The ACLU's new cause: jail time for unapproved speech.

Great Debates
81

No, it’s called case law. If you’re not a lawyer or educated in the law, you probably shouldn’t act like you know what you’re talking about.

When analyzing whether any governmental agency or body has violated the Establishment Clause (since the First Amendment applies not just to Congress or the federal government, but to the States and state government through the 14th Amendment), courts utilize the Lemon test from Lemon v. Kurtzman, 403 U.S. 602 (1971). A governmental action will not be found to have violated the Establishment Clause if 1) it has a secular purpose, 2) it does not have as its principal or primary effect the advancement or inhibition of religion, and 3) it does not foster an excessive governmental entanglement with religion. The general purpose of the test is determining whether a governmental action or certain governmental speech has either the purpose or the effect of endorsing or disapproving of religion or a particular religion.

If the head of a government-run agency, such as a principal, is making public and official statements endorsing Christianity to his students, that’s probably a violation of the Establishment Clause. If the very same government official (particularly when taking account of his other conduct) actively selects a speaker at a formal graduation ceremony knowing that the student will effectively endorse a religion, that’s probably going to be another violation. A good analogy would be that police can’t simply hire mercenaries to act in their stead to get around the protections of the 4th and 5th amendments when it comes to dealing with members of the public. Similarly, school and governmental officials can’t shield themselves behind students for their planned and purposeful activities when they use those students to accomplish their ends.

82

I know what the case law is and the case law is wrong. It has taken words that have plain and simple meanings and morphed them into the silliness that we have today. The whole Establishment Clause jurisprudence requires de novo review.

If you had a contract with similar language, you would be appalled if it was enforced the way the 1st amendment is.

Just because liberal judges want to make things up on the fly doesn’t mean I have to treat them like they were handed down from Moses.

83

I certainly wouldn’t like it and I would attempt to get it changed, but, you are correct. Please point to the words in the first amendment that apply to schools.

84

It’s all of them. This is established law. You can dislike the law all you want, but that doesn’t make it go away.

85

You seem like a reasonable and educated person.

How does any judge interpret “Congress” and “law” and “establishment of religion” to get to the point that we are regulating what students say at a graduation ceremony? Or what some judge in Podunk, Arkansas puts on the wall of his courtroom?

Sure the case law is established, but case law had also established that separate but equal schools were okay. Judges are human and make mistakes, but they didn’t even try here. They just decided that it was a bad idea to have religion in the public sphere and pretended to have some justification for outlawing it.

If it was any other issue, and you were honest with yourself, you would see how ridiculous that this interpretation is. It can’t really even be called an interpretation because it is so very against the plain and obvious meaning of those words.

86

By reading the Constitution and realizing that the 1st applies to individual states and their official agents via the 14th. Congress can’t get around the 1st by simply declaring that the country has a nation religion but not making it a “law”. Neither can Arkansas judges. Or school principals.

Oh, those wicked, tricksy, false judges!
By the way, I would like to point out that you’re posting from a position of militant ignorance, as Lemon v. Kurtzman was decided 7-0. Are you actually trying to slip in a claim that all seven were liberals or cryptoliberals dedicated to just doing whatever they thought was a good idea and pretending to be following the law? :rolleyes:

You’re right. I suggest that we don’t call it an interpretation, but a Conservative Ploy. Damn those Conservatives. Why do they hate America?

87

I’ll just focus on that for now and ask, “Why not?” In ever other legal document that we come across in life, we take the words for what they mean.

If you pass a law saying that I can’t drive without a valid license, then that is what it means. If I have no license I can’t drive. If I have an invalid license I can’t drive. But you can’t turn around and say that I can’t walk because I don’t have a valid license; that’s not what is said. Words have meanings.

If you want the constitution to say that school principles can’t let someone speak who might advocate religion, then you should use Article V to amend it to say that.

I’m not familiar with the Court case you cited, but I can read English:

Anyone who looks at that statement and says that it applies to my daughter’s school principal is being extremely disingenous. There is no rational explanation to make that link.

Ok, but I will let that slide for the sake of getting along.

By allowing prayer, would my daughter’s principal be passing a “law” of some type? Of course not; he doesn’t have the authority to pass laws, which would strengthen my first statement.

But, let’s allow that. Since the principal is now Congress, and his policies are now law, does his voluntary non-denominational prayer concern an establishment of religion?

Of course not. There is no church being formed and he likewise hasn’t the power to establish a national religion. Nor is he prohibiting the free exercise of religion as the prayer is voluntary.

You may say that students who don’t participate would feel pressure to conform, but that happens in all walks of life, and the first is very clear that as long as free exercise is not “prohibited” then it is fine. Encourage, nudge, suggest, give preference, and other things are not a prohibition.

So, this current jurisprudence fails at every single level of what the actual text says.

88

But what you’re missing is what the 14th Amendment says. It says that a citizen’s rights apply to the state governments as well as the federal government. Your local public school is a part of your state government, therefore the Bill of Rights applies to them.

89

And not for nothing, but both federal and state legislatures “pass laws” to establish these institutions and to collect taxes to pay for them.

90

I think jtgain has a problem with the 14th amendment. Perhaps he favors a simpler time, before the Civil War, when a man could own another man?

91

okay, a couple things (from someone who lives in Pace)-

  • The valedictorian and the salutatorian both spoke at the graduation. My little brother was there and can vouch for this first hand. Their speeches were, he tells me, not very religious. They did apparently have a sort of anti-establishment undertone a-la “damn the man” :slight_smile:

  • Mary Allen is the class president, not the valedictorian. When the consent decree was issued, one of the items stated that all speakers had to be selected by a neutral process (i. e., Salutatorian and Valedictorian) as opposed to elected students. It’s a bummer for Mary, because she was really upset about having to disappoint her parents who were very much looking forward to her speech. But it’s a bit of a stretch to say that Mary could not speak because she was a Christian. Props to whoever spun this, though. It worked!

92

Which is precisely what’s being done in this case. The problem is, you’re only taking some of the words into consideration, and flat out ignoring others.

Of course there is.

Let’s say that Congress decides to give 10 billion dollars to the Catholic Church. Just hands it over. They’re not passing a law saying, “Everyone has to be a Catholic,” so does this makes them free and clear of the 1st amendment? If you’re sufficiently literal, you could argue that they’re okay, but it’s patently obvious that they’re violating the intention of the 1st amendment. The Constitution isn’t meant to be read that literally, though. It does not contain a lot of precise language. This was a deliberate decision of the Founders, who recognized that changing times would introduce situations they could not possibly foresee, and wanted to establish legal principles that would be applicable to a wide variety of situations, as adjudicated by the Supreme Court.

Now, there are a number of agencies in the country that have been created by Congress. As such, Congress is responsible for how those agencies act. Congress can’t create, say, a national Motor Vehicle Operator Licensing Bureau, then turn a blind eye when the (non-elected) head of the agency institutes a policy that people have to agree to worship Jesus before they can get a driver’s license. They haven’t created a law establishing a religion there, either, but something they created through law is having the effect of establishing a religion, which in the court’s eyes, is effectively the same thing.

Under the 14th amendment, the limitations on the federal government also applies to the state government. So if a state government decides to fund a school, and that school tries to force its religion on its students, that’s a violation of the 1st just as surely as if you had a Congressman standing in the classroom himself, telling everyone they have to be a Christian.

Taking it down another level, the school administration can’t get around the 1st amendment by having someone come in and preach at the students for them, even if that person is doing the preaching for free. Or, for that matter, if the person is another student. Congress can’t establish a religion. It can’t create an agent to do it for them. It can’t create an agent who creates an agent to do it for them, either. As long as that chain ultimately leads back to a state or federal legislative body, the entire chain has to remain religiously neutral in their official duties.

There is nothing disingenuous, let alone irrational, about this chain of reasoning. In fact, it is for precisely this sort of reasoning that we have a Supreme Court in the first place.

93

And yet you’ve accused every single judge who ruled on that case of being incompetent, partisan, deliberately dishonest enemies of the Constitution.
Curiouser and curiouser.

Is it your contention, really, that the federal government could create a state religion as long as they didn’t make a law to that effect? Your belief is that when the Constitution was drafted, its framers figured that they’d be totally cool with a state religion as long as it was enforced by fiat instead of the rule of law? Or by making a Bureau of Determining and Punishing Heresy as long as the law only established the bureau and not its conclusions?

  1. Can’t say enough about reading what I actually said when you respond to me. To remind you: “I do have a problem if a school administration were to ask a student to specifically give a religious address. But I also don’t see a conflict with the establishment clause if students choose, of their own free will, to Witness.”
  2. The 1st via the 14th applies to state governments and their employees just as it does to Congress. This is because among the privileges and immunities that citizens are granted at the federal level, are the abilities to choose and practice one’s religion and be free from the government prohibiting or pushing any religious views. As those are granted at the federal level, individual citizens are entitled to those same privileges and immunities on the state level as well.

If you do not want to read all the rational arguments that have been made in this thread, I suggest that you at least read the SCOTUS case which you’ve never read but which you still alleged was a bipartisan (and yet Liberal) attack upon the Constitution itself.

Is it really your contention that if your daughter’s principal was a fundamentalist Wikkan, that he could fail every student and prohibit them from getting into college unless they daily affirmed the Wikkan Rede and publicly disavowed any belief in or affinity for any other religious doctrines? You’d be okay with that? You think it would be legal?

Your understanding of what people have been explaining to you is… odd.

94

Try this argument in a courtroom in front of a judge and see how far you get. I can see it now: “Your honor, it’s clear that I know what the case law is, and the case law is wrong.”

You’d be better off describing how two “yutes”* were seen at the school.

*Judge Chamberlain Haller: Two what?
Vinny Gambini: What?
Judge Chamberlain Haller: Uh… did you say ‘yutes’?
Vinny Gambini: Yeah, two yutes.
Judge Chamberlain Haller: What is a yute?

95

Ever think that since the First Amendment is 45 words and contracts for doing a loan are 45 pages, a lot more interpretation is needed for enforcing the First Amendment?

96

I’m a strong advocate of free speech and would love to see all the states make strong laws defending it, but the current process of having the Supreme Court pretend that the 1st Amendment says something that it doesn’t say is horrible because of all the ambiguity and contradiction it offers up. The plain fact is that the courts make the 1st apply to state and local governments sometimes and not other times. That’s why a town can pass laws against pornography that Congress could not pass. These days whenever a 1st amendment case heads for the Supreme Court, nobody knows how they’re going to rule because there have been so many contradictory and nonsensical previous rulings. You might as well flip a coin as try to predict what they’ll say on any particular case. Though as our new Chief Justice has an irritating habit of caring about what the Constitution actually says rather than merely about what previous courts has ruled, we may see some significant shifts in the near future. (It’s odd that we’re hearing the press howl about the need to respect precedent now. Where was this demand for precedent when the Supreme Court started attacking freedom of speech in schools during the 60’s?)

The obvious questions are these. If the 1st bans government officials even speaking about religion, then why did President Washington use his office to encourage Americans to pray to almighty God? Was he not familiar with the 1st amendment, or was he willfully violating it? And if the 14th actually does outlaw prayer at public school events, how did the Supreme Court manage not to notice this until the 1960’s, almost a century after the 14th became law?

97

Can you point to an example of this? With links, preferably, as your interpretations of these sorts of cases leave a lot to be desired.

Could you not say the same about virtually any case the Supreme Court hears? If the outcome is going to be so cut and dried, it would have been settled by a lower court.

And that simply never happened.

Strawman. No one has ever held that government officials cannot talk about religion. Most presidents, particularly in recent years, have openly discussed their religious beliefs. This has rightly never been considered a Constitutional issue.

Neither.

It was also about a 100 years after the passage of the 14th amendment that the Supreme Court noticed that Jim Crow was wildly and illegally discriminatory. Does that serve as evidence that the 14th amendment does not grant equal rights to blacks?

98

So, “no”, then?

99

Uh, motion denied. There, that was easy!

What people seem to fail to appreciate, time after time, is that the First Amendment protects Church and State from each other. Just as I would not want to be in the captive audience for a Jewish, Moslem or Hindu public official talking about the wonders of his faith, so I would not, in an official forum, dream of imposing my Christian views on those who do not share my faith. Those who favor theocracy should consider a move to Iran or Saudi Arabia; I doubt they would find it to their liking.

The Citizens of the United States of America have a right to applaud themselves for giving to Mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection, should demean themselves as good citizens. – George Washington, Letter to the Touro Synagogue, 1790

100

ITR, are you ok with a public school whose administrators and teachers are largely satanists and promote those views in school?

If no: I agree with you, it’s all a personal choice, keep it all out of public schools.

If yes: Please explain why you think that is better than simply having those views not promoted in school.