Kerinsky wrote:
No, not “any” reasonable person – the special cleaned-up version of the “ideal” reasonable person dreamed up by the courts. The opinion quoted in Gaylor v. U.S. said: “we do not ask whether there is any person who could find an endorsement of religion, whether some people may be offended by the display, <B>or whether some reasonable person might think [the State] endorses religion</B>.” [emphasis mine]
Lemme try that again.
The opinion quoted in Gaylor v. U.S. said: “we do not ask whether there is any person who could find an endorsement of religion, whether some people may be offended by the display, or whether some reasonable person might think [the State] endorses religion.” [emphasis mine]
Ergo, the Federal courts were not including every single kind of person at the outermost fringes of reasonableness, they were using a more restricted definition of what was “reasonable.” It seems odd that they could decide that without opinion polls (which Freedom From Religion, Inc. had readily available).
Unfortunetly just because it makes sense to do something doesn’t have much affect on it’s constitutionality, nor do I belive it should. In numerous Supreme Court decisions over the years the Supreme Court has ruled that governments may not endorse religion (See Santa Fe Independent School District Vs. Doe at http://www.supremecourtus.gov/opinions/99pdf/99-62.pdf for the latest case) Based on past decisions of what the Court considers to be endorsment of religion I cannot see how they would allow congressional sessions to start with prayer, army chaplins, IGWT on money, or many other things that they allow. I do belive that these things should not be considered unconstitutional, but I also like to have a consistant framework for ruling on constitutionality.
Soldiers are free to leave base, so why have army chaplins when having them is, imho, a much greater endorsment of religion than a myriad of other practices that have been ruled unconstitutional?
Kerinsky
Kerinsky wrote:
While that’s true on American shores, it’s not always true overseas. Lockdowns, the location, hositlities are all limiting factors to soldiers desiring to carry on their religious beliefs. Also the Services use chaplains from most major religions (even hiring Rabbis to perform Jewish ceremonies - I think they have some rule against their clergy actually serving in uniform) thereby slipping by the endorsement questions.
The Supreme Court’s interperetation of what endorsment consists of is usualy much tighter than simply requiring that Chaplins don’t serve in uniform. In the case I gave a link to above the Supreme Court ruled that the a school board is not alowed to let students vote, on whether they want to allow a student (who would be chosen in a later student vote) to compose and recite an “invocation” for the purpose of solemnifying football games. I don’t have a case name or reference, but I also seem to remember the courts also ruling that it was unconstitutional for a school to allow a church to hold services in its gym over the weekend. I don’t see how the courts are being consitent in these cases, which irks me to no end. (actually I just like that word :))
Kerinsky
I think I see a pattern in these court decisions.
Activities in public schools seem to be subject to much greater Endorsement scrutiny that activities in other government-run organizations.
Jodi had said to me:
I responded:
You replied:
'Scuse me? Then what, exactly, is that quote above? It sure seems to say that because I disagree, I would not think, for even a second, that I might be wrong. Perhaps you could explain how it doesn’t say that?
No, I was pretty clear. Yes, I feel they have not been objective. For one thing, politics is always involved, and any judge who says, “Remove IGWT as an official motto” is going to face a hell of a lot of problems. But unlike your statement about me, I never said anything about them being “unthinking.”
Yes, it is. Which has nothing to do with what I said.
Uh huh… Funny, your words seem to contradict you.
Fine. I accept that. But I still have a problem with you claiming you never said something that you pretty obviously did say.
David B –
With all due respect, I think you are confused. What was said was “others disagreeing with you wouldn’t cause you to think you might be wrong.” You took this to mean “when others disagree with you, you did not think and are wrong.” While neither is a compliment, how you took it was much harsher than was intended.
Joel
Thank you, Joel. IMO – did you read that part, David? – David is not generally (or, in my experience, ever) capable of admitting or even seeing that the position he holds, whatever that may be, might possibly be incorrect. This does not indicate he has not thought his way to that position, but merely that – IMO – he is particularly intransigent once he arrives.
You’re right; it’s not terribly complimentary, and I regret having to state my opinion as bluntly as I now have, but since you, David, cannot seem to understand it except in the bluntest of terms, I see little choice but to spell it out for you. You asked me to explain and now I have.
And another thing: It bothers me that you continue to question the objectivity of more than a dozen judges – without an ounce of proof of any kind – while simulataneously strongly implying you, unlike them, would be objective.
Politics would not go away if you were the judge. You would face those self-same problems if elected or appointed to the judiciary, because they are inherent to the job. If merely experiencing those pressures – as opposed to caving into them – means that a judge cannot be objective, then no judge can be objective, including you. If such rank speculation is enough to condemn all of them, it would be enough to condemn you as well, because you have no more ability to prove yourself objective than do any of them.
OK, Joel and Jodi, you are right. I thought I was insulted one way when, in fact, I was insulted another, slightly different way.
So, Jodi, instead of saying that I never thought about it previously (as I first thought), you said I don’t think about it ever again. Whoa! Big difference. I certainly feel much better now.
And here we’re back to bullshit. I am always willing to admit that my position “might possibly be incorrect.” However, I need sufficient evidence before I change my mind. Sometimes it happens; usually it doesn’t (mostly because I’ve thought it through the first time, and it’s not terribly common to see brand new arguments on a message board, though, again, it does happen occasionally). The fact is that you don’t know the inner workings of my brain and have absolutely no way of knowing what I may be thinking about. So just because I don’t switch sides to your way of thinking doesn’t mean I never consider it. You just haven’t lived up to the necessary level yet. So sorry.
You asked for a clarification of my opinion. You got it. You don’t like it. So sorry.
Whether you clarified or not, it was an insult to begin with – and, as I noted, one that is complete bullshit. But don’t worry. I’ve learned to expect that from you.
Have a nice day.
And you, my over-reacting, totally inobjective little friend.
Just so we’re clear, that was an insult, too.
Okay, that was totally uncalled for. DAVID, I was immediately sorry I posted it, and I offer you a full apology. I won’t try to excuse my bad behavior with explanations beyond saying that I should not post when I am already angry about something else.
Please feel free to delete my last post if you want, or you can leave it here, with me in the stocks. Again, I am sorry.
Wouldn’t it be easier to use the edit/delete button yourself, assuming you were really sorry? I mean the button is right there below your post next to the quote button.
JDEMOBRAY says:
Yes, I know where it is and, even better, I know what it’s for. Only moderators and administrators have the ability to use the magic button to delete posts once they go through. David is a moderator, which is why I invited him to delete my inexcusable swipe if he wanted. I immediately posted an apology precisely because, having sent the first post, I knew I could not retrieve it. If you doubt this, go back and try to delete your own post and see how far you get.
Oh, and for your further information, I also had the option – as do you – of e-mailing the moderators to ask to have the offending post removed. It is my experience, however, that removal is sometimes not done promptly – which is not a complaint; I know the moderators have lives beyond the Board. Meanwhile my little tantrum would just be hanging out there, in all it’s ugly glory, with no indication that I regretted it. Besides, I firmly belief that public displays of bad behavior ought to be followed by public apologies, difficult as they can be to make. If a person can disgrace him- or herself in public, they can say they’re sorry in public, too.
So, after all that, I get the impression we have established:
In everyday parlance, “X is unconstitutional” means “In my opinion X flies in the face of the Constitution.”
When speaking of things brought before a court, one should be careful to state whether he is speaking of the court’s ruling or his own views. If I say “DOMA is unconstitutional,” I am clearly giving my own opinion, as the issue has not come before any court as yet; if I were to say “partial-birth abortions are unconstitutional” I would need to clarify whether I am reporting what the USSC decided or my personal bias.
“Constitutional” does not mean “a good idea” or “proper law” nor unconstitutional the opposite; they are technical terms under our system of judicial review, and should not be bandied about in inappropriate meanings.
Members cannot edit posts. A shame, but to be accepted given the potential for trollery.
Last point on constitutionality: Jodi said something to the effect (and I do not want to leaf back for her exact wording) that the final authority on what is constitutional is the USSC. A fair statement, but not quite on target. Dred Smith v. Sandford was good law. A terrible injustice and a stupid interpretation, but good law. It is no longer the law of the land, but it took 2/3 of each house of Congress and a majority in 3/4 of the state legislatures to make the change (not to mention the Civil War). The same holds true for whatever that stupid case about the income tax was. It’s worth remembering that when one starts debating constitutional law.
And one final wiseacre remark: After seeing Tracer’s cogent analysis of IGWT and the Lemon test (and having a parody of PP&M’s “Lemon Tree” compose itself in my mind, for which I’ll forgive Tracer in a few days), I no longer feel bad about the “heirs and assigns” in a religion post that gave him flashbacks! 
Well, perhaps not in every case. Heck, if I was in trouble with the Law I’d want someone like you on my jury – because if you found me innocent, you wouldn’t be apt to change your mind just to please the others. Nothing wrong with being stubborn if you are right. I myself try to explicitly concede where I have been found in error, but I’ve never seen you not do this.
Anyway, I see no reason, as for those of us who live in the republic, that people should not be able to decide for themselves whether a law is constitutional or not. Of course this is a matter of opinion and not fact (as a US law can’t be found unconstitutional by a court and still be a law, right?). What the court renders is an opinion; they call it that. So, when someone says “the law is unconstitutional” it should be readily apparent their meaning.
But, SCOTUS is really busy with life and death issues that really are more important than IGWT. Maybe they will get to it on a slow year – or a lower court will get it right (morons) and strike it down and SCOTUS won’t review that either. ISCOTUSWT?