Alabama SC justices cave, order Ten Commandments removed

AP on Fox News ^ | 8-21-03 | AP on Fox News website

[inquest]

Suppose your state were to make castration the penalty for jaywalking - must we wait until someone is actually facing that sentence before we act, or should not the courts be able to determine that such a law is invalid on its face, under the Eighth Amendment?

In such an instance there's a declared intention to commit a violation. It's no longer a question of "potential". The only way for the authorities to comply with the statute is to commit a violation. Typically, at that point, someone seeks an injunction to prevent enforcement. Injunctions are devices used to order someone not to take an illegal action. They can not be used to order someone to refrain from doing something perfectly legal (for example, installing a radar detector in his vehicle) on the grounds that it might give him the ability to commit an illegal action. That would be making up new law, not applying existing law (unless, perhaps, the court were to issue an injunction based on common law. But even still, common law is judge-made law, so there'd still be "new law" involved, something federal judges do not have the power to create with regard to the Constitution).

[That it's "supposed to be treated differently" does not establish that not treating it differently in any way limits our autonomy as individuals, which is what the 14th amendment proscribes.]

You may be right, but given the state of First Amendment law, this is still ultimately a normative argument. Whether or not it should be treated differently, it is treated differently, and not without some historical and legal justification, either.

When you say that I "may be right", and then continue with the rest of your paragraph, I'm assuming that you're saying that the rest of your paragraph would hold true even if I actually am right. So in other words, even if I'm right that we haven't established a violation of the 14th amendment, the courts are basically going to rule that there's a violation anyway, because that's how they've always done it (at least since Brennan's day). Do I read you right?

[WOSG]

"Those of you who support Judge Moore are doing so only because his views reflect your own."

NO. NOT SO. Judge Moore's particluar religious views do *not* reflect my own, I am a non-fundamentalist Catholic for one,
and simply because he has an official capacity does not mean he throws away his rights of expression.

"If he were a Muslim wanting to put up a tribute to the Koran then you'd be screaming bloody murder. "
NO, WRONG, ANOTHER STRAWMAN. I wouldnt and nor should you disallow public officials from expressions that are consistent with Muslim religion, or favorable to it, so long as it doesnt constitute an "establishment of religion".
Posting a plaque with a quote from the Koran in a Govt building for example is in that permissible category, as is a plaque with the Ten Commandments ... as is, for example, President Bush saying "Islam is a religion of peace".
(Now if Bush was saying that about Christianity, the ACLU would be having fits!)

[general_re]

In such an instance there's a declared intention to commit a violation.

If we take the 14'th to apply the 1'st in its entirety, we went way past "potential" the minute that monument was installed. I understand that you dispute that this is valid doctrine, but that's the way it is for the moment.

So in other words, even if I'm right that we haven't established a violation of the 14th amendment, the courts are basically going to rule that there's a violation anyway, because that's how they've always done it (at least since Brennan's day). Do I read you right?

Essentially. Now, should they do so? IMO, yes. This, done as it was, is a violation of the Establishment Clause of the Constitution of the United States.

[general_re]

I should clarify a bit:

So in other words, even if I'm right that we haven't established a violation of the 14th amendment...

We may not have established a violation to your satisfaction, but it certainly appears to me to be a violation on its face. Opinions will, as always, vary ;)

[WOSG]

"Let's think about the establishment of a real national church for a moment. From a practical standpoint, the govenrment has resources and abilities far beyond any individual Americans, or any subset of Americans. Imagine for a moment the establishment of an official national church, built upon, say, the proposition that the Founding Fathers were not merely brilliant men, but were in fact prophets, with writings and thoughts directly dictated to them by God, thus making their writings into more than simply political theory - it's considered holy. And they revise the New Testament in accordance with some sort of claimed revelation, in order to make it seem as if this was foretold in the Bible. "

Nice thought experiment.

Ahem, you *do* realize the Lincoln Memorial was modelled on the ancient greek temple of Zeus, dont you?

Our "Civic Religion" has been going strong for some time, since the early days of the Washington chopping down a cherry tree myth. ... What gets my goat is the "left turn" our National Religion has taken ...

First, they need to:
1. get a Saints Days: Saint Martin Luther King Jr Day.
2. Hire evangelists: Get the feminists hired in the 'shelters' to bad-mouth males and patriarchy.
Get and enforce EEOC/AA 'diversity' employees in all orgnaizations in the power of govt to evangelize on 'diversity'. And of course, establish and continue an Orthodoxy through a "Priesthood" aka University professorships that hew to the 'tenets of New Faith'.
3. Have a mode of communication to the communicants - aka New York Times.
4. Govt enforces and establishes it via indocrination of the young (Jesuits principles applied by the New Left!), by taking over the public schools and banishing the non-PC.
5. Get the Govt to pay for and fund associated organizations (environmental, ACORN/community, planned parenthood, AA/PUSH/Jesse Jackson, 'for the children' graspers for 'it takes a village' socialism, etc.) These fund Left-wing advocacy in the name of Community Service - the real goal is continued indoctrination and cultural Revolution.
=> Anything outside the circle (aka "not politically correct"), is stigmatized and castigated as unfit for public discourse/consideration.

"And here's the fun part - you get to pay for all this, with your tax money. You, good Christian that you are, get to support this church with your tax dollars - a church that you would, no doubt, consider blasphemous. "

Uh huh. ... BEEN THERE, DONE THAT.

Dont know where to put :-) or :-(. Calling the Left's ways and means of tax-payer funded indoctrination a "Government Religion" is an exagerration, but NOT BY MUCH.

[inquest]

If we take the 14'th to apply the 1'st in its entirety....

That's the big IF, isn't it? This is starting to go around in circles. The question has been whose rights - as defined by the 14th amendment - have been violated. In order to establish that the establishment clause has been applied to the states, it would have to be shown that a government establishment of religion actually does violate people's 14th-amendment rights, rather than merely creating conditions where violations might thrive, as you alluded to at #1105. You've started to answer it, but then went around to saying that it just does and that's that.

I know what the courts have ruled. What I'm trying to do is see if you can justify it by the actual language of the Constitution.

[general_re]

Calling the Left's ways and means of tax-payer funded indoctrination a "Government Religion" is an exagerration, but NOT BY MUCH.

Never surrender, amigo - never surrender ;)

[general_re]

I thought we'd gone through that already - one of the liberties in the Bill of Rights is the right to worship free of an established, government-sponsored religion. There is probably a good deal of truth to the notion that the 1'st specifies "Congress" so as not to interfere with the several state-established churches that were in place at the time of the drafting of the Constitution. However, by the time of the drafting of the 14'th, the last of those churches had been abolished thirty years prior, so it was certainly not an impediment then, nor is it an impediment now.

[BearCub]

Posting a plaque with a quote from the Koran in a Govt building for example is in that permissible category, as is a plaque with the Ten Commandments ... as is, for example, President Bush saying "Islam is a religion of peace".

Government has far too hard a time doing what it is supposed to. It has no business engaging in crap like this. If that judge has time for this, his caseload isn't high enough. Back to work!

[inquest]

I thought we'd gone through that already - one of the liberties in the Bill of Rights is the right to worship free of an established, government-sponsored religion.

A "liberty"? Liberty as I, and I think most people, understand the word, means lack of restriction on action. A state-established religion, however unpalatable it may be, does not restrict action.

[general_re]

Liberty as I, and I think most people, understand the word, means lack of restriction on action.

Odd that the Bill of Rights is framed as a list of things the state may not do, then...

[BearCub]

A "liberty"? Liberty as I, and I think most people, understand the word, means lack of restriction on action. A state-established religion, however unpalatable it may be, does not restrict action.

You are right, a state established religion does not restrict action - and if all the constitution prohibited were restrictions then that would be fine. But it prohibits (a) government sponsored religion, and (b) interference with the private practice of religion.

[inquest]

I think you lost me. Or I lost you, or something. Anyway, I was referring to a lack of restriction on the action of persons, not the action of states. That is, state religious establishments do not in and of themselves constitute restriction on the actions of their citizens.

[inquest]

But it prohibits (a) government sponsored religion, and (b) interference with the private practice of religion.

Just to bring you up to speed on our conversation, the 1st amendment on its face applies only to Congress. The only possible way it can apply to the states is via the 14th amendment. And the 14th amendment only prohibits restrictions on people's actions, so there's no way the establishment clause (as opposed to the free-exercise clause) could fit through that filter.

[general_re]

Anyway, I was referring to a lack of restriction on the action of persons, not the action of states.

That's my point - all the rights in the Bill of Rights are negative rights, where someone else may not do something. None of them are listed as "the people may do thus and such without restriction". In that sense, freedom from an established religion is exactly the same as freedom from cruel and unusual punishment - they are both restrictions on the state, not on the people.

[general_re]

And the 14th amendment only prohibits restrictions on people's actions, so there's no way the establishment clause (as opposed to the free-exercise clause) could fit through that filter.

That is one opinion that is being expounded here, anyway ;)

[inquest]

None of them are listed as "the people may do thus and such without restriction".

Correct. Most of them are restrictions on the power to restrict (or, more generally speaking, use force against) citizens. Those that fit that description are candidates for incorporation by the 14th. Those that don't plausibly fit it, remain as applying only to the federal government.

[general_re]

Those that fit that description are candidates for incorporation by the 14th.

E.g., the Establishment Clause. You have just as much right to be free from the coercive effects of a state religion as you do a federal one ;)

[inquest]

What coercive effects? The coercive effects are covered by the free-exercise clause.

[general_re]

"What castration? There's no castration here." The coercive effects you don't see because the Establishment Clause is in place ;)