Posted on 08/21/2003 9:53:39 AM PDT by Gargantua
Since neither the Court of Appeals nor the US Supreme Court have chosen to stay or overturn the decision, it is probably considered well reasoned. Thompson describes the elements leading to his decision very clearly. It will answer, better then I ever could, the exact laws (and court interpretations) involved.
Reading some of the comments Moore made at the trial does make me wonder about his judicial temperament.
Anyway, I'd be happy to discuss it with anyone who has read it.
Thank you for posting the link. I have read it.
I thought the most telling aspect was that Thompson acknowledged that finding for the defendent would require overturning SCOTUS findings.
Exactly. This is the latest in a long line which misconstrue the establishment clause.
The "establishment clause" is also absolute. Congress shall make no law to establish religion; nor shall it prevent the free exercise thereof.
Again, incorrect. All you did was call my argument a ruse byt the ACLU and atheists. You did not adress the argument itself. Unless Congress or the Courts define exactly what a religion is, and define which religions are "recognized" under law, then any action could be taken and defended as an exercise of religion. Those are facts.
I presume you are referring to this section. If so, where is Thompson's error?
3.
Chief Justice Moore contends that the plaintiffs, and even the United States Supreme Court, have failed to give an appropriate definition of religion; he maintains that an Establishment Clause challenge cannot be resolved with fidelity to the original intent of the framers without adopting a definition of the word "religion" that comports with his understanding of the Establishment Clause.
By the Chief Justice's definition, as stated at trial in reference to his law review article, "religion" means nothing more than "the duties we owe to our Creator and the manner of discharging those duties." Hon. Roy S. Moore, Religion in the Public Square,(1998/1999). Relying on this definition, the Chief Justice views the Establishment Clause as simply preventing government from establishing the duties one owes to God and the manner of discharging those duties. This understanding, according to his testimony at trial, "is derived from the Judeo-Christian view of the sovereignty of God, not the Buddhist view of God or the Hindu view of God, or the Taoist view of God, or the secular humanist view of God." Similarly, the Chief Justice has written that,
"By leaving religion [seemingly] undefined, the [Supreme] Court has opened the door to the erroneous assumption that, under the Establishment Clause, religion could include Buddhism, Hinduism, Taoism, and whatever might occupy in man's life a place parallel to that filled by God ... In such a case, God and religion are no longer distinguished in meaning, permitting the First Amendment to be used to exclude the very object it was meant to protect, namely the sovereignty of God over civil government."
Id. at 356-57. In short, his definition of religion would permit the First Amendment to do what he believes it was intended to do: "to protect ... the sovereignty of God over civil government," id., and sovereignty of the Judeo-Christian God only.
The court, for several reasons, rejects the Chief Justice's invitation to define the term "religion." First and foremost, to adopt the Chief Justice's definition of religion would be to reject explicitly the precedent established by a number of Supreme Court cases, from Everson v. Board of Education,(1947), to Zelman v. Simmons-Harris,(2002), which would have been decided differently under the Chief Justice's proposed definition. Without cataloguing the many cases that would be resolved differently given the Chief Justice's definition of religion, the court will discuss a number of examples to illustrate this point.
Under the Chief Justice's definition of religion, religious display cases, such as County of Allegheny v. ACLU, Greater Pittsburgh Chapter,(1989), would be decided differently. In Allegheny, the court found unconstitutional the display of a creche in a government building an outcome that would certainly change if the Establishment Clause prohibited no more than an Establishment of "the duties we owe to our Creator and the manner of discharging those duties." School prayer cases, too, such as Wallace v. Jaffree,(1985), or Santa Fe Independent School District v. Doe,(2000), would be resolved differently. In Wallace, the Court found unconstitutional a statute designed to return voluntary prayer to schools, in Santa Fe, the Court found unconstitutional a policy of student-led prayer before football games. Again, under the Chief Justice's limited definition of religion, both of these cases would have been decided differently as voluntary prayers cannot establish "the duties we owe to our Creator and the manner of discharging those duties."
By adopting the Chief Justice's definition, then, the court would not only be deciding this case, but would be implicitly overruling a number of Supreme Court cases. This it cannot do: the court is strictly bound by Supreme Court precedent; only that Court has the ability to overturn its previous decisions. See, e.g., Jaffree v. Wallace, 1983 ("Under our form of government and long established law and custom, the Supreme Court is the ultimate authority on the interpretation of our Constitution and laws; its interpretations may not be disregarded. ... If the Supreme Court errs, no other court may correct it."), see also Hutto v. Davis,(1982) ("But unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be."). Under current Supreme Court precedent, this court simply must decide on which side of the Establishment Clause "barrier," Lemon, the Chief Justice's installation of the monument falls. It need not, and in fact cannot, accept the Chief Justice's definition of the word "religion" because, by doing so, the court would implicitly overrule a number of Supreme Court decisions.
Second, the court cannot accept the Chief Justice's proposed definition of the word "religion" because it is, simply put, incorrect and religiously offensive. The court cannot accept a definition of religion that does not acknowledge Buddhism or Islam as a religion under the First Amendment, and would in fact directly violate Supreme Court precedent by doing so. See Allegheny,("Perhaps in the early days of the Republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to 'the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.'") (quoting Wallace).
Finally, the plaintiffs have not presented an alternate definition of religion, and the court lacks the expertise to formulate its own definition of religion for First Amendment purposes. Therefore, because the court cannot agree with the Chief Justice's definition of religion and cannot formulate its own, it must refuse the Chief Justice's invitation to define "religion."
It is my position that Everson v. Board of Education,(1947) is untenable and unacceptable. It will have to be overturned in order to return a semblance of sanity to the Establishment clause. It is simply unjust to scour every remnant of religion from every public place. It is absurd to say it is what the Framers intended.
Any errors of Thompson's are the repetitions of the same errors in dozens of cases. I can quibble with a few little things in the text, but what's the point?
If you are interested, I would gladly do so, but this whole thing is utterly depressing.
In other words, it is consistent with the decisions of other judges and, necessarily, the precedents of SCOTUS. As you may know, lower courts are obliged to follow SCOTUS precedent as best they can. Only SCOTUS can overturn its own precedents.
It is my position that Everson v. Board of Education,(1947) is untenable and unacceptable.
Here is a key passage. What part do you think is untenable and unacceptable?
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."
Everson v Board of Education
What part do you think is untenable and unacceptable?
Thinkers far in advance of myself have commented eloquently on how only two things could be true of the Justices who wrote this opinion: either they were ignorant of history, or they wrote in deliberate intent to deceive.
However, I accept your invitation to take a stab at them.
Neither a state nor the Federal Government can set up a church.
That is fine.
Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.
Wrong, wrong, and wrong. Laws were passed during the period of the Articles of Confederation that called for general promotion of education and religion. No founder ever made a statement indicating that the state was to be neutral between religion and irreligion. Christianity was overwhelmingly the religion of Americans, still is. No founder ever decried the fact that there was a dominant religion. On something like choice of a holiday or display of a creche, there was, needless to say, a complete absence of Political Correctness. "Preferences", if you will, for Christianity abounded. This state of affairs is entirely consistent with the guarantee of freedom of conscious and banning of establishment in the sense that the founders understood it.
I'm going to stop there and take a breath.
Note that freedom of the conscience does require consciousness to operate properly.
The Founders, bless their hearts, did not always live up to the Constitution that they wrote. For example, the Alien and Sedition Acts were clearly unconstitutional under the 1st and 5th amendments but were nonetheless signed into law by John Adams. To give a closer example, Massachusetts had an established church (Congregationalist) until 1831, supported directly by the taxpayers. The deeds of the Founders do not make the basis for our laws, the Constitution does.
Christianity was overwhelmingly the religion of Americans, still is. No founder ever decried the fact that there was a dominant religion.
They certainly decried the presence of dominant sects. Then, as now, you cannot attend a "Christian" church. Every church is Anglican, Baptist, Congregationalist, Quaker, etc. Also,a key purpose of the Bill of Rights is protceting the rights of those who hold minority or unpopular beliefs. The fact that a majority of a community believe in one particular sect does not give them the right to tax everyone support it.
Getting back to the Everson, do you think government can prefer one religion to another in passing laws and policies? If a city council donates land for a Catholic Churce while turning down zoning for a Synagogue is that in accord with the Constitution? I'd say it is clearly unconstitutional. So would James Madison. Here is a veto message from his presidency:
February 28, 1811So even in the early days of the republic, politicians were trying to curry favor by supporting the locally popular religion and even then wiser minds realized that such practices were contrary to the Establishment Clause. Whether an acre or a square foot, the principle is the same.
To the House of Representatives of the United States:
Having examined and considered the bill entitled "An act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem Meeting House, in the Mississippi Territory," I now return the same to the House of Representatives, in which it originated, with the following objection:Because the bill in reserving a certain parcel of land of the United States for the use of said Baptist Church comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that "Congress shall make no law respecting a religious establishment."
These are fine.
No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.
Not fine. Do Federal and State governments stay well within the bounds of Article I Section 8? No. Since they do not, it is not feasible to maintain a Madisonian strictness here. There is a danger that government will hamper religious works. Hampering religion should be treated as a greater danger than aiding it.
Anywhere treasury funds are used to support private activities or institutions of any kind, the government should not discriminate against a religious organization which provides an equivalent.
By the way, my personal preference would be to repeal all federal welfare legislation (excepting the sort for humanitarian disaster relief). The government should not tax us chumps and feed the money to non-religious charities. That takes it away from the religious charities, which on balance do a better job of helping the poor and addicted.
Well, I guess that failing to tax citizens to pay a pastor could be seen as hampering that pastor's work. But I think most reasonable people believe that the Establishment Clause means that taxpayer money should not go to support religious institutions. Due to the tax-deductability of charitable contributions the government already indirectly supports the choices of its citizens to pay for their pastors.
The fact that one part of the Constitution is not well enforced should not call the entire document into question. Unfortunately, it does. Brushing aside the First Amendment makes respect for the document suffer further.
I certainly agree that cutting back on mandatory taxes would free up more money for charitable contributions, but that is really a separate issue.
Irrelevant.
But I think most reasonable people believe that the Establishment Clause means that taxpayer money should not go to support religious institutions.
Let's leave current beliefs out of it, since they are heavily influenced by the 1947 ruling which is under heavy fire. Let's concentrate on sticking closer to original intent to the best of our ability.
When "support" really approaches "establish", naturally it should be disallowed. When funds are used for partially secular purposes, it should be allowed.
I certainly agree that cutting back on mandatory taxes would free up more money for charitable contributions, but that is really a separate issue.
The whole issue of government largesse significantly impinges on our ability to do as the founders intended. I think it is fair to extrapolate that the overriding intent would be for government laws not to hamper religious works. This makes this issue relevant to the Establishment clause.
I support Judge Moore but not for these reasons. Your argument completely falls apart at the quote above.
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