Re: Moore rights

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Topic:	Sociology > Education
User:	""
Date:	25 Sep 2003 02:57:49 PM
Object:	Re: Moore rights

(StNeel) wrote:

:|>From: namegoeshere

:|>Not to mention the FACT
:|>that the 1st ammendment applies to the states.
:|
:|Please quote the law that says so. Otherwise it remains your opinion.

Well, it seems that his opinion has caught on with the USSC as well as most
other courts in this nation, in short it is law and has been for a good
many years now.
.

User: "Arturo Magidin"
Title: Re: Moore rights	25 Sep 2003 03:03:00 PM

In article <f5i6nv87ekummqfdm5n5594ec0dp4j0q8n@4ax.com>,
<buckeye-ELO@nospam.net> wrote:

stneel@aol.com (StNeel) wrote:

:|>From: namegoeshere

:|>Not to mention the FACT
:|>that the 1st ammendment applies to the states.
:|
:|Please quote the law that says so. Otherwise it remains your opinion.

Well, it seems that his opinion has caught on with the USSC as well as most
other courts in this nation, in short it is law and has been for a good
many years now.

But in case he wants actual case law, here are some of the relevant
quotes:
"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' Reynolds v. United States (98 U.S. 145)."
--Justice Hugo Black, Opinion for the Court in Everson v. Board
of Education of Ewing TP., 330 U.S. 1 (1947)
"They argue that, historically, the First Amendment was intended
to forbid only government preference of one religion over
another, not an impartial governmental assitance to all
religions. In addition, they ask that we distinguish or overrule
our holding in the Everson case that the Fourteenth Amendment
made the 'establishment of religion' clause of the First
Amendment applicable as a prohibition against the States.
After giving full consideration to the arguments presented,
we are unable to accept either of these contentions."
-- Justice Hugo Black, opinion for the Court in Illinois ex
rel. McCollum v. Board of Education of School District,
333 U.S. 203 (1948) at 211.
"We repeat and again reaffirm that neither a State nor the
Federal Government can constitutionally force a person 'to
profess a belief or disbelief in any religion.' Neither can
constitutionally pass laws or impose requirements which aid
all religions as against nonbelievers, and neither can aid
those religions based on a belief in the existence of God
as against those religions founded on different beliefs."
-- Justice Hugo Black, opinion for the Court in Torcaso
v. Watkins, 367 U.S. 488 (1961) at 495.
======================================================================
"It's not denial. I'm just very selective about
what I accept as reality."
--- Calvin ("Calvin and Hobbes")
======================================================================
Arturo Magidin
magidin@math.berkeley.edu
.

User: ""
Title: Re: Moore rights	26 Sep 2003 10:54:29 AM

(StNeel) wrote:

:|>From:

(1) ************************************
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.
************************************
The Establishment Clause
http://members.tripod.com/~candst/estclause.htm
************************************************
(2) Read the decision
http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf

Read the decision
http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf

:|
:|>No person can be punished for entertaining or
:|> professing religious beliefs or disbeliefs, for church attendance
:|> or non-attendance.
:|
:|Again Moore did not do this

Read the decision
http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf

:|
:|>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.
:|
:|Moore? I don't know here. Maybe a case against him. Did he use tax money? But I
:|will say that Justice Black is stating a very (overly IMO) broad claim here -
:|to the point it could be used for many things. Just my opinion. I do not like
:|very broad and 'general' remarks by my judges. They tend to ramble to the point
:|of illegiblity. But by this - Bush's faith base inititive is illegal of course.

Bush's fait based will, in time be found unconstitutional
Read the decision
http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf

What you agree with or don't agree with is irrelevant.

:|But then all religious activity
:|is banned. What about the Constitutional statement the Fed cannot prohit the
:|free exercise of religion and a the 10th, all powers remain with the *states*
:|or people. It is a full blown dispute IMO.

FREE EXERCISE:
The First Amendment declares that Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof. The
Fourteenth Amendment has rendered the legislatures of the states as
incompetent as Congress to enact such laws. The constitutional inhibition
of legislation on the subject of religion has a double aspect. On the one
hand, it forestalls compulsion by law of the acceptance of any creed or the
practice of any form of worship. Freedom of conscience and freedom to
adhere to such religious organization or form of worship as the individual
may choose cannot be restricted by law. On the other hand, it safeguards
the free exercise of the chosen form of religion. Thus the Amendment
embraces two concepts,-freedom to believe and freedom to act. The first is
absolute but, in the nature of things, the [310 U.S. 296, 304] second
cannot be. Conduct remains subject to regulation for the protection of
society. (4) The freedom to act must have appropriate definition to
preserve the enforcement of that protection. In every case the power to
regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected freedom. No
one would contest the proposition that a state may not, be statute, wholly
deny the right to preach or to disseminate religious views. Plainly such a
previous and absolute restraint would violate the terms of the guarantee.
(5) It is equally clear that a state may by general and non-discriminatory
legislation regulate the times, the places, and the manner of soliciting
upon its streets, and of holding meetings thereon; and may in other
respects safeguard the peace, good order and comfort of the community,
without unconstitutionally invading the liberties protected by the
Fourteenth Amendment.
Cantwell v. State of Connecticut, 310 U.S. 296 (1940)
*********************************
TENTH AMENDMENT:
To Understand the Tenth Amendment, it is important to know that the
constitution delegates, or gives, certain powers to the federal government.
Most of these powers are actually enumerated, or named. . .
The federal government has other powers besides those clearly
listed in the Constitution. These are implied, or unstated, powers. of
They cover a variety of matters. The Constitutions states that Congress
shall "make all Laws which shall be necessary proper for carrying into
Execution the foregoing Powers and all other Powers vested by this
Constitution in the Government of the United states." This "'necessary and
proper"clause (or elastic clause) gives the federal government the legal
right to exercise the implied power that is connected to its clearly listed
powers. For example, the federal government has the enumerated power to
make laws concerning trade between states. That power has been stretched
to include things not specifically listed in the Constitution such as
regulating air, bus, train, and truck transportation between states. The
federal government also regulates TV and radio. The issue of implied
powers was first raised by Chief Justice John Marshall
The Constitution also gives part of the federal government
Congress-the power "to provide for the ... general welfare of the United
States." Under this power, the federal government has done many things not
listed in the Constitution. For example, the federal government has built
dams and flood control projects. It has set up national parks. It has
established a billion dollar system of social security benefits for older
citizens and for the disabled and poor.
The federal government also shares certain powers with the states.
These concurrent, or shared, powers include setting and collecting taxes,
passing criminal laws on the same matter, and spending money for-the good
of the public.
The Constitution also names particular things that the states may
not do. For instance, states may not enter into treaties with countries.
Nor may states make laws that interfere with contracts or give people
titles of nobility (such as "count" or "duchess"). States are also
prohibited from coining money.
The states have thousands of powers. Every state creates and
controls its own government and sets voting requirements for its citizens.
The state controls local business, labor, and professions, as well as the
ownership, use, and sale of property. The state has tremendous
responsibility for looking after its citizens' health and welfare. It has
the power to set and collect taxes for these purposes. Looking out for its
citizens means controlling schools, hospitals, roads, and other public
services. It means making laws that require vaccinations and limiting
automobile exhaust fumes. It means outlawing forms of gambling and
forbidding ownership of dangerous weapons. It means establishing highway
speed limits and controlling the sale and use of alcoholic beverages. It
can also mean forbidding the sale of soft drinks if they are in bottles or
cans that aren't accepted for return.
From the beginning, the states kept some of these important powers
for themselves. After all, the Tenth Amendment says that all powers not
given to the federal government or forbidden to the states are reserved
to-that is, belong to-either the states or the people.
The Preamble, or first part, of the Constitution begins with the phrase,
"We the People. . ." and ends with". . . do ordain and establish this
Constitution for the United States of America.," All the powers that the
Constitution of the United States gives, both to the states and to the
federal government, flow directly from the people.
Now think about what the Tenth Amendment is really saying:
All powers that are not given to the federal government or forbidden to the
states belong-- either to the states or to the people. The Tenth Amendment
really seems to be setting limits on the power of the federal government.
Yet this is exactly what the main part of the Constitution itself does. In
fact, many scholars believe that the Tenth Amendment only repeats what is
said in the Constitution. If this is true, then why has the Tenth
Amendment been interpreted--its meaning studied and debated--over and over
again?
To answer this question, compare the wording of the Tenth Amendment
with these travel directions: , 'Drive 14.2 miles. Turn left just before
the bridge. Continue for two blocks. Stop at the bank on your right." How
detailed is the amendment compared with the travel directions? Does the
amendment give an exact road map for the constitutional traveler? The
answer is clearly no.
Some scholars believe that those who wrote the Tenth Amendment
purposely made it vague, or fuzzy. Why would they want to do that?
Article 11 of the Articles of Confederation (ratified in 1781) will help
to explain this. Article 11, like the Tenth Amendment that came after it,
deals with the power of state governments and the federal government. But
Article 11 includes a key word that is not found in the Tenth Amendment.
Pay special attention -to the underlined [capitalized] word as you read the
Article:
Each State retains its sovereignty [power not controlled by any other
power], freedom and independence, and every power, jurisdiction and right,
which is not by this confederation EXPRESSLY delegated to the United
States, in Congress assembled. [underlining-capitalized- added]
The word expressly means " directly " or " specifically. " A sign in a
restaurant that sets aside one area expressly for nonsmokers means "Keep
out of this area if you wish to smoke!" A Congress that has only those
powers expressly delegated to itself is also limited. It may do only those
things that the Constitution actually names as its fight. It may not do
anything more. The U.S. government under the Articles of Confederation was
called a body without a head. It was the word expressly that had chopped
the head off that national body.
Those who were present at the 1787 Constitutional Convention knew
how Article II of the Articles of Confederation had weakened the federal
government earlier. Delegates who attended the state conventions to ratify
the Constitution probably knew it, too. The word expressly didn't bother
the Anti-Federalists. In fact, they pressed hard to have the word
expressly included in any amendment about the "reserved powers" of the
states.
After the Constitutional Convention had approved the Constitution,
the states held their own conventions to make decisions about ratifying it.
The Federalists had tried hard to persuade state delegates to vote for the
Constitution. They convinced the delegates that amendments should be
decided on separately from the Constitution itself. The states therefore
came up with various ideas for amendments. Massachusetts, New Hampshire,
New York, South Carolina, and Virginia all wrote amendments that reserved
to the states those powers not delegated to the central government. Except
for Virginia, all of these states wanted the new amendment to keep for the
states all powers ,"expressly " or "clearly," delegated to the federal
government.
On June 8, 1789, James Madison introduced the various state
amendments to Congress. His wording for the "reserved powers" amendment
stated: "The powers not delegated to this constitution, nor prohibited by
it to the States, are reserved to the States respectively." When the Senate
approved the amendment on September 7, 1789, it included the words "or to
the people." Both the Senate and the House of Representatives accepted the
amendment as the twelfth and last one. Then, after two other amendments
were rejected, the "reserved powers" amendment moved up two places and
became the tenth amendment in the list. After Congress voted to propose
the ten amendments known as the Bill of Rights, it was up to the states to
ratify these amendments. In 1791 the Tenth Amendment and the other nine
amendments were finally ratified.
Remember, the Tenth Amendment did not include the word expressly.
What effect would this have on the way in which the amendment was received?
As you may have guessed, it left the door wide open for different
interpretations of federal powers.
SOURCE OF INFORMATION: The American Heritage History of the Bill of Rights,
The Tenth Amendment, Judith Adams, Silver Burdett Press. (1991) pp 31-36
*******************************************************************
"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively, or
to the people."
That's the Tenth Amendment. It's a cut-and-paste job of a part of the
Articles of Confederation that limited the Confederation government to
powers not EXPRESSLY delegated to it by the Articles. James Madison
carefully knocked the word "expressly" out of the text of the amendment so
that it would not prevent the federal government from exercising powers not
expressly provided by the Constitution but implied by its provisions and
not specifically barred.
**************************************************************
THE BILL OF RIGHTS & THE TENTH AMENDMENT
.. . . The great national debate continued unabated as the
confederationalist school caused another kind of impasse, as many States
made their demands for a Bill of Rights known. Many agreed to ratify the
Constitution with the provision that a Bill of Rights would be attached
with all due haste after its ratification. There was some that insisted
that it not be ratified without it, but those who had toiled over its
drafting were convincing in their protests that they were not optimistic
about a second convention being successful. The first had barely escaped an
impasse. So the Constitution was ratified with the understanding that a
Bill of Rights would be submitted for ratification immediately afterwards.
The Preamble to the Bill of Rights reflects this demand, in much softer
language:
"The conventions of a number of the States having at the time of their
adopting the Constitution, expressed a desire, in order to prevent
misconstruction or abuse of its powers, that further declaratory and
restrictive clauses should be added..."
Some States even went so far as to include their right to secede from the
Union in their ratifying documents. This could not be easily denied,
especially at the time, and it sent a clear message to the new Congress - a
Bill of Rights or face the secession of States from the "more perfect
union", the shortest lived union of its kind in all time. Some were opposed
to creating such a Bill, but political expediency won the day and a Bill of
Rights was produced that satisfied many of the demands of the
confederationalist school. Of particular note was the Tenth Amendment that
many States had specifically demanded:
"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or
to the people."
The Tenth Amendment is a more generally worded version of reserved rights
of the State governments that is found in Article II of the Articles of
Confederation. What was not included in Article II are any references to
the people, which reflects what the ratifiers of the Constitution had come
to believe was the nature of the new Constitutional Federalism.
http://www.ktas.org/confed2.htm
**********************************************************
THERE HAVE BEEN ATTEMPTS TO UNDERMINE WHAT
THE FOUNDERS PASSED BY ADDING THE WORD EXPRESSLY
TO THE TENTH AMENDMENT:
THE BATTLE OVER THE TENTH AMENDMENT:
OPENING A SECOND FRONT
PETE DU PONT*
http://www.ncpa.org/oped/dupont/10am.html
Perhaps it is the structure of the Constitution that has enabled the
federal judiciary to run roughshod over the Tenth Amendment. As one
commentator has observed, "whatever the Founders' intentions, the rules
they wrote are skewed in favor of national power."9
A plan for a sustained devolution of power from centralized government
might be accomplished through three mechanisms: a federalism statute; a
federal statute narrowing the jurisdiction of the federal courts, and a
constitutional amendment further clarifying the Tenth Amendment itself.
A Federalism Statute. The most effective way to focus the federal
judiciary's attention on the importance of the Tenth Amendment, and to make
sure that the federalist structure of government it commands is reinstated,
is to force such ideas on the federal judiciary using congressional powers.
A federalism statute with the purpose of both instructing the federal
courts and empowering state governments would contain half a dozen
elements, each of which is intended to promote a greater recognition of
state and local governments' rights and to codify the intentions of
Congress for its future role vis-a-vis the States.
First, the statute should contain a statement of principles to guide the
judiciary in the application of the Tenth Amendment. Justice Thomas'
dissent in the Term Limits case provides them:25
* the federal government enjoys no authority beyond what the
Constitution confers -- its powers are limited and enumerated;
* the States can exercise all powers that the Constitution does not
withhold from them; and
* where the Constitution is silent about the exercise of a power, the
federal government lacks it and the States enjoy it.
In addition to a statement of principles, the statute should state that the
Tenth Amendment is intended to provide substantive limits on Congress'
power; that the States need not rely solely on the political process for
protection against burdensome Congressional exercise; and that the
protections afforded the States by the Tenth Amendment should be enforced
by the judiciary when Congress oversteps its boundaries and infringes on
state sovereignty. The U.S. Supreme Court has not abandoned these concepts
entirely, as indicated by its 1992 decision in New York v. United States,26
in which the Court struck down a portion of The Low Level Radioactive Waste
Policy Amendments Act of 198527 as an impermissible Congressional mandate
for states to regulate their citizens. But a codification of these
principles is an important step in strengthening Tenth Amendment viability
in the eyes of the courts.
Finally, the statute should follow with four specific statements of
Congressional self-limitation:28
1. A statement that there shall be no preemption of state and local
authority unless Congress expressly declares its intent to do so. This
"clear statement" requirement in areas where Congress may be impeding state
powers is important to the concept of political accountability. Only with
full and accurate understanding of both who is making decisions and what
decisions have been made can the people in a democracy make an informed
decision as to the policies they desire to be implemented and who shall
represent them in carrying out those policies.29
2. A statement that all federal laws and administrative regulations issued
pursuant thereto shall not be interpreted by the courts to infringe in any
material way upon the authority and capacity of state and local governments
to perform their basic and traditional functions, unless expressly declared
by Congress.
3. A provision prohibiting Congress from imposing conditions on federal
grants unless such conditions are expressly stated, are reasonable, and
have a direct relationship to the program being funded. This provision goes
further than the Court would have allowed in the New York v. United States
case, in which the Court acknowledged that conditions attached to the
receipt of federal funds must "bear some relationship to the purpose of the
federal spending . . . ."30
4. A limitation on federal mandates, drawn from the "Headlee amendment"
approved in Michigan to that state's constitution.31 Such an amendment
would restrict the federal government from mandating programs to state and
local governments without appropriating the money necessary to comply with
the mandates. Unfunded mandates undermine political accountability, by
placing the selection of policies in Washington and the execution of them
in state capitals.
A Federal Statute Narrowing the Jurisdiction of the Federal Courts. Further
Congressional action in support of a federalist system of government could
be achieved by utilizing the "Exceptions Clause" of Article III of the
Constitution to remove jurisdiction from the federal courts on certain
federalism issues.32 Although rarely invoked, the power of Congress to
limit the jurisdiction of federal courts is well established.33 For
example, in 1932 Congress passed and President Hoover signed the Norris
LaGuardia Anti Injunction Act34 utilizing Article III to restrict the
ability of federal courts to intervene in labor strikes.
The Supreme Court, in Lauf v. E. G. Shinner & Co., upheld this attempt by
Congress to limit the jurisdiction of the federal courts, holding that
"[t]here can be no question of the power of Congress to define and limit
the jurisdiction of the inferior courts of the United States." 35
As Chief Justice Harlan F. Stone stated in Lockerty v. Phillips:36 "The
Congressional power to ordain and establish inferior courts includes the
power of investing them with jurisdiction either limited, concurrent, or
exclusive, and of withholding jurisdiction from them in the exact degrees
and character which to Congress may seem proper for the public good."
These constitutional provisions can serve as the foundation of a statute to
remove from the federal courts the power to review matters left to the
States by the Constitution and the Tenth Amendment. While the drafting of a
federal statute to narrow federal court jurisdiction would require careful
thought, its objectives are clear: to restore state power, as envisioned by
the Constitution, over a wide range of issues, including state and local
taxation; the terms of employment of state and local governmental
employees; educational standards, funding and transportation; state
welfare, housing and transportation matters; the drinking age; abortion;
local commerce; and so forth.
An "Exceptions Clause" statute to remove the power of the federal courts
over school bussing might read: "No court of the United States, as herein
defined, shall have jurisdiction to issue any order in a case involving or
growing out of a dispute involving the transportation of students to
achieve a racial balance in schools or classrooms; nor shall any order
regarding the transportation of students to achieve a racial balance in
schools or classrooms be issued contrary to the public policy declared in
this Act."
A Constitutional Amendment. Although more difficult to achieve,
Constitutional amendments offer another viable method of restoring and
strengthening federalist principles. In fact, to settle the issue of
federalism with some degree of finality, a Constitutional amendment would
be the most appropriate solution. The most direct approach would be to
enact a constitutional amendment to clarify the Tenth Amendment, and while
I do not offer the following as draft language of a constitutional
amendment, it does convey the spirit of what needs to be enacted: "The
several states and the people shall have all powers not expressly delegated
herein to the federal government or which are directly necessary to, and
inseparable from, such express powers, whether such powers existed prior
to, or were created after, the ratification of this Constitution; and the
federal government shall have only those powers as are expressly enumerated
herein or which are directly necessary to, and inseparable from, such
express powers."
* * * *

:|
:|>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'
:|
:|So are the views of Justice Black in 1947. Ch Justice Rehnquist is already on
:|record he disagrees with Black that Jefferson's statement is law (& I agree
:|with Rehnquist - Jefferson's 1830 views, while to be considered and respected,
:|are not law -as Black should have known). Maybe the SCOTUS is poised to change
:|its mind once again? Lets wait and see.
:|

(1) The rule of law set forth in Everson v. Bd. of Ed is law.
Rehnquist, as much as he would like it to be different hasn't managed to
make his dissent in Jaffree v Wallace the law of the land. nor is there any
indication that is going to happen. All Rehnquist has mananged to do after
about 30 some years on the USSC has been to drastically water down the no
aid to religion aspect. All of the other aspects have held strong.
(2) Jefferson did not create church state separation either on the state
level in Virginia or the national level
See
Study Guide: Separation of Church and State - Indepth
http://members.tripod.com/~candst/studygd0.htm

:|Another dispute/debate (which is used sometimes) is that Justice Black's
:|'views' in these quotes here are orbiter dictum ( a judge's remarks added to
:|show his thinking but not part of the actual ruling).

That is an argument made by people that either don't know how to read and
understand a court opinion or by those who don't like the rule of law that
was stated in Everson v. Bd of Ed.
It is not a valid "dispute/debate."

:|ges tend to ramble and
:|this results in 'fuzzy' law which is not good for the nation all too often. I
:|assume that Black here used the 1st Amd as his 'cited' law in this case. But as
:|I read it - the 1st states *Congress* cannot do all this - it said nothing
:|about the states. If he cited more law then I would be interested in it (but
:|each must do our own research so I feel that I must do mine also).

Mre law than you are interested in, huh? LOL

Case law is law.

:|ever, as you probably know, the SCOTUS rules on one
:|case at a time & the ruling/decision applies only to that specfic case and
:|circumstance (which is why I feel Black is overly broad and rambling).

NOT QUITE.
The following is the rule of law with regards to the Establishment Clause
=====================================================
"Congress shall make no law respecting an establishment of religion,"
THE ESTABLISHMENT CLAUSE
_______________________________________
AS DEFINED IN 1947:
____________________________
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 [p*16] 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." Reynolds v. United States,
supra, at 164.
[SOURCE: Everson v. Board of Education of the Township of Ewing,
330 U.S. 1(1947)]
____________________________
AS DEFINED IN 1993
________________________________
Wall of Separation
The basic purpose of the Establishment Clause is to erect a "wall of
separation" between church and state. The Clause clearly forbids the
federal government or a state government from:
1. Establishing a church;
2. Passing laws which aid one religion, aid all religions, or prefer one
religion over another;
3. Forcing or influencing a person to go to or to remain away from church
against his will or force a person to profess a belief or disbelief in any
religion;
4. Punishing a person for entertaining or professing religious beliefs or
disbeliefs, for church attendance or nonattendance;
5. Levying a tax to support religious activities or institutions, to teach
or practice religion;
6. Participating openly or secretly in the affairs of any religious
organization or group.
Neutrality Principle
The Clause does not forbid every action by government that favors or
benefits religion. A general principle governing this area of the law is
that the First Amendment requires the state to be neutral in its relations
with groups of religious believers and non-believers; it does not require
the state to be their adversary. State power is no more to be used to
handicap religions than it is to favor them.
1. A state or federal statute granting direct financial assistance to a
religiously-oriented institution (such as a school or hospital) must be
examined under the three-prong test described above. Frequently, such a
direct grant violates the Establishment Clause. However, other kinds of
benefits and aids (such as transportation subsidies and the loan of secular
textbooks) to students attending religiously-oriented private schools have
been upheld as constitutional.
2. A tax exemption that does not single out a particular church or
religious group is considered to be a permissible state accommodation of
religion.
3. The grant of a tax deduction for educational expenses of students
attending parochial and public schools which predominantly benefit the
parents of parochial school children does not violate the Establishment
Clause.
4. The grant of funds to church-related universities and colleges in which
the secular functions within the institutions can be easily separated from
the religious functions does not violate the Religion Clause.
5. A public school program allowing students "released time" to participate
in religious instructions outside the public schools' premises is an
accommodation of religion and not a violation of the Religion Clauses of
the First Amendment. However, a public school system may not include prayer
and Bible reading as part of its daily opening exercises in the classrooms.
[SOURCE: Constitutional Law, By Neil C. Blond, Revised Edition Prepared by
Brett I. Harris, Robert M. Novick Sulzburger & Graham Publishing, LTD.,
(1993) pp.391-393
__________________________________
AS BEING DEFINED IN 1997-98
________________________________
A. Background: The basic purpose of the Establishment Clause is, in the
words of Thomas Jefferson, to erect "a wall of separation between church
and state." However, the image "wall" does not help very much in
determining what types of state actions violate the Clause.
Specific prohibitions: There are some types of governmental actions which
clearly late the Establishment Clause. The majority catalogued some of
these in Everson v Bd of Education, supra:
a. No official church: Neither a state nor the federal government may set
up an official church.
b. No coercion: Government may not force [or] 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."
c. Punishment for beliefs: No one may be "punished for entertaining or
professing religious beliefs or disbeliefs, for church attendance or
non-attendance."
d. No preference: Government may not prefer one religion over another.
Also, government may not prefer religion to non-religion.
e. Participation: Government may not participate in the affairs of
religious organizations, and such organizations may not participate in the
affairs of government.
Note: Some of these prohibitions (e.g., the right not to be punished for
one's religious beliefs) are also protected by the Free Exercise Clause,
perhaps even more directly than by the Establishment Clause. Nonetheless,
the Everson Court purported to be listing solely those prohibitions
stemming from the Establishment Clause.
[SOURCE: Law Outlines, Constitutional Law, Steven L. Emanuel, 15th Edition,
Emanuel Publishing Corp. Larchmont, N Y (1997-98) pp. 684-85]
___________________________________________________________
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 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 ALL THE 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
:|interpertations of each time can and do change (1789, 1941 and now TBD). The
:|present SCOTUS is not 'bound' by the above cases cited.

FALSE:
That is exactly why Rehnquist hasn't been able to make his dissent in
Jaffree v. Wallace the law of the land.
It took him 20 + years and the addition of a few helpers to even begin to
build up some sort of questionable precedence to rule the Cleveland voucher
case constitutional. No such precedence has even remotely began to be built
up in the other areas.
Thus Establishment clause cases in those other areas ultimately cite a list
of cases going back to Everson and do not stray far, if at all, from the
rulings of those other cases.

:|It can and (hopefully
:|will) make the 2003 SCOTUS position clear to us common folks in the Moore case.

It is very clear to all who want to understand it and don't have a closed
mind.

:|I suggest that we each read Black & Renhquist,

Rehnquist may be your hero but there is only one area that he has had any
influence on church state and that was in the area of aid to religion. he
has reached the end of his time, he will soon be retiring, if illness
doesn't get to him first, probably by the end of the upcoming term.

:|study the methods of our law
:|procedures,

You planning on going to law school?

:|read the Constitution, look at Jefferson

Jefferson didn't create church state separation,

:|and the Federalist papers

The federalists Papers were propaganda writtren to convince people to
pressure delegates into ratifying the Constitution in New York. In addtion,
the Federalists papers do not really address religion in any meaningful or
define Article VI, Paragraph III.

:|and read the history of this legal topic.

I can recommend this site for that history, history and legal wise:
**********************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE

http://members.tripod.com/~candst/index.html
"Dedicated to combatting 'history by sound bite'."
Now including a re-publication of Tom Peters
SEPARATION OF CHURCH AND STATE HOME PAGE
and
Audio links to Supreme Court oral arguments and
Speech by civil rights/constitutional lawyer and others.
This site is a member of the following web rings:
Freethought Ring--&--Freethought, Religion & Beliefs Ring
The First Amendment Ring--&--The Church-State Ring
American History WebRing--&--The History Ring
Let Freedom Ring--&--Religious Freedom Ring
Law Issues Ring--&--Legal Research Ring
**************************************************

:|Then we should each form OUR
:|thoughts/views/opinions of it all.

Kewl

:|Then vote our convictions and try to legally
:|change the laws we, as individuals, think are bad. IMO Moore has a legitimate
:|case - but lets see if the SCOTUS agrees with Moore (and me) or the 11th Fed
:|Court. I gather your views are different. That is OK and IMO the American way.

Problem is you can't really supply law or history to support your views
while those who happen to agree with the court in the Moore case can.
.

User: "Dusty Rhodes"
Title: Re: Moore rights	29 Sep 2003 09:32:37 PM

<buckeye-ELO@nospam.net> wrote:

stneel@aol.com (StNeel) wrote:

:|>From:

(1) ************************************ RULES:
************************************ ESTABLISHMENT CLAUSE:

The Moore Case is about the law contained in 42 USC 1983, which says, my
paraphrase:
"Every person who, using a State law, ordinance, custom, or rule,
deprives any citizen of any Constitutionally protected rights shall be
brought to court for redress to the injured party."
The establishment clause is not mentioned in this law, so it is a red
herring.
(snip)

(2) Read the decision
http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf

evidently *you* didn't read it.

Read the decision
http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf

evidently *you* didn't read it. The Law requires the plaitiffs to prove
that their constitutionally protected rights were violated. Where in the
decision is that spelled out, exactly?

:|
:|>No person can be punished for entertaining or professing religious
:|>beliefs or disbeliefs, for church attendance or non-attendance.
:|
:|Again Moore did not do this

Read the decision
http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf

evidently *you* didn't read it.

:|
:|>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.
:|
:|Moore? I don't know here. Maybe a case against him. Did he use tax
:|money? But I will say that Justice Black is stating a very (overly IMO)
:|broad claim here - to the point it could be used for many things. Just
:|my opinion. I do not like very broad and 'general' remarks by my
:|judges. They tend to ramble to the point of illegiblity. But by this -
:|Bush's faith base inititive is illegal of course.

Bush's fait based will, in time be found unconstitutional

But it's the law now, right? You must be mad as hell about that!

Read the decision
http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf

now it's getting to be funny.
Laugh, laugh. laugh
(snip spam)
-- Dusty
.

User: ""
Title: Re: Moore rights	30 Sep 2003 12:51:47 PM

Route66Lovers@2LanesForever.com.invalid (Dusty Rhodes) wrote:

:|<buckeye-ELO@nospam.net> wrote:
:|
:|>

(StNeel) wrote:
:|>
:|> >:|>From:

:|> >:|
:|> >:|& StNeel >>>:|Please quote the law that says so. Otherwise it remains
:|> >:|your opinion.
:|> >:|
:|> >:|>But in case he wants actual case law, here are some of the relevant
:|> >:|>quotes:
:|> >:|
:|> >:|Right- then you quote Justice Black of SCOTUS in cases they heard
:|> >:|
:|> >:|> "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.
:|> >:|
:|> >:|OK - that is then appears to be the law of the land. Unless in a newer
:|> >:|case SCOTUS changes its mind. They do you know - as in the seperate but
:|> >:|equal concept. It is their privelige. Tomarrow they may rule different.
:|> >:|But today it seems to be the 'law'. It is interesting that state
:|> >:|churches were allowed by the US Constitution (as interpreted back then)
:|> >:|the first 40 years or so of the life of the USA.
:|> >:|
:|> >:|>Neither can pass laws which aid one religion, aid all religions, or
:|> >:|prefer one religion over another.
:|> >:|
:|> >:|OK - but vs the Judge Moore case - he neither set up a church or passed
:|> >:|a law. So neither applies to his case.
:|>
:|> (1) ************************************ RULES:
:|> ************************************ ESTABLISHMENT CLAUSE:
:|
:|The Moore Case is about the law contained in 42 USC 1983, which says, my
:|paraphrase:
:|
:|"Every person who, using a State law, ordinance, custom, or rule,
:|deprives any citizen of any Constitutionally protected rights shall be
:|brought to court for redress to the injured party."
:|
:|The establishment clause is not mentioned in this law, so it is a red
:|herring.
:|
:|(snip)
:|
:|>
:|> (2) Read the decision
:|> http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf
:|
:|evidently *you* didn't read it.
:|

Actually I have it right in front of me and also have the on line version
book marked.
In spite of what you might want to believe and might want to try and
convince others of, it's legal, it's law and unless the USSC takes Moore's
appeal and overturns it, it will remain law.
.

User: "Dusty Rhodes"
Title: Re: Moore rights	01 Oct 2003 09:50:11 AM

<buckeye-ELO@noapam.net> wrote:

Actually I have it right in front of me and also have the on line version
book marked.

In spite of what you might want to believe and might want to try and
convince others of, it's legal, it's law and unless the USSC takes Moore's
appeal and overturns it, it will remain law.

Two questions:
Can you state the 'law' in a concise way? Certainly what you call the
'law' can't be all 42 pages of the decision. So, what is this 'law'
that is legal, and in force?
Second, I know you have tons of material on the church/state issue. Do
you know if there is any decision, federal district or USSC, that
defines what 'religion' is? As in 'the free exercise thereof' (the other
part of the 1st).
I'd appreciate a cite if possible.
TIA
--
Dusty
.

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