explores whether or not atheism is a civil rights issue, and what secularists and religious people alike may do to help secure separation of church and state in the United States.

This is point of inquiry for Friday, July 27, 2007. 

It’s Friday, so here’s another point of inquiry welcome. I’m DJ Grothe a point of inquiries, the radio show and podcast of the Center for Inquiry, a think tank advancing reasons, science and secular values in public affairs. Before we get to this week’s guests, the author of the new book, God on Trial. Here’s a word from this week’s sponsor. 

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My guest today is Peter Irons, Professor Emeritus of political science at the University of California, San Diego, and a member of the United States Supreme Court bar, the author of many award winning books, including A People’s History of the Supreme Court. His newest book is God on Trial Dispatches from America’s Religious Battlefields, which is a series of in-depth looks at several high profile church state lawsuits. What I really like about this book is that it’s not just a dry recounting of all the legal questions surrounding these cases, but it also really gets into the stories behind these cases, the people involved in these legal battles and what motivated them to bring their cases forward on both sides of the church state issues. Welcome to Point of Inquiry, Professor Peter Ion’s. 

I’m very glad to be here. DJ Grothe. 

First, let me say, Professor, how much I enjoyed your book in it. You’re detailing six famous kind of recent court cases, some of which went all the way to the United States Supreme Court, and all of which kind of focus on Americans who brought challenges to religion or religious symbols in the public square. So let’s start off talking about all this by getting into why you wrote the book. Look, the book spent indorse big time by people on each side of these issues. The Reverend Barry Lynn endorsed it from Americans United for Separation Church and State and Jay Sekulow from Pat Robertson’s ACLJ, which is like, you know, the religious right’s version of the ACLU. So are you writing this book just to give each side in this culture war over church state separation a fair shake, or do you have an agenda as you’re writing this book? 

Well, I don’t have an agenda. D.J., I have a point of view. I firmly believe in separation of church and state. But what I set out to do in the book and the reason I think that both Barry Lynn and Jay Sekulow said very nice things about it is that this is an issue that divides Americans almost right down the middle. And what I wanted to do was to give both sides a chance to speak their piece and explain their views. And what I did actually was to visit all the communities in which these six cases started over the last year or so and talk to people on both sides and put their stories into the book. One thing the book does is include the interviews I did with people on both sides of these cases, people who brought the challenges to these religious symbols and practices and the people who defended them. 

Right. You’re you’re not just recounting all the legal issues, but you’re doing some great storytelling about the people involved in these legal battles. What motivated them to bring the cases forward? You say that these religious these church state separation issues are more divisive in America than really anything else besides maybe race. 

Yeah, and it’s true. Over the past 400 years, ever since the country was settled by the Puritans. 

There have been divisions over religion. I’ve written books earlier about divisions over race, which, of course, have generated the most division in American society, including the Civil War. 

But religion has always divided Americans, partly because the country was settled by people who came here supposedly seeking religious freedom. But in fact, denying it to people who descended from their Puritan religious views. And even today, the country is almost evenly divided by people who consider this a, quote, Christian nation and people who think it’s basically a secular nation. And they’ve been fighting these battles for many years. And a lot of them get into the courts. 

You say their religion is so divisive, yet you dedicate the book to your friends in the United Methodist Church. Are you religious yourself? 

Well, it’s interesting. I live in a very small town in Northern California. I was born and raised as a Unitarian Universalist. 

You know, that weakens your hand right away with your cultural competitors, right? 

Well, it’s interesting because Unitarians really believe in. And the whole religion is based on. Tolerance and a non credal view of religion. But here in Greenville, I turned to Methodist Church partly because the people are really nice and very tolerant of me. As I say, I’m the only non Christian in their pews. But at the same time, I also dedicated the book to one of the people who brought a case that I write about, a case involving a 43 foot cross in a public park in San Diego. A man named Phillip Paulson, who is a very, I hate to say, devout, but very militant atheist. So on both sides, there are people who I admire who I find, you know, compatible. 

But on the other hand, there are people in many of these communities that I visited and wrote about who are not tolerant of their of their neighbors, particularly when they challenge religious symbols and practices that the majority in the community is supporting. And they can’t understand why anybody would challenge these things. 

One of the cases you get into the book happened in your own backyard there in San Diego, the Mount Soledad cross display. Is this one of the instances that was so divisive in the community? 

Well, it has been. This is an interesting case, T.J., because it was originally filed in federal court in 1989. And for nine years, I was a pro bono lawyer who represented the plaintiffs in this case, including Phillip Paulson. And over the years, ever since the case was filed, the city and a majority of the residents in San Diego have fought very hard to keep the cross in the public park in Mount Soledad. Keep in mind that this is a public park supported by, you know, taxes from everybody in the city. But it’s a Christian symbol. And a very conservative Republican judge ruled back in 1991 that it didn’t belong in the park because it was what he called the preeminent symbol of the Christian religion and violated both the California and the federal constitution Jim Underdown. 

There have been similar rulings a number of times, yet the cross is still on Mount Solidary. 

That’s a funny thing because the city has fought so hard to keep the cross up there and they’ve gone through all kinds of evasive maneuvers to avoid the judge’s ruling. First, they sold a very small plot of land under the cross just 15 feet square to a private organization that had erected the cross. It was called the Easter Cross because they held Easter Sunrise services every year around the cross. And when the judges struck that down all the way up to the Supreme Court, the city went back and they sold a slightly larger portion of the land, about a third of an acre. This is in a seven hundred and twenty acre public park. And the court struck that down. So the latest maneuver just this past year was that the city deeded this property to the federal government as a supposed war memorial. President Bush signed that legislation and it’s now back in federal court for another hearing on whether that violates the federal constitution. 

And you’ve been personally involved in this case. When did you get involved yourself? 

Well, I originally had thought of filing a suit myself. But when I heard that these two men, Phil Paulson, whom Howard gracer, were planning to file a suit, I volunteered to represent them in court. And I did so for nine years. I dropped out of the case in 1998 because I was getting threats from people who objected to my my legal effort. 

And you feared for your safety. You dropped out because of threats of violence? 

Well, yes. And actually, I dropped out because I have two daughters who were very young at the time, and my wife was afraid that somebody might actually harm them. And I thought that was sufficiently disturbing that I turned the case over to another attorney. But I think what it what this case shows is that people can get so upset when anybody challenges what they think are their rights to have their religious symbols and practices in public places, whether it’s a park or a courthouse or a school, that they really become very intolerant and sometimes even resort to threats, you know, whether they’re overt or veiled threats. 

There’s so much to talk about regarding the book. But if you don’t mind, I want to explore this notion of being threatened a little bit more. You’re a leading authority on civil rights and on the Supreme Court. I should say that I really enjoyed your. I mean, I’m going to sound like a fanboy or something, but I enjoyed your teaching company series. The history of Supreme Court, one of the things I want to talk about is this feeling threatened because of your your role in defending church state separation in the atheist movement in quotes. There are some leaders who equate the plight of atheists in our society with the plates of gays or blacks or women. Some even saying at the at the Godless March on Washington a few years ago that the time has finally come for atheists to get their civil rights. You felt threatened because or on behalf of your children, maybe because people became so intolerant regarding these divisive religious issues. Do you think that Athie ism and nonbelievers, innocent in our society, have reason to feel justice threatened, kind of seeing themselves as an oppressed minority? 

Well, I think they do. In fact, you know, there was a recent poll that ask people if there were certain candidates for public office that they would not vote for. And it turns out that people are becoming increasingly tolerant of women, of gays and lesbians, of African-Americans running for office. But the one group that most people will not support are atheists. And, of course, as we know very recently, one member of Congress, Pete Stark from California, admitted that he was not a religious believer, that he was an atheist. And so far, he’s the only one of all the members of Congress who has had the courage to come out and say that although I’m sure there are others who are still in the atheist closet, so to speak. 

Right. I think there is an issue about atheists needing to come out of the closet or secular, a secular humanist, whatever you want to call it, not just Hard-Line Atheists, but as an atheist, I should say that I don’t really see atheists as an oppressed minority in need of liberation. Atheist don’t make 80 cents on the dollar compared to the religious neighbors like women do compared to men. Atheists don’t seem like they’re really subject to unfair housing practices or violence on par with GSB tea community or, you know, the black community. Yet you felt threatened because of your defense of secularism. So I guess say I have questions about all of that. I, I really side with people like Richard Dawkins who who as an atheist, he talks about raising consciousness, not a pressing a minority, but raising consciousness in our culture, that being an atheist is perfectly sensible. That there are a lot of atheists out there. So what’s your take? Do you think that this church state separation cases, these violations of the establishment clause, are these civil rights violations? 

Well, I think they are really. For one thing and it’s interesting to he racist, T.J., you know, only recently, really in the past several months for people like Richard Dawkins and Sam Harris and Christopher Hitchens made Athie ism or secularism really an issue. And they’ve written books that have sold, you know, hundreds of thousands of copies. So there’s obviously a segment of the public that is beginning to feel that this is a civil rights issue, which I really think it is. But the other interesting thing, T.J., is that most of the people that I interviewed in these communities who had brought challenges to these religious symbols and practices, you know, posting the Ten Commandments in county courthouses, having prayers at high school football games, reciting the words under God in the Pledge of Allegiance. Most of these people, in fact, are religious believers, Jim Underdown their religious believers. 

They’re Christians coming from small towns. They’re religious people standing up for secularism, not some atheist minority with an agenda to change America, but they’re religious people. 

Yes, they are. And what’s what’s sort of ironic is that the people who were defending these religious symbols and practices aren’t willing to admit that fellow religious believers could actually believe in the separation of church and state. I mean, there are a lot of people out there who really believe that the Christian majority in this country, although it’s shrinking in numbers, is still considerably in the majority, have the right to decide what goes up in their communities. What happens in their schools and their courthouses. And they tend to paint all of their opponents as atheists or secular humanist. You know, they say they’re not willing to admit that within the broad spectrum of religious belief. There are people who disagree with them. 

I’d like to let our listeners know that you can get a copy of God on trial dispatches from America’s Religious. Fields through our website point of inquiry, dawg. If you’re at all interested in church state separation and the stories behind the movers and shakers in this and why they brought these cases to the courts, you need a copy of this book. So get it at point of inquiry dot org. Peter, you write in the book about Mike Newdow and his Pledge of Allegiance case, the intelligent design case in Dover in 2005 about cases surrounding the display of the Ten Commandments in Texas and other places. Which one of these cases that you detail interested you most? 

Well, that’s a good question. I mean, obviously, they all interested me enough to write about them and visit the communities in which they started and talk to the people on both sides. But the one case that really struck me the most was a case involving prayers of high school football games in Santa Fe, Texas. And the reason it struck me was that this is a small town. Virtually everybody who lives in Santa Fe is a Southern Baptist. They’re very conservative people. And when a few parents objected to religious practices in the schools, not only prayers that the football games, but also classroom prayers, prayers at the graduation ceremonies, handing out Bibles and fliers for religious revivals in the classrooms, there was a tremendous uproar. And the people who objected to this were subjected to tremendous hostility, ostracism and even threats themselves. And that actually, let me read just a few sentences from the interview I did with a woman named Debby Mason, please, Santa Fe, Texas. And she had three daughters in the high school there. And she objected and her daughters objected to having all these religious practices. And Debbie, by the way, was herself raised as a as a Baptist. 

So she was not some atheist who was just, you know, trying to disrupt the whole community. 

And she said, I think people were upset with me because I was the most vocal one in the community. A few of the others who were vocal at the beginning got scared when they go to school board meetings and see what was going on. There were times when I’d be out some place and I’d have a car follow me home. We get phone call. People would tell you, watch your back, watch your kids backs. We got a phone call from the district attorney down in Galveston that there was going to be a drive by shooting at one of our meetings and they had to have security. Well, I had to sit down with my daughters and my husband and explain to them this could happen if I go to this meeting and they said, Mom, what are you going to do? And I said, I don’t want to leave you kids. And they said, Well, Mama, you’ve got to do what’s right. You go and if something happens to you, it happens to you. But you can’t back down from people like that. And I went and I’ll tell you, I was scared to death. And so if things like that happen to people like Debbie Mason in this small town and they happen in communities all over the country, these cases I wrote about are really just a small handful of cases that come up involving conflicts over religion. It really says something very scary about our society. 

If there’s such intolerance toward religious minorities or, let’s say, non religious minorities in America, do you think that intolerance, that threat is only going to increase with the current makeup of the Supreme Court or as it changes? Indeed, everyone’s civil rights might be threatened with further changes to the high court. But you say in the book that if the Newdow case, we’ll talk about that in a minute. If it makes it back to the Supreme Court that you think he would win? 

Well, I’m not quite sure about that. I don’t think I said that. I think he will win. I think if the justices if a Pledge of Allegiance case gets back to the Supreme Court based their decision solely on what the Constitution says, that he would win. But on the other hand, as you said, T.J., there have been changes on the Supreme Court, two new justices in the last couple of years. Justice Sandra O’Connor has retired from the court. And it’s almost impossible to predict now what the outcome would be and in future cases involving these religious symbols and practices. And I have to say, and I say this over and over again, a lot depends on the outcome of the next election, both for president and members of the Senate, because as Supreme Court justices die or retire or resign and are replaced, it’s up to these political leaders to make decisions on who replaces them. And that is a very crucial decision. You know, there are other very important issues in our society, Iraq and health care and other things. But the issue of who sits on the Supreme Court can affect our society for decades to come. 

You just mentioned that presidential candidates or or the importance of the next election. And we were talking earlier about this raising consciousness, this slate of Athie ism, books, Dawkins’, Dannette Hitchens and Sam Harris a few nights ago on CNN. There is this YouTube presidential debate. And a questioner asked about Athie ism and religion, which I think is a sea change. The fact that presidential candidates are even talking about Athie ism amazes me. I was surprised to hear that every candidate who was given a chance to respond said that it is not all right to use one’s religion to make public policy decisions. Edwards said something like his deeply held religious beliefs may inform his values, but he thinks it is very wrong from to push his religion on America and he’ll make sure he doesn’t if he is elected. Other candidates said similar things. Here’s the question for you. Do you think that the Democratic candidates, are they just paying lip service or do you think that separation of church and state is really more valued among the Democrats than the Republicans? 

Well, first of all, I think it is obviously more valued among Democrats than Republicans because there’s not a single Republican candidate now who would even remotely advocate tolerance for nonbelievers in our society. But on the other hand, over the last couple of years, the Democrats, I think, have recognized that they have to talk to what they call the, you know, the faith based voters, the values voters. You could say that this is somewhat cynical and opportunistic. 

But as I listen to that debate and have listened to other statements by the candidates, I think that for most of them it is pretty, you know, deeply held thing that they really don’t want religion to become a divisive issue in American society, as it has over the past few decades. And they want to reassure people that their own personal religious values. 

I mean, after all, with only one exception, they all oppose same sex marriage, although they’re open to civil unions as a sort of watered down version of Jim Underdown, and they oppose same sex marriage based on their religious reasons. Well, that’s true. And I think they’re all quite candid about that. They all believe that, you know, there is a biblical sanction for one man and one woman as the only definition of marriage. How deeply they hold that view, I really don’t know. But on the other hand, the fact that they’re open to change and keep in mind that this is a change that has only started in the last few years. You know, there there there has been really a sea change in attitudes toward gays and lesbians in our society, as there was earlier, toward African-Americans and women. So this is something that isn’t going to happen, as one of the candidates said overnight. It’s going to take a while. But I can see in looking at public opinion polls and in just, you know, keeping in touch with what people are saying, that there is a significant change, whether this is going to become a real issue in the upcoming campaign. I don’t know. 

I do see a change in public acceptance of gays and lesbians and the other racial and and sexual minorities that we were talking about. Do you think that the same raising of consciousness of the public at large is going to happen for secularists or atheists or religious minorities who are skeptical of mainstream religion, even people who don’t believe it at all? 

Well, that’s good. It’s funny because that’s going to be a longer term issue. You know, as a historian, I look back at all the changes in American society since the country was founded and how different groups who were really badly oppressed by our society, particularly African-Americans and then women. More recently, gays and lesbians have fought so hard to get civil rights not only through the courts, but the political system. And I think that the really one of the last groups that will benefit from these changes, particularly a growing public tolerance, somebody once said that the reason that people are becoming more tolerant in our society is the actuarial people. You know, older people who are more prejudiced and bigoted are dying off and they’re being replaced by younger cohorts who are much more tolerant. And I think if you look at the polls, this is very clear to see. But also, D.J., this is a change that isn’t going to happen really anytime soon. It’s going to take, I think, years or even decades to reach the. That other groups have reached in their struggles for civil rights. 

Let’s finish up by getting your take on some popular sound bites that people give when they’re yammering about church state separation. And the first is that America is a Christian nation. That history proves America is a Christian nation. Isn’t it true, Peter, that the majority of the founders were Christian monotheists that they had in mind to advance the religion when they were framing the U.S. Constitution? 

Yes, the the first part and no to the second. It’s true that a majority of framers and in fact the vast majority of Americans at the time the Constitution was framed were Christians of different kinds. I don’t think very many of them were the kind of fundamentalist Christians that we have now. Most of them were desists of some sort. Thomas Jefferson, James Madison, people like that. But the second thing is that they did not and they very intentionally did not write the Constitution as a Christian document. They were very clear about this. In fact, John Adams, one of one of my own ancestors, said very clearly that this country was not founded upon the Christian religion. And Jefferson agreed with him. So here we have two of the primary framers of the Constitution and our entire system who were very clear that this is not a nation in which state and religion were to be joined. That’s, in fact, what they fought against. 

So if America is not a Christian nation, what about the argument that church state separation is a myth just perpetrated by liberals and secular humanist and atheist? And you professor types that it wasn’t the intent of the framers to keep them separate, but only godless secular humanists later in history kind of foisted that on the American public. 

Well, could be very delicate about it, T.J.. That’s a total, absolute lie. The idea that, you know, that this is all a myth is a matter of fact. James Madison, who is the primary drafter, both of the Constitution and the Bill of Rights, said that what he intended was, quote, a total separation of church and state. You know, this is not something that was made up recently by liberal judges. And the funny thing is that most of the judges who ruled on the cases that I write about in Gone on trial were themselves conservative Republicans. But they were following precedent, going back many years in the Supreme Court that there was the separation of church and state. That’s what the establishment clause is all about. So people people who claim that this is a myth or who say, well, the phrase separation of church and state is not in the Constitution. Nobody’s ever said that it was. But the principle of church state separation is embedded very deeply, not all, not only in the Constitution, but in our legal history, our tradition and our values as a nation. So what you have really is is a small group of people, although they’re very well-funded, very powerful politically, but a small group of people who are fighting for something that should have died many, many years ago. That is the idea of a of a theocratic state. 

Last question, Peter, in. In the U.S. today, the religious right seems to be shrinking. You just said it’s a small minority, well-funded. Not even talking about their influence. Their numbers seem to be shrinking even while the unchurched, the atheists, the agnostics are growing in numbers there. They’re now about the same amount of people in America who are hardline religious right people and on the other side, secular unchurched, which includes all the atheists and agnostics. Here’s the question. Do you think that this means that the battles over church state separation, these very divisive battles over the role of religion in society, are they only going to keep getting more heated? I mean, do you think that there will be even more cases like the ones you detail and God on trial? It seems like the public debate around these issues is just getting more and more shrill. And there’s not a lot of there’s not a lot of fruitful discussion out there. 

Well, that’s a very good point, D.J., because as you point out in this I document in the book, you know, the unchurched, to put it in those terms, segment of our society is the fastest growing. And at the same time, the more fundamentalist evangelical group is shrinking in numbers. But at the same time, you know, these religious right people realize that they are losing this battle. And in response, they are becoming more and more, as you said, shrill. They are ratcheting up the rhetoric. They are trying very hard to make the best of this situation. I do think that there are going to be. More and more cases involving these issues in the courts. 

And it’s very hard to predict the outcome. As I said, you know, we don’t know how the Supreme Court is going to be, you know, what its composition will be in the next five, 10 years. 

And that’s where the final decisions are really made. 

If someone reads your book and takes your assessment of all this seriously, you give each side a fair shake. You give each side good treatment in. And how you let them explain their perspectives, explain why they have the agenda they have. Well, the question is, if someone reads your book, gets that kind of overview, sees both sides, and Ben is as alarmed as you still appear to be after examining all of this. What are they to do? What should a listener do? 

Well, there are two good answers to that question. One is one is to really become involved in these issues and the other. And I probably should shouldn’t say this on the air is to support and join groups like the ACLU, Americans United for Separation of Church and State and the Center for Inquiry. These are all groups and people who have been fighting these battles for years. And, you know, of without public support, it’s very difficult to counter the efforts of those on the other side who who really outnumber us in terms of funding and and and membership and really fanatical beliefs. So I think that that’s one thing that people can do. 

Thank you very much for joining me on point of inquiry, Peter Irons. It’s been my pleasure, DJ Grothe. 

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Contributors to today’s show included Debbie Goddard and Sarah Jordan. And I’m your host DJ Grothe. 

DJ Grothe

D.J. Grothe is on the Board of Directors for the Institute for Science and Human Values, and is a speaker on various topics that touch on the intersection of education, science and belief. He was once the president of the James Randi Educational Foundation and was former Director of Outreach Programs for the Center for Inquiry and associate editor of Free Inquiry magazine. He previously hosted the weekly radio show and podcast Point of Inquiry, exploring the implications of the scientific outlook with leading thinkers.