I do not wish to instigate a journey to the pit, but I must say your self righteous self appointment as the authority on constitutional issues is almost as annoying as you proclivity for belittling and berating those who refuse to accept your misguided interpretation of constitutional law.
Despite all your cites to irrelevant cases you seem to have missed one fundamental issue. Namely, that in order to apply a heightened level of scrutiny, it is not enough to assert that a particular statute is not facially neutral, it must also be established that the individual claiming a discriminatory effect, IS A MEMBER OF A C O N S T I T U T I O N A L Y PROTECTED CLASS. It can hardly be asserted that a person wishing to study theology is a member of such a class.
While it is also possible for the court to apply a higher level of scrutiny in a case where a FUNDAMENTAL RIGHT is burdened by the alleged discrimination. It has never been asserted that the state sponsored study of theology is a fundamental right. Do you assert that the State could not exclude Basket Weaving if it so wished? Are you saying that if it did so that it would be impermissibly discriminating against those that wished to study basket weaving?
This is not a case concerning the Establishment Clause. The State has made no law respecting the establishment of religion. It has merely stated that State funds may not be used to subsidize the study of religion.
I do wish you would follow the example of your namesake and maintain a degree of civility in your discourse. I also wish you would at least attempt to make a neutral analysis of the issues, and refrain from allowing your partisan beliefs to cloud your judgement. :rolleyes:
Askeptic, this is rubbish. Absolute rubbish.
*Neutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance 532 that interest. Church of the Lukumi Babalu Aye, Inc. v. City of
113 S.Ct. 2217
U.S.Fla.,1993.
Decided June 11, 1993. (Approx. 31 pages) A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailed to advance that interest Church of the Lukumi Babalu Aye, Inc. v. City of
113 S.Ct. 2217
U.S.Fla.,1993.
Decided June 11, 1993. (Approx. 31 pages)
A law failing to satisfy the neutrality and general applicability requirement must be narrowly tailored and be justified by a compelling governmental interest. This is “strict scrutiny”. So your point is incorrect.
You don’t say! You are correct this is a case possibly implicating the Free Exercise clause. As Minty advised another member, you may want your attorney to tell you the difference between Free Exercise of Religion Clause and the Establishment Clause.
Minty, maybe this is nit picking but I have a problem with your quoted snipit of the majority opinion.
This does not indicate, to me, they looked at the face of the state. They looked at the “operation,” of the Promise Scholarship legislation, which is not the same as looking at the “face” of the statute. I consider the “operation,” of the statute to be a different inquiry. I find it interesting Rehnquist used the word “text” in regards to the state constitutional provision but did not do so in regards to the statute. Why? Because I believe they did not, nor did they want to, actually look at the “face” of the statute or the “face” of the text in question, i.e. the text being the statute. Certainly if Justice Rehnquist had no problem with using the term “text,” in regards to the state constitutional provision, then he should not have excluded this language in regards to the statute if the majority had actually considered and applied the analysis of looking at the face of statute/text. Rather, they analyzed its “operation,” and not its text.
I needed time to digest it. Preliminarily I am going to say I have yet to read a U.S. Supreme Court opinion in regards to an issue of this type where they specifically held only this type of discrimnation, as used in the dictionary, is prohibited.
However, I do recognize your point it may be assumed in this case. Even if it is, I am still not aware of any prior case law limiting the boundaries of actionable discrimination, in the context of this issue, to the definition you have provided.
Assuming you are correct, what difference does it make? 2 : to distinguish by discerning or exposing differences; especially : to distinguish from another like object Okay but isn’t this still impermissible?
Ok professor I just walked to the bathroom mirror and asked my attorney the difference. Guess what he said. He said that guy JM doesn’t understand the meaning of a dependant clause. He also does not know what Dicta is.
Personally, I’m wondering if he can even read, given that the definition I quoted is not the one I referenced. Intransitive #2, I said, so he responds with Transitive #2. Why do I bother?
I don’t think I can hold up my end of this monster. Sheesh, I don’t think a certain (unnamed) Adv.Con. Law prof. I knew would drop a bomb like that one. Even when I was getting graded I think I would pass on that question in favor of the easy points later. I might mumble something about the negative implication of the the Commerce Clause, and maybe stutter incoherently about the interaction between the 10th Amendment and Section 8 of Article 1 of the Constitution. I was just suggesting a little light hearted banter to show how we really feel about this thread. I am afraid before I can offer an in depth response to your proposed topic, we are definately going to have to discuss hourly fees.
I can read well enough and just fine thank you. I do not know why you bother either because quite simply the Court did not look at the “face” of the statute. Indeed the Court did everything you have noted in regards to looking for “animus” and finding none. But on the question as to whether or not the statute “facially” discrimnates against religion or the religious, the Court completely ignored it. Finally, as I noted before, regardless of your definition I am not aware of any case where the U.S. Supreme Court has held the Free Exercise Clause prohibits only intransitive definition number 2 in Webster’s dictionary. So I am not sure why you bother either.
Askeptic:
I do not think I have been any more “arrogant” in this thread or those who have posted in this thread, such as Minty, or any other lawyer I see posting at Great Debates. I have done nothing different than Minty or any other poster here. I did not see you correct Minty for apparently doing the exact same thing as I have done, presumably for no other reason than you agree with him in regards to this issue.
Oh yeah, neutral analysis huh? I suppose Minty has been real neutral, especially when he has taken and argued entirely against my position. Not that I am saying there is anything wrong in taking a position, Minty. I have read a lot of your posts here and 9 out of ten times I agree with you. I just bring this up to demonstrate Askeptic condemns me for not being neutral when in fact few if anybody in this thread has been neutral. Additionally, so what I am not neutral! This is not some first semester Larc paper I am writing for my professor. I believe the U.S. Supreme Court did not apply the “facially neutral” test and therefore, may not have applied the right level of scrutiny. I have done nothing different than when a law school professor or another attorney criticizes the Court for doing similar things in other cases.
Finally, while it may call it “dicta” it also is apparently a “rule”.
Church of the Lukumi Babalu Aye, Inc. v. City of
113 S.Ct. 2217
U.S.Fla.,1993.
This is how the Court interpreted “Smith”. While this may be “dicta” it is dang important “dicta”. The Court here is establishing legal rules and them applies to their facts. So while it may be “dicta” you can rest assured if the Court got a statute similar to the one in Lukumi Babalu under similar facts, they are going to apply the neutral and general applicability test articulated in Lukumi and if the statute fails, then they are going to apply strict scrutiny. The Court interpreted Smith to mean a law that is neutral and of general applicability need not be justified by a compelling governmental interest. A law failing to satisy these requirements must be justified by a compelling governmental interest and narrowly tailored to advance that interest. These ordinances fail to satisfy the Smith requirements.
Now I do recognize your following point:
Then why not come out and say it? Why skip the step of looking “facially” at the statute? Here is the problem I have. A religious belief undoubtedly resulted in calling this kid into the seminary field. This kid decided to pursue a degree in theology as a result of a religious calling. Isn’t it discrimination against this religious belief and religious calling not to fund “theology” majors while funding secular callings upon other kids? It is discrimination against the religious I have an issue with.
Everson v. Board of Education of Ewing
Now I reailze this is “dicta” but it is the principle I am most certainly operating off of. Maybe facial discrimination against the religious is not always forbidden. But what does it really matter? The case has been decided regardlesss of whether or not the Court used “facially neutral” analysis.
Why did you have to go and post something without any insults? Now I feel kind of obligated to respond.
I think you are letting your ideology interfere with legal analysis. Ofcourse anyone is entitled to take issue with the rulings of the Supreme Court or any other court. I probably do it more than most. But when my disagreement is based on ideology I do not argue flawed interpretations of law.
I say your arguements are flawed, not out disrespect, but because it is my BELIEF that the statute in question is in fact facially neutral for constitutional purposes. The Court has so far declined to add people wishing to study religion to the very short list of protected classes.
Now had the statute excluded any particular religion, then I believe you could make an arguement that it was unconstitutional.
Dude, I already pointed out that the Court said it DID examine the language of the Washington constitutional provision that prohibited public funding of religious instruction. It examined the entire bloody concept of zeroing out public funds for religious instruction and found that it was not discriminatory against religion. And yet you still insist that they didn’t look at the face of the statute? Feh.
Do you know how silly that statement is? The Court has repeatedly searched for “discrimination,” and Locke and other cases makes it entirely clear that the touchstone of “discrimination” is hostility/animus/discrimination against. There is absolutely no way that they are talking about your wussy definition of “discrimination” as “drawing a distinction” or whatever. Insisting that they must cite to the bloody dictionary to establish the sense in which they use the word is pure silliness.
[Inigo Montoya]
You keep using that word. I do not think it means what you think it means.
