subject:"Newdow"

Yes, I understand that the right to not say the pledge was established firmly in 1943 -- but there is no provision in California law nor in the Elk Grove district rules to honor the law.

There's a difference between having a right and having that right recognized.  When I queried the Elk Grove folks about how a student might opt out, they said no student was allowed out.  The promised to get back to me on it, but events rather overwhelmed them, and I never got an answer.  

As with so many of these issues, I think they turn on the facts.  This particular fact is unclear to me.

Ed Darrell
Dallas



In a message dated 6/20/2004 5:58:58 PM Central Standard Time, [EMAIL PROTECTED] writes:


In a message dated 6/20/2004 12:39:47 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

Perhaps I am wrong, but did not all the parties agree with the characterization of the circumstances in the original Newdow decision?  That is, California requires a patriotic exercise, and Elk Grove's policies require the pledge to meet that law's requirements.  

No, Ed, I think that is the state of the facts.  But that the pledge is required does not mean that no provision has been made for respecting conscientious opposition to pledge recitation.  And that really was my counterpoint, namely that, since Barnette, the right to decline to participate in patriotic exercises on a conscientious basis has been fairly clearly established.  
 
Jim Henderson
Senior Counsel
ACLJ


___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

2004-06-20 Thread JMHACLJ




In a message dated 6/20/2004 12:39:47 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
Perhaps I am wrong, but did not all the parties agree with the characterization of the circumstances in the original Newdow decision?  That is, California requires a patriotic exercise, and Elk Grove's policies require the pledge to meet that law's requirements.  
No, Ed, I think that is the state of the facts.  But that the pledge is required does not mean that no provision has been made for respecting conscientious opposition to pledge recitation.  And that really was my counterpoint, namely that, since Barnette, the right to decline to participate in patriotic exercises on a conscientious basis has been fairly clearly established.  
 
Jim Henderson
Senior Counsel
ACLJ
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

In a message dated 6/18/2004 11:38:07 AM Central Standard Time, [EMAIL PROTECTED] writes:


2. The framers may have intended to protect only Protestants, but the language they used protects all religion (why? suppose we discovered that Washington did not really consider Islam a religion).
 


It appears to me that the discussions in Virginia expressly included other religions.  

Jefferson's view:  In his autobiography, Jefferson recounted the passage of the law he proposed to secure religious freedom in Virginia, the Statute for Religious Freedom:  >>Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word "Jesus Christ," so that it should read, "a departure from the plan of Jesus Christ, the holy author of our religion;" the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and the Mahometan, the Hindoo, and the Infidel of every denomination.<<

[See Life and Selected Writings of Thomas Jefferson, (Modern Library, p. 46)]


Washington's view:  In a letter to George Mason, on October 3, 1785, in response to George Mason's letter asking Washington's views on Patrick Henry's request to pay "religious teachers" out of state funds, Washington wrote: 

>>I have this moment received yours of yesterday's date, enclosing a memorial and remonstrance against the Assessment Bill . . .
   Although no man's sentiments are more opposed to any kind of restraint upon religious principles than mine are; yet I must confess that I am not amongst the number of those who are so much alarmed at the thoughts of making people pay towards the support of that which they profess, if of the denomination of Christians; or declare themselves Jews, Mahomitans or otherwise, and thereby obtain relief.  As the matter now stands, I wish an assessment had never been agitated, and as it has gone so far, that the Bill could die an easy death; because I think it will be productive of more quiet to the State, than by enacting it into a Law, which in my opinion would be impolitic, admitting there is a decided majority for it, to the disquiet of a respectable minority.  In the first case the matter will soon subside; in the latter, it will rankle and perhaps convulse, the State.  The Dinner Bell rings, and I must conclude with an _expression_ of my concern for your indisposition.<<

[Excerpted from Norman Cousins' The Republic of Reason, The Personal Philosophies of the Founding Fathers, Harper and Row, 1988 (based on a similar book by Cousins from 1958), pp. 64-65.]

The "memorial and remonstrance" was, of course, Madison's writing.  I think it's clear here that Washington considered Islam a religion, and a religion in whose business the state had no role, as with all other faiths or lack thereof.

I'll be visiting Mt. Vernon in August, and perhaps can get more information on Washignton's views.

Ed Darrell
Dallas
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

In a message dated 6/18/2004 11:28:45 AM Central Standard Time, [EMAIL PROTECTED] writes:



Everyone notices when someone is gone for a particular ceremony -- 
every day.  Or does not otherwise participate.  


These may be facts that could be proven.  Or perhaps Justice Kennedy will simply assume that they are so, even though the parties in a particular lawsuit have agreed to other facts to the contrary.  


Perhaps I am wrong, but did not all the parties agree with the characterization of the circumstances in the original Newdow decision?  That is, California requires a patriotic exercise, and Elk Grove's policies require the pledge to meet that law's requirements.  

Ed Darrell
Dallas
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

In a message dated 6/18/2004 10:16:09 AM Central Standard Time, [EMAIL PROTECTED] writes:


I think Ed cites important evidence, though I don't think it cuts in 
the same direction he does.  

Let's consider just the evidence Ed cites himself (using his 
characterizations):  1) the colonies had "mostly disestablished" by 
1778, 2) two years before the constitution was adopted, a "modest re-
establishment" was proposed in Va. and failed, 3) by 1787 four states 
had "vestiges of establishments," 4) by 1816 these had been phased 
out --except for one state, 5) Mass. phased out its establishment in 
1833. 

This evidence alone (there is more, including religious restrictions 
to office holding) is enough to establish that the country as a whole 
had not embraced non-establishment as an individual right as of 1791.  
Remember, the issue is whether the Establishment Clause would have 
been read as an _expression_ of federalism or individual right.  

As a counter example, consider the free exercise clause.  The 
protection of the rights of conscience was ubiquitious in state 
constitutions ca. 1789 (including those states with free exercise 
clauses in the state constitution), and the free exercise clause would 
have been read to embrace the same principle at a federal level.  Non-
establishment clauses, on the other hand, were rare in 1789, while 
regulation of religion was quite common (religious blasphemy laws, 
state enforcement of religious orthodoxy through the control of church 
property, taxes in support of clergy, etc).

Non-establishment was an idea that was growing.  Again, I believe the 
principle was broadly embraced as a national right by 1868.  At the 
time of the Founding, however, Ed's own evidence suggests that the 
framers knew the principle of non-establishment was rejected by a 
number of states, and subject to reconsideration in all.  

Kurt Lash


I don't know how an unbroken trend of disestablishment, coupled with a complete failure to enforce any remaining vestiges of establishment, could be counted as a rejection of establishment.

Let me be clear on this:  By 1778, all colonies had disestablished their churches almost completely.  At no time was there any counter trend to re-establish.

If there is any case where a religious restriction on holding office was ever enforced after 1778, I do not know of it (and I've been searching for years).  I think one must take Jefferson at his word that, when he and Mason rewrote much of Virginia's laws which appear, at first flush, to support religion, they did it in order to bring it into the realm of codification, removing it from common law.  Thus, wrote Jefferson, the law he wrote making blasphemy a crime in Virginia law removed from the jurisdiction of any church the crime, removing religious interference in government completely, and guaranteeing that there would not be any prosecutions for blasphemy in Virginia.  

Starting in 1778, the founders, in all cases, methodically stamped out established churches and systematically removed the churches from official government duties, and the government from official church duties.  By 1787, that view was so accepted that it didn't merit discussion at the Constitutional convention except as to how high a wall of separation needed to be.

Regret I was unclear before.

Ed Darrell
Dallas
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

2004-06-18 Thread A.E. Brownstein

Kurt,
Would it be fair to say that while that the principle of non-establishment 
was still at issue in 1789 at the state level, the principle of  generally 
applicable free exercise rights (free exercise rights for everyone -- not 
just Protestants.) was equally at issue at the state level. Your own, very 
fine article, Power and the Subject of Religion, states that in 1789 
"almost without exception, the extent of one's religious freedom depended 
upon how closely one embraced orthodox Protestant Christianity."

If history determines what the religion clauses mean, then we have at least 
three choices. 1. Interpret both according to state understandings and live 
with the very truncated understanding of both clauses. 2. Accept that 
contemporary understandings at the time the 14th Amendment was ratified 
should control -- providing us a stronger, substantive understanding of 
both clauses -- your view I think), or 3. Recognize that there was a 
substantive/individual rights dimension to both clauses at the federal 
level that differed from what the state's were doing  -- Doug Laycock's 
position, I think.)

Alan Brownstein
UC Davis

At 08:10 AM 6/18/2004 -0700, you wrote:
I think Ed cites important evidence, though I don't think it cuts in
the same direction he does.
Let's consider just the evidence Ed cites himself (using his
characterizations):  1) the colonies had "mostly disestablished" by
1778, 2) two years before the constitution was adopted, a "modest re-
establishment" was proposed in Va. and failed, 3) by 1787 four states
had "vestiges of establishments," 4) by 1816 these had been phased
out --except for one state, 5) Mass. phased out its establishment in
1833.
This evidence alone (there is more, including religious restrictions
to office holding) is enough to establish that the country as a whole
had not embraced non-establishment as an individual right as of 1791.
Remember, the issue is whether the Establishment Clause would have
been read as an expression of federalism or individual right.
As a counter example, consider the free exercise clause.  The
protection of the rights of conscience was ubiquitious in state
constitutions ca. 1789 (including those states with free exercise
clauses in the state constitution), and the free exercise clause would
have been read to embrace the same principle at a federal level.  Non-
establishment clauses, on the other hand, were rare in 1789, while
regulation of religion was quite common (religious blasphemy laws,
state enforcement of religious orthodoxy through the control of church
property, taxes in support of clergy, etc).
Non-establishment was an idea that was growing.  Again, I believe the
principle was broadly embraced as a national right by 1868.  At the
time of the Founding, however, Ed's own evidence suggests that the
framers knew the principle of non-establishment was rejected by a
number of states, and subject to reconsideration in all.
Kurt Lash
Content-Type: multipart/alternative;
boundary="part1_1d6.242776bb.2e03f245_boundary"
--part1_1d6.242776bb.2e03f245_boundary
Content-Type: text/plain; charset="US-ASCII"
Content-Transfer-Encoding: 7bit
In a message dated 6/17/2004 8:20:09 PM Central Standard Time,
[EMAIL PROTECTED] writes:
> Whatever Madison's reasons for doing so, I believe that most scholars
> would agree that, in 1791, there was deep disagreement about the value
> of state religious establishments.  It is quite likely that many
> founders simultaneously believed that federal establishments were bad
> but state establishments were very important.  I don't think any
> historian working on this period would disagree.
>
Deep divisions?  All thirteen colonies had disestablished, at least mostly,
by 1778.  No colony, or state, ever backtracked on that decision.  By 1787,
only four states had vestiges of establishment left, which were not 
punitive and
were phased out everywhere but Massachusetts by 1816 -- and in Massachusetts
in 1833.  When Patrick Henry proposed a more modest re-establishment in 1785
for Virginia, thousands of Virginians signed petitions in opposition, and the
Virginia assembly instead passed into law Jefferson's Statute for Religious
Freedom, which expressly states that it is a right of humans to be free 
from such
bondage forever.

Other than odd, usually out-of-context quotes from stray "founders," what
evidence is there of any significant support for an established church 
after 1778
-- outside the Mormon movement?

Ed Darrell
Dallas
--part1_1d6.242776bb.2e03f245_boundary
Content-Type: text/html; charset="US-ASCII"
Content-Transfer-Encoding: quoted-printable
In a me= ssage dated 6/17/2004 8:20:09 PM Central Standard Time, 
[EMAIL PROTECTED] wr= ites:

Whatever Madison's reasons for=20= doing so, I believe that most scholars
would agree that, in 1791, there was deep disagreement about the value
of state religious establishments.  It is quite likely that many
founders simultaneously believed that federal establis

RE: Justice Thomas in Newdow

2004-06-18 Thread A.E. Brownstein

Mark's recommendation below is necessary -- what's unclear is whether or 
not it is sufficient.

I'm fond of telling people that having grown up in New York during the 
years when students were directed to recite the Regents Prayer, I still 
remember the Prayer, and I remember when it was declared unconstitutional 
in Engel v. Vitale. But I don't remember anyone ever telling me that it was 
voluntary. I didn't discover that this was a "voluntary" prayer until I 
read Engel in my second year at law school. The Bible readings in Schempp 
were supposed to be voluntary too. I was on a panel with one of the Schempp 
kids (obviously no longer a kid) not that long ago and it is clear he was 
subjected to lots of coercion from school authorities (including overt 
attempts to discourage colleges he applied to from accepting him.)

It may well be as Mark suggests that neither teachers nor fellow students 
will notice if a student fails to say the words "under God." (although my 
experience as a student and with my own kids is that other children are 
very quick to notice whenever someone does something "different." (Hey, how 
come you're not eating the pepperoni pizza at the school party? It's really 
good.)  But people should not feel that they have to exercise their rights 
in hiding.

Moreover, concerns about teacher pressure are at least as strong as 
concerns about peer pressure. The reality is that teachers, particularly 
teachers in grade school, have so much discretionary power over children 
and can make their lives miserable in some many hard to police ways that 
formally opting out of voluntary religious activities is always going to be 
risky for children of minority faiths or no faith.

That reality does not necessarily determine how the Pledge case should have 
been resolved on the merits. But it should be part of the analysis.

And, of course, the analysis has to apply across the board. Christian 
parents and children who have concerns about the way Halloween is 
celebrated, or about the school mascot being a "Blue Devil" that looks like 
the Devil, or other school activities involving religious or supernatural 
content deserve the same respect afforded to Atheists or members of 
non-Christian faiths.

Alan Brownstein
UC Davis

Teachers should tell students and parents that the students do not need to 
say the phrase (or the whole or any other part of the Pledge) and should 
emphasize that the principles of the Pledge require the rest of the 
students to respect such choices.


Mark S. Scarberry
Pepperdine University School of Law

-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
Sent: Friday, June 18, 2004 9:27 AM
To: [EMAIL PROTECTED]
Subject: Re: Justice Thomas in Newdow

In a message dated 6/18/2004 12:18:28 PM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:

Everyone notices when someone is gone for a particular ceremony --
every day.  Or does not otherwise participate.
These may be facts that could be proven.  Or perhaps Justice Kennedy will 
simply assume that they are so, even though the parties in a particular 
lawsuit have agreed to other facts to the contrary.


But to be honest with you, I doubt the validity of the assertion.  I have 
no way to prove I am right, but I suspect you don't either.  We both are 
just assuming students either are, on your side, highly observant and 
percipient, or, on my side, a bit thick headed on such matters.  Is there 
a constitutional rule of constitutional dimensions that can cut through 
this thicket and resolve it?


Jim Henderson
Senior Counsel
ACLJ
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

2004-06-18 Thread Francis Beckwith

Dear Frances with an "e":

Of course, there are differences between private entities and government
ones, and I am fully conversant with those attributes.  My point was to show
that one could in principle disagree with the claims of a practice, but out
of tolerance and the importance of sustaining a republic based on
fundamental rights see its importance in advancing the public good.

Public schools, in some jurisdictions, offer lesson plans, and make
pronouncements on issues, that are off-putting to religious believers from a
wide variety of traditions.  These religious believers find it troubling
that the state, which coerces its citizens to attend public schools, employs
its power and authority to issue judgments on questions over which citizens
of good will disagree.  It seems to me that if the justification of
jettisoning the pledge is the "atheist student feels marginalized" test,
then in the interest of fairness, lesson plans that offer understandings of
human sexuality, the nature of knowledge, reality, etc., that imply that the
views of the religious citizen are false and/or irrational should go the way
of the pledge.  This is not necessarily my view.  I'm just thinking out loud
and wondering whether we are being inconsistent in expecting the religious
citizen to be tolerant of views and practices he considers aberrant and
harmful while taxing him to pay for their proliferation to his children as
well as his neighbors' children, but we don't expect that sort of tolerance
and acquiescence from the Newdow-types who consider belief in God harmful.

Take care,
Francis, with an "i." :-)

On 6/18/04 11:22 AM, "[EMAIL PROTECTED]" <[EMAIL PROTECTED]> wrote:

> In a message dated 6/18/04 11:42:37 AM Eastern Daylight Time,
> [EMAIL PROTECTED] writes:
> 
> So, like the Christian who must tolerate the distracting presence of nudy bars
> on our interstates as he or she makes her way to church on Sunday mornings, I
> tolerate the Pledge every morning prior to the start of the school day. . . .
> 
> 
> Can you truly not distinguish between commercial speech by private entities
> (the businesses you describe as "nudy bars") and governmental speech?  This is
> facile argument often made in Establishment Clause discussions and one I see
> often in chain emails--that because so much vulgar speech exists in the
> marketplace (think advertising, television, etc.) the government should be
> allowed to engage in religious speech/endorse religion.
> 
> But I will concede we are probably not so far apart on the "icky-ness" of a
> good deal of contemporay American culture. Frances with an "e", an afternoon
> tea (with "biscuits" and sometimes little sandwiches) drinking, garden-loving,
> small dog owning, quaint English village murder mystery reading, reality
> television-Victoria Secret programing-Viagra commercials ("My man likes, let's
> just say, the quality of response it gives him"--ugh!) disapproving British
> import.   
> 
> Frances R. A. Paterson, J.D., Ed.D.
> Associate Professor
> Department of Educational Leadership
> Valdosta State University
> Valdosta, GA 31698
> 
> ___
> To post, send message to [EMAIL PROTECTED]
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 

___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

RE: Justice Thomas in Newdow

2004-06-18 Thread marc stern









I hope that the secretary files a Title
Vii religious discrimination claim.

Marc

 









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Robert Obrien
Sent: Friday, June 18, 2004 1:32
PM
To: Law
 & Religion issues for Law Academics
Subject: Re: Justice Thomas in
Newdow



 



Two stories:  (1) I once represented
a teacher who for five years left the room during the opening prayer at the
initial teachers meeting.  After five years he refused to continue
and complained to the Superintendent. In writing she scorned his
objection.  A suit changed things. (By the way, the judge refused to allow
me attorney's fees, saying the superintendent had changed her policy without a
court order.)





(2) For some years I employed an
excellent legal secretary who was a Jehovah's Witness ( and who happened
to have been an in-law of the Barnett's of Barnette v. Board of Education--note
the change in spelling).  A few years ago she and her husband moved
to North Carolina,
where she quickly found employment.  Recently an attorney who also had
come to respect her special skills invited her to his swearing-in as
judge.  She asked one of the partners in the law firm whether he would be
embarrassed if she did not participate in the Pledge of Allegiance.  A few
days later she was fired.





 





    The facts are that
people do feel depreciated when they have to opt out of formal ceremonies for
religious reasons and when they make their feelings known they are openly
scorned and abused.





 





Bob O'Brien





 





 





- Original Message - 







From: [EMAIL PROTECTED] 





To: [EMAIL PROTECTED] 





Sent: Friday, June 18, 2004 12:27 PM





Subject: Re: Justice Thomas in Newdow





 







In a message dated
6/18/2004 12:18:28 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:





Everyone notices when someone is gone for
a particular ceremony -- 
every day.  Or does not otherwise participate.  







These may be facts that could be
proven.  Or perhaps Justice Kennedy will simply assume that they are so,
even though the parties in a particular lawsuit have agreed to other facts to
the contrary.  





 










___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow





In a message dated 6/18/2004 2:33:57 PM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
She 
  asked one of the partners in the law firm whether he would be embarrassed if 
  she did not participate in the Pledge of Allegiance.  A few days later 
  she was fired.

Of course, her firing from a private law firm may demonstrate that 
hostility to such opting out prevails in some area or other, but it reflects no 
particular constitutional consideration without demonstrating that government 
actors would likewise behave.
 
Jim Henderson
Senior Counsel
ACLJ
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

2004-06-18 Thread Robert Obrien




Two stories:  (1) I once represented a teacher who for five years left 
the room during the opening prayer at the initial teachers meeting.  After 
five years he refused to continue and complained to the Superintendent. In 
writing she scorned his objection.  A suit changed things. (By the way, the 
judge refused to allow me attorney's fees, saying the superintendent had changed 
her policy without a court order.)
(2) For some years I employed an excellent legal secretary who was a 
Jehovah's Witness ( and who happened to have been an in-law of the 
Barnett's of Barnette v. Board of Education--note the change in 
spelling).  A few years ago she and her husband moved to North 
Carolina, where she quickly found employment.  Recently an attorney who 
also had come to respect her special skills invited her to his swearing-in as 
judge.  She asked one of the partners in the law firm whether he would be 
embarrassed if she did not participate in the Pledge of Allegiance.  A few 
days later she was fired.
 
    The facts are that people do feel depreciated when they 
have to opt out of formal ceremonies for religious reasons and when they make 
their feelings known they are openly scorned and abused.
 
Bob O'Brien
 
 
- Original Message - 

  From: 
  [EMAIL PROTECTED] 
  
  To: [EMAIL PROTECTED] 
  Sent: Friday, June 18, 2004 12:27 
PM
  Subject: Re: Justice Thomas in 
  Newdow
  
  
  In a message dated 6/18/2004 12:18:28 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
  Everyone notices when someone is gone for a particular ceremony -- 
every day.  Or does not otherwise participate.  
  
  
  These may be facts that could be proven.  Or perhaps Justice Kennedy 
  will simply assume that they are so, even though the parties in a particular 
  lawsuit have agreed to other facts to the contrary.  
   
NTMail K12 - the Mail Server for Education
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

RE: Justice Thomas in Newdow

2004-06-18 Thread Scarberry, Mark










I doubt anyone would
notice if a student simply omitted the phrase "under God." There
would be no need for a public statement by the student or the student's
parents. On the other hand, there may be areas (most parts of California definitely *not* included) where students might watch
each other to see whether they were saying the phrase. Teachers should tell
students and parents that the students do not need to say the phrase (or the whole
or any other part of the Pledge) and should emphasize that the principles of
the Pledge require the rest of the students to respect such choices.

 



Mark S. Scarberry

Pepperdine University School of Law

 



-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] 
Sent: Friday, June 18, 2004 9:27
AM
To: [EMAIL PROTECTED]
Subject: Re: Justice Thomas in
Newdow

 





In a
message dated 6/18/2004 12:18:28 PM Eastern Daylight Time,
[EMAIL PROTECTED] writes:





Everyone
notices when someone is gone for a particular ceremony -- 
every day.  Or does not otherwise participate.  







These
may be facts that could be proven.  Or perhaps Justice Kennedy will simply
assume that they are so, even though the parties in a particular lawsuit have
agreed to other facts to the contrary.  





 





But to
be honest with you, I doubt the validity of the assertion.  I have no way
to prove I am right, but I suspect you don't either.  We both are just
assuming students either are, on your side, highly observant and percipient,
or, on my side, a bit thick headed on such matters.  Is there a
constitutional rule of constitutional dimensions that can cut through this
thicket and resolve it?





 





Jim
Henderson





Senior
Counsel





ACLJ








___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

In a message dated 6/18/04 11:46:29 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:

unless you have been told, as I was, by a junior high school teacher, that I should not bring my preferred religious text to school for reading during free time, and unless you have been told, as I was, by my high school freshman honors World Civilization teacher, that my faith was fairly puny if it could not stand up to some comparative inspection alongside other "great faiths,"

I think both teachers were wrong--the first was absolutely incorrect as a matter of law (and you know it now and might well have known it then) and the second was gratuitiously rude and disrespectful. Nevertheless, although you refrain from identifying your "preferred religious text" and your faith I would best guess that you received these remarks in the comfortable position of being a member of a member of the religious majority.

I am, as I grow older, more in the business of trying to reconcile philosophy and constitutional jurisprudence--and not a facile way.

Re: your statement "empathic abilities do not determine text or meaning," I beg to disagree on the grounds of trying to understand, as so many of my betters before me, what the framers intended regarding the relationship of the powerful and the less powerful in the realm of religion and the state. It seems to me that the framers were very cognizant of the dangers to adherents of unpopular, disfavored religions and thus were attempting to construct a framework to protect the minority regardless of the nature of that minority in the future.

Got to get to work. It's been a pleasure.

Frances R. A. Paterson, J.D., Ed.D.
Associate Professor
Department of Educational Leadership
Valdosta State University
Valdosta, GA 31698
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

2004-06-18 Thread Mark Graber




One of my hobby horses, which I may have raised several years ago (sorry, 
if I have) concerns late eighteenth/early nineteenth century claims that freedom 
of religion mean no discrimination between Protestants (see Joseph Story, Daniel 
Webster).  Why is this off the table at present.
 
1. Turns out, fortunately, that Story was wrong about the framers.
 
2. The framers may have intended to protect only Protestants, but the 
language they used protects all religion (why? suppose we discovered that 
Washington did not really consider Islam a religion).
 
3. Other.
 
MAG
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow





In a message dated 6/18/2004 12:18:28 PM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
Everyone 
  notices when someone is gone for a particular ceremony -- every day.  
  Or does not otherwise participate.  

These may be facts that could be proven.  Or perhaps Justice Kennedy 
will simply assume that they are so, even though the parties in a particular 
lawsuit have agreed to other facts to the contrary.  
 
But to be honest with you, I doubt the validity of the assertion.  I 
have no way to prove I am right, but I suspect you don't either.  We both 
are just assuming students either are, on your side, highly observant and 
percipient, or, on my side, a bit thick headed on such matters.  Is there a 
constitutional rule of constitutional dimensions that can cut through this 
thicket and resolve it?
 
Jim Henderson
Senior Counsel
ACLJ
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

In a message dated 6/18/04 11:42:37 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:

So, like the Christian who must tolerate the distracting presence of nudy bars on our interstates as he or she makes her way to church on Sunday mornings, I tolerate the Pledge every morning prior to the start of the school day. . . .

Can you truly not distinguish between commercial speech by private entities (the businesses you describe as "nudy bars") and governmental speech? This is facile argument often made in Establishment Clause discussions and one I see often in chain emails--that because so much vulgar speech exists in the marketplace (think advertising, television, etc.) the government should be allowed to engage in religious speech/endorse religion.

But I will concede we are probably not so far apart on the "icky-ness" of a good deal of contemporay American culture. Frances with an "e", an afternoon tea (with "biscuits" and sometimes little sandwiches) drinking, garden-loving, small dog owning, quaint English village murder mystery reading, reality television-Victoria Secret programing-Viagra commercials ("My man likes, let's just say, the quality of response it gives him"--ugh!) disapproving British import.

Re: Justice Thomas in Newdow

2004-06-18 Thread Steven Jamar


On Friday, June 18, 2004, at 11:49  AM, [EMAIL PROTECTED] wrote:



I had missed this element.  That is, the requirement that students "publicly opt out."  I suppose there may be a different kind of coercion at play when one must actively associate oneself with one's ideas and ideals in order to have the benefit of pleading them.  But on what basis, Steve, do you conclude that opting out had to be done publicly here?

Everyone notices when someone is gone for a particular ceremony -- every day.  Or does not otherwise participate.  This is not a silent prayer where no one knows what one is thinking or not thinking.  This is a public ceremony in which one participates or not.

Perhaps you know of some way it could be done secretly?


-- 
Prof. Steven D. Jamar vox:  202-806-8017
Howard University School of Law   fax:  202-806-8428
2900 Van Ness Street NW	mailto:[EMAIL PROTECTED]
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar

"A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." 

Justice Oliver Wendell Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918)


___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow





In a message dated 6/18/2004 11:18:13 AM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
Sorry, 
  Jim, but of course it is coercive to force an elementary or middle or high 
  school student to publicly opt out of a REQUIREMENT.

I had missed this element.  That is, the requirement that students 
"publicly opt out."  I suppose there may be a different kind of coercion at 
play when one must actively associate oneself with one's ideas and ideals in 
order to have the benefit of pleading them.  But on what basis, Steve, do 
you conclude that opting out had to be done publicly here?
 
Jim Henderson
Senior Counsel
ACLJ
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow





In a message dated 6/18/2004 11:11:58 AM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
Thanks, 
  Jim.  You just proved my argument.  That YOU don't see the coercion 
  doesn't mean it doesn't exist. It merely shows that if you are a part of the 
  majority (I know, I know, "Define it" "OK, here, a member of monotheistic 
  faith" b/c we have "under God" not "under Gods"), which I assume you are, then 
  you lack the capacity to emphasize with those who object to this practice, 
  i.e., the inclusion of a statement of religious belief in the Pledge.  
  That was a trifle unkind, but you simply don't see coercion or force because 
  for you it just doesn't exist in this situation. 

At some level, I suppose that clarifies the matter:  you are not 
engaged in a constitutional adventure at all, but a philosophical one.  As 
to the capacity for empathy, unless you have been told, as I was, by a junior 
high school teacher, that I should not bring my preferred religious text to 
school for reading during free time, and unless you have been told, as I was, by 
my high school freshman honors World Civilization teacher, that my faith was 
fairly puny if it could not stand up to some comparative inspection alongside 
other "great faiths," then I suggest you don't have an information base adequate 
to make the judgment about my empathic abilities.
 
I empathize entirely with minority religious groups.  But empathic 
abilities do not determine text or meaning.  Unless text and meaning are 
variable according to the perspective of the observer.  And I suppose at 
some level they are:  Humpty Dumpty insisted words meant precisely what he 
said they meant (even though Alice failed to recognize any of the words in the 
way that Humpty used them).  
 
Jim Henderson 
Senior Counsel
ACLJ
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

RE: Justice Thomas in Newdow

2004-06-18 Thread Francis J. Beckwith

Title: Message



 
The sort of "golden rule"  argument you are offering 
cuts both ways.  For example, I could argue in the following way if I were 
an atheist: 
 

  I would hope that I live in a society in which religious 
  liberty is viewed as one of many fundamental rights that I possess by virtue 
  of the sort of being I am, and that these rights are not contingent upon human 
  insitutitons or human desire, but rather, are grounded in an enternal 
  unchanging mind. Now, as an atheist, I don't believe any of that stuff. I 
  don't believe that there are such things as immaterial moral properties that 
  human beings have by nature, because I am a materialist who believes that 
  things like "natures," "moral properties," etc. have no ontological status 
  whatsoever.  However, I am grateful that others believe otherwise. So, I 
  support the recitation of the Pledge because it reinforces notions of liberty 
  that makes it easier for me to be an atheist.  So, like the Christian who 
  must tolerate the distracting presence of nudy bars on our interstates as he 
  or she makes her way to church on Sunday mornings, I tolerate the Pledge every 
  morning prior to the start of the school day, and I particularly like 
  the "under God" part, for it puts the "fear of God" in the hearts of 
  those who want to take away my right to believe and practice atheism.   
  Seems like a good bargain to me.
   
Frank
 
 
 
 

-Original Message-From: 
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
On Behalf Of [EMAIL PROTECTED]Sent: Friday, June 18, 2004 9:37 
AMTo: [EMAIL PROTECTED]Subject: Re: Justice 
Thomas in Newdow
In a message dated 6/18/04 5:02:57 AM Eastern Daylight 
  Time,[EMAIL PROTECTED] writes:The "lunatic fringe" certainly 
  seems to include a lot of intelligent scholars:As human beings so 
  frequently demonstrate, intelligence (is there a pun in here somewhere?) can 
  certainly be misused in the service of "bad" ends.And, Jim Henderson, 
  your sarcasm does little to advance your argument."Actually, with 
  respect to the pledge. . . perhaps the Supreme Court retrenched and I missed 
  that case.  .  . .  But I'm left to shrug my shoulders and give 
  a constitution-bound sigh."What I find lacking, especially in those 
  who would argue for a weak Establishment Clause, is any honest attempt to put 
  into practice some of what I consider the two related but fundamental 
  religious/moral principles: "Do onto others as you would have them do onto 
  you" and "Love your neighbor as yourself." Both of which exhort us directly or 
  indirectly to empathize with/put ourselves in the position of the person not 
  like ourselves. And incidently I find are related to Rawls' notion of "design 
  a legal system as if you didn't know your place in society."I often 
  wonder how many who argue for a weak Establishment Clause/the discarding of 
  any Establishment Clause test other than coercion (and that with coercion 
  narrowly defined)/making the Establishment Clause inapplicable to state 
  governments (a la Judge Roy Moore) are members of minority religions or 
  nonreligious themselves. It is a great irony that the Baptists argued so 
  fiercely forseparation of church and state when their faith was weak and 
  they were outsiders now that they are in a position of strength argue against 
  the very separation that allow their churches/denomination to flourish--see 
  The Churching ofAmerica.  I write this with the knowledge that some 
  Baptists continue in their denomination's historic opposition to 
  government "entanglement" with religion.In the context of religion 
  clause jurisprudence "do onto others" and "love your neighbor," mean that 
  religious people actually put themselves in the shoesof adherents of 
  minority religious or in the shoes of the nonreligious individuals, which is 
  even more difficult, and look at the law, policy, or practice through their 
  eyes.  It means truly and honestly making a good faith effort (not merely 
  paying lip service) to put oneself in the place of the person unlike yourself 
  and consider the effect of the law, policy, practice on you in your new 
  persona.Frances R. A. Paterson, J.D., Ed.D.Associate Professor 
  (school law)Department of Educational LeadershipValdosta State 
  UniversityValdosta, GA 
31698
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

2004-06-18 Thread Steven Jamar

Sorry, Jim, but of course it is coercive to force an elementary or middle or high school student to publicly opt out of a REQUIREMENT.

It is not just evangelical Christians who have a hard time of it in school.  Anyone who seeks to do something different does.

Steve


 The Elk Grove School District did not and does not coerce pledging.  The state of California did not and does not coerce pledging.  There never was, in this case, a rationally justifiable fear that one who wanted not so to pledge was forced to do so.  So, I suppose I should simply have observed that there was no such coercion.  But what a boredom the language would be without color and metaphor.
 
Jim "My pen takes flight, but my feet are on the ground" Henderson
Senior Counsel
ACLJ

-- 
Prof. Steven D. Jamar vox:  202-806-8017
Howard University School of Law   fax:  202-806-8428
2900 Van Ness Street NW	mailto:[EMAIL PROTECTED]
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar

"I have the audacity to believe that peoples everywhere can have three meals a day for their bodies, education and culture for their minds, and dignity, equality and freedom for their spirits."

Martin Luther King, Jr., (1964, on accepting the Nobel Peace Prize)


___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

2004-06-18 Thread Kurt Lash

I think Ed cites important evidence, though I don't think it cuts in 
the same direction he does.  

Let's consider just the evidence Ed cites himself (using his 
characterizations):  1) the colonies had "mostly disestablished" by 
1778, 2) two years before the constitution was adopted, a "modest re-
establishment" was proposed in Va. and failed, 3) by 1787 four states 
had "vestiges of establishments," 4) by 1816 these had been phased 
out --except for one state, 5) Mass. phased out its establishment in 
1833. 

This evidence alone (there is more, including religious restrictions 
to office holding) is enough to establish that the country as a whole 
had not embraced non-establishment as an individual right as of 1791.  
Remember, the issue is whether the Establishment Clause would have 
been read as an expression of federalism or individual right.  

As a counter example, consider the free exercise clause.  The 
protection of the rights of conscience was ubiquitious in state 
constitutions ca. 1789 (including those states with free exercise 
clauses in the state constitution), and the free exercise clause would 
have been read to embrace the same principle at a federal level.  Non-
establishment clauses, on the other hand, were rare in 1789, while 
regulation of religion was quite common (religious blasphemy laws, 
state enforcement of religious orthodoxy through the control of church 
property, taxes in support of clergy, etc).

Non-establishment was an idea that was growing.  Again, I believe the 
principle was broadly embraced as a national right by 1868.  At the 
time of the Founding, however, Ed's own evidence suggests that the 
framers knew the principle of non-establishment was rejected by a 
number of states, and subject to reconsideration in all.  

Kurt Lash

Content-Type: multipart/alternative;
boundary="part1_1d6.242776bb.2e03f245_boundary"

--part1_1d6.242776bb.2e03f245_boundary
Content-Type: text/plain; charset="US-ASCII"
Content-Transfer-Encoding: 7bit

In a message dated 6/17/2004 8:20:09 PM Central Standard Time, 
[EMAIL PROTECTED] writes:

> Whatever Madison's reasons for doing so, I believe that most scholars 
> would agree that, in 1791, there was deep disagreement about the value 
> of state religious establishments.  It is quite likely that many 
> founders simultaneously believed that federal establishments were bad 
> but state establishments were very important.  I don't think any 
> historian working on this period would disagree.
> 

Deep divisions?  All thirteen colonies had disestablished, at least mostly, 
by 1778.  No colony, or state, ever backtracked on that decision.  By 1787, 
only four states had vestiges of establishment left, which were not punitive and 
were phased out everywhere but Massachusetts by 1816 -- and in Massachusetts 
in 1833.  When Patrick Henry proposed a more modest re-establishment in 1785 
for Virginia, thousands of Virginians signed petitions in opposition, and the 
Virginia assembly instead passed into law Jefferson's Statute for Religious 
Freedom, which expressly states that it is a right of humans to be free from such 
bondage forever. 

Other than odd, usually out-of-context quotes from stray "founders," what 
evidence is there of any significant support for an established church after 1778 
-- outside the Mormon movement?

Ed Darrell
Dallas

--part1_1d6.242776bb.2e03f245_boundary
Content-Type: text/html; charset="US-ASCII"
Content-Transfer-Encoding: quoted-printable

In a me=
ssage dated 6/17/2004 8:20:09 PM Central Standard Time, [EMAIL PROTECTED] wr=
ites:

Whatever Madison's reasons for=20=
doing so, I believe that most scholars 
would agree that, in 1791, there was deep disagreement about the value 
of state religious establishments.  It is quite likely that many 
founders simultaneously believed that federal establishments were bad 
but state establishments were very important.  I don't think any 
historian working on this period would disagree.

Deep divisions?  All thirteen colonies had disestablished, at least mos=
tly, by 1778.  No colony, or state, ever backtracked on that decision.&=
nbsp; By 1787, only four states had vestiges of establishment left, which we=
re not punitive and were phased out everywhere but Massachusetts by 1816 --=20=
and in Massachusetts in 1833.  When Patrick Henry proposed a more modes=
t re-establishment in 1785 for Virginia, thousands of Virginians signed peti=
tions in opposition, and the Virginia assembly instead passed into law Jeffe=
rson's Statute for Religious Freedom, which expressly states that it is a ri=
ght of humans to be free from such bondage forever. 

Other than odd, usually out-of-context quotes from stray "founders," what ev=
idence is there of any significant support for an established church after 1=
778 -- outside the Mormon movement?

Ed Darrell
Dallas

--part1_1d6.242776bb.2e03f245_boundary--
___
To post, send message to [EMAIL

Re: Justice Thomas in Newdow

In a message dated 6/18/04 10:49:11 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:

There never was, in this case, a rationally justifiable fear that one who wanted not so to pledge was forced to do so.


Thanks, Jim.  You just proved my argument.  That YOU don't see the coercion doesn't mean it doesn't exist. It merely shows that if you are a part of the majority (I know, I know, "Define it" "OK, here, a member of monotheistic faith" b/c we have "under God" not "under Gods"), which I assume you are, then you lack the capacity to emphasize with those who object to this practice, i.e., the inclusion of a statement of religious belief in the Pledge.  That was a trifle unkind, but you simply don't see coercion or force because for you it just doesn't exist in this situation. 

I'm not entirely sure that people that haven't experienced membership in a disfavored group can see it/feel it (or perhaps they can but it takes more effort).  Those who have can sometimes generalize their experiences to other minority groups, e.g., a person who has experienced racial or gender discrimination can more easily empathize with a member of a religious minority.  Think, for instance, of the Jews who were active in the civil rights movement. 

Frances R. A. Paterson, J.D., Ed.D.
Associate Professor
Department of Educational Leadership
Valdosta State University
Valdosta, GA 31698

The following, although I'm sure Galbraith wasn't thinking of religion, seemed apropos:

"The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness."--John Kenneth Galbraith

___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow





In a message dated 6/18/2004 10:38:22 AM Eastern Daylight Time, 
[EMAIL PROTECTED] writes:
And, Jim 
  Henderson, your sarcasm does little to advance your 
  argument."Actually, with respect to the pledge. . . perhaps the 
  Supreme Court retrenched and I missed that case.  .  . .  But 
  I'm left to shrug my shoulders and give a constitution-bound 
  sigh."What I find lacking, especially in those who would argue for a 
  weak Establishment Clause, is any honest attempt to put into practice some of 
  what I consider the two related but fundamental religious/moral principles: 
  "Do onto others as you would have them do onto you" and "Love your neighbor as 
  yourself." Both of which exhort us directly or indirectly to empathize 
  with/put ourselves in the position of the person not like ourselves. And 
  incidently I find are related to Rawls' notion of "design a legal system as if 
  you didn't know your place in society."

Professor Paterson has me perplexed.  Perhaps my sarcasm followed to 
quickly on the heels of Ed's sarcasm.  Surely everyone on this listserv, if 
not the general public, knows that the only coercion or psychocoercian or 
metaphysical coercion at stake was the contempt power laying just beneath Dr. 
Newdow's invocation of federal jurisdiction.  The Elk Grove School District 
did not and does not coerce pledging.  The state of California did not and 
does not coerce pledging.  There never was, in this case, a rationally 
justifiable fear that one who wanted not so to pledge was forced to do so.  
So, I suppose I should simply have observed that there was no such 
coercion.  But what a boredom the language would be without color and 
metaphor.
 
Jim "My pen takes flight, but my feet are on the ground" Henderson
Senior Counsel
ACLJ
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

In a message dated 6/18/04 5:02:57 AM Eastern Daylight Time,
[EMAIL PROTECTED] writes:

The "lunatic fringe" certainly seems to include a lot of intelligent scholars:
 
As human beings so frequently demonstrate, intelligence (is there a pun in here somewhere?) can certainly be misused in the service of "bad" ends.

And, Jim Henderson, your sarcasm does little to advance your argument.

"Actually, with respect to the pledge. . . perhaps the Supreme Court retrenched and I missed that case.  .  . .  But I'm left to shrug my shoulders and give a constitution-bound sigh."

What I find lacking, especially in those who would argue for a weak Establishment Clause, is any honest attempt to put into practice some of what I consider the two related but fundamental religious/moral principles: "Do onto others as you would have them do onto you" and "Love your neighbor as yourself." Both of which exhort us directly or indirectly to empathize with/put ourselves in the position of the person not like ourselves. And incidently I find are related to Rawls' notion of "design a legal system as if you didn't know your place in society."

I often wonder how many who argue for a weak Establishment Clause/the discarding of any Establishment Clause test other than coercion (and that with coercion narrowly defined)/making the Establishment Clause inapplicable to state governments (a la Judge Roy Moore) are members of minority religions or nonreligious themselves. It is a great irony that the Baptists argued so fiercely for
separation of church and state when their faith was weak and they were outsiders now that they are in a position of strength argue against the very separation that allow their churches/denomination to flourish--see The Churching of
America.  I write this with the knowledge that some Baptists continue in 
their denomination's historic opposition to government "entanglement" with 
religion.

In the context of religion clause jurisprudence "do onto others" and "love your neighbor," mean that religious people actually put themselves in the shoes
of adherents of minority religious or in the shoes of the nonreligious individuals, which is even more difficult, and look at the law, policy, or practice through their eyes.  It means truly and honestly making a good faith effort (not merely paying lip service) to put oneself in the place of the person unlike yourself and consider the effect of the law, policy, practice on you in your new persona.

Frances R. A. Paterson, J.D., Ed.D.
Associate Professor (school law)
Department of Educational Leadership
Valdosta State University
Valdosta, GA 31698

___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

2004-06-18 Thread Mark Graber




1. Intentions both with respect to the 
original meaning of establishment clause and the due process clause are 
vague.  I suspect no general consensus existed as to what the establishment 
clause meant in 1791 (if the what the average member of a state legislature 
would think the only good evidence is that the average member of a state 
legislature in 1791 was not a sophisticated thinker on much of anything) and on 
what due process mean in 1868 (witness numerous disputes over meaning in 
antebellum state courts) to say nothing of privileges and immunities.  So 
all we have are statements by a few prominent figures that get selected 
cited.
 
2. So, while we are on the subject of 
selective citation.  Consider Thomas's citation to Amar.  Does he mean 
to endorse Amar's entire reading of the 14th Amendment (which largely celebrates 
the Warren Court) or just the claim that the Fourteenth Amendment did not 
incorporate the establishment clause.  Is this legitimate history or 
neutral principles.  Can Amar's claims about the establishment clause be 
isolated from other his other claims, or do they rise and fall together.  
Does an originalist follow neutral principles merely by citing a distinguished 
historian for a particular point, in which case liberals can be perfectly good 
(we have our historians), or must they buy into the historian's full 
logic.
 
Mark A. 
Graber
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow




In a message dated 6/18/2004 3:26:39 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:
I'm still looking for the process by which any kid in the Elk Grove school district in California can opt out of this state- and district-required exercise, short of suing.  Is there really such an opt-out provision in California?
And I"m still looking for the process by which an objecting student can opt out of "let's pretend to be a __" this week.  (The case involved instruction about Islam, but of course, the same problem is presented by every "Lets pretend" lesson.)
 
Actually, with respect to the pledge, I thought that flag salutes could not be compulsory against conscientious objection since as long ago as Barnette, but perhaps the Supreme Court retrenched and I missed that case.  If Ed's point is that persons who have no conscientious basis for objecting to the pledge CAN be required to recite it, I suppose he's right about that.  But I'm left to shrug my shoulders and give a constitution-bound sigh.
 
Jim Henderson
Senior Counsel
ACLJ
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

RE: Justice Thomas in Newdow

2004-06-18 Thread Stuart BUCK

I've kept a list of various authorities who have at least questioned whether 
incorporating the Establishment Clause makes any logical sense.  The 
"lunatic fringe" certainly seems to include a lot of intelligent scholars:

Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 
1157-58 (1991) ("[T]o apply the [Establishment] clause against a state 
government is precisely to eliminate its right to choose whether to 
establish a religion -- a right explicitly confirmed by the establishment 
clause itself! . . . The Fourteenth Amendment might best be read as 
incorporating free exercise, but not establishment, principles against state 
governments.");

Akhil Reed Amar, The Bill of Rights 32-42 (1998);
Steven D. Smith, Foreordained Failure: The Quest for a Constitutional 
Principle of Religious Freedom 49 - 50 (1995);

Steven D. Smith, Separation as a Tradition, 18 J.L. & Pol. 215, 263 (2002) 
("It may be, for example, that the Supreme Court was mistaken in Everson 
both in asserting that the Fourteenth Amendment was intended to incorporate 
the Establishment Clause against the states and also in asserting that the 
Establishment Clause was intended to adopt a position of "no aid' 
separationism.");

Gerard V. Bradley, Church-State Relationships in America 95 (1987);
Chris Bartolomucci, Note, Rethinking the Incorporation of the Establishment 
Clause: A Federalist View, 105 Harv. L. Rev. 1700 (1992);

Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 
Nw. U. L. Rev. 1113, 1142 (1988) ("The language of the fourteenth amendment, 
coupled with the federalistic motivation for the establishment clause, make 
it exceedingly difficult to argue that the framers and ratifiers of the 
fourteenth amendment intended to incorporate the establishment clause for 
application against the states.");

Charles Fried, Foreword: Revolutions?, 109 Harv. L. Rev. 13, 52-53(1995) 
("There is little doubt that the Establishment Clause (quite apart from its 
opening words 'Congress shall make no law') was specifically intended to 
preserve a freedom of action to the states while denying it to the national 
government.").

Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV. 
477, 481-82 (1991) ("As a matter of judicial craftsmanship, it is striking 
in retrospect to observe how little intellectual curiosity the members of 
the Court demonstrated in the challenge presented by the task of adapting, 
for application to the states, language that had long served to protect the 
states against the federal government.");

Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion 
Clauses, 41 Stan. L. Rev. 233, 307 (1989) ("The language of the clause was 
directed against congressional creation of a national church or favoritism 
of one ecclesiastical sect over another. Thus, its predominant intent was to 
protect state religious establishments from national displacement.");

John C. Jeffries, Jr. & James E. Ryan, A Political History of the 
Establishment Clause, 100 Mich. L. Rev. 279, 295 (2001) ("If the original 
Establishment Clause aimed to confirm the exclusive authority of the States 
over religion, invoking that provision to disallow state aid to religion is 
paradoxical and perverse.").

William K. Lietzau, Rediscovering the Establishment Clause: Federalism and 
the Rollback of Incorporation, 39 DEPAUL L. REV. 1191, 1210 (1990) ("While 
many specific Bill of Rights incorporations have been criticized, none are 
so thoroughly contradicted by the historically discernible intentions of our 
forefathers than that of the establishment clause.");

Michael J. Malbin, Religion and Politics: The Intentions of the Authors of 
the First Amendment 16 (1978) ("The clause prohibited Congress from 
tampering with the state religious establishments.");

Michael Paulsen, Religion, Equality, and the Constitution: An Equal 
Protection Approach to Establishment Clause Adjudication, 61 NOTRE DAME L. 
REV. 311, 317 (1986) ("Indeed, to the extent that the Framers drafted the 
establishment clause to address concerns of federalism, it makes no more 
sense to 'incorporate' it against the states than it does to incorporate the 
other provisions in the Bill of Rights which are federalism-oriented.");

William C. Porth & Robert P. George, Trimming the Ivy: A Bicentennial 
Re-Examination of the Establishment Clause, 90 W. VA. L. REV. 109, 136-39 
(1987).

William W. van Alstyne, What is "an Establishment of Religion"?, 65 N.C.L. 
Rev. 909, 910 (1987) ("One plausible reading of the first amendment might 
thus be the following one in particular. It makes a great deal of 
straightforward, unobscure sense: that Congress would have no power to 
interfere with any state's religious establishment laws, whatever they might 
be.").

Stephen Carter puts it thus:
Let us be realistic. Surely the clause means what it says, and no more than 
that. At the moment of the founding, the majority o

Re: Justice Thomas in Newdow



In a message dated 6/17/2004 4:49:15 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
The Civil War Amendments rewrote the Constitution.  People are entitled to protection against establishment period. Limiting the states is what happened with our second Constitution.  Broadening the federal power happened then and again with our third Constitution (New Deal-Warren Court).
No doubt the CWA amended the Constitution.  What perplexes me is that the Establishment Clause and the Federal Due Process Clause both went out to the States at the same time and were adopted at the same time.  Obviously they had different work to do.  Yet when the state DPC is ratified, suddenly the same language of DP also carries the water of the federal Establishment Clause.   Hmm.  
 
Jim "I Do Believe in the Limits of Language, I Do, I Do" Henderson
Senior Counsel
ACLJ
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

2004-06-18 Thread EDarr1776

In a message dated 6/17/2004 4:39:04 PM Central Standard Time, [EMAIL PROTECTED] writes:


However, the Pledge of Allegience--from which kids can opt
out--violates no one's free exercise.


I'm still looking for the process by which any kid in the Elk Grove school district in California can opt out of this state- and district-required exercise, short of suing.  Is there really such an opt-out provision in California?

Ed Darrell
Dallas
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: Justice Thomas in Newdow

2004-06-18 Thread EDarr1776

In a message dated 6/17/2004 8:20:09 PM Central Standard Time, [EMAIL PROTECTED] writes:


Whatever Madison's reasons for doing so, I believe that most scholars 
would agree that, in 1791, there was deep disagreement about the value 
of state religious establishments.  It is quite likely that many 
founders simultaneously believed that federal establishments were bad 
but state establishments were very important.  I don't think any 
historian working on this period would disagree.


Deep divisions?  All thirteen colonies had disestablished, at least mostly, by 1778.  No colony, or state, ever backtracked on that decision.  By 1787, only four states had vestiges of establishment left, which were not punitive and were phased out everywhere but Massachusetts by 1816 -- and in Massachusetts in 1833.  When Patrick Henry proposed a more modest re-establishment in 1785 for Virginia, thousands of Virginians signed petitions in opposition, and the Virginia assembly instead passed into law Jefferson's Statute for Religious Freedom, which expressly states that it is a right of humans to be free from such bondage forever. 

Other than odd, usually out-of-context quotes from stray "founders," what evidence is there of any significant support for an established church after 1778 -- outside the Mormon movement?

Ed Darrell
Dallas
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: RE: Justice Thomas in Newdow

2004-06-17 Thread Kurt Lash

Doug Laycock is right to suggest that the federalism case for the 
establishment clause is at least as strong in regard to other rights 
listed in the Bill.  For example, when Congress passed the alien and 
sedition acts, Madison argued that the acts, among other things, 
violated the rights of the states.  His point was a simple one of 
linking the first and tenth amendments--the powers not delegated to 
the federal government  (like the power to regulate speech) nor 
prohibited to the states, are reserved to the states respectively or 
to the people.  And, in fact, he cited the Tenth Amendment in his 
Report on the Acts.

But the Establishment Clause nevertheless remains unique even among 
the rest of the Bill of Rights.  When Madison (unsuccessfully) 
proposed an amendment that would apply important first amendment 
rights against the states, he included a version of the free exercise 
clause, but he left out the establishment clause.  Apparently Madison 
believed there was a difference between the two clauses and he sought 
to apply only one--the free exercise clause--against the states.

Whatever Madison's reasons for doing so, I believe that most scholars 
would agree that, in 1791, there was deep disagreement about the value 
of state religious establishments.  It is quite likely that many 
founders simultaneously believed that federal establishments were bad 
but state establishments were very important.  I don't think any 
historian working on this period would disagree.

But unlike John, I believe that a broad majority of the country came 
to embrace the principle of non-establishment in the period between 
1791 and 1868.  I agree with Doug that, by Reconstruction, privileges 
or immunities of US citizens were understood to include the right to 
non-establishment.  John raises the issue of the Blaine amendment, and 
he and I have discussed that Amendment in other forums.  Suffice to 
say that I think the Blaine Amendment is evidence which SUPPORTS the 
idea the P or I's included the principle of non-establishment.

But my and John's disagreement is wholly irrelevant to the Supreme 
Court.  The Court has steadfastly refused to consider 
Reconstruction understandings in its interpretation of the Bill of 
Rights in general and the religion clauses in particular.  Instead, 
there has been a continuous, and hopeless, debate over the "original" 
meaning of the establishment clause.  One can hardly fault Justice 
Thomas for joining the debate on the Court's own terms.  

Unfortunately, as Steve Smith might say, this debate is doomed to 
failure, for it seeks an answer that the people themselves were not 
prepared to give in 1791.

Kurt Lash
Loyola Law School, Los Angeles


___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

RE: Justice Thomas in Newdow

2004-06-17 Thread Scarberry, Mark

I was surprised by Justice Thomas's statements suggesting that it is not
entirely clear that the Establishment Clause prohibits Congress from
establishing a national religion. See his opinion at p. 6 (saying only that
the Est. Clause "probably" does so as a textual matter) and p. 7 ("But even
assuming ..."). Is this a slip of the pen, or does Justice Thomas really
entertain doubt whether the original meaning of the Establishment Clause
included such a prohibition?

Mark S. Scarberry
Pepperdine University School of Law
 

-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Thursday, June 17, 2004 2:54 PM
To: Law & Religion issues for Law Academics
Subject: RE: Justice Thomas in Newdow

It seems to me that Justice Thomas's position -- or for that
matter, the Chief's similar position in Wallace v. Jaffree in the
mid-1980s -- is eminently credible.

The case for the Establishment Clause not being incorporated is
at least as strong, it seems to me, as the case for the Grand Jury
Presement Clause not being incorporated or the Seventh Amendment not
being incorporated.  It's true that there is indeed accumulated caselaw
to the contrary, and it surely counts as constitutional law.  But
calling for the reversal even of longstanding precedents also counts as
a legitimate constitutional argument -- in fact, that's how the process
of incorporation itself has often proceeded as to other Amendments.

Finally, I think Doug has a good point that the Establishment
Clause may well be seen as an important protection of individual
liberty.  But that strikes me as far from an open-and-shut obvious
point.  So on balance, Justice Thomas's position -- and the position of
scholars who have made similar arguments -- seems to me to be eminently
credible, and hardly deserving of the harsh condemnation that Rick
Garnett has quoted, even if one ultimately disagrees with Thomas
(whether on originalist grounds or because one thinks that something
else, such as precedent, should count more than original meaning).

Eugene

> -Original Message-
> From: [EMAIL PROTECTED] 
> [mailto:[EMAIL PROTECTED] On Behalf Of marc stern
> Sent: Thursday, June 17, 2004 2:28 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Justice Thomas in Newdow
> 
> 
> Isn't it the case that whether Thomas is correct or not 
> depends in part on whether only the text of the constitution 
> (or the text and original intent) is a relevant datum or 
> whether accumulated cases law also counts as constitutional 
> law. On the text only vision of constitutional law, Thomas 
> has at least something to say, even if I think, with Doug, 
> that he is wrong; on the latter view, his opinion in the 
> pledge case is simply an anomaly. Marc Stern
> 
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of 
> Douglas Laycock
> Sent: Thursday, June 17, 2004 4:21 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Justice Thomas in Newdow
> 
>  The LA Times story is available on Westlaw for those 
> who would 
> like to read it without giving their phone number and income 
> to the LA 
> Times.  Expletives deleted.
> 
>  Obviously the way you would explain what is wrong 
> with Thomas's 
> opinion on this list is different from how you would 
> capsulize it in a 
> sentence or two (selected by the reporter) for an 
> "explanation" to the 
> public.  But I do think that Thomas's opinion is both extreme 
> and wrong.
> 
>  He did not say merely that the clause does not apply 
> against the 
> states.  He also said that the clause creates no individual 
> rights.  The 
> only apparent application of this second pronouncement is 
> that it creates 
> no individual rights against the federal government either.  So every 
> Establishment Clause case the Court has ever decided would be 
> obliterated 
> at a stroke.  He seems to assume that the free exercise clause would 
> prevent coerced attendance at religious services -- unless, 
> we have to 
> assume, the service is rather short and is incorporated into 
> some other 
> official event that people attend for secular reasons.
> 
>  I do not doubt that one meaning of the Clause in 
> 1791 was that the 
> federal government could not interfere with establishments in the 
> states.  But I am equally sure that one meaning of the Clause 
> in 1791 was 
> that the federal government could take no steps toward a federal 
> establishment of religion -- not in the states, and not in 
> the federal 
> district either.  Either a federal establishment or a federal 
> interference 
> wit

RE: Justice Thomas in Newdow

2004-06-17 Thread Eastman, John

So its ok for the "New Deal-Warren Court" to re-write the Constitution to its 
pleasure, but somehow "lunatic fringe" for Justice Thomas even to ask the question 
what the Constitution as written and ratified actually meant?  Seems to me that the 
oath of office for him (and indeed every other officer in government) is to the 
Constitution, not what the Court said about it in dicta in 1947, particularly when the 
dictum was verifiably wrong.  Verifiable--else how can you explain the efforts to pass 
the Blaine Amendment, an effort that would not have been necessary had the 14th 
Amendment already accomplished what you think is so obvious that no discussion about 
it ever grace the pages of the U.S. Reports.
 
And I dont' see how state support of religion is any more an infringement on the 
"liberty" protected by the 14th Amendment than state indoctrination in public schools, 
or via the slanderous anti-tobacco ad campaigns that have run throughout the nation, 
etc. No one is compelled to adhere to a particular faith--that's the line between free 
exercise and establishment as originally understood.  The non-interference aspect of 
the First Amendment is a close call, but I think the stronger original understanding, 
and there is certainly nothing in the 14th Amendment's drafting or ratification 
history even to suggest, much less to dispositively determine, that the 14th Amendment 
was designed to confer on the Federal Courts the very power prohibited to Congress by 
the Establishment Clause itself.  The 14th Amendment wrought a monumental change in 
federal-state relations, to be sure, but that was not among them--at least, not on any 
evidence I have seen.
 
John Eastman
Chapman Law School



From: [EMAIL PROTECTED] on behalf of Steven Jamar
Sent: Thu 6/17/2004 1:48 PM
To: Law & Religion issues for Law Academics
Subject: Re: Justice Thomas in Newdow



> "bedrock."  Still, is there a reason why we should not concede that he
> is -- or, at least, MAY be -- correct?
>
> Best,
>
> Rick Garnett

The Civil War Amendments rewrote the Constitution.  People are entitled
to protection against establishment period. Limiting the states is what
happened with our second Constitution.  Broadening the federal power
happened then and again with our third Constitution (New Deal-Warren
Court).

While an academic may be excused for pondering parallel universes in
writing, a Supreme Court Justice who does so in writing (as opposed to
raising a point for discussion with law clerks and other judges) is
perhaps not at the lunatic fringe, but is at at the very least near it.

What we may toss around as ideas on our listserve or in our classes or
in person or even in serious scholarship is different from published
opinions of the court.

Steve

--
Prof. Steven D. Jamar vox:  202-806-8017
Howard University School of Law   fax:  202-806-8428
2900 Van Ness Street NW mailto:[EMAIL PROTECTED]
Washington, DC  20008  http://www.law.howard.edu/faculty/pages/jamar

Lay not up for yourselves treasures upon earth, where moth and rust
doth corrupt, and where thieves break through and steal; but lay up for
yourselves treasures in heaven, where neither moth nor rust doth
corrupt, and where thieves do not break through nor steal. For where
your treasure is, there will your heart be also.

Matthew 6:19-21

___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw


<>___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

RE: Justice Thomas in Newdow

2004-06-17 Thread Volokh, Eugene

It seems to me that Justice Thomas's position -- or for that
matter, the Chief's similar position in Wallace v. Jaffree in the
mid-1980s -- is eminently credible.

The case for the Establishment Clause not being incorporated is
at least as strong, it seems to me, as the case for the Grand Jury
Presement Clause not being incorporated or the Seventh Amendment not
being incorporated.  It's true that there is indeed accumulated caselaw
to the contrary, and it surely counts as constitutional law.  But
calling for the reversal even of longstanding precedents also counts as
a legitimate constitutional argument -- in fact, that's how the process
of incorporation itself has often proceeded as to other Amendments.

Finally, I think Doug has a good point that the Establishment
Clause may well be seen as an important protection of individual
liberty.  But that strikes me as far from an open-and-shut obvious
point.  So on balance, Justice Thomas's position -- and the position of
scholars who have made similar arguments -- seems to me to be eminently
credible, and hardly deserving of the harsh condemnation that Rick
Garnett has quoted, even if one ultimately disagrees with Thomas
(whether on originalist grounds or because one thinks that something
else, such as precedent, should count more than original meaning).

Eugene

> -Original Message-
> From: [EMAIL PROTECTED] 
> [mailto:[EMAIL PROTECTED] On Behalf Of marc stern
> Sent: Thursday, June 17, 2004 2:28 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Justice Thomas in Newdow
> 
> 
> Isn't it the case that whether Thomas is correct or not 
> depends in part on whether only the text of the constitution 
> (or the text and original intent) is a relevant datum or 
> whether accumulated cases law also counts as constitutional 
> law. On the text only vision of constitutional law, Thomas 
> has at least something to say, even if I think, with Doug, 
> that he is wrong; on the latter view, his opinion in the 
> pledge case is simply an anomaly. Marc Stern
> 
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of 
> Douglas Laycock
> Sent: Thursday, June 17, 2004 4:21 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Justice Thomas in Newdow
> 
>  The LA Times story is available on Westlaw for those 
> who would 
> like to read it without giving their phone number and income 
> to the LA 
> Times.  Expletives deleted.
> 
>  Obviously the way you would explain what is wrong 
> with Thomas's 
> opinion on this list is different from how you would 
> capsulize it in a 
> sentence or two (selected by the reporter) for an 
> "explanation" to the 
> public.  But I do think that Thomas's opinion is both extreme 
> and wrong.
> 
>  He did not say merely that the clause does not apply 
> against the 
> states.  He also said that the clause creates no individual 
> rights.  The 
> only apparent application of this second pronouncement is 
> that it creates 
> no individual rights against the federal government either.  So every 
> Establishment Clause case the Court has ever decided would be 
> obliterated 
> at a stroke.  He seems to assume that the free exercise clause would 
> prevent coerced attendance at religious services -- unless, 
> we have to 
> assume, the service is rather short and is incorporated into 
> some other 
> official event that people attend for secular reasons.
> 
>  I do not doubt that one meaning of the Clause in 
> 1791 was that the 
> federal government could not interfere with establishments in the 
> states.  But I am equally sure that one meaning of the Clause 
> in 1791 was 
> that the federal government could take no steps toward a federal 
> establishment of religion -- not in the states, and not in 
> the federal 
> district either.  Either a federal establishment or a federal 
> interference 
> with a state establishment would be a law respecting an establishment.
> 
>  The debate in the First Congress did not focus on 
> the federalism 
> implications.  It focused on the meaning of establishment, 
> and on how far 
> the federal government should be restricted.  The argument 
> for prohibiting 
> only preferential aid to favored denominations was rejected; the most 
> broadly worded draft proposed was adopted.  This of course 
> goes to the 
> debate over nonpreferentialism; but even before that, it goes 
> to whether 
> this Clause was only about federalism, or also about the proper 
> relationship between religion and government.  The debate was 
> plainly about 
> the latter; I

Re: Justice Thomas in Newdow

2004-06-17 Thread Francis Beckwith

I don't think Thomas disbelieves that incorporation has occurred (or
"happened"), and that has included the establishment clause.  I think he is
questioning whether it is justified.  After all, in the same 1940s in which
Everson came down the pike so did the Japanese internment case. I don't
think anyone would accept as a justification of the latter the citation of
historical fact: "broadening the federal power, including interning the
Japanese, happenend again with our third Constituiton (New Deal-Warren
Court." Yes, it happened. But was it justified?

I think there is another way to understand Thomas that is consistent with
establishment applied to the states but without incorporating the
Establishment Clause.  (I just read through his opinion in Newdow very
quickly; so I may be reading him wrong on this).  Thomas seems to be saying
that state disestablishment can be gotten through the free exercise clause,
which can be interpreted to mean that state power to curtail free exercise
is prima facie unjustified. This would mean that really egregious cases of
establishment--e.g., assessments that tax everyone to support a particular
church, indoctrinating students in public school classrooms, etc.--violate
free exercise. However, the Pledge of Allegience--from which kids can opt
out--violates no one's free exercise.

It does, of course, put the state in a position of claiming that the nation
is "under God." But one could give a separationist account of this by
arguing that since the writer of the Danbury Letter (the sacred text of
separationism, so to speak), Jefferson, affirmed in the Declaration that our
rights, including religious liberty, are endowed to us by our Creator,
apparently he saw no inconsistency in maintaining both beliefs
simultaneously.  In this sense, we are "under God."

Frank

On 6/17/04 3:48 PM, "Steven Jamar" <[EMAIL PROTECTED]> wrote:

>> "bedrock."  Still, is there a reason why we should not concede that he
>> is -- or, at least, MAY be -- correct?
>> 
>> Best,
>> 
>> Rick Garnett
> 
> The Civil War Amendments rewrote the Constitution.  People are entitled
> to protection against establishment period. Limiting the states is what
> happened with our second Constitution.  Broadening the federal power
> happened then and again with our third Constitution (New Deal-Warren
> Court).
> 
> While an academic may be excused for pondering parallel universes in
> writing, a Supreme Court Justice who does so in writing (as opposed to
> raising a point for discussion with law clerks and other judges) is
> perhaps not at the lunatic fringe, but is at at the very least near it.
> 
> What we may toss around as ideas on our listserve or in our classes or
> in person or even in serious scholarship is different from published
> opinions of the court.
> 
> Steve

___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

RE: Justice Thomas in Newdow

2004-06-17 Thread marc stern

Isn't it the case that whether Thomas is correct or not depends in part on
whether only the text of the constitution (or the text and original intent)
is a relevant datum or whether accumulated cases law also counts as
constitutional law. On the text only vision of constitutional law, Thomas
has at least something to say, even if I think, with Doug, that he is wrong;
on the latter view, his opinion in the pledge case is simply an anomaly.
Marc Stern

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Thursday, June 17, 2004 4:21 PM
To: Law & Religion issues for Law Academics
Subject: Re: Justice Thomas in Newdow

 The LA Times story is available on Westlaw for those who would 
like to read it without giving their phone number and income to the LA 
Times.  Expletives deleted.

 Obviously the way you would explain what is wrong with Thomas's 
opinion on this list is different from how you would capsulize it in a 
sentence or two (selected by the reporter) for an "explanation" to the 
public.  But I do think that Thomas's opinion is both extreme and wrong.

 He did not say merely that the clause does not apply against the 
states.  He also said that the clause creates no individual rights.  The 
only apparent application of this second pronouncement is that it creates 
no individual rights against the federal government either.  So every 
Establishment Clause case the Court has ever decided would be obliterated 
at a stroke.  He seems to assume that the free exercise clause would 
prevent coerced attendance at religious services -- unless, we have to 
assume, the service is rather short and is incorporated into some other 
official event that people attend for secular reasons.

 I do not doubt that one meaning of the Clause in 1791 was that the 
federal government could not interfere with establishments in the 
states.  But I am equally sure that one meaning of the Clause in 1791 was 
that the federal government could take no steps toward a federal 
establishment of religion -- not in the states, and not in the federal 
district either.  Either a federal establishment or a federal interference 
with a state establishment would be a law respecting an establishment.

 The debate in the First Congress did not focus on the federalism 
implications.  It focused on the meaning of establishment, and on how far 
the federal government should be restricted.  The argument for prohibiting 
only preferential aid to favored denominations was rejected; the most 
broadly worded draft proposed was adopted.  This of course goes to the 
debate over nonpreferentialism; but even before that, it goes to whether 
this Clause was only about federalism, or also about the proper 
relationship between religion and government.  The debate was plainly about 
the latter; I think the federalism-only interpretation is demonstrably
wrong.

 I'm not sure the federalism principle that can be derived from the 
verb "respecting" and the existence of state establishments is much 
different from the federalism principle that is implicit in the 
constitutional structure about other individual rights good only against 
the federal government.  Certainly the federal government in 1791 had no 
general power to protect individual liberties against state restrictions on 
free speech (blasphemy, defamation, perhaps others) or free exercise 
(voting confined to Christians, or to Protestants; the Lousiana law on 
Catholic funerals that got to the Supreme Court in 1845 and produced a 
repeat of Barron v. Baltimore); or any other individual right.  Any attempt 
to incorporate implicit and explicit rules that the federal government 
could not interfere with state restrictions on liberty would indeed lead to 
nonsense.

 What is incorporated is the protection for individual liberty in 
each constitutional right.  The states cannot do to citizens what the feds 
could not do to citizens.  The restrictions on government sponsorship of 
religion play an essential role in protecting the religious liberty of 
individuals; I am entirely comfortable concluding that those restrictions 
are a privilege or immunity of citizens of the United States, just like the 
restrictions on government interference with free speech or free 
exercise.  I understand the argument that the Establishment Clause doesn't 
speak to what government can do to individuals in the same way as the other 
provisions of the Bill of Rights, but I think that badly underestimates the 
role of the Establishment Clause in protecting individual liberty.

At 02:25 PM 6/17/2004 -0500, you wrote:
>Dear all,
>
>I apologize in advance, if I missed the list's discussion of Justice 
>Thomas's views regarding the incorporation of the Establishment 
>Clause.  For what it's worth, I've been surprised by the vigo

Re: Justice Thomas in Newdow

2004-06-17 Thread Douglas Laycock

The LA Times story is available on Westlaw for those who would 
like to read it without giving their phone number and income to the LA 
Times.  Expletives deleted.

Obviously the way you would explain what is wrong with Thomas's 
opinion on this list is different from how you would capsulize it in a 
sentence or two (selected by the reporter) for an "explanation" to the 
public.  But I do think that Thomas's opinion is both extreme and wrong.

He did not say merely that the clause does not apply against the 
states.  He also said that the clause creates no individual rights.  The 
only apparent application of this second pronouncement is that it creates 
no individual rights against the federal government either.  So every 
Establishment Clause case the Court has ever decided would be obliterated 
at a stroke.  He seems to assume that the free exercise clause would 
prevent coerced attendance at religious services -- unless, we have to 
assume, the service is rather short and is incorporated into some other 
official event that people attend for secular reasons.

I do not doubt that one meaning of the Clause in 1791 was that the 
federal government could not interfere with establishments in the 
states.  But I am equally sure that one meaning of the Clause in 1791 was 
that the federal government could take no steps toward a federal 
establishment of religion -- not in the states, and not in the federal 
district either.  Either a federal establishment or a federal interference 
with a state establishment would be a law respecting an establishment.

The debate in the First Congress did not focus on the federalism 
implications.  It focused on the meaning of establishment, and on how far 
the federal government should be restricted.  The argument for prohibiting 
only preferential aid to favored denominations was rejected; the most 
broadly worded draft proposed was adopted.  This of course goes to the 
debate over nonpreferentialism; but even before that, it goes to whether 
this Clause was only about federalism, or also about the proper 
relationship between religion and government.  The debate was plainly about 
the latter; I think the federalism-only interpretation is demonstrably wrong.

I'm not sure the federalism principle that can be derived from the 
verb "respecting" and the existence of state establishments is much 
different from the federalism principle that is implicit in the 
constitutional structure about other individual rights good only against 
the federal government.  Certainly the federal government in 1791 had no 
general power to protect individual liberties against state restrictions on 
free speech (blasphemy, defamation, perhaps others) or free exercise 
(voting confined to Christians, or to Protestants; the Lousiana law on 
Catholic funerals that got to the Supreme Court in 1845 and produced a 
repeat of Barron v. Baltimore); or any other individual right.  Any attempt 
to incorporate implicit and explicit rules that the federal government 
could not interfere with state restrictions on liberty would indeed lead to 
nonsense.

What is incorporated is the protection for individual liberty in 
each constitutional right.  The states cannot do to citizens what the feds 
could not do to citizens.  The restrictions on government sponsorship of 
religion play an essential role in protecting the religious liberty of 
individuals; I am entirely comfortable concluding that those restrictions 
are a privilege or immunity of citizens of the United States, just like the 
restrictions on government interference with free speech or free 
exercise.  I understand the argument that the Establishment Clause doesn't 
speak to what government can do to individuals in the same way as the other 
provisions of the Bill of Rights, but I think that badly underestimates the 
role of the Establishment Clause in protecting individual liberty.


At 02:25 PM 6/17/2004 -0500, you wrote:
Dear all,
I apologize in advance, if I missed the list's discussion of Justice 
Thomas's views regarding the incorporation of the Establishment 
Clause.  For what it's worth, I've been surprised by the vigor with which 
several prominent scholars have disapproved these views.  Jack Balkin 
remarked, for example (www.balkin.blogspot.com), "[n]ow we know what it 
would be like to have Judge Roy Moore on the Supreme Court."  Brian Leiter 
concludes that Justice Thomas has "solidif[ied[ his status on the lunatic 
fringe" 
(http://webapp.utexas.edu/blogs/archives/bleiter/001452.html).  And Doug 
Laycock states that Thomas's "is a pretty astonishing view. . . . He acts 
as though the Civil War didn't happen, or it didn't matter" 
(http://www.latimes.com/la-na-thomas17jun17,1,3892729.story).

It strikes me, though, that Thomas's observations, in Part II-A of his 
opinion, are not particularly astonishing, and certainly do nothing to put 
him on "the lunatic fringe."  Does he say an

Re: Justice Thomas in Newdow

2004-06-17 Thread Steven Jamar

"bedrock."  Still, is there a reason why we should not concede that he 
is -- or, at least, MAY be -- correct?

Best,
Rick Garnett
The Civil War Amendments rewrote the Constitution.  People are entitled 
to protection against establishment period. Limiting the states is what 
happened with our second Constitution.  Broadening the federal power 
happened then and again with our third Constitution (New Deal-Warren 
Court).

While an academic may be excused for pondering parallel universes in 
writing, a Supreme Court Justice who does so in writing (as opposed to 
raising a point for discussion with law clerks and other judges) is 
perhaps not at the lunatic fringe, but is at at the very least near it.

What we may toss around as ideas on our listserve or in our classes or 
in person or even in serious scholarship is different from published 
opinions of the court.

Steve
--
Prof. Steven D. Jamar vox:  202-806-8017
Howard University School of Law   fax:  202-806-8428
2900 Van Ness Street NW mailto:[EMAIL PROTECTED]
Washington, DC  20008  http://www.law.howard.edu/faculty/pages/jamar
Lay not up for yourselves treasures upon earth, where moth and rust 
doth corrupt, and where thieves break through and steal; but lay up for 
yourselves treasures in heaven, where neither moth nor rust doth 
corrupt, and where thieves do not break through nor steal. For where 
your treasure is, there will your heart be also.

Matthew 6:19-21
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Justice Thomas in Newdow

2004-06-17 Thread Rick Garnett

Dear all,
I apologize in advance, if I missed the list's discussion of Justice 
Thomas's views regarding the incorporation of the Establishment 
Clause.  For what it's worth, I've been surprised by the vigor with which 
several prominent scholars have disapproved these views.  Jack Balkin 
remarked, for example (www.balkin.blogspot.com), "[n]ow we know what it 
would be like to have Judge Roy Moore on the Supreme Court."  Brian Leiter 
concludes that Justice Thomas has "solidif[ied[ his status on the lunatic 
fringe" (http://webapp.utexas.edu/blogs/archives/bleiter/001452.html).  And 
Doug Laycock states that Thomas's "is a pretty astonishing view. . . . He 
acts as though the Civil War didn't happen, or it didn't matter" 
(http://www.latimes.com/la-na-thomas17jun17,1,3892729.story).

It strikes me, though, that Thomas's observations, in Part II-A of his 
opinion, are not particularly astonishing, and certainly do nothing to put 
him on "the lunatic fringe."  Does he say anything, in that Part of the 
opinion, that Steve Smith, Philip Hamburger, Gerry Bradley, Akhil Amar, and 
many others have not also said, namely, that the point of the Establishment 
Clause was to protect the States' then-existing "establishments" and 
perhaps also, more generally, to leave questions of church-state relations 
to the States?  And, with all due respect to Professor Laycock, I'm not 
sure it is fair to conclude that, because Justice Thomas agrees with those 
who believe that the Establishment Clause is particularly, and perhaps 
uniquely, unsuited for incorporation via the 14th Amendment (but see, e.g., 
Kurt Lash), he is therefore unmindful of the (obvious) sweeping changes 
that the post-Civil War Amendments worked in the constitutional law of 
individual rights.  (Recall, for example, his passionate concurrence in 
Zelman).

Now, I'm inclined to think that, merits aside, the matter is water under 
the bridge, and that Justice Thomas's views on this question -- like his 
views on the scope of the Commerce Clause -- are not likely to become 
governing constitutional law.  As Michael Perry likes to put it, the 
incorporation of the Establishment Clause has become "bedrock."  Still, is 
there a reason why we should not concede that he is -- or, at least, MAY be 
-- correct?

Best,
Rick Garnett




At 04:26 AM 6/11/2004 -0500, you wrote:
Eugene, I agree that very "global" quid pro quo theories -- like "broad
Establishment Clause, broad Free Exercise Clause" -- do not spread their
benefits to all religions equally.  (For example, I think that "broad
establishment clause, broad free exercise" tends to protect or benefit
minority or outsider religions, although I'd qualify that statement in some
important ways.  I'm thinking about this now because I'm writing a piece
about minority religions.)
But more specific quid pro quo arguments, it seems to me, can rest on real
connections.  For example: "Because public schools cannot include religious
teaching in their curriculum, there should be special concern to protect
religious private schools and families' ability to use them if they
conscientiously wish to have religoius instruction in their children's
education."  That connection is still not perfect -- not all families who
want religious instruction in education will belong to a denomination that
operates religious schools -- but the connection is real because there are
indeed many families who make such a choice between public education and
private religious schools.
As for more global quid pro quo notions:  although of course there are many,
many religious views, nevertheless there is a general category called
"religion" that is singled out for distinctive treatment in the Constitution
and therefore may require distinctive treatment by government actors.  Even
if a general quid pro quo approach doesn't benefit all faiths equally, it
seems to me that it can have the advantage of setting forth an approach that
doesn't treat religious activity just the same as every other activity, but
is principled in the ways it departs from that "sameness" treatment.  For
example, the Lee v. Weisman passage -- "preservation and transmission of
religious beliefs and worship is a responsibility and a choice committed to
the private sphere, which itself is promised freedom to pursue that mission"
-- gives a principled (though certainly disputable) reason for treating
religious activities distinctively in various legal situations.  When
someone asks, for example, "Why should there be exemptions from law just for
religious conduct?," a possible answer is, "It's part of this overall
approach to religion that is sensible and justifiable, for [X] reasons."  I
think that the fact that one can point to other places where religion is
treated differently helps make the overall approach more sensible and
justifiable (though, of course, still open to dispute).
Tom Berg
  _
From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Wed 6/9/2004 11:29 PM
To: La

Tushnet on Newdow




Mark apparently wanted to recollect what it's like 
to take a law-school exam:  He just finished parrying 26 Questions 
(many of them with mulitple subparts!) on Newdow in one hour, in a 
public Q&A on the Washington Post website:  
 
http://discuss.washingtonpost.com/wp-srv/zforum/04/sp_nation_tushnet061404.htm
 
 
- Original Message - 
From: "Mark Tushnet" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Monday, June 14, 2004 2:20 PM
Subject: Kremlinology on Newdow
> FWIW:  Here's one (my) take on things.  Rehnquist offered 
his (mostly > historical) opinion upholding the Pledge to the 
"conservatives."  > O'Connor wasn't satisfied with it, and wrote her 
much more tortured (so > to speak) opinion upholding the Pledge.  
Stevens told Kennedy that he > (Stevens) didn't think that either of 
those opinions would get a vote > from the liberals, which would lead to 
a 4-4 affirmance if Kennedy went > with either Rehnquist or 
O'Connor.  Better, Stevens said to Kennedy, to > join me and the 
other liberals on a standing decision -- which I can > write so that it 
has no implications for any other case.  Kennedy went > along with 
Stevens's suggestion.  (That's why it took so long to get the > 
standing opinion out -- for a while there was some chance that the > 
decision would go on the merits.  If I were Rehnquist, I'd be annoyed at 
> Kennedy [if this scenario is right] and maybe Scalia for causing the 
> possibility of a 4-4 split.  But' he's a genial sort.)> 
> 
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: The Merits in Newdow

2004-06-14 Thread Ann Althouse

Stevens creates a new prudential limitation on standing: "it is improper for
the federal courts to entertain a claim by a plaintiff whose standing to sue
is founded on family law rights that are in dispute when prosecution of the
lawsuit may have an adverse effect on the person who is the source of the
plaintiff¹s claimed standing." Even when he's suing in his own right, it
must be in his own right as a father, and not as an ordinary citizen. Isn't
the point that he shouldn't be recognized as capable of suing as a father if
the state court's authoritative family law judgment is that the child should
be left out of the lawsuit? If he's not suing as a father, and he's not a
Flast-type taxpayer, he's just the usual ideologue who isn't allowed to sue,
correct?

Ann



"Nathan Oman" <[EMAIL PROTECTED]> wrote:

> The Stevens opinion explains why Neadow lacks standing to assert his
> daughter's claim to be free of government sponsored religion.  However, he
> doesn't seem to address Neadow's personal right not have the state ineffect
> attack his religious message to his daughter.  Did I miss something here? (I
> freely confess that there may be something in the springes of standing law
> that I am not understanding.)  It seems to me that Neadow had two theories of
> standing and the Court in the Steven's opinion only addressed one of them.
> 
> -- Original Message --
> From: "Marty Lederman" <[EMAIL PROTECTED]>
> Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
> Date: Mon, 14 Jun 2004 11:56:31 -0400
> 
>> The collection of concurrences on the merits are quite interesting.  The
>> Chief's opinion adopts the SG's argument -- darn-near-preposterous, IMHO (and
>> that of Justice Thomas!) -- that the Pledge is OK in schools because "under
>> God" is "not endorsement of any religion," but instead "a simple recognition
>> of the fact [that] '[f]rom the time of our earliest history our peoples and
>> our institutions have reflected the traditional concept that our Nation was
>> founded on a fundamental belief in God.'"
>> 
>> Justice O'Connor joins the Chief's opinion, but writes separately to suggest
>> that the Pledge in schools is ok only because of a confluence of "four
>> factors" that will virtually never again appear in combination in any other
>> case.  This result derives directly from pages 24-29 of the amicus brief that
>> Doug Laycock wrote:  http://goldsteinhowe.com/blog/files/newdow.laycock.pdf.
>> 
>> Justice Thomas concludes -- correctly, in my view, see
>> http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf -- that if
>> Lee v. Weisman was correctly decided, then public schools may not lead
>> students in daily recitation of the words "under God."  Thomas, however,
>> would overrule Lee.
>> 
>> 
>> 
>> - Original Message -
>> From: "Marty Lederman" <[EMAIL PROTECTED]>
>> To: "David Cruz" <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>
>> Sent: Monday, June 14, 2004 11:42 AM
>> Subject: Links to Newdow Opinions
>> 
>> 
>>> It appears that those links did not work.  All of the opinions can be found
>>> here:
>>> 
>>> http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html
>>> 
>> 
>> 
>> 
>> 
> 
> --
> Nathan Oman
> 
> http://www.tutissima.com
> http://www.timesandseasons.org
> --
> ___
> To post, send message to [EMAIL PROTECTED]
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: The Merits in Newdow

1.  Section 3 of RLUIPA does not 
purport to protect Free Exercise rights; i.e., it's not section 5 
legislation.  It is, instead, a statute that protects the manner in which 
federal funds are used.

2.  I agree that CT almost certainly would 
agree that certain religious accommodations are not forbidden by the 
Establishment Clause -- e.g., Virginia's own provision of kosher meals to some 
religious prisoners.

3.  Virginia's argument, however, is that 
the Establishment Clause in addition places restraints on the manner in 
which the federal government may dictate the accommodation policies of 
state governments.  I do not agree with this argument, nor do I 
think that RLUIPA section 3 "dictates" anything (the Virginia Department of 
Corrections can avoid the operation of RLUIPA simply by declining federal funds 
-- at least where, as here, there is no allegation that its denial of 
accommodation affects interstate commerce).  But there are distinct echoes 
of that argument in Justice Thomas's federalism-based theory of the 
Establishment Clause in his opinion today.

  - Original Message - 
  From: 
  marc 
  stern 
  To: 'Law & Religion issues for Law 
  Academics' 
  Sent: Monday, June 14, 2004 2:41 PM
  Subject: RE: The Merits in Newdow

  Why? It is Virginia that has set 
  up an establishment clause defense to the federal act. The Act itself purports 
  to protect Free Exercise rights and Thomas does not contend these are not 
  incorporated .And Thomas ash also joined opinions suggesting that what is 
  permitted accommodation is not necessarily forbidden by the Establishment 
  Clause. The prisoner plaintiff( respondent)is not contending that Virginias 
  limited accommodation policy establishes religion by preferring main line 
  faiths.
  Marc 
  Stern

  From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Marty 
  LedermanSent: Monday, June 
  14, 2004 1:36 PMTo: 
  Law & Religion issues for Law 
  Academics; David Cruz; [EMAIL PROTECTED]Subject: Re: The Merits in 
  Newdow

  Justice Thomas, by the way, would 
  also hold that the Fourteenth Amendment does not incorporate the Establishment 
  Clause:  "Quite simply, the Establishment Clause is best understood as a 
  federalism provisionit protects state establishments from federal 
  interference but does not protect any individual right."  This suggests 
  that Justice Thomas might be very sympathetic to the State of Virginia's 
  federalism-based Establishment Clause argument in the (likely-to-be) 
  upcoming case challenging the constitutionality of RLUIPA, Bass 
  v. Madison.

  - Original Message - 

From: Marty Lederman 

To: David Cruz ; [EMAIL PROTECTED] ; Law & Religion issues for Law 
Academics 

Sent: Monday, 
    June 14, 2004 11:56 AM

Subject: The 
Merits in Newdow

The collection of concurrences 
on the merits are quite interesting.  The Chief's opinion adopts the 
SG's argument -- darn-near-preposterous, IMHO (and that of Justice 
Thomas!) -- that the Pledge is OK in schools because "under God" is 
"not endorsement of any religion," but instead "a simple recognition of the 
fact 
[that] '[f]rom the time of our 
earliest history our peoples and our institutions have reflected the 
traditional concept that our Nation was founded on a fundamental belief in 
God.'"  

Justice O'Connor joins the 
Chief's opinion, but writes separately to suggest that the Pledge in 
schools is ok only because of a confluence of "four factors" that will 
virtually never again appear in combination in any other case.  This 
result derives directly from pages 24-29 of the amicus brief that Doug 
Laycock wrote:  http://goldsteinhowe.com/blog/files/newdow.laycock.pdf.

Justice Thomas concludes -- 
correctly, in my view, see http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf -- 
that if Lee v. 
Weisman was correctly decided, then public schools 
may not lead students in daily recitation of the words "under God."  
Thomas, however, would overrule Lee.

- Original Message - 

From: "Marty Lederman" 
<[EMAIL PROTECTED]>

To: "David Cruz" 
<[EMAIL PROTECTED]>; 
<[EMAIL PROTECTED]>

Sent: Monday, June 14, 2004 
11:42 AM

Subject: Links to Newdow 
Opinions

> It appears that those links 
did not work.  All of the opinions can be found> here:> 
> http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html> 

__

RE: The Merits in Newdow

2004-06-14 Thread marc stern

Why? It is Virginia that has set up an establishment clause
defense to the federal act. The Act itself purports to protect Free Exercise
rights and Thomas does not contend these are not incorporated .And Thomas ash
also joined opinions suggesting that what is permitted accommodation is not
necessarily forbidden by the Establishment Clause. The prisoner plaintiff( respondent)is
not contending that Virginia’s’ limited accommodation policy establishes
religion by preferring main line faiths.

Marc Stern

From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman
Sent: Monday, June 14, 2004 1:36
PM
To: Law
 & Religion issues for Law Academics; David Cruz;
[EMAIL PROTECTED]
Subject: Re: The Merits in Newdow

Justice Thomas, by the way, would also hold that the
Fourteenth Amendment does not incorporate the Establishment Clause: 
"Quite simply, the Establishment Clause is best understood as a federalism
provision—it protects state establishments from federal interference but
does not protect any individual right."  This suggests that Justice
Thomas might be very sympathetic to the State of Virginia's federalism-based Establishment
Clause argument in the (likely-to-be) upcoming case challenging the
constitutionality of RLUIPA, Bass v. Madison.

- Original Message - 

From: Marty
Lederman 

To: David Cruz ; [EMAIL PROTECTED]
; Law
& Religion issues for Law Academics 

Sent: Monday, June 14,
2004 11:56 AM

Subject: The Merits in
Newdow

The collection of concurrences on the merits are quite
interesting.  The Chief's opinion adopts the SG's argument --
darn-near-preposterous, IMHO (and that of Justice Thomas!) -- that the
Pledge is OK in schools because "under God" is "not endorsement
of any religion," but instead "a simple recognition of the fact [that] '[f]rom
the time of our earliest history our peoples and our institutions have
reflected the traditional concept that our Nation was founded on a fundamental
belief in God.'"  

Justice O'Connor joins the Chief's opinion, but writes
separately to suggest that the Pledge in schools is ok only because of a
confluence of "four factors" that will virtually never again appear
in combination in any other case.  This result derives directly from pages
24-29 of the amicus brief that Doug Laycock wrote:  http://goldsteinhowe.com/blog/files/newdow.laycock.pdf.

Justice Thomas concludes -- correctly, in my view, see http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf --
that if Lee v. Weisman
was correctly decided, then public schools may not lead students in daily
recitation of the words "under God."  Thomas, however, would
overrule Lee.

- Original Message - 

From: "Marty Lederman" <[EMAIL PROTECTED]>

To: "David Cruz" <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>

Sent: Monday, June 14, 2004 11:42 AM

Subject: Links to Newdow Opinions

> It appears that those links did not work.  All of
the opinions can be found
> here:
> 
> http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html
> 

___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: The Merits in Newdow




Justice Thomas, by the way, would also hold that 
the Fourteenth Amendment does not incorporate the Establishment Clause:  
"Quite simply, the Establishment Clause is best understood as a federalism 
provisionit protects state establishments from federal interference but does 
not protect any individual right."  This suggests that Justice Thomas might 
be very sympathetic to the State of Virginia's federalism-based Establishment 
Clause argument in the (likely-to-be) upcoming case challenging the 
constitutionality of RLUIPA, Bass v. Madison.
 
- Original Message - 

  From: 
  Marty Lederman 
  To: David Cruz ; [EMAIL PROTECTED] ; Law 
  & Religion issues for Law Academics 
  Sent: Monday, June 14, 2004 11:56 
AM
  Subject: The Merits in Newdow
  
  The collection of concurrences on the merits are 
  quite interesting.  The Chief's opinion adopts the SG's argument -- 
  darn-near-preposterous, IMHO (and that of Justice Thomas!) -- that the 
  Pledge is OK in schools because "under God" is "not endorsement of any 
  religion," but instead "a simple recognition of the fact 
  [that] '[f]rom the time of our earliest history our peoples 
  and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.'"  
   
  Justice O'Connor joins the Chief's opinion, but 
  writes separately to suggest that the Pledge in schools is ok only 
  because of a confluence of "four factors" that will virtually never again 
  appear in combination in any other case.  This result derives directly 
  from pages 24-29 of the amicus brief that Doug Laycock wrote:  http://goldsteinhowe.com/blog/files/newdow.laycock.pdf.
   
  Justice Thomas concludes -- correctly, in my 
  view, see http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf -- 
  that if Lee v. Weisman was correctly decided, then public schools may 
  not lead students in daily recitation of the words "under God."  Thomas, 
  however, would overrule Lee.
   
   
   
  - Original Message - 
  From: "Marty Lederman" <[EMAIL PROTECTED]>
  To: "David Cruz" <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>
  Sent: Monday, June 14, 2004 11:42 AM
  Subject: Links to Newdow 
  Opinions
  > It appears that those links did not work.  All of the 
  opinions can be found> here:> > http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html> 
  
  

  ___To post, send 
  message to [EMAIL PROTECTED]To subscribe, unsubscribe, change 
  options, or get password, see 
  http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Re: The Merits in Newdow

2004-06-14 Thread Nathan Oman

The Stevens opinion explains why Neadow lacks standing to assert his daughter's claim 
to be free of government sponsored religion.  However, he doesn't seem to address 
Neadow's personal right not have the state ineffect attack his religious message to 
his daughter.  Did I miss something here? (I freely confess that there may be 
something in the springes of standing law that I am not understanding.)  It seems to 
me that Neadow had two theories of standing and the Court in the Steven's opinion only 
addressed one of them.

-- Original Message --
From: "Marty Lederman" <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
Date: Mon, 14 Jun 2004 11:56:31 -0400

>The collection of concurrences on the merits are quite interesting.  The Chief's 
>opinion adopts the SG's argument -- darn-near-preposterous, IMHO (and that of Justice 
>Thomas!) -- that the Pledge is OK in schools because "under God" is "not endorsement 
>of any religion," but instead "a simple recognition of the fact [that] '[f]rom the 
>time of our earliest history our peoples and our institutions have reflected the 
>traditional concept that our Nation was founded on a fundamental belief in God.'"  
>
>Justice O'Connor joins the Chief's opinion, but writes separately to suggest that the 
>Pledge in schools is ok only because of a confluence of "four factors" that will 
>virtually never again appear in combination in any other case.  This result derives 
>directly from pages 24-29 of the amicus brief that Doug Laycock wrote:  
>http://goldsteinhowe.com/blog/files/newdow.laycock.pdf.
>
>Justice Thomas concludes -- correctly, in my view, see 
>http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf -- that if Lee v. 
>Weisman was correctly decided, then public schools may not lead students in daily 
>recitation of the words "under God."  Thomas, however, would overrule Lee.
>
>
>
>- Original Message - 
>From: "Marty Lederman" <[EMAIL PROTECTED]>
>To: "David Cruz" <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>
>Sent: Monday, June 14, 2004 11:42 AM
>Subject: Links to Newdow Opinions
>
>
>> It appears that those links did not work.  All of the opinions can be found
>> here:
>> 
>> http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html
>> 
>
>
>
>

--
Nathan Oman

http://www.tutissima.com
http://www.timesandseasons.org
--
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

The Merits in Newdow




The collection of concurrences on the merits are 
quite interesting.  The Chief's opinion adopts the SG's argument -- 
darn-near-preposterous, IMHO (and that of Justice Thomas!) -- that the 
Pledge is OK in schools because "under God" is "not endorsement of any 
religion," but instead "a simple recognition of the fact 
[that] '[f]rom the time of our earliest history our peoples and 
our institutions have reflected the traditional concept that 
our Nation was founded on a fundamental belief in 
God.'"  
 
Justice O'Connor joins the Chief's opinion, but 
writes separately to suggest that the Pledge in schools is ok only because 
of a confluence of "four factors" that will virtually never again appear in 
combination in any other case.  This result derives directly from pages 
24-29 of the amicus brief that Doug Laycock wrote:  http://goldsteinhowe.com/blog/files/newdow.laycock.pdf.
 
Justice Thomas concludes -- correctly, in my view, 
see http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf -- 
that if Lee v. Weisman was correctly decided, then public schools may 
not lead students in daily recitation of the words "under God."  Thomas, 
however, would overrule Lee.
 
 
 
- Original Message - 
From: "Marty Lederman" <[EMAIL PROTECTED]>
To: "David Cruz" <[EMAIL PROTECTED]>; <[EMAIL PROTECTED]>
Sent: Monday, June 14, 2004 11:42 AM
Subject: Links to Newdow 
Opinions
> It appears that those links did not work.  All of the opinions 
can be found> here:> > http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html> 
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Newdow