Judicial Follies: Space (Law) suits - Ukiah Daily Journal

The year 1968 was one of the most tumultuous of the 20th century. It saw an escalation in the Vietnam War, two major assassinations, rioting both in the U.S. and abroad, and the Soviet incursion into Czechoslovakia. Some accounts have dubbed it an “Annus Horribilis” — a “horrible year.”

But 1968 did end on a reflective moment, when NASA sent the Apollo 8 mission around the moon. Its three astronauts — Frank Borman, James Lovell, and William “Bill” Anders — became the first humans to leave earth orbit. They also became the first ever to see the lunar surface up close from lunar orbit.

But the most significant event of the mission came about purely by chance. Bill Anders was taking photographs of the moon’s surface for possible future landing sites, as well as to get the first photos of the far side of the moon. As he did so, the command module came around to the “near” side of the moon. And there, he and his two companions became the first humans to see what became known as “Earthrise”: a roughly half-lit blue-and-white earth, silhouetted against the utter blackness of space — visible for the first time because they were the first astronauts to see it from a distance. Anders snapped a color photo of the earth suspended above the gray, dead moon; arguably, it has become the most reproduced photograph ever taken.

Because it was Christmas Eve back on earth, the astronauts decided to express their emotions at seeing how tiny the Earth truly is when seen, for the first time, from space. They took turns reading from the opening passage of the Book of Genesis, beginning with the iconic phrase “In the beginning, God created the heavens and the earth . . . .” Borman then concluded with, “And from the crew of Apollo 8, we close with good night, good luck, a Merry Christmas — and God bless all of you, all of you on the good Earth.”

Their choice of reading material did not sit well with Madalyn Murray O’Hair, at the time perhaps the most prominent atheist and activist against the proliferation of religion in American life. In the early 1960s, O’Hair had brought one of the most famous lawsuits on behalf of her beliefs, culminating in the Supreme Court’s 1963 decision Abington v. Schempp, which prohibited mandatory Bible-reading in public schools. (In a different case, the court had prohibited mandatory public school prayer the year before.)

In 1969, O’Hair and her son sued NASA administrator Thomas Paine and the U.S. government, arguing that the astronauts’ reading of Genesis violated the First Amendment’s Establishment Clause — the first part of the Amendment, which prohibits entanglement between government and religion. In a somewhat more convoluted argument, they also contended that it violated their own rights under the Free Exercise Clause — namely, in their case, to recognize no religion at all.

After some procedural wrangling, the case was decided by a federal district judge in December, 1969 — almost exactly a year after the Apollo 8 flight. (O’Hair’s lawsuit also added a complaint about how Apollo 11 astronaut Buzz Aldrin, a devout Presbyterian, had brought with him a consecrated communion wafer and wine, which he used for a communion ceremony while he was on the moon.)

The judge dismissed O’Hair’s lawsuit, however, noting that NASA itself had had no part in the astronauts’ decision to engage in the brief Bible reading — and as he said, “to have prohibited the astronauts from making these statements would have been a violation of their own religious rights.” He made the same conclusion about the astronauts’ possession of religious objects, such as Aldrin’s wafer and wine.

In commemoration of the Apollo 8 flight, the U.S. issued a postage stamp in 1969 reproducing the Earthrise image — along with the phrase, “In the beginning, God . . . .” O’Hair apparently didn’t sue over that.

Surprisingly, all three of the Apollo 8 astronauts are still alive as of 2022. And of those, Bill Anders — the one who first noticed the “Earthrise” image and snapped the iconic photo — may have been sympathetic with O’Hair (who died in 1995). He has been quoted as saying that his moon flight (his only such voyage) undermined his own religious training. As he put it, having seen the tiny earth is in comparison with the rest of the universe, and believing that there is some cosmic or religious intelligence weighing every human action, “doesn’t make any sense. I became a big buddy of [prominent contemporary atheist] Richard Dawkins.”

Madalyn Murray O’Hair would have been pleased.

Frank Zotter, Jr. is a Ukiah resident.

source: https://www.ukiahdailyjournal.com/2022/01/30/judicial-follies-space-law-suits

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