Religions > Atheism > Re: Judge Moore is not the Congress, nor is he establishing religion
| Topic: |
Religions > Atheism |
| User: |
"" |
| Date: |
04 Sep 2003 07:31:42 AM |
| Object: |
Re: Judge Moore is not the Congress, nor is he establishing religion |
"Jeff Strickland" <beerman@yahoo.com> wrote:
:|There is no law that Judge Moore has written.
Hey jeffy, remember those pesky little elements of the Lemon Test you used
to talk about.
They don't say anything about making laws, now do they? yet they are a test
to indicate if something violated the Establishment Clause or not.
Now, Jeffy, you don't really want to talk about making laws because if you
do you are going to have a part of your anatomy caught in the proverbial
wringer.
You see here is the jam you are putting yourself
You say "under God" in the pledge isn't unconstitutional, YET Jeffy
Congress did make a law to put it there.
Remember this
"Congress shall MAKE NO LAW respecting an establishment of religion, . . ."
Congress did make a law that respected, singled out a certain kind of
religion thus excluding any and all others. Not to mention the intent of
those Congressmen and the prez Ike meant beyond any doubht the Christian
Religion most meaning the Protestant version if it as well
Now, jeffy you are saying the rock is constitutional because Moore DIDN'T
MAKE A LAW.
jeffy, you can't have it both ways. You can't say something is
constitutional because no law was made while at the same time saying
something else is constitutional when a law was made.
:|There is no establishment that
:|has been made.
Now, you have been told and shown time and time again that you can be in
violation of the Establishment Clause even without establishing anything.
You are either too dumb or too closed minded to comprehend that concept.
One more time here are the rules of the Establishment Clause as they have
been adopted by the USSC: (hint these are the ones that count, not your
opinions of what they are)
************************************
COMMENTARY:
First of all the actual words are
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; . . .
Did you notice the operative word, RESPECTING?
That operative word broadens the meaning.
What it really says is:
"Congress shall make no law RESPECTING an establishment of religion, or
PROHIBITING the free exercise thereof;"
What it DOES NOT say is:
"Congress make no law establishing religion . . .
************************************
.. . . it is clear that the amendment does not say, "Congress shall make no
law establishing religion," but does say "no law respecting an
establishment of religion." It therefore cannot be construed as
authorizing Congress to support religious institutions. [or religion, any
kind of religion.]
Religious Liberty and the Secular State, The Constitutional Context. John
M. Smomley.Prometheus Books, (1987) p. 49
************************************
[EMPHASIS ADDED]
The still more important fact is that the type of article used in the
establishment clause makes no difference. The First Amendment does not say
that Congress shall not establish a religion or create an establishment of
religion. It says Congress shall make no law RESPECTING an establishment of
religion. Whether "respecting" connotes honoring or concerning, the clause
means that Congress shall make no law on that subject THE BAN IS NOT JUST
ON ESTABLISHMENTS OF RELIGION BUT ON LAWS RESPECTING
THEM, A FACT THAT ALLOWS A LAW TO FALL SHORT OF CREATING AN ESTABLISHMENT
YET STILL BE UNCONSTITUTIONAL.
(SOURCE: The Establishment Clause, Religion and the First Amendment,
Leonard W. Levy, Second Edition, Revised, The University of North Carolina
Press, (1994) p. 118
************************************
RULES:
************************************
ESTABLISHMENT CLAUSE:
The Establishment Clause as defined by the USSC in Everson v. Bd of Ed,
1947
The "establishment of religion" clause of the First Amendment means at
least this:
(1) neither a state nor the Federal Government can set up a church.
(2) Neither can pass laws which aid one religion,
(2a) aid all religions,
(2b) or prefer one religion over another.
(3) Neither can force
(3a) nor influence a person to go to
(3b) or to remain away from church against his will
(3c) or force him to profess a belief
(3d) or disbelief in any religion.
(4) No person can be punished for entertaining [p*16]
(4a) or professing religious beliefs
(4b) or disbeliefs,
(4c) for church attendance
(4d) or non-attendance.
(5) No tax in any amount,
(5a) large or small, can be levied to support any religious activities
(5b) or institutions, whatever they may be called,
(5c) or whatever form they may adopt to teach
(5d) or practice religion.
(6) Neither a state
(6a) nor the Federal Government can, openly or secretly, participate in the
(6b) affairs of any religious organizations
(6c) or groups,
(6d) and vice versa.
************************************
EVEN IF YOU DO AWAY WITH #5 WHICH is what Rehnquist
has been working to accomplish for 30 years, you still all the other
elements which would be and are still good law.
************************************
TESTS:
************************************
Over many years and many cases mainly involving religion in public schools,
the Supreme Court has developed three "tests" to be applied to religious
practices for determining their constitutionality under the Establishment
Clause.
************************************
The LEMON TEST
Based on the 1971 case of Lemon v. Kurtzman, 403 U.S. 602, 612-13, the
Court will rule a practice unconstitutional if:
1.It lacks any secular purpose. That is, if the practice lacks any
non-religious purpose.
2.The practice either promotes or inhibits religion.
3.Or the practice excessively (in the Court's opinion) involves government
with a religion.
************************************
The HISTORICAL TEST
Based on Marsh v. Chambers, 463 U.S. 783 (1983). Requires a unambiguous and
unbroken history of more than 200 years. BTW, the history that was employed
by the Court in Marsh v. Chambers was flawed. See:
Chaplains and Congress
http://members.tripod.com/~candst/chaptest.htm
Chief Justice Burger, I Would Like You To Meet Mr. Madison
http://members.tripod.com/~candst/meet.htm
Discrepancies
http://members.tripod.com/~candst/discrep.htm
The Political Move That Backfired
http://members.tripod.com/~candst/backfire.htm
************************************
THE ENDORSEMENT TEST
Drawing from the 1989 case of Allegheny County v. ACLU, 492 U.S. 573, the
practice is examined to see if it unconstitutionally endorses religion by
conveying "a message that religion is 'favored,' 'preferred,' or 'promoted'
over other beliefs."
************************************
THE COERCION TEST
Based on the 1992 case of Lee v. Weisman, 505 U.S. 577 the religious
practice is examined to see to what extent, if any, pressure is applied to
force or coerce individuals to participate. The Court has defined that:
"Unconstitutional coercion occurs when:
(1) the government directs
(2) a formal religious exercise
(3) in such a way as to oblige the participation of objectors."
************************************
Here Is a Good Example of Three of The Above Tests Being Applied:
************************************
Fails Endorsement Test
The Pledge, as currently codified, is an impermissible government
endorsement of religion because it sends a message to unbelievers "that
they are outsiders, not full members of the political community, and an
accompanying message to adherents that they are insiders, favored members
of the political community." Lynch, 465 U.S. at 688 (O'Connor, J.,
concurring). . . Consequently, the policy and the Act fail the endorsement
test.
Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) p. 607
************************************
Fails Coercion Test
Similarly, the policy and the Act fail the coercion test.
Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) p. 608
************************************
Fails First Prong of The Lemon Test
Because the Act fails the purpose prong of Lemon, we need not examine the
other prongs. Lemon, 403 U.S. at 612-14.
Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) p. 611
************************************
Act And School District Policy Both Fail Lemon, Endorsement And Coercion
Tests
Similarly, the school district policy also fails the Lemon test. Although
it survives the first prong of Lemon because, as even Newdow concedes, the
school district had the secular purpose of fostering patriotism in enacting
the policy, the policy fails the second prong. . . Therefore the policy
fails the effects prong of Lemon, and fails the Lemon test. In sum, both
the policy and the Act fail the Lemon test as well as the endorsement and
coercion tests.
Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) P. 611
************************************
Holding
[10] In conclusion, we hold that (1) the 1954 Act adding the words "under
God" to the Pledge, and (2) EGUSD's policy and practice of teacher-led
recitation of the Pledge, with the added words included, violate the
Establishment Clause. The judgment of dismissal is vacated with respect to
these two claims, and the cause is remanded for further proceedings
consistent with our holding. Plaintiff is to recover costs on this appeal.
REVERSED AND REMANDED.
Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) p. 612
************************************
Therefore the policy fails the effects prong of Lemon, and fails the Lemon
test. In sum, both the policy and the Act fail the Lemon test as well as
the endorsement and coercion tests.12
Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) P. 611
FOOTNOTE:
12 We recognize that the Supreme Court has occasionally commented in dicta
that the presence of "one nation under God " in the Pledge of Allegiance is
constitutional. See Allegheny, 492 U.S. at 602-03; Lynch, 465 U.S. at 676;
id. at 693 (O'Connor, J., concurring); Abington Sch. Dist. v. Schempp, 374
U.S. 203, 303- 04 (1963) (Brennan, J., concurring); id. at 306-08
(Goldberg, J., joined by Harlan, J., concurring); Engel, 370 U.S. at 435 n.
21. However, the Court has never been presented with the question directly,
and has always clearly refrained from deciding it. Accordingly, it has
never applied any of the three tests to the Act or to any school policy
regarding the recitation of the Pledge. That task falls to us, although the
final word, as always, remains with the Supreme Court.
The only other United States Court of Appeals to consider the issue is the
Seventh Circuit, which held in Sherman v. Community Consolidated School
District 21, 980 F.2d 437 (7th Cir. 1992), that a policy similar to the one
before us regarding the recitation of the Pledge of Allegiance containing
the words "one nation under God" was constitutional. The Sherman court
first stated that: If as Barnette holds no state may require anyone to
recite the Pledge, and if as the prayer cases hold the recitation by a
teacher or rabbi of unwelcome words is coercion, then the Pledge of
Allegiance becomes unconstitutional under all circumstances, just as no
school may read from a holy scripture at the start of class. 980 F.2d at
444. It then concludes, however, that this reasoning is flawed because the
First Amendment "[does] not establish general rules about speech or
schools; [it] call[s] for religion to be treated differently." Id. We have
some difficulty understanding this statement; we do not believe that the
Constitution prohibits compulsory patriotism as in Barnette, but permits
compulsory religion as in this case. If government-endorsed religion is to
be treated differently from government-endorsed patriotism, the treatment
must be less favorable, not more.
The Seventh Circuit makes an even more serious error, however. It not only
refuses to apply the Lemon test because of the Supreme Court's criticism of
that test in Lee, but it also fails to apply the coercion test from Lee or
the endorsement test from Lynch. Circuit courts are not free to ignore
Supreme Court precedent in this manner. Rodriguez de Quijas v. Shearson/Am.
Exp., Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow the case
which directly controls, leaving to this Court the prerogative of
overruling its own decisions."). Instead of applying any of the tests
announced by the Supreme Court, the Seventh Circuit simply frames the
question as follows: "Must ceremonial references in civic life to a deity
be understood as prayer, or support for all monotheistic religions, to the
exclusion of atheists and those who worship multiple gods?" 980 F.2d at
445. Relying in part on Supreme Court dicta regarding the Pledge, the court
answers this question in the negative, determining that "under God" is a
statement which, taken within its context in the Pledge, is devoid of any
significant religious content, and therefore constitutional. Id. at 447-
48. At the very least, as discussed above in the text, the Supreme Court
requires that any policy alleged to be an Establishment Clause violation
must be held to the scrutiny of the established tests. Our application of
all of the tests compels the conclusion that the policy and the Act
challenged here violate the Establishment Clause of the Constitution. Thus,
we must respectfully differ from the Seventh Circuit.
Newdow v. U.S. Congress, F3d. 597 (9th Cir. 2002) P. 611-612
To read the full text of this opinion, go to:[PDF File]
http://caselaw.lp.findlaw.com/data2/circs/9th/0016423p.pdf
************************************
The Establishment Clause
http://members.tripod.com/~candst/estclause.htm
************************************************
.
|
|
| User: "Carol Lee Smith" |
|
| Title: Re: Judge Moore is not the Congress, nor is he establishing religion |
04 Sep 2003 10:01:18 AM |
|
|
On Thu, 4 Sep 2003 wrote:
Now, Jeffy, you don't really want to talk about making laws because if you
do you are going to have a part of your anatomy caught in the proverbial
wringer.
Crotch-grabbing redefined to the max.
.
|
|
|
| User: "" |
|
| Title: Re: Judge Moore is not the Congress, nor is he establishing religion |
04 Sep 2003 12:13:08 PM |
|
|
Carol Lee Smith <human@csd.uwm.edu> wrote:
:|On Thu, 4 Sep 2003 wrote:
:|
:|> Now, Jeffy, you don't really want to talk about making laws because if you
:|> do you are going to have a part of your anatomy caught in the proverbial
:|> wringer.
:|
:|Crotch-grabbing redefined to the max.
S&M heaven for those into such (grin)
Oh hell, some of these one liners are making this all a real riot.
I am very careful not to have just taken a sip of coffee and not swallowed
yet before I read some people anymore.
.
|
|
|
|
|
|
Related Articles |
Re: Judge Moore is not the Congress, nor is he establishing religion
Re: Judge Moore is not the Congress, nor is he establishing religion
Re: Judge Moore is not the Congress, nor is he establishing religion
Re: Judge Moore is not the Congress, nor is he establishing religion
Re: Judge Moore is not the Congress, nor is he establishing religion
Re: Judge Moore is not the Congress, nor is he establishing religion
Re: Judge Moore is not the Congress, nor is he establishing religion
Re: Judge Moore is not the Congress, nor is he establishing religion
| Re: Judge Moore is not the Congress, nor is he establishing religion
Re: Judge Moore is not the Congress, nor is he establishing religion
Re: Judge Moore is not the Congress, nor is he establishing religion
Re: Judge Moore is not Godly, nor is he establishing decency
Defending nature is not anti-science
ATHEISM IS NOT "THE ABSENCE OF RELIGION," BUT "THE ABSENCE OF GOD."
Re: No ! Pond Scum to Humans is though. But not Jesus. ATTN DIRK
|
|
|
