House Tries To Repeal Establishment Clause [Archive]

View Full Version : House Tries To Repeal Establishment Clause

Brown

30th September 2006, 07:47 PM

From the Washington Post: (http://www.washingtonpost.com/wp-dyn/content/article/2006/09/26/AR2006092601486.html?nav=rss_politics)The House passed a bill yesterday [September 26] that would bar judges from awarding legal fees to the American Civil Liberties Union and similar groups that sue municipalities for violating the Constitution's ban on government establishment of religion.The purpose of this measure? To cut the legs off of groups that seek to remove Nativity scenes and Ten Commandments monuments from public property."Liberal groups . . . scour the country looking to sue cities and states with any kind of religious display, regardless of how popular these displays are," said Rep. Ginny Brown-Waite (R-Fla.). Because judges often require municipalities that lose such lawsuits to reimburse their opponents' legal fees, "citizens' precious monuments are being eroded with their own tax dollars," she added.The vote was mostly along party lines, Republicans generally favoring it.

Although the bill is unlikely to pass the Senate, the House ought to be ashamed of this piece of legislative manure. (Read it here. (http://thomas.loc.gov/cgi-bin/query/D?c109:3:./temp/~c109QairKi::)) This stinking pile of bullplop would be unconstitutional on its face. It is a nothing more than a pitiful grandstanding stunt. But perhaps the highest irony is this: Money taken from the friendly neighborhood taxpayer was used to give life to this legislative abortion, in the name of saving taxpayer money. Stupid Republicans.

Dr Adequate

30th September 2006, 08:02 PM

The bill's sponsor, Rep. John N. Hostettler (R-Ind.), said the ACLU and similar groups are "profiteering" ... Which part of "costs" doesn't he understand?

Kopji

30th September 2006, 08:03 PM

Dr Adequate

30th September 2006, 08:21 PM

(Read it here. (http://thomas.loc.gov/cgi-bin/query/D?c109:3:./temp/~c109QairKi::)) The links to that site don't stay linked.

That's HR 2679, for anyone who wants a look.

ponderingturtle

1st October 2006, 04:06 AM

This strategy is used to considerable success in Arizona, it serves to identify a politician's 'religious alignment' by looking at their voting record. "Non partisan" voting pamphlets can be printed by religious groups listing how everyone voted 'on the issues of interest to them'.

These essentially political messages are distributed in church mailings and are legal because they are around the "issues" rather than supporting one party or another.

You know that is an entirely seperate issue from this? What this does is make it expensive to ever question state support for a religion, because if you win you get no money not even the money you spent to win the case, just get the state to comply with the decision.

Mephisto

1st October 2006, 05:12 AM

I liked this part:

"The bill's sponsor, Rep. John N. Hostettler (R-Ind.), said the ACLU and similar groups are "profiteering" as well as seeking "to remove every vestige of our religious heritage from public places."

Whose religious heritage? I think we should line up some Satanists that are anxious to have a little exposure in public places. After all, we're not ALL Christians, right? ;)

Brown

1st October 2006, 06:36 AM

The introductory preamble to the bill shows it to be the work of fools:AN ACT
To amend the Revised Statutes of the United States to prevent the use of the legal system in a manner that extorts money from State and local governments, and the Federal Government, and inhibits such governments' constitutional actions under the first, tenth, and fourteenth amendments. (emphasis mine)How about that? Those who sue to protect civil rights are extortionists.

What sapheads. Anti-American simpletons.

Mephisto

1st October 2006, 06:42 AM

AmateurScientist

1st October 2006, 08:14 AM

The introductory preamble to the bill shows it to be the work of fools:How about that? Those who sue to protect civil rights are extortionists.

What sapheads. Anti-American simpletons.

I think you hit upon the reason for this nonsense -- the perceived support (undoubtedly supported by sophisticated polls) of their constituents. These guys are politicians, after all.

The reason the constituents will likely support this nonsense is twofold:

1) The rise of the dominance of the religious right in the Republican Party; and
2) The "frivolous lawsuit" rhetoric the insurance industry and other business interests have been pushing for two decades now has been phenomenally successful in convincing the American public that the majority of civil lawsuits are "frivolous," which is simply untrue.

You and I know that the vast majority of litigation is encompassed by the categories of criminal prosecutions, domestic relations lawsuits (divorces, child custody and support suits), and business litigation (lawsuits between and among businesses). It is mostly substantial and involves perfectly legitimate disputes. The rest consists mostly of consumer protection suits, employment discrimination suits, auto accident litigation, other injuries based on tort law, and simple breach of contract lawsuits involving individuals, again, most of which are substantial and non-frivolous.

Civil rights litigation is a tiny subset of civil litigation, especially the kind in which the ACLU is the driving force behind the plaintiffs' causes of action. It is not in and of itself frivolous, as the bill seems to take as a given. Civil rights litigation against states and municipalities involving First Amendment separation of church and state issues is an even tinier subset of that civil rights litigation. It's a minuscule portion of litigation in general, and its cost in the aggregate is insignificant. Of course, neither is it axiomatic that such litigation is in and of itself frivolous.

Of course, as you note, the point of such suits is to enforce the First Amendment and ensure that states and municipalities do not violate it, not to extort money from state and local governments. The notion that the ACLU, a non-profit organization, is profiteering is absurd. Its local offices typically operate on shoestring budgets and its lawyers are paid very poorly because the ACLU can't afford to pay them well. Its lawyers are typically strongly motivated by adherence to the principle that the Bill of Rights is vital to the strength of our nation, and vital to the liberty of its people. They forego decent salaries for the satisfaction of knowing that they are important guardians of American liberty. Of course, I agree wholeheartedly, and fully support the ACLU's mission.

AS

Brown

1st October 2006, 08:17 AM

And yet there are plenty of people here who will once again cast their vote for them.George Carlin nailed it: If you have a stupid, selfish, hypocritical electorate, you get stupid, selfish, hypocritical leaders.

What is really stunning, in my view, is that the solution to the Establishment matter is so breathtakingly simple: The government takes no position on any religious matter. Period. This is not difficult to do. No one has yet provided any any cogent argument that government needs to show any favoritism of any kind to religion in general or to any creed (or collection of creeds) in particular. Religion is not government's business.

Why is this so hard for some people to understand?

JamesDillon

1st October 2006, 08:46 AM

This stinking pile of bullplop would be unconstitutional on its face.

I fully agree that this is a cheap political stunt that everyone involved should be ashamed of, but I don't quite see the unconstitutionality so clearly. The bill, as I understand it, doesn't actually seek to repeal the establishment clause, it only precludes the award of attorney's fees to the prevailing party in an establishment clause case. As far as I know, there is no constitutional right to attorney's fees in First Amendment cases, and this bill, if passed, would not completely preclude enforcement of First Amendment rights, though it would certainly make such enforcement more difficult. How is this unconstitutional?

Beerina

1st October 2006, 08:55 AM

SteveGrenard

1st October 2006, 09:02 AM

George Carlin nailed it: If you have a stupid, selfish, hypocritical electorate, you get stupid, selfish, hypocritical leaders.

What is really stunning, in my view, is that the solution to the Establishment matter is so breathtakingly simple: The government takes no position on any religious matter. Period. This is not difficult to do. No one has yet provided any any cogent argument that government needs to show any favoritism of any kind to religion in general or to any creed (or collection of creeds) in particular. Religion is not government's business.

Why is this so hard for some people to understand?

As an atheist and a taxpayor I agree. I could care less if there is a ten commandments display or not on the front lawn of some government building since I am not proselytizing my atheism. If Christians or Jews want to havetheir nativities and menoras on public display it doesn't offend me. It is this constant hang-up with being offended which is a form of intolerance emblematic of, for example, islam that leads to deeper and deeper divisions in society. Government should stay out of anything that even remotely smacks of religion and religious intolerance. It is not really hard to understand except for religious or anti-religious fanatics. And while I applaud the work the ACLU does in protecting citizen's rights, I don't believe that getting involved with religion should be one of them. There are just so many more important secular rights violations needing redress this is a distraction we cannot afford.

JamesDillon

1st October 2006, 09:06 AM

Being unable to sue for damages to your constitutional rights most definitely makes it more difficult to secure your rights from encroachment by the government.

It certainly does, and so, as I mentioned above, does the inability to obtain an award of attorney's fees (which aren't technically damages). But I'm not at all sure that legislation that may have a chilling effect on the enforcement of constitutional rights is necessarily unconstitutional. There's some precedent for that in the abortion cases (cases striking down parental or spousal notification requirements, for example), but I'm not sure that it applies so broadly as to clearly encompass this bill.

SteveGrenard

1st October 2006, 09:15 AM

The notion that the ACLU, a non-profit organization, is profiteering is absurd. Its local offices typically operate on shoestring budgets and its lawyers are paid very poorly because the ACLU can't afford to pay them well. Its lawyers are typically strongly motivated by adherence to the principle that the Bill of Rights is vital to the strength of our nation, and vital to the liberty of its people. They forego decent salaries for the satisfaction of knowing that they are important guardians of American liberty. Of course, I agree wholeheartedly, and fully support the ACLU's mission

I am personally aware of several cases of injustice for wrongly imprisoned persons which the ACLU has turned down ostensibly because they weretoo busy chasing nativity scenes or ten commandments cases. Not one person should be in jail one day longer than necessary and not one unjustly executed person exist, well cease to exist, because such organizations are busy getting religious scenes or monuments off some government building lawn. It's calledpriorities and perhaps this legislation will help them re-order their's.

A lot of folks including me used to donate to the ACLU but have stopped when they started going after the public purse by pursuing these inane cases.

ponderingturtle

1st October 2006, 09:17 AM

Darat

1st October 2006, 09:20 AM

....snip...

You and I know that the vast majority of litigation is encompassed by the categories of criminal prosecutions, domestic relations lawsuits (divorces, child custody and support suits), and business litigation (lawsuits between and among businesses). It is mostly substantial and involves perfectly ligitimate disputes. The rest consists mostly of consumer protection suits, employment discrimination suits, auto accident litigation, other injuries based on tort law, and simple breach of contract lawsuits involving individuals, again, most of which are substantial and non-frivolous.

...snip...

I'm sorry but a USA documentary (http://tinyurl.com/2m2ya) series that airs on some UK satellite channels provides compelling evidence that you are wrong.

JamesDillon

1st October 2006, 09:24 AM

Its lawyers are typically strongly motivated by adherence to the principle that the Bill of Rights is vital to the strength of our nation, and vital to the liberty of its people. They forego decent salaries for the satisfaction of knowing that they are important guardians of American liberty. Of course, I agree wholeheartedly, and fully support the ACLU's mission.

AS

I don't suppose you're going to the ACLU's membership conference in Washington in a couple of weeks? I started a thread about it in the Skeptical Events forum but no one seemed interested. In any case, I've already made my reservations and will report back on the outcome of the debate between Justice Scalia and Nadine Strossen if no one else is there to see it.

RandFan

1st October 2006, 07:02 PM

I'm sorry but a USA documentary (http://tinyurl.com/2m2ya) series that airs on some UK satellite channels provides compelling evidence that you are wrong.:) I prefer a different documentary (http://www.peoplescourt.com/).

Brown

1st October 2006, 07:12 PM

I fully agree that this is a cheap political stunt that everyone involved should be ashamed of, but I don't quite see the unconstitutionality so clearly. The bill, as I understand it, doesn't actually seek to repeal the establishment clause, it only precludes the award of attorney's fees to the prevailing party in an establishment clause case. As far as I know, there is no constitutional right to attorney's fees in First Amendment cases, and this bill, if passed, would not completely preclude enforcement of First Amendment rights, though it would certainly make such enforcement more difficult. How is this unconstitutional?The House (without any discernable rational basis, as legitimate claims are not "extortion" and fees are not available except where the claims are legitimate) basically wants to cut the legs off of one particular kind of civil rights complaint. Other civil rights based upon the guarantees in the Bill of Rights are not affected (yet).

There is no rational basis for favoring one civil right over another. (Justice Thomas is the only member of the United States Supreme Court who has taken the foolish position that the Establishment Clause does not create an individual civil right.)

Rights without effective remedies are basically without value. The effect of the House bill would be to impose the will of the majority upon the minority contrary to the Bill of Rights, and would make the minority virtually powerless to resist, even if their complaint is completely valid.

As you know, when we're talking about discriminatory legislation that affects really important rights, Court precedent requires a much higher showing of necessity than a rational basis. I submit that there is not even a rational basis for distinguishing Establishment claims from other civil rights claims. This legislation would not have a chance of meeting any higher standard of scrutiny.

Personally, I doubt there is a federal judge out there, whether denominated liberal or conservative or moderate, who would have the slightest difficulty striking down this bill if it were to become law.

Charlie Monoxide

1st October 2006, 07:37 PM

Brown, as much as I enjoy your posts they always seem to break my heart. Sometimes I feel compelled to check a calendar and make sure that somehow I haven't been transported back to the Middle Ages ....

Charlie (keep up the great posts!) Monoxide

Piggy

1st October 2006, 08:03 PM

Here's something scary for you: My state's legislative act (http://www.legis.state.ga.us/legis/2005_06/fulltext/hb941.htm) to encourage "a basic knowledge of American constitutional history" and "to educate and inform the public about the history and background of American law" by authorizing "The Foundations of American Law and Government display" to be posted "in a visible, public location in the judicial facilities" of municipalities, consisting of a set of documents cherry-picked on the basis of containing a reference to God, including "The Ten Commandments as extracted from Exodus Chapter 20", "The Mayflower Compact, 1620", "'The Star-Spangled Banner' by Francis Scott Key", and "The national motto". The actual Constitution, beyond the Bill of Rights (which contains a reference to protection of freedom of religion) is omitted.

The Constitution Restoration Act (http://thomas.loc.gov/cgi-bin/query/z?c109:S.520:) is pretty scary, too. I think they're gonna keep bringing it up til they have the numbers to pass it.

the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government.'

That's right -- it would deny SCOTUS any jurisdiction in any cases seeking relief against governments or officials, acting in official capacity, declaring that God is the sovereign source of law.

JamesDillon

1st October 2006, 08:04 PM

The House (without any discernable rational basis, as legitimate claims are not "extortion" and fees are not available except where the claims are legitimate) basically wants to cut the legs off of one particular kind of civil rights complaint. Other civil rights based upon the guarantees in the Bill of Rights are not affected (yet).

There is no rational basis for favoring one civil right over another. (Justice Thomas is the only member of the United States Supreme Court who has taken the foolish position that the Establishment Clause does not create an individual civil right.)

Rights without effective remedies are basically without value. The effect of the House bill would be to impose the will of the majority upon the minority contrary to the Bill of Rights, and would make the minority virtually powerless to resist, even if their complaint is completely valid.

As you know, when we're talking about discriminatory legislation that affects really important rights, Court precedent requires a much higher showing of necessity than a rational basis. I submit that there is not even a rational basis for distinguishing Establishment claims from other civil rights claims. This legislation would not have a chance of meeting any higher standard of scrutiny.

I don't find that very persuasive. It sounds like you're making some kind of equal protection argument, but the equal protection clause applies to persons, not to such abstractions as constitutional rights. I can't imagine that Congress needs to show a rational basis for infringing on the exercise of one right over another one-- you might make some kind of argument that the law unfairly discriminates between the class of persons whose Establishment Clause rights are violated and the class of persons whose other constitutional rights are violated, but frankly that sounds like quite a stretch. I don't see any plausible argument for evaluating this situation under the rubric of equal protection. If you want to call it a substantive due process issue, then you'd have to argue, not that the exercise of First Amendment rights is fundamental, since that's not what's being infringed here, but that the award of attorney's fees to prevailing plaintiffs in establishment clause cases is a fundamental right; I just don't see an argument there either. Moreover, the award of attorney's fees is not really a liberty interest of the sort that the substantive aspect of the Fifth Amendment's due process clause has been held to protect. Finally, this legislation would not turn the establishment clause into a "right without effective remedy." Plaintiffs would still be free to pursue establishment clause cases, they just couldn't receive attorney's fees for it. I imagine that the ACLU itself would no doubt continue to pursue such cases, perhaps somewhat less than before, and would no doubt increase its fundraising efforts to make up some of the cost. But my question, as before, is: is legislation making the enforcement of a constitutional right more difficult, as a practical matter, but does not preclude enforcement entirely, clearly unconstitutional? I'm unaware of any authority suggesting that it is.

Personally, I doubt there is a federal judge out there, whether denominated liberal or conservative or moderate, who would have the slightest difficulty striking down this bill if it were to become law.
You're welcome to your opinion, but I see no basis for it in what you've said so far.

Ace_of_Sevens

2nd October 2006, 03:28 AM

The Constitution Restoration Act (http://thomas.loc.gov/cgi-bin/query/z?c109:S.520:) is pretty scary, too. I think they're gonna keep bringing it up til they have the numbers to pass it.

That's right -- it would deny SCOTUS any jurisdiction in any cases seeking relief against governments or officials, acting in official capacity, declaring that God is the sovereign source of law.

Isn't this blatantly unconstitutional? You can't limit judicial review without an ammendment.

Piggy

2nd October 2006, 04:37 AM

Isn't this blatantly unconstitutional? You can't limit judicial review without an ammendment.
No, no, it's not unconstitutional... it restores the constitution. Says it right there in the title, see?

JamesDillon

2nd October 2006, 06:22 AM

Isn't this blatantly unconstitutional?
No. At least not for the reason you suggest.
You can't limit judicial review without an ammendment.
Yes, you can. Article III, section 2 of the Constitution gives Congress the power to limit the federal courts' jurisdiction over all matters except those over which the Supreme Court has original jurisdiction.

Brown

2nd October 2006, 08:09 AM

You're welcome to your opinion, but I see no basis for it in what you've said so far.Perhaps you should talk with some federal judges and see what they say. Don't be surprised if they laugh when you ask them if such a scheme would be constitutionally sound.

AmateurScientist

2nd October 2006, 08:27 AM

I don't suppose you're going to the ACLU's membership conference in Washington in a couple of weeks? I started a thread about it in the Skeptical Events forum but no one seemed interested. In any case, I've already made my reservations and will report back on the outcome of the debate between Justice Scalia and Nadine Strossen if no one else is there to see it.

No, I'm afraid not, although it sounds like something I would thoroughly enjoy. Also, DC in the fall is beautiful.

Let me know how it goes.

AS

Dr Adequate

2nd October 2006, 09:10 AM

As an atheist and a taxpayor I agree. I could care less if there is a ten commandments display or not on the front lawn of some government building since I am not proselytizing my atheism. If Christians or Jews want to havetheir nativities and menoras on public display it doesn't offend me. If you look at the resolution, it says "including but not limited to". We're talking about all First Amendment cases here, including, for example, Kitzmiller v. Dover, which cost $2,000,000.

In the UK we have no First Amendment, and I too have no objection to nativity scenes per se, but I do strongly object to taxpayers funding the teaching of creationism. Unfortunately, I can't think of any way to rephrase the First Amendment so that it only excludes those things I object to, how about you?

It is interesting to note the as regards this change in the law, the ACLU is backed, inter alia, by the Baptists, the Methodists and the Presbyterians* (http://www.aclu.org/religion/gen/26758leg20060622.html). I don't think it's the Ten Commandments they're objecting to: but the fact that freedom of religion is going to cost a million bucks a throw.

Luke T.

2nd October 2006, 09:39 AM

Which part of "costs" doesn't he understand?

So the ACLU is a non-profit organization, then? I have no idea.

If so, then "profiteering" certainly doesn't apply.

Hagrok

2nd October 2006, 09:43 AM

...So the ACLU is a non-profit organization, then? I have no idea...
Yes, according to their website.

Luke T.

2nd October 2006, 09:46 AM

The Republican Party has gone so sour that I would be a Democrat now if I thought the Dems had something better to offer. So I guess I'm in some sort of weird fugue, not sure where I fit in.

The Republicans are stupid if they think flag burning amendments and things like this "profiteering" bill are going to keep their more conservative membership satisfied while they spend, spend, spend, spend, spend, and spend, and attack rights of freedom and privacy.

They are really starting to piss me off.

"Hey, we just spend ten bazillion dollars for a domestic spying program and have accumalted every American's phone records and are poring over them. But here's a ban on burning the flag. Mmm-kay?"

Insulting to the intelligence.

Darat

2nd October 2006, 09:47 AM

So the ACLU is a non-profit organization, then? I have no idea.

If so, then "profiteering" certainly doesn't apply.
That doesn't matter does it? Being awarded legal costs means you just get back the money you've paid out as legal fees - it doesn't mean legal costs + 10%. (Or at least in the UK it doesn't!)

Luke T.

2nd October 2006, 09:51 AM

That doesn't matter does it? Being awarded legal costs means you just get back the money you've paid out as legal fees - it doesn't mean legal costs + 10%. (Or at least in the UK it doesn't!)

According to the OP article, it would ban "awarding legal fees". Fees have profits built in, don't they? That strikes me as being different from legal costs.

I don't know. I'm not a lawyer. :)

drkitten

2nd October 2006, 09:52 AM

So the ACLU is a non-profit organization, then? I have no idea.

If so, then "profiteering" certainly doesn't apply.

The ACLU is indeed "non-profit," but that doesn't mean what you think it means. All "non-profit" means, legally, is that the organization doesn't pay out money to shareholders. Nothing keeps the organization itself from making money, even obscene amounts of money, and retaining it for internal use or paying it out in salaries, consultant fees, &c.

For example, I believe Harvard University is a non-profit corporation, but it has an endowment of over a billion dollars and pays its president over a million dollars a year in salary. And a president who could figure out a way to increase the endowment could look forward to a corresponding increase in salary.

Nothing, then, keeps Harvard University (or the ACLU) from "profiteering" in the sense of getting lots of money for something through illicit business practices.

Darat

2nd October 2006, 09:58 AM

According to the OP article, it would ban "awarding legal fees". Fees have profits built in, don't they? That strikes me as being different from legal costs.

I don't know. I'm not a lawyer. :)

Yes but not for the ACLU - the ACLU pays lawyers whatever their normal charges are, when they win a case and get awarded "costs" they can claim back what they paid out to the lawyers (or what they would have paid to the lawyers if the lawyers were working on a "no win no fee").

Luke T.

2nd October 2006, 10:01 AM

Maybe this is the wrong topic to rant about this, but this has been building up in me for some time.

Smoke and mirrors. It's all smoke and mirrors.

These bastards are blowing smoke around the flag and saying it is on fire. Meanwhile, my money is burning a hole in their pocket.

They are rifling through my bank accounts and phone records, confiscating my shampoo bottle at the airport, examining what books I am checking out at the library, and generally intruding into every private citizen's life in a fashion that would make Stalin drool with envy.

They say they do this to protect us. So we're a nanny state now? Under the Republican banner? HOW THE F*** DID THAT HAPPEN?

Nanny or Gestapo. It's one or the other, and I'm fed up.

You know what else? The freaking Dems are singing backup to the same song. Nothing would change. Nothing. Except they would raise taxes. They wouldn't cut spending. They would not repeal the Patriot Act. And they would bail out of Iraq.

I'm so screwed.

We're all screwed.

Luke T.

2nd October 2006, 10:11 AM

If the Republicans lose the House and/or Senate this election, it won't be because the Dems have a better program. It will be because guys like me decided to hell with them, and stayed away from the voting booth.

KingMerv00

2nd October 2006, 10:58 AM

While I agree the bill is stupid, I think the thread title is a little extreme.

corplinx

2nd October 2006, 11:11 AM

Where does the idea that the ACLU or other groups are shaking down municipalities come from? Is there a link online where I can see this reasoning?

drkitten

2nd October 2006, 11:32 AM

Where does the idea that the ACLU or other groups are shaking down municipalities come from?

I think it comes from the fertile brains of the bill's author and/or sponsors.

It's not so much that the ACLU shakindn down municipalities is a problem, so much as the fact that the ACLU itself is (consider to be) a problem, and any fig-leaf of justification to make it less practical for the ACLU to take action will be seized upon.

JamesDillon

2nd October 2006, 08:22 PM

Perhaps you should talk with some federal judges and see what they say. Don't be surprised if they laugh when you ask them if such a scheme would be constitutionally sound.

Perhaps you should defend your own assertions instead of vaguely implying ignorance on my part for questioning your conclusions. I should add that, as a federal law clerk myself, with some degree of influence over the outcome of cases appearing before the district court judge for whom I work, it isn't at all apparent to me that the contemplated legislation is obviously unconstitutional. What I would generally expect from a party asserting that it is would be some kind of legal argument for that position, citing, among other things, specific provisions of the Constitution and Supreme Court precedents. So far you have offered none of that. You've vaguely gestured toward the Equal Protection Clause, which for reasons I've already stated I think doesn't at all support your argument. You've yet to respond to my comments as to that (assuming that you did, in fact, mean to make an equal protection argument, which wasn't at all clear from your post). If you have an argument to make, then make it; otherwise just admit that you were simply spouting nonsense about the constitutionality of a piece of legislation with which you happen to strongly disagree.

Brown

2nd October 2006, 11:27 PM

Perhaps you should defend your own assertions instead of vaguely implying ignorance on my part for questioning your conclusions. I should add that, as a federal law clerk myself, with some degree of influence over the outcome of cases appearing before the district court judge for whom I work, it isn't at all apparent to me that the contemplated legislation is obviously unconstitutional. What I would generally expect from a party asserting that it is would be some kind of legal argument for that position, citing, among other things, specific provisions of the Constitution and Supreme Court precedents. So far you have offered none of that. You've vaguely gestured toward the Equal Protection Clause, which for reasons I've already stated I think doesn't at all support your argument. You've yet to respond to my comments as to that (assuming that you did, in fact, mean to make an equal protection argument, which wasn't at all clear from your post). If you have an argument to make, then make it; otherwise just admit that you were simply spouting nonsense about the constitutionality of a piece of legislation with which you happen to strongly disagree.What is your problem, dude?

I can't imagine that you win very many cases if you fly off the handle and start spouting insulting crap like that. This is not the mark of a smart attorney, or for that matter, a smart person.

Just a few points before I put you on my ignore list:

First, I've made considerable effort in my posts on legal issues to write for a lay audience. If this doesn't sound like a strictly legal argument, that's because it's not supposed to.

Second, don't you feel like a bit of a hypocrite for chiding me for not citing authority when you don't cite any yourself? Personally, I think it's fine not to get too technical on this forum, but please don't hold me to one standard while holding yourself to another.

Third, many of your "reasons" are little more than argument from ignorance: "I don't find that very persuasive" and "I don't see any plausible argument for evaluating this situation under the rubric of equal protection" are not arguments. If you are any sort of attorney, you would know that.

Fourth, under the law as it currently exists (with Justice Thomas being the only dissenter, look at Van Orden from 2005 and Elk Grove from 2004), the Establishment Clause is recognized as protecting a right upon which individuals can sue. Classes of individuals aggrieved by Establishment Clause violations would receive far less favorable treatment than those aggrieved by other civil rights cases. You might call that "quite a stretch," but is it really? Could the Congress declare that those who sue for civil rights violations based upon discrimination on the basis of creed are entitled to drastically fewer remedies (ostensibly because creed-based suits are extortion) than those who sue based upon discrimination on the basis of color, even though those rights are supposedly protected by exactly the same constitutional provisions and statutes?

Keep in mind that the very same set of facts could engender both Establishment claims on one side and Freedom of Religion claims on the other side. There is no legitimate reason for saying that one side would be entitled to a full array of remedies if it wins, but the other side would not get those same remedies if it wins.

And remember, the issue is not whether there is a right to fees in civil rights cases. (If Congress proposed to discontinue fees for all civil rights cases, the issue would be different.) Rather the issue is whether Congress can carve out an exception for Establishment-based plaintiffs.

Fifth, keep in mind that HF 2679 would apply only to meritorious suits. A plaintiff who had a colorable suit but lost would not get fees or costs. A plaintiff who brought a frivolous (or worse, extortionist) suit would be subject to penalties, under existing rules. Thus, HF 2679 would seek to make available a full array of remedies for a variety of meritorious civil rights claims, except in the case of persons having meritorious claims based upon Establishment. The latter would get injunctive and declaratory relief only. Why treat meritorious Establishment plaintiffs differently? Is it because they represent the bulk of civil rights cases? (Clearly they do not.) Is it because those plaintiffs take an inordinate amount of court resources? (Again, they do not.) Is it because such plaintiffs bring cases that tend to lack merit? (Once again, the answer is no.) Is it because the nature of Establishment-based complaints makes injunctive and declaratory relief the only practical relief? (Again, no.)

In the Flores case, the Supreme Court said: "There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect." Why, then, would plaintiffs having Establishment-based complaints be denied remedies that other civil rights plaintiffs would have? In the absence of such a rational basis, removing the principal remedy is essentially removing the right. The [u]incongruence and disproportionality is obvious when other plaintiffs having similar civil rights claims continue to enjoy remedies that Establishment-based plaintiffs do not.

Sixth, the inquiry into rational basis is applicable to Equal Protection analysis, but inquiring whether the government has a valid reason for doing what it wants to do is not limited to Equal Protection. Similar considerations apply to general First Amendment jurisprudence. As was discussed in the recent Ten Commandments cases, motivation still plays a role in an Establishment inquiry. And the motivation behind HF 2679 smells like a rotting fish. Why adopt a law that in effect encourages state actors to try to promote religion and to violate the Establishment Clause? Under the First Amendment, is there a legitimate secular reason to provide such encouragement? The answer is--in my opinion--clearly in the negative. The assertion of extortion is ludicrous. The purpose of this bill is to affirmatively try to advance religious-government entanglement. And under the First Amendment, that's improper.

Seventh, I believe you're aware that federal judges take very seriously the awarding of attorney fees and costs in civil rights cases. So consider: will federal judges look favorably upon a bill that says they have been a party to extortion? Or do you think it more likely (as I do) that they will find the stated rationale for this bill rather amusing?

Well, I hope I've laid it out a little more clearly for you. Or perhaps I'm just spouting more nonsense. Hell, I might have made all this up.

Anyway, welcome to my ignore list.

gnome

3rd October 2006, 05:23 PM

I am personally aware of several cases of injustice for wrongly imprisoned persons which the ACLU has turned down ostensibly because they weretoo busy chasing nativity scenes or ten commandments cases. Not one person should be in jail one day longer than necessary and not one unjustly executed person exist, well cease to exist, because such organizations are busy getting religious scenes or monuments off some government building lawn. It's calledpriorities and perhaps this legislation will help them re-order their's.

A lot of folks including me used to donate to the ACLU but have stopped when they started going after the public purse by pursuing these inane cases.

Can you cite some of these instances? it would definitely speak to a problem with priorities, which would go a long way to persuading me.

SteveGrenard

3rd October 2006, 06:32 PM

Can you cite some of these instances? it would definitely speak to a problem with priorities, which would go a long way to persuading me.

It frankly doesn't matter if you or I were persuaded or not.

The ACLU generally files cases that affect the civil liberties of large numbers of people, rather than those involving a dispute between two parties. The basic questions we ask when reviewing a potential case are: (1) Is this a significant civil liberties issue? (2) What effect will this case have on people in addition to our client? (3) Do we have the resources to take this case?

http://www.aclusandiego.org/intake.html

The ACLU of Colorado does not review requests for legal assistance in person or over the telephone. To ask the ACLU for legal assistance, you must write a letter. Send the letter to Intake Department, ACLU of Colorado, 400 Corona Street, Denver CO 80218. The information you should include is explained in more detail below.

The ACLU of Colorado is able to provide legal assistance in only a small number of cases

Violations of constitutional rights and civil liberties are widespread, but the ACLU of Colorado is a small organization. We receive hundreds of requests for assistance each month. Because of our limited resources, however, we are able to investigate only a small percentage of the potentially meritorious requests for assistance we receive. As a result, we have to turn down the overwhelming majority of those requests for assistance.

The ACLU handles cases that involve violations of civil liberties and civil rights

Civil liberties include the right to due process and equal protection of the law, as well as freedom of expression; freedom of the press; religious freedom; the right of association; the right of privacy; the right to be free of unreasonable searches and
seizures, and the right to be free of cruel and unusual punishment.

http://www.aclu-co.org/docket/legal_help.htm#not

The above guidelines says it all. The cases I am familiar with involved gross prosecutorial misconduct, police misconduct, striking a deal with a criminal for whom charges would be dropped if he “made” 5 cases for them by any means including cases which were fabricated. I cannot go into detail but of the three individuals caught up in this, one was knifed in prison, another commit suicide before sentencing and a third is serving 25 years for driving a car containing 5 kilos of sugar for a fake undercover drug buy which would have qualified as the “fifth-case” enabling the drug dealer to walk free.

The ACLU did not find the case of interest nor did it meet their "criteria" although it stunk so bad the ADA on the case said it was his last and quit the DA’s office afterwards.

Clearly the ACLU is only interested in civil rights cases that affect large numbers of people and those with a pay day. They do nothing to help individuals unless they are part of the collective or class.

fishbob

3rd October 2006, 06:35 PM

. . . . Clearly the ACLU is only interested in civil rights cases that affect large
numbers of people and those with a pay day. They do nothing to help individuals unless they are part of the collective or class.

There may be some logic here, but I can't see it.

gnome

3rd October 2006, 06:58 PM

I can /sort of/ see it... if you only have a certain number of man-hours, it makes sense to devote them to cases that affect many, instead of just one.

Piggy

3rd October 2006, 07:18 PM

Clearly the ACLU is only interested in civil rights cases that affect large numbers of people and those with a pay day. They do nothing to help individuals unless they are part of the collective or class.
I'll ignore the bit about the "pay day" because you haven't justified it. But as for the rest... yes.

That's their stated mission.

Defending individuals is not their job. And it doesn't become their job just because it's screwed up by the people who do have that job.

They are not the Unjustly Condemned Individuals' Union.

JamesDillon

3rd October 2006, 08:34 PM

What is your problem, dude?

I can't imagine that you win very many cases if you fly off the handle and start spouting insulting crap like that. This is not the mark of a smart attorney, or for that matter, a smart person.
Actually, a quick review of the thread so far indicates that I initially asked, in an entirely non-confrontational manner, why you think that the contemplated legislation is clearly or obviously unconstitutional. You then replied with a vague reference to the equal protection clause and the rational basis test, without articulating even the beginnings of a coherent legal theory. After I, again calmly and without so much as the hint of a personal attack, pointed out the deficiencies in your half-baked theory, insofar as I could decipher what you were trying to say at all, without clarifying your position you simply repleid that I should "ask a few federal judges" who would "laugh" at my ignorance. In my experience, when a lawyer tries the "If you don't agree with me, you're just too dumb to get it" argument, that's an almost sure sign that they're peddling bullsh!t, and I'm not buying it. If my last response to you was somewhat sharp, it's because I don't appreciate having my competence challenged for questioning a bizarre conclusion for which you haven't even offered an intelligible, much less persuasive, explanation.

First, I've made considerable effort in my posts on legal issues to write for a lay audience. If this doesn't sound like a strictly legal argument, that's because it's not supposed to.
I dare say even a lay audience could benefit from your, say, explaining which article or amendment to the Constitution you believe would render the proposed legislation unconstitutional. In fact, it's impossible to hold even a superficial discussion of the issue without that degree of detail, so you're left with nothing more than an appeal to your own authority, which isn't enough to persuade me or, I should hope, any of the laypeople reading this thread. There's a wide gulf between a 30-page annotated brief, and a couple of paragraphs explaining in outline form the basis for your belief that this statute would be unconstitutional. The latter is an entirely appropriate expectation, and, as I said, is necessary if we're to have a discussion beyond the mere mutual appeal to our own authority, which should be satisfying to no one here. If you can't produce that much, then that really is your problem.

Second, don't you feel like a bit of a hypocrite for chiding me for not citing authority when you don't cite any yourself? Personally, I think it's fine not to get too technical on this forum, but please don't hold me to one standard while holding yourself to another.
Not in the least. If you need a refresher course in the burden of persuasion, it's your job to put forth reasons supporting your conclusion that this legislation would be unconstitutional. If and when you're able to articulate a basic argument, including: 1) the specific constitutional provision that you think relevant; 2) the standard for adjudication that applies under that provision; and 3) how that legal standard applies to the contemplated legislation at issue so as to render it "obviously" unconstitutional, then I'll be happy to address that argument. My job is not to read your mind, figure out what the hell you're trying to say, and then rebut it.

Third, many of your "reasons" are little more than argument from ignorance: "I don't find that very persuasive" and "I don't see any plausible argument for evaluating this situation under the rubric of equal protection" are not arguments. If you are any sort of attorney, you would know that.
Actually, those aren't "reasons," those are "conclusions" and "characterizations" of what you've said so far. Once again, until you put forth a basic argument, there's not much for me to say except that you're talking gibberish. I took a crack at addressing some of the problems an Equal Protection argument would face (for example the fact that constitutional rights do not themselves have constitutional rights, and that this doesn't appear to be a case to which the Equal Protection Clause applies at all), but it's interesting that we're well into this discussion and I'm still not clear on whether you meant to make an equal protection argument, or a due process argument, or some other sort of argument that I can't even imagine. Again, it's your job to present an articulate defense of your views, and I can't very well be expected to rebut an argument you haven't even made yet.

Fourth, under the law as it currently exists (with Justice Thomas being the only dissenter, look at Van Orden from 2005 and Elk Grove from 2004), the Establishment Clause is recognized as protecting a right upon which individuals can sue.
No one has suggested otherwise.

Classes of individuals aggrieved by Establishment Clause violations would receive far less favorable treatment than those aggrieved by other civil rights cases. You might call that "quite a stretch," but is it really? Could the Congress declare that those who sue for civil rights violations based upon discrimination on the basis of creed are entitled to drastically fewer remedies (ostensibly because creed-based suits are extortion) than those who sue based upon discrimination on the basis of color, even though those rights are supposedly protected by exactly the same constitutional provisions and statutes?

Keep in mind that the very same set of facts could engender both Establishment claims on one side and Freedom of Religion claims on the other side. There is no legitimate reason for saying that one side would be entitled to a full array of remedies if it wins, but the other side would not get those same remedies if it wins.

And remember, the issue is not whether there is a right to fees in civil rights cases. (If Congress proposed to discontinue fees for all civil rights cases, the issue would be different.) Rather the issue is whether Congress can carve out an exception for Establishment-based plaintiffs.
Now we're getting somewhere! Couldn't you have just said this in the first place? This, at least, is an argument invoking legal principles in defense of a conclusion, which is all I wanted. Unfortunately I'm still not 100% clear that you're invoking the Equal Protection Clause-- I would have thought it rather elementary to at least cite the amendment and clause that you think applies, but I'll proceed on the assumption that you do, indeed, think that the Equal Protection Clause of the Fourteenth Amendment would render the statute passed from this bill unconstitutional, since you seem to be referring to equal protection principles.

Your argument is not entirely implausible (I never said it was; all I asked for before you turned this into a personal issue was some general explanation of the basis for your opinion), but it is far too speculative to support the view that this law would be "unconstitutional on its face."First of all, we're agreed that the relevant classification would be "people whose Establishment Clause rights have been violated," vs. "people whose other constitutional rights have been violated," correct? Is that even a type of classification cognizable under the Equal Protection Clause? Equal Protection generally applies to discrete, readily identifiable groups, such as race, class, gender, sexual orientation, etc. "People who have suffered Establishment Clause injuries" is such an amorphous, shifting group that I doubt the Supreme Court would even recognize it as legitimate for equal protection purposes. Putting that aside, is that a suspect, quasi-suspect, or non-suspect classification? My view is that it a non-suspect classification, and that the rational basis test would apply. This is not, as you suggest, a matter of discrimination on the basis of "creed," because it doesn't single out any one belief, or even a discrete group of beliefs, for disparate treatment.* In any case, religion or creed itself has never, to my knowledge, been recognized as a suspect or quasi-suspect classification entitled to strict or intermediate scrutiny under the Equal Protection Clause. Of course, the Supreme Court has not set forth an exhaustive list of the features distinguishing a suspect classification, though it has observed that the classifications themselves “are so seldom relevant to the achievement of any legitimate state interest that the laws grounded in such considerations are deemed to reflect prejudice and antipathy” and that “such discrimination is unlikely to soon be rectified by any legislative means.” City of Cleburne, Tex., v. Cleburne Living Center, 473 U.S. 432, 440 (1985). It's not at all clear to me that your proposed classification, let's call them Establishment Clause Victims, satisfy these criteria. If homosexuals aren't a suspect classification-- that the Court has never held them to be-- then I can't see how the ill-defined and amorphous class of Establishment Clause Victims have any hope of being recognized as such.

Assuming that the legislation would be reviewed under the rational basis test, as I believe it would be (assuming it even got that far, and that the Court didn't simply dismiss the suit on the ground that Establishment Clause Victims is simply not a sufficiently defined classification for equal protection purposes), then I would submit that whatever your personal opinion of the government's purported legitimate interest is, you are categorically never entitled to assert with the degree of certainty you have shown in this thread that a statute would be held unconstitutional under that deferential test. As far as I know, the Court has issued only two opinions, City of Cleburne and Romer v. Evans, in which it held a state action (in that case, a local housing ordinance) unconstitutional as lacking a rational basis. (Lawrence v. Texas might be another example, but that case is such a doctrinal muddle that I don't think any valid guidance can be derived from it. In any event, the Lawrence majority decided the case on due process grounds, and it never identified the standard of review it was applying). The rational basis test is highly deferential to the government and almost always upholds the statute in question. If you are suggesting that any federal judge would "laugh" at the notion that this statute could reasonably be held constitutional under rational basis review, then you simply have no idea what you're talking about.

Fifth, keep in mind that HF 2679 would apply only to meritorious suits. A plaintiff who had a colorable suit but lost would not get fees or costs. A plaintiff who brought a frivolous (or worse, extortionist) suit would be subject to penalties, under existing rules. Thus, HF 2679 would seek to make available a full array of remedies for a variety of meritorious civil rights claims, except in the case of persons having meritorious claims based upon Establishment. The latter would get injunctive and declaratory relief only. Why treat meritorious Establishment plaintiffs differently? Is it because they represent the bulk of civil rights cases? (Clearly they do not.) Is it because those plaintiffs take an inordinate amount of court resources? (Again, they do not.) Is it because such plaintiffs bring cases that tend to lack merit? (Once again, the answer is no.) Is it because the nature of Establishment-based complaints makes injunctive and declaratory relief the only practical relief? (Again, no.)
So you're arguing that there is no rational basis for treating Establishment Clause Victims differently than other constitutional plaintiffs. That's a plausible argument, but, as I said above, the Court is so deferential to the government when exercising rational basis review that it is simply never appropriate to state with the degree of blind confidence that you have shown here that a given piece of legislation would be held uncosntitutional under that degree of scrutiny. I can't think of a particularly good rational basis for this kind of distinction either, but the Court is generally so willing to indulge the government's flights of whimsy in seeking to offer a legitimate state purpose under rational basis review that I don't think it's ever justifiable to say that a law would certainly be struck down under that kind of review, and it's nothing sort of hubris to suggest that the federal judiciary would unanimously find laughable the idea that this particular bill could pass rational-basis review.

In the Flores case, the Supreme Court said: "There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect." Why, then, would plaintiffs having Establishment-based complaints be denied remedies that other civil rights plaintiffs would have? In the absence of such a rational basis, removing the principal remedy is essentially removing the right. The [u]incongruence and disproportionality is obvious when other plaintiffs having similar civil rights claims continue to enjoy remedies that Establishment-based plaintiffs do not.
See, this is where your inability to clearly state the operative legal theory under which you're working becomes problematic. Section five of the Fourteenth Amendment? The one that says, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article"? What in God's name does that have to do with anything? "Substantive in operation and effect"? It seems like you've just swerved into some alternate theory of constitutionality without laying any groundwork for it. I'm not overly familiar with section five of the Fourteenth Amendment, but I don't see what anything you've said above has to do with constitutional review under the Equal Protection Clause, and I really have no idea what you're getting at with it.

However, whatever relevance it may have, removing a plaintiff's right to obtain attorney's fees is most certainly not tantamount to "removing the right" entirely. Parties are still free to pursue Establishment Clause cases, and, as I've said previously, the ACLU and other organizations would no doubt still take them on, as would private attorneys on a pro bono basis. This legislation would no doubt chill the exercise of Establishment Clause rights, but this argument to which you keep returning, that denial of attorney's fees equates to a complete elimination of the constitutional right, is simply absurd.

Sixth, the inquiry into rational basis is applicable to Equal Protection analysis, but inquiring whether the government has a valid reason for doing what it wants to do is not limited to Equal Protection. Similar considerations apply to general First Amendment jurisprudence. As was discussed in the recent Ten Commandments cases, motivation still plays a role in an Establishment inquiry. And the motivation behind HF 2679 smells like a rotting fish. Why adopt a law that in effect encourages state actors to try to promote religion and to violate the Establishment Clause? Under the First Amendment, is there a legitimate secular reason to provide such encouragement? The answer is--in my opinion--clearly in the negative. The assertion of extortion is ludicrous. The purpose of this bill is to affirmatively try to advance religious-government entanglement. And under the First Amendment, that's improper.
Nice attempt to shift the terms of the discussion, but, no. The Lemon test, which applies to the Establishment Clause inquiry and under which the government's purpose or intent is very relevent, doesn't apply here. We're assuming that the Establishment Clause has been breached by the underlying government action in each of the cases in which the proposed legislation would become relevant. The challenge you seek to pose, as best I understand it, to the attorney's fees legistlation arises under the Equal Protection Clause, in which the test, as I've stated at length above, would be quite deferential to the government, and more importantly, the government's actual motivation would be irrelevant so long as some legitimate state purpose could be articulated. Whatever the "motivation" behind this bill "smells" like, it is entirely irrelevant to the constitutional inquiry under the Fourteenth Amendment so long as some legitimate state purpose, to which the denial of attorney's fees to Establishment Clause Victims is rationally related, can be articulated by the government.

Seventh, I believe you're aware that federal judges take very seriously the awarding of attorney fees and costs in civil rights cases. So consider: will federal judges look favorably upon a bill that says they have been a party to extortion? Or do you think it more likely (as I do) that they will find the stated rationale for this bill rather amusing?
All of the federal judges I know take their positions seriously enough to understand that their personal opinion of a piece of legislation is not determinative as to the constitutionality of that legislation. They would, and should, insist that a persuasive argument be cast in terms of legal doctrines articulated by the Supreme Court as interpreter of the relevant constitutional provisions in order to justify holding a statute unconstitutional. For the reasons stated above, I think it's far from clear that such an argument can be made here. Whether any particular federal judge would believe that denying plaintiffs the right to recover attorney's fees for Establishment Clause violations is a bad idea, or even unfair or unjust in some broad sense, is not dispositive of the constitutional inquiry.

Well, I hope I've laid it out a little more clearly for you. Or perhaps I'm just spouting more nonsense. Hell, I might have made all this up.
You've done a much better job explaining your opinion than you previously had, but that hardly justifies or excuses your "It's unconstitutional because I say so, and anyone who questions me is simply ignorant" attitude of your earlier posts. You've at least provided something for us to talk about, although for the reasons stated in my discussion above I do think that your conclusion that "Personally, I doubt there is a federal judge out there, whether denominated liberal or conservative or moderate, who would have the slightest difficulty striking down this bill if it were to become law," is indeed nonsense. There may be an Equal Protection argument to be made that passes the laugh test, but it's far from as certain as you want to think it is.

Anyway, welcome to my ignore list.
If this is how you treat everyone who inquires in good faith as to the basis of your unsupported and ill-informed conclusions, it must be a long list. I rather suspect I'm in good company, though.

*You might argue that the law would disproportionately affect minority creeds, as those are more likely to suffer an Establishment Clause violation, and that "members of minority creeds" are a discrete group entitled to a higher standard of review. Maybe the Court would buy that, but it's hardly as clear-cut as you seem to believe it is.

rockoon

4th October 2006, 04:46 AM

Do we know how much ACLU lawyers get paid?

AFAIK, they do it for the money.

JamesDillon

4th October 2006, 05:01 AM

Do we know how much ACLU lawyers get paid?

AFAIK, they do it for the money.

That would generally be an incorrect assumption. According to the ACLU (http://www.aclu.org/jobs/careers/26366res20060803.html), salaries for recent law school graduates "begin in the low $50's." Compare that to a starting salary of $145,000 (http://select.nytimes.com/search/restricted/article?res=F50D1FF8355A0C728CDDA00894DE404482) (plus annual bonus, which last year was about $25,000, I think) for first-year associates at large New York City firms. If ACLU attorneys are primarily motivated by money, they're abysmally stupid. I very much doubt that that's the case.

Tony

21st February 2007, 07:57 PM

any updates on this?

Darth Rotor

21st February 2007, 08:38 PM

George Carlin nailed it: If you have a stupid, selfish, hypocritical electorate, you get stupid, selfish, hypocritical leaders.
GC has a way with words, hasn't he? :)
What is really stunning, in my view, is that the solution to the Establishment matter is so breathtakingly simple: The government takes no position on any religious matter. Period. This is not difficult to do. No one has yet provided any any cogent argument that government needs to show any favoritism of any kind to religion in general or to any creed (or collection of creeds) in particular. Religion is not government's business.
Stuff and nonsense.
Why is this so hard for some people to understand?
Why it is so hard for you to understand, I ask, with the consideration that I hold you in high regard, that rivers of blood were shed in defense of the notion" . . . that government of the people. . . by the people. . . for the people. . . shall not perish from this earth." ==Noted lawyer and occasional President of these United States, Abraham Lincoln==
How do you not understand that if the people are in the main religious (for better and worse) that said government will indeed, being of them, by them, and for them, take an interest in matters where government and religion intersect?

What about that do you, and no less than four score and seven others, do not get?

DR

Tony

21st February 2007, 08:50 PM

Darth Rotor

21st February 2007, 08:56 PM

Tony

21st February 2007, 09:03 PM

Bull. Thanks for your interest in Constitutional affairs, but the pinball machine just registered a tilt.

"The people" are indeed a completely various case, a pile of contradictions that you, Tony, cannot pigeon hole. My question to you is, are you enamored of the tyranny of the minority? There are a few dozen despotic regimes all over the world -- Syria, Saudi, Rwanda, to name few current regimes -- who play that style of poker.

Is that your preferred paradigm? The tyranny of the elite, of the minority? Do you want America to be Mexico, a land where the tyranny of the minority, of the self appointed elite, is the rule? If you are a populist, a libertarian, a Libertarian, or an old school Liberal, how in the name of Pete can you advocate the rule of the minority? That is exactly what the Founding Fathers rose up in rebellion against: the rule of an elite minority.

False dichotomy. Just because the majority doesn't get to have their every whim made law (do you accept slavery if the majority deems it acceptable?) doesn't mean there is a state of de facto "tyranny of the minority".

Darth Rotor

21st February 2007, 09:16 PM

False dichotomy. Just because the majority doesn't get to have their every whim made law (do you accept slavery if the majority deems it acceptable?) doesn't mean there is a state of de facto "tyranny of the minority".

Really? Red Herring. Does the majority support slavery? No, not now, and not for about a century.

Why do you raise that anachronism? Appeal to emotion?

Are you out of valid replies?

Come on, Tony, who are The People?

DR

Tony

21st February 2007, 09:24 PM

Really? Red Herring. Does the majority support slavery? No, not now, and not for about a century.

Why do you raise that anacrhonism? Appeal to emotin?

Are you out of valid replies?

Logic is obviously over your head tonight.

Come on, Tony, who are The People?

In this case, every citizen/person in the USA.

Darth Rotor

21st February 2007, 09:30 PM

Logic is obviously over your head tonight.
No, sport, you can't reach high enough to find the concept. Nice job, mister libertarian, he who is unable to elucidate who the People are. What kind of a poser are you? Are you sincere, Tony, or are you phony Tony? I prefer to think not.

Damnit, you are a Texan. I am guessing that you are a populist. This is a nod to you, an honoring of your position.

If you are a populist, Tony, what is vox populi, and how do you derive it? Don't rush your answer, I am in no hurry.
In this case, every citizen/person in the USA.
Right, whose viewpoints and priorities are as varied as the shapes of snowflakes. 300 million individuals are "the people." That brings us back to square one.

Who are The People, Tony, and how are they served? How do you do that, in practice, rather than in your ephemeral theory?

Try again, Tony, you are not even to first base yet.

Let me suggest that you read the Constitution, Article V, and ponder on how fundamental change is effected. In a practical sense, how do you serve

The People?

DR

Ben Tilly

21st February 2007, 10:28 PM

No, no, it's not unconstitutional... it restores the constitution. Says it right there in the title, see?

I find myself strangely reminded of the Yes Minister episode where Sir Humphrey says, "You always put the difficult bit in the title where it can't do any harm."

(For American readers, Yes, Minister was a hilarious and informative BBC comedy during the 1980s about how government really works. It never ran in the USA because American government is so different from the British Parliamentary System that it wouldn't have made sense to an American audience.)

Cheers,
Ben

Darth Rotor

21st February 2007, 10:30 PM

I find myself strangely reminded of the Yes Minister episode where Sir Humphrey says, "You always put the difficult bit in the title where it can't do any harm."

(For American readers, Yes, Minister was a hilarious and informative BBC comedy during the 1980s about how government really works. It never ran in the USA because American government is so different from the British Parliamentary System that it wouldn't have made sense to an American audience.)

Cheers,
Ben

But it might have been educational. I'll look it up. How many seasons did it run?

DR

NoZed Avenger

21st February 2007, 10:32 PM

I find myself strangely reminded of the Yes Minister episode where Sir Humphrey says, "You always put the difficult bit in the title where it can't do any harm."

(For American readers, Yes, Minister was a hilarious and informative BBC comedy during the 1980s about how government really works. It never ran in the USA because American government is so different from the British Parliamentary System that it wouldn't have made sense to an American audience.)

Yes, Minister and Yes, Prime Minister ran for quite a while on PBS in the US.

Brilliant show(s).

fishbob

21st February 2007, 10:48 PM

How do you not understand that if the people are in the main religious (for better and worse) that said government will indeed, being of them, by them, and for them, take an interest in matters where government and religion intersect?
DR

I think Brown was clearly saying that the government has no valid reason to take any interest in religious matters, and should make every attempt possible to keep the government nose out of religion. Seems to me that fighting off religious efforts to to gain footholds in government is a necessary part of this attempt.

My understanding is that government and religion usually intersect due to encroachment into government by some of the religious. The people who feel the need are free to take their mythic notions into their tax exempt churches and have a big old time. As part of the bargain, these people are also free to leave everybody else the hell alone.

-----------------------
ETA: Yes Minister ran on PBS in the Dallas/Fort Worth area for several years as part of a block of Sunday evening British Comedies. Benny Hill, Monty Python, The Goode Neighbors, and several others. I determined at that time that there were really only six British actors, since the same ones seemed to be in most of these shows.

Ben Tilly

21st February 2007, 11:28 PM

If I understand this correctly, it says "the people", not "the majority". "The people" means all people, not just the majority that thinks they should use the government to enforce their religion. That's why we have the first amendment and the Bill of Rights, to protect the minority against the oppression of the majority. I can't conceive of why you'd advocate for something besides this.
Bull. Thanks for your interest in Constitutional affairs, but the pinball machine just registered a tilt.

"The people" are indeed a completely various case, a pile of contradictions that you, Tony, cannot pigeon hole. My question to you is, are you enamored of the tyranny of the minority? There are a few dozen despotic regimes all over the world -- Syria, Saudi, Rwanda, to name few current regimes -- who play that style of poker.

Sorry, but you've just demonstrated pretty severe ignorance of the foundations of the US legal system. (And indeed of most modern democracies.)

One of the key purposes of having a Constitution is to provide minorities with rights that can't easily be taken away by the majority of the moment. This provides protections that help the society as a whole remain stable. The result is not that a minority winds up in power, it is that various minorities are protected from those who are currently in power.

The protection is far from absolute. However the difficulty in amending the Constitution, combined with the fact that it superceeds all other forms of law, does serve as a valuable protection. As it is meant to.

Is that your preferred paradigm? The tyranny of the elite, of the minority? Do you want America to be Mexico, a land where the tyranny of the minority, of the self appointed elite, is the rule? If you are a populist, a libertarian, a Libertarian, or an old school Liberal, how in the name of Pete can you advocate the rule of the minority? That is exactly what the Founding Fathers rose up in rebellion against: the rule of an elite minority.

A better comparison is America and France. Both became democracies at about the same time. France kept the idea that the majority of the moment is in charge. America introduced the idea that there are limits on the majority that cannot easily be revoked. America has suffered one civil war, and has managed to keep its original system of government intact. France quickly fell under the rule of Napoleon and has since been through many civil wars, and a long train of different kind of governments. (Including a number of democracies.) Their present government is, I believe, the longest lasting government that France has enjoyed in 2 centuries.

Who are the People, Tony? I am not talking about Your People, or My People, but The People?

Who the hell are they? They sure as sh__ are not you, and for that matter, they are not me. (Thank God for small favors.)

Abe Lincoln got it, why don't you get it?

DR

I agree that Abe Lincoln got it, but I suspect that what he understood is very different from what you think he understood.

Regards,
Ben

Beerina

22nd February 2007, 06:30 AM

I think Brown was clearly saying that the government has no valid reason to take any interest in religious matters, and should make every attempt possible to keep the government nose out of religion. Seems to me that fighting off religious efforts to to gain footholds in government is a necessary part of this attempt.

Yes, but you will pardon the religious from trying. See, the government has become far more intrusive into your life over the past hundred years. By taking over huge swaths of everyday life, Constitutionally they are required to "cleanse" that portion of religion insofar as they deal with it.

What's wrong with the following picture:

- Take huge taxes from people to create public schools

- Force everybody to send their kids there unless they can afford to go elsewhere to a private school

- Forbid religion in the public school

Now a number of people have no choice but to send their kids to public schools thanks to being taxed for it. The idea that something integral to the life of many people (religion) is easily and completely separable from something also integral to the life of many people (education) is largely a modern fabrication to rhetorically buttress the separation of church and state issue.

Darth Rotor

22nd February 2007, 06:55 AM

Tony

22nd February 2007, 09:44 AM

The assertion that government that serves the people should for some reason ignore the concerns of the people, which includes all of the people, strikes me as contradictory to representative government's alleged purpose.

Strawman. No one is saying that the goverment should ignore the "concerns" of the people. We're saying that the majority doesn't get to use the government to codify it's religious beliefs into law.

Darth Rotor

22nd February 2007, 09:48 AM

Strawman. No one is saying that the goverment should ignore the "concerns" of the people. We're saying that the majority doesn't get to use the government to codify it's religious beliefs into law.
Strawman.

How do you mean to separate people's will, the desires of the citizenry, in a land where freedom to worship is protected, from religious beliefs? What artificial parsing can you do with human thought in order to achieve this?

Who are you to demand that people separate themselves from themselves? Religion is not an insert/extract module in all people, nor is it your right to demand that it be one. In some, or many, it is an integral part of who they are. These are citizens, just as you and I are citizens.

Why are these citizens a lesser citizen than you? (Do you recognize where this style of discussion comes from? )

DR

Tony

22nd February 2007, 09:57 AM

Strawman.

The meaning of strawman is obviously over your head as well.

How do you mean to separate people's will, the desires of the citizenry, in a land where freedom to worship is protected, from religious beliefs? What artificial parsing can you do with human thought in order to achieve this?

Umm..tell them to keep their stupid beliefs out of our government. I.E. the first amendment. Really, are you having that hard of a time understanding this?

Who are you to demand that people separate themselves from themselves?

A free citizen of the US with the same rights as everyone else. I don't have the right to make their beliefs illegal, and they lack the same right to make my (lack of) beliefs illegal.

Religion is not an insert/extract module in all people, nor is it your right to demand that it be one. In some, or many, it is an integral part of who they are.

Too bad. The don't get to codify that "integral part of who they are" in the same way that I don't get to.

Why are these citizens a lesser citizen than you?

Strawman

(Do you recognize where this style of discussion comes from? )

A person who has a hard time understanding simple concepts? Frankly, I don't care. This is a simple concept and you're trying to muddy it up with a bunch on pseudo-intellectual clap-trap.

Dr Adequate

22nd February 2007, 10:15 AM

What's wrong with the following picture:

- Take huge taxes from people to create public schools

- Force everybody to send their kids there unless they can afford to go elsewhere to a private school

- Forbid religion in the public school What's wrong with this picture?

You mean apart from being completely inaccurate?

Religion is not forbidden in public schools. On the contrary, it is protected by the First Amendment and defended by the ACLU.

It is, however, forbidden for state employees to institute religious practices in public schools. And a good thing too. Liberty of conscience in matters of religion is not a privilege that should be reserved for the majority.

Dr Adequate

22nd February 2007, 10:30 AM

I find it reductionist, and in error, to presume that the majority and their interest is to be written off, per Brown's remark, when the First Amendment is framed as a protection of their right to freedom of religion, which is in tension with freedom from compulsory religion. No it isn't. On the contrary, the latter is necessary to the former. If someone can force you to pray to Mecca, or to say three Hail Marys, or to worship Satan ("compulsory religion") then you do not have "freedom of religion". Perhaps you could freely practice your religion in, as you put it "the closet".

Pretending that the answer is to stuff religion in the closet -- there you are free to worship in your closet -- smacks of asking the gays to get back into the closet, where they don't pester anyone. A more suitable analogy would be that gay people are not allowed to use their position as state employees to compel people to have gay sex. In the same way, religious people are not allowed to use their position as state employees to compel a Jew to pray to Jesus; or to take away a Catholic's rosary; or to make Islam illegal. Not while the ACLU is watching them, anyway.

This, I feel, is all to the good.

Brown

22nd February 2007, 10:44 AM

How do you not understand that if the people are in the main religious (for better and worse) that said government will indeed, being of them, by them, and for them, take an interest in matters where government and religion intersect?

What about that do you, and no less than four score and seven others, do not get?I have always found it a waste of time to argue with those who do not know what they are talking about. No offense is meant. I'm simply pointing out that your comments demonstrate that you are remarkably uninformed about the history of the Establishment Clause, the historical dynamic of governmental entanglement with religion, and the remarks of Abraham Lincoln.

I have written quite extensively on this topic for this forum. You may find value in threads such as:

Chief Justice Moore refuses to remove 10 commandments (http://forums.randi.org/showthread.php?t=8198) (includes a very extensive analysis of the Establishment Clause)
Fourth Circuit Upholds "Under God" In Pledge (http://forums.randi.org/showthread.php?t=43161)
Roll Over, Thomas Jefferson (http://forums.randi.org/showthread.php?t=34901)
The Alito Hearings (http://forums.randi.org/showthread.php?t=50240)
SCOTUS pick: John Roberts (http://forums.randi.org/showthread.php?t=42111) (esp. second and third pages)
Supreme Court Allows Religious Monuments on Public Property (http://forums.randi.org/showthread.php?t=36959) (but be mindful of the date of posting)
Constitutional Law Help! (http://forums.randi.org/showthread.php?t=25766)
Court dimisses pledge case (http://forums.randi.org/showthread.php?t=24695)

I am not inclined to go over old ground again. Do some homework, then we'll talk.

By the way, Lincoln, as surely you know, was not a member of any Christian church. He was accued of being a pagan, and he frankly stated that he refused to join Christian churches because he considered them to be hypocritical. It is thus very odd for someone to cite Lincoln in support of entanglement of government and the majority (currently, Christian) religion.

When Lincoln spoke of "God," he spoke of a higher power, almost deistic in nature, that gifted attributes to individuals but did not involve Himself supernaturally in daily human affairs. (Having such a view of the Almighty is more understandable if you put yourself in the shoes of a man presiding over the the most horrific bloodbath this country has ever known.)

Upchurch

22nd February 2007, 10:44 AM

DR, would you concisely state what your position in this thread is?

Dr Adequate

22nd February 2007, 10:56 AM

I have always found it a waste of time to argue with those who do not know what they are talking about. No offense is meant. I'm simply pointing out that your comments demonstrate that you are remarkably uninformed about the history of the Establishment Clause, the historical dynamic of governmental entanglement with religion, and the remarks of Abraham Lincoln. Let's have some of those remarks, shall we?

The Bible is not my Book and Christianity is not my religion. I could never give assent to the long complicated statements of Christian dogma. - Abraham Lincoln.

My earlier views at the unsoundness of the Christian scheme of salvation and the human origin of the scriptures, have become clearer and stronger with advancing years and I see no reason for thinking I shall ever change them. - Abraham Lincoln, letter to Judge J.S. Wakefield.

UserGoogol

22nd February 2007, 11:46 AM

Strawman.

How do you mean to separate people's will, the desires of the citizenry, in a land where freedom to worship is protected, from religious beliefs? What artificial parsing can you do with human thought in order to achieve this?

Artificial parsing is precisely what the legal system is for. The current "Lemon Test" seems pretty good, I think, although a bit vague. It's not so much that the the motives have to be utterly secular, but that the laws can in principle be justified for secular reasons. (Along with the other two prongs.)

Steven Howard

22nd February 2007, 11:51 AM

any updates on this?

Since it was introduced in the previous Congress, it's dead. As far as I can tell, it never made it out of the House Judiciary Committee. It certainly never got referred to the Senate.

Ziggurat

22nd February 2007, 12:08 PM

If I understand the current state of affairs, if an individual sues government over first ammendement issues (like city nativity scenes) and wins, the judge can and often does award that person legal fees. That brings up a question for me: if that individual loses the case they bring, do judges award the government legal fees?

Upchurch

22nd February 2007, 12:12 PM

That brings up a question for me: if that individual loses the case they bring, do judges award the government legal fees?This is a total WAG, but wouldn't the government have to file a counter-suit in order to get money?

Tony

22nd February 2007, 12:47 PM

if that individual loses the case they bring, do judges award the government legal fees?

They're called taxes.

fishbob

22nd February 2007, 02:18 PM

numbered for my convience:1 - Yes, but you will pardon the religious from trying. See, the government has become far more intrusive into your life over the past hundred years. By taking over huge swaths of everyday life, Constitutionally they are required to "cleanse" that portion of religion insofar as they deal with it.

2 - What's wrong with the following picture:
- Take huge taxes from people to create public schools
- Force everybody to send their kids there unless they can afford to go elsewhere to a private school
- Forbid religion in the public school

3 - Now a number of people have no choice but to send their kids to public schools thanks to being taxed for it.

4 - The idea that something integral to the life of many people (religion) is easily and completely separable from something also integral to the life of many people (education) is largely a modern fabrication to rhetorically buttress the separation of church and state issue.

1: No I will not. Nor will I pardon government intrusiveness.
2: These aspects of the public school system have changed little over the past 200 years - except for the cost of both public and private education (more expensive).
3: Again, little change over the last 200 years. Most school taxes come from local property taxes, so big property owners pay more.
4: Misses the point - you can be religious in public schools without using the schools for religious purposes. People of various religions have to be educated in the same facility, so they can all just put a sock in it at school. It is not as difficult as you seem to think to shut up and listen for a while each day.

fishbob

22nd February 2007, 02:22 PM

How do you mean to separate people's will, the desires of the citizenry, in a land where freedom to worship is protected, from religious beliefs? What artificial parsing can you do with human thought in order to achieve this?

You obviously didn't have somebody like Mrs Donnelly as a teacher in grade school.
Sit down.
Shut up.
Open you books.

UserGoogol

22nd February 2007, 03:00 PM

drkitten

22nd February 2007, 03:07 PM

The idea that something integral to the life of many people (religion) is easily and completely separable from something also integral to the life of many people (education) is largely a modern fabrication to rhetorically buttress the separation of church and state issue.

That is, not to put too fine a point on it, bollocks.

As a simple example, when did public schools start providing lunches? The 1950s?

Food is integral to the life of many people. Education is integral to the life of many people. But the idea that it is the educator's job to provide food is the modern fabrication. If you had said in 1750 that the public schools should also feed their students, you would have been laughed at.

Similarly, food is integral to the life of many people; clothing and shelter are equally integral to the life of many people.

So why doesn't McDonald's sell sweaters? Why doesn't Home Depot sell hamburgers? Why doesn't the Gap sell shingles and plywood?

And why do none of those three teach calculus or irregular French verbs? Because education is integral to the life of many people

Goodness me, I forgot all about medical care, too. Why doesn't McDonald's --- or the Gap -- or Home Depot -- offer antimalarial pills?

And why doesn't the local church offer antimalarial pills? Or hamburgers? Or plywood and shingles? How can you easily and completely separate my need for antimalarial pills from my need for guilt trips and misinformation regarding science?

I can't get quinine at the local cathedral! Clearly, my rights are being violated!

Tony

22nd February 2007, 04:21 PM

That is, not to put too fine a point on it, bollocks.

As a simple example, when did public schools start providing lunches? The 1950s?

Food is integral to the life of many people. Education is integral to the life of many people. But the idea that it is the educator's job to provide food is the modern fabrication. If you had said in 1750 that the public schools should also feed their students, you would have been laughed at.

Similarly, food is integral to the life of many people; clothing and shelter are equally integral to the life of many people.

So why doesn't McDonald's sell sweaters? Why doesn't Home Depot sell hamburgers? Why doesn't the Gap sell shingles and plywood?

And why do none of those three teach calculus or irregular French verbs? Because education is integral to the life of many people

Goodness me, I forgot all about medical care, too. Why doesn't McDonald's --- or the Gap -- or Home Depot -- offer antimalarial pills?

And why doesn't the local church offer antimalarial pills? Or hamburgers? Or plywood and shingles? How can you easily and completely separate my need for antimalarial pills from my need for guilt trips and misinformation regarding science?

I can't get quinine at the local cathedral! Clearly, my rights are being violated!

On that same note, sex is also an integral part of many people's lives, including teenagers. Are their rights being violated because they can't get any tang at school?

Darth Rotor

22nd February 2007, 04:41 PM

Umm..tell them to keep their stupid beliefs out of our government. I.E. the first amendment. Really, are you having that hard of a time understanding this?
Sorry pal, our government includes me, you, and them. All are included in "We The People."
A free citizen of the US with the same rights as everyone else. I don't have the right to make their beliefs illegal, and they lack the same right to make my (lack of) beliefs illegal.
How is that germane to this discussion?
Too bad. The don't get to codify that "integral part of who they are" in the same way that I don't get to.
But you get to tell them how to think and behave?

Nope.
[quoteA person who has a hard time understanding simple concepts? Frankly, I don't care. This is a simple concept and you're trying to muddy it up with a bunch on pseudo-intellectual clap-trap.[/QUOTE]
No, I am trying to get you out of your tunnel vision. Not an easy task.

DR

gnome

22nd February 2007, 04:44 PM

Is that your preferred paradigm? The tyranny of the elite, of the minority? Do you want America to be Mexico, a land where the tyranny of the minority, of the self appointed elite, is the rule? If you are a populist, a libertarian, a Libertarian, or an old school Liberal, how in the name of Pete can you advocate the rule of the minority? That is exactly what the Founding Fathers rose up in rebellion against: the rule of an elite minority.

This deserves revisiting.

Keeping government's nose out of religious matters is not a case of disempowering the majority in favor of the minority. It disempowers the government in that matter, period, and the individual is the ultimate authority over their own religious matters.

It means the majority doesn't get to legislate their religious views... nor the minority. It is left up to the individual.

Darth Rotor

22nd February 2007, 04:50 PM

No it isn't. On the contrary, the latter is necessary to the former. If someone can force you to pray to Mecca, or to say three Hail Marys, or to worship Satan ("compulsory religion") then you do not have "freedom of religion". Perhaps you could freely practice your religion in, as you put it "the closet".
You are not addressing the point of how Brown asserts that there is to be no tension, and no compromise, in a government of the people by the people and for the people where he wants the people to be forced park their religion at the door where the state interests interact with the interests of the people and their various religious activities.

Hence the reference to Lincoln. Nowhere am I advocating the establishment of a national religion, nor of forcing anyone to practice one. What I am objecting to is the insistance that religion has to be forced into the closet on the mere sayso of those who are not religious.

BROWN:
in particular. Religion is not government's business.

The government is made up of people, it allegedlyo serves the people, and many (though not all of the people) are indeed concerned with religion. The government thus has an interest in religion, and it is irrational to attempt to by fiat decree a stovepiping of religion from the lives of the citizens, public and private. The strict prohibition is on establishing one religion over another is specifically written out. That is not what is being disagreed with. The disagreement is that a wall, rather than a membrane, exists, and that religion must be consigned to the closet.

DR

Tony

22nd February 2007, 04:54 PM

Sorry pal, our government includes me, you, and them. All are included in "We The People."

Yes, that's my point.

How is that germane to this discussion?

You asked a question:

Who are you to demand that people separate themselves from themselves?

I answered, please try to keep up.

But you get to tell them how to think and behave?

Non sequitor and a strawman. I've never said anything about telling people what to think or how to behave.

No, I am trying to get you out of your tunnel vision. Not an easy task.

You must first get out of your own tunnel vision if you want to get others out of theirs.

Why are you defending theocracy DR?

Darth Rotor

22nd February 2007, 05:01 PM

By the way, Lincoln, as surely you know, was not a member of any Christian church. He was accued of being a pagan, and he frankly stated that he refused to join Christian churches because he considered them to be hypocritical. It is thus very odd for someone to cite Lincoln in support of entanglement of government and the majority (currently, Christian) religion.

When Lincoln spoke of "God," he spoke of a higher power, almost deistic in nature, that gifted attributes to individuals but did not involve Himself supernaturally in daily human affairs. (Having such a view of the Almighty is more understandable if you put yourself in the shoes of a man presiding over the the most horrific bloodbath this country has ever known.)
The reference to Lincoln was to his words in the Gettysburg address, regarding the character of the government, and its relationship to the people. His religion is irrelevant. Those terse words encapsulate who the People are who make up government. It is all of the people, not merely the people who don't care for religion in their lives.

Your position as stated in the first two posts of this thread is both anti-compromise, and absolutist. The First Amendment establishes a tension, between freedom of religion, and freedom from compulsory religion. You stand for that tension to be eradicated, with no compromise. I don't. Your position is thus one that turns to dictating to The People, all of them, rather than serving the people, all of them, not just the one's who think like you.

DR

Darth Rotor

22nd February 2007, 05:04 PM

Why are you defending theocracy DR?
Nowhere in this thread have I advocated the establishment of a state religion. Nor will I. Ever.

My point is the inverse, that artificial extraction of religion, demanded by those opposed to or indifferent to religion, from public life in the form of the overlap of the interests of the people's religion and their government is not consistent with the First Amendment.

Have you caught up yet?

DR

Tony

22nd February 2007, 06:19 PM

Nowhere in this thread have I advocated the establishment of a state religion. Nor will I. Ever.

Ok, just checking. Because your argument took on the appearance of an argument in support of theocracy should the majority choose it.

My point is the inverse, that artificial extraction of religion, demanded by those opposed to or indifferent to religion, from public life in the form of the overlap of the interests of the people's religion and their government is not consistent with the First Amendment.

No one is arguing for the inverse of theocracy, or the artificial extraction of religion. I'm glad you finally, explicitly, stated your position. Doing so demonstrates just how off you are. Now please, address the issue at hand, ie, a religious bloc voting to codify it's religious beliefs and symbolism. Do you support such actions?

Have you caught up yet?

As the above illustrates, you still haven't caught up.

Darth Rotor

22nd February 2007, 06:26 PM

No please, address the issue at hand, ie, a religious bloc voting to codify it's religious beliefs and symbolism.

That is not the issue at hand. Red herring. Brown's assertion that government has no business concerning itself with religion is what is at hand, and when the government is made up of the people, and by the people, and allegedly serves the people -- rather than rules the people -- then it can't help but concern itself with religion. It can do that without establishing a religion.

Now, you can take your attempt, for a second time, to play the theocracy game, or you can tell me why you think government should rule rather than serve the people?

Or throw in whatever else you think you can get away with.

It's a free country. :cool:

DR

Tony

22nd February 2007, 06:29 PM

You stand for that tension to be eradicated, with no compromise.

I see no tension. The concept of freedom of religion is predicated on being free from compulsory religion. It's really very simple, if you can't live your life without someone using the state or their power to force you to observe their religious beliefs, you don't have freedom of religion. This "tension" you talk about doesn't, and never did exist as far as the 1st amendment is concerned.

Your position is thus one that turns to dictating to The People, all of them, rather than serving the people, all of them, not just the one's who think like you.

Non sequitor.

Tony

22nd February 2007, 06:32 PM

That is not the issue at hand. Red herring. Brown's assertion that government has no business concerning itself with religion is what is at hand

Which is what I essentially said. I'll take this as a dodge.

and when the government is made up of the people, and by the people, and allegedly serves the people -- rather than rules the people -- then it can't help but concern itself with religion.

That's a non sequitor.

Now, you can take your attempt, for a second time, to play the theocracy game, or you can tell me why you think government should rule rather than serve the people?

You don't have anything except fallacies do you?

Darth Rotor

22nd February 2007, 06:35 PM

I have always found it a waste of time to argue with those who do not know what they are talking about. No offense is meant.
None taken. You went to law school, I didn't. You I hope have a sense for how I have felt for about a decade when discussing matters on the military, and the military political interface with those who think they know something. I don't mind playing the other role, consider it karmic payback.
I'm simply pointing out that your comments demonstrate that you are remarkably uninformed about the history of the Establishment Clause, the historical dynamic of governmental entanglement with religion, and the remarks of Abraham Lincoln.
I understand Lincoln's remarks just fine, it is you who misunderstood where I was going with them.
I have written quite extensively on this topic for this forum.
Chief Justice Moore refuses to remove 10 commandments (http://forums.randi.org/showthread.php?t=8198) (includes a very extensive analysis of the Establishment Clause)
Fourth Circuit Upholds "Under God" In Pledge (http://forums.randi.org/showthread.php?t=43161)
Roll Over, Thomas Jefferson (http://forums.randi.org/showthread.php?t=34901)
The Alito Hearings (http://forums.randi.org/showthread.php?t=50240)
SCOTUS pick: John Roberts (http://forums.randi.org/showthread.php?t=42111) (esp. second and third pages)
Supreme Court Allows Religious Monuments on Public Property (http://forums.randi.org/showthread.php?t=36959) (but be mindful of the date of posting)
Constitutional Law Help! (http://forums.randi.org/showthread.php?t=25766)
Court dimisses pledge case (http://forums.randi.org/showthread.php?t=24695)
In time, I'll get to all of them. I am not fool enough to not get a second opinion.

I will, and I think the forum reading public at large will, find a lot more value if you take JamesDillon off your ignore list. His interchange with you is more informative than you running off in a huff. That was a move not in your interest, nor in the interest of the reading audience at large. You two are far more interesting fare than Tony and I bickering.
I am not inclined to go over old ground again. Do some homework, then we'll talk.
Perhaps. Or you'll remain aloof.

Your assertion and my reaction to it, all beer considered, has nothing to do with your indepth study of law, and everything to do with people, whom the law allegedly serves. Even people who disagree with you.

DR

Tony

22nd February 2007, 06:39 PM

You two are far more interesting fare than Tony and I bickering.

Hey dude, you started the bickering.

Darth Rotor

22nd February 2007, 06:40 PM

I see no tension. The concept of freedom of religion is predicated on being free from compulsory religion. It's really very simple, if you can't live your life without someone using the state or their power to force you to observe their religious beliefs, you don't have freedom of religion. This "tension" you talk about doesn't, and never did exist as far as the 1st amendment is concerned.
How do you arrive at the State forcing you to observe religion from anything I have written, or from freedom to worship?

The tension is in the language. Ever actually read it?

DR

Ben Tilly

22nd February 2007, 06:54 PM

Sorry, but you've just demonstrated pretty severe ignorance of the foundations of the US legal system. (And indeed of most modern democracies.)
How so? The legal system is one third of the framework of government and the social contract. The assertion that government that serves the people should for some reason ignore the concerns of the people, which includes all of the people, strikes me as contradictory to representative government's alleged purpose.

To the contrary, it is central to the intent of having a republic rather than a pure democracy. The government is suppose to be responsive to the will of the majority within certain limits. The purpose of those limits is two-fold. First of all limiting what the current government can do makes the country as a whole more stable (this was the primary concern that the Founding Fathers had). And secondly it protects minorities from majorities that dislike them. (This is the aspect that we pay more attention to now.)

The existence of those limits does not (as you seem to have thought) give control to any specific minority. Instead it limits what the majority can do.

An incidental note. Your comment that the legal system is only 1/3 of the framework of government only holds true for the USA, and only holds true under the Constitution that we chose.

One of the key purposes of having a Constitution is to provide minorities with rights that can't easily be taken away by the majority of the moment. This provides protections that help the society as a whole remain stable. The result is not that a minority winds up in power, it is that various minoritis are protected from those who are currently in power.
Are you referring to The US Constitution, or any Constitution? The Constitution began with considerable indifference to minority rights. It has, thanks to the well considered amendment process, been improved upon to rectify that initial shortcoming -- thanks in part to the rivers of blood I previously mentioned.

Any constitution.

As I noted above, the original US Constitution (which actually was our second constitution) was drafted with more of an eye to ensuring a stable government. However in it a balance of power was created with an eye to protecting the interests of smaller states from larger states, and strong limitations were placed on what the government could do to prevent the government from becoming powerful enough to tyrannize the people. (Changing interpretations have eroded most of those limitations. Most notably since the 1930s the Commerce Clause has been interpreted as a far broader grant of power than was originally intended.)

A major criticism of that constitution was that it didn't provide enough protections against an abusive government. The result was the rapid adoption of 10 amendments (the "Bill of Rights"). Over time it has been modified many times, and many of the amendments have further protected minorities from the majority in current power.

The protection is far from absolute. However the difficulty in amending the Constitution, combined with the fact that it superceeds all other forms of law, does serve as a valuable protection. As it is meant to.
Agreed, but the protection must extend to all of the people, not merely a minority. That requirement does not result in simple problem resolutions, nor in simple conflict of interest/agenda resolution. I find it reductionist, and in error, to presume that the majority and their interest is to be written off, per Brown's remark, when the First Amendment is framed as a protection of their right to freedom of religion, which is in tension with freedom from compulsory religion. Pretending that the answer is to stuff religion in the closet -- there you are free to worship in your closet -- smacks of asking the gays to get back into the closet, where they don't pester anyone. :p Neither is a suitable service to the citizen.

The protection does extend to all of the people.

Since freedom of religion has come up, let's discuss that. The Constitution allows religion to interfere with government (or more precisely says nothing about whether it can, which means it can). But it does not allow government to interfere with religion.

For instance Martin Luther King Jr used his position as a preacher as a bully pulpit to get the government to protect the civil rights of blacks. This was perfectly legitimate. As a private individual he was free to try to influence the opinions of others, and use the influence to try and get the government to do what he wanted. However having gotten the attention of the government, he could not then ask them to give money to his church.

Now governments will overstep this restriction from time to time. And usually they'll tend to overstep by doing things for the religion(s) of the majority. Therefore in most cases courts need to tell government not to do things for the dominant religions. So the enforcement of this particular item will usually involvethe courts enforcing the rights of the minority against the will of the majority. The protection applies just as much to the majority as it does to the minority, but the majority will less often need protecting because the minority is not in a position to infringe on their rights.

Yes. In the mechanism of amendment, the majority can indeed make large muscle movements. Some of them are stupid, like Prohibition. Some are well considered, like universal suffrage. Is it your position that the people should be "protected" from doing something stupid? How far into paternalism and elitism is one to go?

That is not my position. Amendment serves an important purpose. However I brought it up because the possibility of amendment demonstrates that there is a fundamental limit to how much the constitutional framework can protect a minority against a persistent large majority.

Cheers,
Ben

gnome

22nd February 2007, 08:01 PM

That is not the issue at hand. Red herring. Brown's assertion that government has no business concerning itself with religion is what is at hand, and when the government is made up of the people, and by the people, and allegedly serves the people -- rather than rules the people -- then it can't help but concern itself with religion. It can do that without establishing a religion.

Maybe we can agree on this... there are reasons for government to concern itself with religion--establishing the rules for getting tax-exempt status, for example, or (as ever) navigating the fine line between free exercise and establishment.

The only reason we might still disagree is if you feel it goes beyond that, that government (with the mandate of a majority) has any place using its authority or funds in actual promotion or service of a religion (whether it's "official" or not).

As for religious symbols on public property--I think it will always be contentious. Personally I have no problem with it if it is initiated by someone acting as an individual, and not from someone being given preferential treatment over anyone else that might want to put on a public display, religious or otherwise.

UserGoogol

22nd February 2007, 08:02 PM

Brown

23rd February 2007, 01:24 AM

The reference to Lincoln was to his words in the Gettysburg address, regarding the character of the government, and its relationship to the people. His religion is irrelevant. Those terse words encapsulate who the People are who make up government. It is all of the people, not merely the people who don't care for religion in their lives.I thought you were referring to Lincoln's reference to "under God" in the Address. Lincoln made many such references, notably his second inaugural address: "With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow and his orphan - to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." Noble sentiments, but they reflect more of a deist rather than a Christian attitude.

To the extent that the argument is that "government comes from the people and most of the people are religious," it does not follow that "therefore the government should take an official stance on religious questions."

Religion is a private matter. It is, as Thomas Jefferson recognized, a matter of opinion. It is not not government's place to take sides on this matter of opinion, as government has no knowledge that one opinion is clearly right or that another is clearly wrong. Nor is it government's business to adopt religious stances merely because the majority of the people hold an opinion on a particular religious question. Thomas Jefferson felt, and I concur, that any time the government takes sides on a religious question, there is a loss of religious liberty, even among citizens who take the same side that the government does. (See Roll Over, Thomas Jefferson (http://forums.randi.org/showthread.php?t=34901).)

That said, there are those who disagree. Justice O'Connor, now retired, suggested that government CAN adopt a religious stance because the majority of the people hold a religious opinion. But she was in the minority. (Pledge case.)

Justice Thomas suggested that individuals have no anti-establishment rights under the Bill of Rights, which in effect means that atheists have no religious rights or protection under the Bill of Rights. But he was in the minority. (Pledge case and Ten Commandments cases.)

Justice Scalia opined that government can officially declare that having a religious belief is superior to a lack of such belief, that monotheism is a more advanced belief than polytheism, and that complaints of atheists can be summarily dismissed. But he was in the minority. (Ten Commandments cases.)

There are those who try to say that government neutrality will prevent prayer in public and citizens' religious expression in public. This is nonsense, of course, but it an effective scare tactic for inflaming the uninformed and the simple-minded.

Keep in mind that the question pertains to taking sides on religious questions. If the government wants to officially say that God exists (therefore atheists and agnostics are wrong), that there is only one God (and therefore polytheists are wrong), that God involves Himself with daily human affairs (and therefore deists, among others, are wrong), and that certain human actions are appropriate to show the appropriate respect or obedience to God, then it is taking sides. But a thoughtful citizen ought to inquire: (1) How do you know these things about the Almighty, that is, what is your rational basis for making such pronouncements? (2) Don't you have anything better to do? Can't you just leave these questions to the citizens and their clergy of choice and get on with the business of actually governing? What good does it do to vote on whose religious opinion is "right" and whose is "wrong?"

I won't go into too much detail on the following point, but I'll give a brief discussion: Government should behave as though God does not exist. This sounds shocking to a lot of people, but it does not mean that government should be officially atheist. Rather, it means that government must act as though humans will solve human problems, and government must not assume that any problems will ever be solved by any divine intervention. Government should not adopt any idea upon a mere "God says so"; rather, ideas must be supported on their own merit. Government should not forgive a malefactor merely because the malefactor repents and gives his soul to Christ, even if such repentance would merit forgiveness by a church.

Darth Rotor

23rd February 2007, 09:06 AM

Drat, I should have composed my reply in notepad, it got eaten. My browser hates me. Bill Gates must die. The condensed version follows.
I thought you were referring to Lincoln's reference to "under God" in the Address.
No. Not sure why, but I'll accept partial blame for perhaps not spelling out the purpose of the reference to the Gettysburg Address, and the line excerpted.
To the extent that the argument is that "government comes from the people and most of the people are religious," it does not follow that "therefore the government should take an official stance on religious questions."
Since the government is not a disembodied agent, but an organ of participating citizens, serving (allegedly) participating citizens, it can't help but be, if it is to serve its alleged purpose.
Religion is a private matter.
Relgion is a right reserved to the people. Not quite the same thing.
Thomas Jefferson felt, and I concur, that any time the government takes sides on a religious question, there is a loss of religious liberty.
That is a risk, not a certainty. I do not deny that risk.
That said, there are those who disagree. Justice O'Connor --snip-- Justice Thomas-- snip-- Justice Scalia.{All three}in the minority.
Your opression of the minority {opinion} is noted. :D (Is a joke, yes?)
There are those who try to say that government neutrality will prevent prayer in public and citizens' religious expression in public. This is nonsense, of course, but it an effective scare tactic for inflaming the uninformed and the simple-minded.
The scare tactic works in the other direction as well.
Keep in mind that the question pertains to taking sides on religious questions.
Is that what you actually meant in post # _________?
If the government wants to officially say that God exists (therefore atheists and agnostics are wrong), that there is only one God (and therefore polytheists are wrong), that God involves Himself with daily human affairs (and therefore deists, among others, are wrong), and that certain human actions are appropriate to show the appropriate respect or obedience to God, then it is taking sides.
In this example, government looks to be acting in a blatantly Establishment manner.
But a thoughtful citizen ought to inquire: (1) How do you know these things about the Almighty, that is, what is your rational basis for making such pronouncements? (2) Don't you have anything better to do? Can't you just leave these questions to the citizens and their clergy of choice and get on with the business of actually governing? What good does it do to vote on whose religious opinion is "right" and whose is "wrong?"
You appear to presume citizens as purely rational beings. No such citizenry exists.
Government should behave as though God does not exist.
I disagree, government would ideally act agnostically. Your position demands official Atheism, which is Establishment (in the inverse) contra of official religion.
This sounds shocking to a lot of people, but it does not mean that government should be officially atheist.
How is that?
Rather, it means that government must act as though humans will solve human problems, and government must not assume that any problems will ever be solved by any divine intervention.
This can be done from a position of agnosticism.
Government should not adopt any idea upon a mere "God says so"; rather, ideas must be supported on their own merit.
This can be done from a position of agnosticism.
Government should not forgive a malefactor merely because the malefactor repents and gives his soul to Christ, even if such repentance would merit forgiveness by a church.
This can be done from a position of agnosticism.

Carla Fay Tucker died for her own sins, not anyone else's. Andrea Yates should have, but "the Devil* made me do it" mitigation was successfully deployed.

DR

* = evil agent aka husband

rikzilla

23rd February 2007, 09:29 AM

drkitten

23rd February 2007, 09:39 AM

I disagree, government would ideally act agnostically. Your position demands official Atheism, which is Establishment (in the inverse) contra of official religion.

I'm not sure I understand in practice how "official atheism" would differ from "official agnosticism."

In particular, I'd like to point out that agnostics do not lead prayers, either.

The current legal state of affairs is that private citizens can do more or less whatever the hell they want w.r.t. religion, but agents of the state acting in an official capacity cannot.

If you want to pray in school, for example,... go ahead. That's fine. No one will stop you.

But if you are a teacher -- an agent of the state -- and you want to lead your class in prayer, you cannot. If you are a commencement speaker acting as agent of the state, you cannot. Et cetera, et cetera. That's not a restriction on "citizen's expression of religion in public," but upon the actions that an agent of the state can take as part of his/her official duties.

Dr Adequate

23rd February 2007, 10:46 AM

The disagreement is that ... religion must be consigned to the closet. But no-one has said that religion should be consigned to the closet. On the contrary, people should be able to practice their various religions freely. The ACLU, for your information, has fought several cases to establish the principle that street preachers should be allowed to preach on public sidewalks * (http://www.kvbc.com/Global/story.asp?S=3379553&nav=15MVaB2T) : how is this "consigning religion to the closet"? They have fought for the right of ministers to hold baptisms in public parks. * (http://www.washingtonpost.com/ac2/wp-dyn/A16839-2004Jun4) The "closet" apparently includes Falmouth Waterfront Park. I wish I had a beach in my closet, I'd never come out. They have fought for the rights of students to distribute Christian literature in public schools. * (http://www.aclu.org/studentsrights/religion/12811prs20020711.html) Consigning religion to the closet, eh? They have fought for the rights of students to wear T-shirts with religious slogans on them. * (http://www.lasvegassun.com/sunbin/stories/text/2004/sep/09/517482854.html) Rather than consigning the T-shirts to the closet.

But when the power and authority of the state are used to promote some particular religion, this forces all the other religions into the closet.

Consider the following case: Joseph Hanas, a Catholic, was criminally punished for not completing a drug rehabilitation program run by a Pentecostal group. Part of the program required reading the Bible for seven hours a day, proclaiming one's salvation at the altar, and being tested on Pentecostal principles. Staff confiscated Mr. Hanas's rosary and prayer book and told him Catholicism was witchcraft.

The ACLU took them to court. * (www.aclu.org/religion/govtfunding/22354prs20051206.html)

Is this "consigning Pentacostalism to the closet"? Or is it protecting the liberty of conscience of an individual against the coercive power of the state?

chulbert

23rd February 2007, 10:53 AM

I disagree, government would ideally act agnostically. Your position demands official Atheism, which is Establishment (in the inverse) contra of official religion. What does it mean to act agnostically? You can claim to take no position on a religious matter but there are no neutral actions.

Darth Rotor

23rd February 2007, 10:56 AM

But no-one has said that religion should be consigned to the closet. On the contrary, people should be able to practice their various religions freely. The ACLU, for your information, has fought several cases to establish the principle that street preachers should be allowed to preach on public sidewalks * (http://www.kvbc.com/Global/story.asp?S=3379553&nav=15MVaB2T) : how is this "consigning religion to the closet"? They have fought for the right of ministers to hold baptisms in public parks. * (http://www.washingtonpost.com/ac2/wp-dyn/A16839-2004Jun4) The "closet" apparently includes Falmouth Waterfront Park. I wish I had a beach in my closet, I'd never come out. They have fought for the rights of students to distribute Christian literature in public schools. * (http://www.aclu.org/studentsrights/religion/12811prs20020711.html) Consigning religion to the closet, eh? They have fought for the rights of students to wear T-shirts with religious slogans on them. * (http://www.lasvegassun.com/sunbin/stories/text/2004/sep/09/517482854.html) Rather than consigning the T-shirts to the closet.

But when the power and authority of the state are used to promote some particular religion, this forces all the other religions into the closet.

Consider the following case: Joseph Hanas, a Catholic, was criminally punished for not completing a drug rehabilitation program run by a Pentecostal group. Part of the program required reading the Bible for seven hours a day, proclaiming one's salvation at the altar, and being tested on Pentecostal principles. Staff confiscated Mr. Hanas's rosary and prayer book and told him Catholicism was witchcraft.

The ACLU took them to court. * (www.aclu.org/religion/govtfunding/22354prs20051206.html)

Is this "consigning Pentacostalism to the closet"? Or is it protecting the liberty of conscience of an individual against the coercive power of the state?
While I enjoyed your post, I am not sure with what that has to do with my disagreement with Brown, and his assertion on the minor point of "religion is private." I discovered that this catch phrase is commonly a fig leaf for "keep that religion in the closet." My guess is supported by his advocacy of "official Atheism" but not confirmed. Also, since Brown isn't a raving loony but a generally rational person, it's likely a "reading into" deal.

The ACLU championing streetcorner preachers merely the ACLU to be engaging in its professed mission. I should don a party hat and toss confetti? I'll just toss confetti for the simple fact that the players of Man U wear cleats on their shoes, while I am at it. :rolleyes:

DR

Dr Adequate

23rd February 2007, 11:07 AM

While I enjoyed your post, I am not sure with what that has to do with my disagreement with Brown, and his assertion on the minor point of "religion is private." I discovered that this catch phrase is commonly a fig leaf for "keep that religion in the closet". No, what it means is that your religion is your business, not the business of the state. Who the heck is arguing that religion should be "kept in the closet"?

Hint: no-one.

The ACLU championing streetcorner preachers merely the ACLU to be engaging in its professed mission. I should don a party hat and toss confetti? No, you should stop pretending that a rigorous application of the Establishment Clause forces religion into the closet.

Tony

23rd February 2007, 11:33 AM

How do you arrive at the State forcing you to observe religion from anything I have written, or from freedom to worship?

Like I said. Logic is over your head lately.

The tension is in the language. Ever actually read it?

More of your bickering.

Darth Rotor

23rd February 2007, 11:36 AM

Like I said. Logic is over your head lately.

More of your bickering.
Pot, meet kettle.

Beer? It's Friday.

DR

Tony

23rd February 2007, 11:41 AM

Pot, meet kettle.

Good, so you admit that you've been an illogical git on this thread. We can now dismiss your opinion as such.

Beer? It's Friday.

Fuk dat. Lets hit the bong. :D

gnome

23rd February 2007, 03:24 PM

Any thoughts on my comment, DR? I'm looking for some common ground here.

Darth Rotor

23rd February 2007, 03:27 PM

Any thoughts on my comment, DR? I'm looking for some common ground here.
Nothing to argue about, really. Your position is fair minded in that it accepts the continuing pull and push, rather than some "final" answer.

DR

NoZed Avenger

23rd February 2007, 03:30 PM

Nothing to argue about, really. Your position is fair minded in that it accepts the continuing pull and push, rather than some "final" answer.

DR

I'm sorry. This is completely unacceptable.

More name-calling from both sides, or I'm banning the lot of you.

Darth Rotor

23rd February 2007, 03:31 PM

I'm sorry. This is completely unacceptable.

More name-calling from both sides, or I'm banning the lot of you.

Man, and I was trying to be so good after jmercer's last warning to me.

Crap. :(

*skates over to the penalty box*

DR

gnome

23rd February 2007, 08:01 PM

Doody head!!

(there, is that better?)

NoZed Avenger

24th February 2007, 08:41 AM

I'd like to see more ire, but that will have to do for now.

Carry on.