Running First Amendment thread

Dick Whitman · Jul 29, 2011

Atheists want link to a faith-based anti-abortion group removed from the Wisconsin state Web site. No lawsuit yet, it doesn't appear. Just a "complaint." I imagine the atheist group must have put out a press release and are trying to go the public shaming route before resorting to expensive litigation.

http://www.chicagotribune.com/news/local/breaking/chi-atheists-want-link-removed-from-wis-state-website-20110729,0,2835572.story

heyabbott · Jul 29, 2011

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Just so everyone is posting with the same information.

The following is from Wiki concerning the Lynch v. Donnelly case. I wrote an article on this case back in my law school days, and this is a decent synopsis.

The Supreme Court reversed previous rulings in a vote of 5-4, ruling that the display was not an effort to advocate a particular religious message and had "legitimate secular purposes."

Chief Justice Burger delivered the opinion of the Court, in which White, Powell, Rehnquist, and O'Connor joined.[3] The Court held that the crèche did not violate the Establishment Clause based on the test created in Lemon v. Kurtzman. They ruled that the crèche is a passive representation of religion and that there was "insufficient evidence to establish that the inclusion of the crèche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious" view. They also stated that the Constitution "affirmatively mandates accommodation, not merely tolerance of all religions, and forbids hostility toward any."

The Court ruled that the crèche has a legitimate secular purpose within a larger holiday display to celebrate the season and the origins of Christmas which has long been a part of Western culture. The Federal "Government has long recognized—-indeed it has subsidized-—holidays with religious significance." For example, the first Congress that passed the First Amendment enacted legislation providing for paid Chaplains in the House and Senate, and "It has long been the practice that federal employees are released from duties on Thanksgiving and Christmas while being paid." The court compared the crèche to the display of religious paintings in government funded museums. In addition, the crèche requires only minimal expenses for assembly and dismantling. The Court also stated, "no inquiry into potential political divisiveness is even called for" because the situation does not involve direct aid to church-sponsored organizations and because the crèche been displayed for 40 years with no problems.
Click to expand...

I disagreed, and still do, with the majority, but remember the purpose of the religion clause is prevent the establishment of a particular religion as official and the prevention of the free exercise of religion.

The "Lemon test", which details the requirements for legislation concerning religion. It consists of three prongs:

The government's action must have a secular legislative purpose;
The government's action must not have the primary effect of either advancing or inhibiting religion;
The government's action must not result in an "excessive government entanglement" with religion.

When discussing whether or not the government's action violates the 1st Amendment's religion clause, argue with these factors.

Dick Whitman · Jul 29, 2011

heyabbott said:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Just so everyone is posting with the same information.

The following is from Wiki concerning the Lynch v. Donnelly case. I wrote an article on this case back in my law school days, and it's a decent synopsis.

The Supreme Court reversed previous rulings in a vote of 5-4, ruling that the display was not an effort to advocate a particular religious message and had "legitimate secular purposes."

Chief Justice Burger delivered the opinion of the Court, in which White, Powell, Rehnquist, and O'Connor joined.[3] The Court held that the crèche did not violate the Establishment Clause based on the test created in Lemon v. Kurtzman. They ruled that the crèche is a passive representation of religion and that there was "insufficient evidence to establish that the inclusion of the crèche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious" view. They also stated that the Constitution "affirmatively mandates accommodation, not merely tolerance of all religions, and forbids hostility toward any."

The Court ruled that the crèche has a legitimate secular purpose within a larger holiday display to celebrate the season and the origins of Christmas which has long been a part of Western culture. The Federal "Government has long recognized-indeed it has subsidized-holidays with religious significance." For example, the first Congress that passed the First Amendment enacted legislation providing for paid Chaplains in the House and Senate, and "It has long been the practice that federal employees are released from duties on Thanksgiving and Christmas while being paid." The court compared the crèche to the display of religious paintings in government funded museums. In addition, the crèche requires only minimal expenses for assembly and dismantling. The Court also stated, "no inquiry into potential political divisiveness is even called for" because the situation does not involve direct aid to church-sponsored organizations and because the crèche been displayed for 40 years with no problems.
Click to expand...

I disagreed, and still do, with the majority, but remember the purpose of the religion clause is prevent the establishment of a particular religion as official and the prevention of the free exercise of religion.

The "Lemon test", which details the requirements for legislation concerning religion. It consists of three prongs:

The government's action must have a secular legislative purpose;
The government's action must not have the primary effect of either advancing or inhibiting religion;
The government's action must not result in an "excessive government entanglement" with religion.

When discussing whether or not the government's action violates the 1st Amendment's religion clause, argue with these factors.
Click to expand...

Whether the Lemon test is still valid, or ever was, is very much up in the air. Write some of Scalia's scathing dissents about it. And, when in the majority, he won't apply it. Hence, it has become the O'Connor test: Would a reasonable person knowing all the facts find this to be a government endorsement of religion? Until, of course, someone wants to use the "entanglement" test. Then the Lemon test is on again.

Bottom line: It's a mess.

What is ironic about the establishment clause is that it was actually originally intended to stop only the federal government from endorsing a religion - so that the states would be able to do so freely. It's actually a federalism clause. Well, not anymore. But originally that's what it was.

heyabbott · Jul 29, 2011

Dick Whitman said:

heyabbott said:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Just so everyone is posting with the same information.

The following is from Wiki concerning the Lynch v. Donnelly case. I wrote an article on this case back in my law school days, and it's a decent synopsis.

The Supreme Court reversed previous rulings in a vote of 5-4, ruling that the display was not an effort to advocate a particular religious message and had "legitimate secular purposes."

Chief Justice Burger delivered the opinion of the Court, in which White, Powell, Rehnquist, and O'Connor joined.[3] The Court held that the crèche did not violate the Establishment Clause based on the test created in Lemon v. Kurtzman. They ruled that the crèche is a passive representation of religion and that there was "insufficient evidence to establish that the inclusion of the crèche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious" view. They also stated that the Constitution "affirmatively mandates accommodation, not merely tolerance of all religions, and forbids hostility toward any."

The Court ruled that the crèche has a legitimate secular purpose within a larger holiday display to celebrate the season and the origins of Christmas which has long been a part of Western culture. The Federal "Government has long recognized-indeed it has subsidized-holidays with religious significance." For example, the first Congress that passed the First Amendment enacted legislation providing for paid Chaplains in the House and Senate, and "It has long been the practice that federal employees are released from duties on Thanksgiving and Christmas while being paid." The court compared the crèche to the display of religious paintings in government funded museums. In addition, the crèche requires only minimal expenses for assembly and dismantling. The Court also stated, "no inquiry into potential political divisiveness is even called for" because the situation does not involve direct aid to church-sponsored organizations and because the crèche been displayed for 40 years with no problems.
Click to expand...

I disagreed, and still do, with the majority, but remember the purpose of the religion clause is prevent the establishment of a particular religion as official and the prevention of the free exercise of religion.

The "Lemon test", which details the requirements for legislation concerning religion. It consists of three prongs:

The government's action must have a secular legislative purpose;
The government's action must not have the primary effect of either advancing or inhibiting religion;
The government's action must not result in an "excessive government entanglement" with religion.

When discussing whether or not the government's action violates the 1st Amendment's religion clause, argue with these factors.
Click to expand...

Whether the Lemon test is still valid, or ever was, is very much up in the air. Write some of Scalia's scathing dissents about it. And, when in the majority, he won't apply it. Hence, it has become the O'Connor test: Would a reasonable person knowing all the facts find this to be a government endorsement of religion? Until, of course, someone wants to use the "entanglement" test. Then the Lemon test is on again.

Bottom line: It's a mess.

What is ironic about the establishment clause is that it was actually originally intended to stop only the federal government from endorsing a religion - so that the states would be able to do so freely. It's actually a federalism clause. Well, not anymore. But originally that's what it was.
Click to expand...

Scalia, for my money, is intellectually dishonest. see the Violence Against Women Act v. State regulation of Marijuana and his failure to endorse a literal meaning of the warrant requirement of the 5th Amendment.

Dick Whitman · Jul 29, 2011

heyabbott said:

Dick Whitman said:

heyabbott said:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Just so everyone is posting with the same information.

The following is from Wiki concerning the Lynch v. Donnelly case. I wrote an article on this case back in my law school days, and it's a decent synopsis.

The Supreme Court reversed previous rulings in a vote of 5-4, ruling that the display was not an effort to advocate a particular religious message and had "legitimate secular purposes."

Chief Justice Burger delivered the opinion of the Court, in which White, Powell, Rehnquist, and O'Connor joined.[3] The Court held that the crèche did not violate the Establishment Clause based on the test created in Lemon v. Kurtzman. They ruled that the crèche is a passive representation of religion and that there was "insufficient evidence to establish that the inclusion of the crèche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious" view. They also stated that the Constitution "affirmatively mandates accommodation, not merely tolerance of all religions, and forbids hostility toward any."

The Court ruled that the crèche has a legitimate secular purpose within a larger holiday display to celebrate the season and the origins of Christmas which has long been a part of Western culture. The Federal "Government has long recognized-indeed it has subsidized-holidays with religious significance." For example, the first Congress that passed the First Amendment enacted legislation providing for paid Chaplains in the House and Senate, and "It has long been the practice that federal employees are released from duties on Thanksgiving and Christmas while being paid." The court compared the crèche to the display of religious paintings in government funded museums. In addition, the crèche requires only minimal expenses for assembly and dismantling. The Court also stated, "no inquiry into potential political divisiveness is even called for" because the situation does not involve direct aid to church-sponsored organizations and because the crèche been displayed for 40 years with no problems.
Click to expand...

I disagreed, and still do, with the majority, but remember the purpose of the religion clause is prevent the establishment of a particular religion as official and the prevention of the free exercise of religion.

The "Lemon test", which details the requirements for legislation concerning religion. It consists of three prongs:

The government's action must have a secular legislative purpose;
The government's action must not have the primary effect of either advancing or inhibiting religion;
The government's action must not result in an "excessive government entanglement" with religion.

When discussing whether or not the government's action violates the 1st Amendment's religion clause, argue with these factors.
Click to expand...

Whether the Lemon test is still valid, or ever was, is very much up in the air. Write some of Scalia's scathing dissents about it. And, when in the majority, he won't apply it. Hence, it has become the O'Connor test: Would a reasonable person knowing all the facts find this to be a government endorsement of religion? Until, of course, someone wants to use the "entanglement" test. Then the Lemon test is on again.

Bottom line: It's a mess.

What is ironic about the establishment clause is that it was actually originally intended to stop only the federal government from endorsing a religion - so that the states would be able to do so freely. It's actually a federalism clause. Well, not anymore. But originally that's what it was.
Click to expand...

Scalia, for my money, is intellectually dishonest. see the Violence Against Women Act v. State regulation of Marijuana and his failure to endorse a literal meaning of the warrant requirement of the 5th Amendment.
Click to expand...

Wait a minute - I thought they were all consistent when it came to the VAWA and the Raich marijuana decision? It was funny because all the conservatives had to be pro-marijuana and all the liberals had to be anti-marijuana.

His most intellectually dishonest moment, if I recall, was the "Piss Christ" NEA decision.

Baron Scicluna · Jul 30, 2011

Dick Whitman said:

Atheists want link to a faith-based anti-abortion group removed from the Wisconsin state Web site. No lawsuit yet, it doesn't appear. Just a "complaint." I imagine the atheist group must have put out a press release and are trying to go the public shaming route before resorting to expensive litigation.

http://www.chicagotribune.com/news/local/breaking/chi-atheists-want-link-removed-from-wis-state-website-20110729,0,2835572.story
Click to expand...

The solution to this is simple. Put a link to Planned Parenthood up. Problem solved.

Dick Whitman · Aug 6, 2011

I present "More of Us," Trace Adkins's new Jesus-belongs-in-schools-and-courtrooms opus. Surprised his nuanced take on the Establishment Clause is on his album instead of a peer-reviewed academic journal.

I think it's time we remind those fools of something that they forgot:
That there's more of us
Than there are of them

"Them"?

Dick Whitman · Aug 6, 2011

Rick Perry:

http://www.nytimes.com/2011/08/06/opinion/how-to-respond-to-rick-perrys-response.html?hp

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