Thursday, April 3, 2014

Libs bemoan taking down a wall that doesn't exist

A post, based on a hilarious Los Angeles Times op-ed, with my pellucid commentary.

The relationship between government and religious liberty is... at issue this [Supreme Court] term. The town of Greece, N.Y., begins its monthly City Council meetings with a prayer. From 1997-2007, every prayer was a Christian one. After a lawsuit was filed in 2008 challenging this practice, the town invited clergy from other faiths, but it still allows the prayers to refer to specific deities instead of limiting them to nondenominational references. The lawsuit brought by two residents of the town will be argued Nov. 6.
Ironically, the purpose of the Establishment Clause was to get the federal government out of the "religion regulation" business. It is a non-incorporation Clause. The explicit intent and effect was to allow states and localities to balance religious expression in the public square, without interference from the federal government. Many States actually had established churches, and all states and municipalities allowed public religious expression, including prayers at civic meetings. The regulation of civic religious expression by the federal government (e.g. the Supreme Court) is precisely what the Establishment clause was ratified to prevent.
Here again, there are a host of amicus briefs filed by conservative organizations seeking to drastically move constitutional law to the right.
Prayer at civic meetings is ubiquitous, and has an uninterrupted history in America dating to the 17th century. The Establishment clause was ratified to keep the feds out of the religion-regulation business. Overwhelming majorities of Americans support civic prayer.

That would seem to place this viewpoint in the center, not the "right".
The last time a prayer case involving a government entity reached the Supreme Court, in 1983 in Marsh vs. Chambers, the justices upheld nondenominational prayers by a Christian chaplain solely on the basis that throughout American history, such prayers have been allowed (never mind that discrimination against women and gays has also been allowed throughout U.S. history and is now generally prohibited). 
If you don't work "discrimination against women and gays" into your op-ed somehow, you don't get liberal coupons.
But many conservatives are not content to simply urge the affirmation of or even extension of Marsh to the prayers at issue in Greece. They want the court to broadly hold that government endorsements of religion never violate the 1st Amendment's establishment clause unless the government is actually coercing religion.
Coercion is a part of what Establishment means.  The Framers and voters who ratified the Constitution weren't voting to preclude a federal Establishment of Religion because they disliked the hymns in the Anglican Church. They disliked that fact that membership in and compliance with the Anglican Church in England was mandated by law.
Such a finding would create a "coercion test," long the wish of Justice Antonin Scalia, which would allow the government to place religious symbols on public property without limitation and permit overtly Christian (or any other religious) prayers at legislative sessions without any judicial check.
We have a Constitutional right to free exercise of religion, and that includes the right to exercise it in our civic affairs.
This test would also largely prohibit only what is already foreclosed by the free exercise of religion clause of the Constitution, thereby rendering the establishment clause obsolete. 
The Establishment  Clause isn't obsolete. We don't have an Establishment of Religion, and never have, and never will, so it is very much in effect.
There are probably four liberal votes against such a radical interpretation and four conservative votes in favor, with Kennedy the likely deciding voice.
Why are the conservative votes "radical"? Aside from the oxymoron-- what the hell is a "conservative radical"?-- wouldn't the fact that logic, history and massive public opinion support the conservative view make the conservative view centrist and make the liberal view "radical"?
Should he turn to the right here, the wall between church and state, a wall that Scalia doesn't think exists, will be dramatically lowered.
You can't lower something that doesn't exist. There is not, and never was, a wall of separation between church and state. There is the Constitution, which plainly permits free exercise of religion and plainly prohibits federal religion-regulation.

60 comments:

  1. Building on the state-sponsored churches theme noted above, I suppose it's worth noting that up 'til the mid-1830s, some states--the "it's so blue it's brain dead" Massachusetts among them--were still collecting *church taxes*, which generally throws a real wrench in the arguments of The Holy Order of Separation of Church and State.

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    1. To suppose that the state establishments at the time of the founding "throws a real wrench" in the separation of church and state but reveals profound misunderstanding of its basis. While the First Amendment limited only the federal government, the Constitution was later amended to protect from infringement by states and their political subdivisions the privileges and immunities of citizenship, due process, and equal protection of the laws. The courts naturally have looked to the Bill of Rights for the important rights thus protected by the 14th Amendment and have ruled that it effectively extends the First Amendment’s guarantees vis a vis the federal government to the states and their subdivisions--hence the law does reach the city councils and public school teachers. While the founders drafted the First Amendment to constrain the federal government, they certainly understood that later amendments could extend the Bill of Rights' constraints to state and local governments.

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  2. The regulation of civic religious expression by the federal government (e.g. the Supreme Court) is precisely what the Establishment clause was ratified to prevent.

    So it's just another example of liberals "interpreting" the words of our Constitution to mean their opposite.

    Congress shall make no law prohibiting the free exercise [of religion] has become Congress shall make any any law prohibiting the free exercise of religion. Their newest retort is that they fully support free exercise of religion, but you can't do anything illegal! So all you have to do is pass a law making the free exercise of my religion illegal and suddenly the first amendment doesn't apply. You have the right in this country to exercise your religion in any way that the government still permits. They may change their mind tomorrow and you have no safeguard. That's exactly as much freedom of religion as they have in China, no more and no less.

    They have similarly "interpreted" the second amendment to mean its opposite. The right of the people to keep and bear arms, shall not be infringed, means that it may be infringed at any time and in any manner as the government sees fit. Cause guns are scary. So who care what the Constitution says?

    I might add that they have a very queer interpretation of the equal protection clause of the fourteenth amendment. "Equal protection" in their minds always seems to mean special treatment for racial minorities. They claim that there's a "history" there that needs to be taken into consideration. But if we're going to be treating different people differently because of their history, we should dispense with the nonsense that we're treating people equally. We're not. Again, equal protection has become unequal protection.

    Ben

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    1. >>So all you have to do is pass a law making the free exercise of my religion illegal and suddenly the first amendment doesn't apply.<<

      That's exactly what's happening right now and it's a very scary precedent. What they're saying essentially is that statutes trump the Constitution. If they want to make circumcising boys illegal, as was previously proposed in San Francisco, devout Jews have no protection in the Constitution because some local ordinance reigns supreme over our first freedoms. As you said, you have the right to your religion, but you can't do anything illegal. That's a worthless freedom that defies the purpose of the amendment.

      JQ

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    2. Few, if any, rights are as absolute as you seem to suppose. From the first, for instance, it has been recognized that freedom of speech is subject to reasonable time, manner, and place restrictions (note no mention of restricting content), so one can be restricted from screaming into a bullhorn on a residential street at 2:00 a.m., etc.

      Similarly, the government can enact and enforce generally applicable laws, e.g., contracts, torts, employment, discrimination, and the like, and enforce them with respect to everyone, including those who may voice religious objections. The Supreme Court held as early as 1878 that the law prohibiting polygamy could be enforced on everyone, including those who claimed their religion allowed or directed otherwise.

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  3. You have the right to the free exercise of religion. No one is stopping you from going to church on a Sunday. You can even attend Mass daily throughout the week as you announced you were going to do for Lent.

    What you're not allowed to do is inflict religion on captive audiences in public schools and meetings.

    America has separation of church and state. You might wish that it didn't, but you should be careful of what you wish for. Australia doesn't have separation of church and state. There are tax payer supported chaplains in public schools. There's religious instruction in public schools.

    And as a result, church attendance is in single figures. Most Australians are wedding/funeral 'Christians'. Not even Easter/Christmas Christians.

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    1. Hey, how about making "exercise of free speech" protected only in specially designated Free Speech Churches-- special zones in which you can [worship] speak without hinderance. Outside of those zones, there would be no Constitutional right to free speech.

      Do you feel free now, bach?

      Free exercise of religion means free. The government doesn't decide where I live my faith.

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    2. So many disingenuous arguments into one response, it's hard to know where to start.

      No one on this blog wants an official state religion. If you can find me someone else somewhere who does, please show me. I would oppose that person if he existed. I think I speak for most conservatives when I say we want to end the allergic reaction some people have to seeing or hearing anything having to do with God. We want schoolgirls to be able to say grace before lunch without the church-state fascists telling them that they can't talk about God in school.

      No one is >>inflicting<< religion upon anyone in the case out of Greece, New York. The woman simply can't stand hearing a (Christian) prayer and she thinks (mistakenly) that the Constitution protects her from it. She feels ostracized, the poor thing.

      I see that you conveniently define free exercise of religion to mean attending church on Sunday and nothing more. So long as we can still go to church on Sunday then our free exercise rights are intact, I guess. Your narrow definition is a ruse.

      The term separation of church and state is not in the Constitution. Its history has been dissected here at length. it came to be part of jurisprudence when anti-Catholic KKK member inserted into one of his legal opinions, citing a a letter that Thomas Jefferson once wrote to a group of Baptists. Jefferson's letter is not the Constitution, nor was he even at the Constitutional Convention. It's terrible case law, a shameful decision from the bad old days.

      Most Americans are wedding/funeral Christians as well. I've noticed that with the encroaching paranoia about God in government the number of wedding/funeral Christians increases.

      You make it sound as if you are deeply concerned about religious fervor in this country. If the best way to make religious people tepid in their faith to the point of near meaningless were to introduce a state church, you would be in favor of it. You have stated before that you don't hate Christians (I doubt it) but you do hate Christianity (now that's the truth.) So it seems pretty disingenuous when you tell us that we ought to be grateful for the mythical extraconstitutional >>separation<< that is always cited to oppress our free exercise rights, because without it we might become casual Christians like the Australians. Well, isn't that what you want?

      JQ

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    3. bachfiend's religion is global warming, which should really be described as a cult because that's what it is. he takes it on faith and he expects the rest of us to do so too.

      separate your church from my state, please.

      naidoo

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    4. Naidoo,

      Global warming isn't my 'religion'. I accept that global warming is happening because of the well known and well understood physical properties of greenhouse gases.

      Increasing greenhouse gases must increase global temperatures. I just fear that what we're doing to the atmosphere will be repeating the Palaeocene-Eocene Thermal Maximum in which the Earth was 7 degrees Celsius warmer than today.

      A completely different climate to today. I just don't think that we'd be able to adapt to such a climate.

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  4. Commissar Boggs, Ministry of TruthApril 3, 2014 at 7:40 AM

    It's amusing how some ignorant people maintain that "exercising" one's religion means attending church, synagogue, or mosque services and praying in private. Those are certainly elements or parts of religious exercise (like putting on sweatpants before physically working out), but, in fact, nothing could be further from the truth. They ignorant people can be, and should be, ignored. In general, they tend to be the same folks who would force the "exercise" of religion into the bedroom and allow copulation in the public square. But I digress...

    One way many of the religious people I know exercise their religion by praying before a meal. Naturally, no one complains if they do so at home (well, some people complain that it's child abuse). However, religious folks also exercise their religion in public restaurants and before business luncheons and/or meetings. If several people are present, it's often the case that some or most of them will join the prayer and some or most won't. Fine (well, not "fine" for everyone, but there's little they can do about it besides make amusing faces and harrumph a bit while the prayer is going on - or write books about their victimhood).

    Now let's move that luncheon - or business meeting - to public property and a public function - say, a meeting of the County Commissioners. Suddenly, as if by magic, that prayer becomes the "establishment" of religion, not the "exercise" of religion. "AAAAAAGHHHHHH!!! The County Commissioners are trying to ESTABLISH a RILLIGIN!!! Save us!"

    Amazing, eh?

    Now I ask you... who believes in magic?

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    1. Senile old fart,

      'Now I ask you...who believes in magic?'

      You do...you believe that prayer has some effect (even if slight) on what is going to happen afterwards.

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    2. Commissar Boggs, Ministry of TruthApril 3, 2014 at 12:49 PM

      Apparently you do, if you know what I believe. From Australia, no less. I'm flattered for the attention, but skeptical of your abilities.

      The invisible gorillas must be out in force today.

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    3. these christophobes are people are just accustomed to always getting their way. spoiled children, basically.

      naidoo

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    4. Senile old fart,

      Well, if praying doesn't have some effect, even if slight, then why do it? You must believe in magic - God has a lot to do, maintaining the existence of the 10^80 elementary particles in the universe (as Egnor believes) and listening to your prayers.

      But anyway. No one is stopping you from praying in private, church or private social events in public.

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    5. Commissar Boggs, Ministry of TruthApril 3, 2014 at 5:46 PM

      Blabfest the Amazing: Why pray?

      The life of prayer is the habit of being in the presence of [God]
      --- Catechism of the Catholic Church

      It has nothing to do with submitting request chits for stuff you want to happen, although I can see how a government-dependent bolshevik would see it that way.

      The "effect" is the same as one might experience by being in the presence and communicating with a spouse, or dear friends. I don't expect you would know much about that, either.

      And, no, no one stops me from praying in private, but the Constitution does acknowledge my God-given right to exercise my faith in public. It's power hungry control freaks who, through ignorance and hate, cannot bear the name of God. And why? Just ask Herr Doktor Wille zur Macht and patron Saint of Leftists himself:

      If there were gods, how could I bear not to be a god?
      --- Friedrich Nietzsche

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    6. Senile old fart,

      More magic. God not only maintains the existence of the 10^80 elementary particles in the universe but he's also always in your presence.

      I'm not a government-dependent Bolshevik (you must believe in magic if you think you know my personal circumstances). I'm a self-funded retiree with shares and rental properties. I'm a little capitalist. I'll never get a public pension or the perks that pensioners in Australia get from the government.

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    7. Commissar Boggs, Ministry of TruthApril 3, 2014 at 6:33 PM

      Blabfest the Amazing: ".you believe that prayer has some effect (even if slight) on what is going to happen afterwards."

      ...amazingly moves the goalposts to: "always in your presence"

      Silly twit. You even got that wrong. It's the other way around. Typical ignorant comment.

      You must have learned your Christian theology at Bill and Ted's Excellent Bible Shack (est 1983). Or the same place you learned about data compression. Or cochlear biophysics. Or heat sinks (BTW, heat doesn't "sink"). It was the Invisible Gorillas book, right?

      Capitalist? You? Nope, Blabfest the Amazing who Reads the Hearts of Man, you're a typical small-b bolshevik chit-head.

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    8. Commissar Boggs, Ministry of TruthApril 3, 2014 at 6:49 PM

      BTW, blabfest, for the record...

      magic: "the art of producing a desired effect or result through the use of incantation or various other techniques that presumably assure human control of supernatural agencies or the forces of nature"

      You sort of got it right the first time, even though you were wrong. Don't make an idiot out of yourself again like you did with compression, trying to redefine the English language to cover up your errors. It has all the dignity of a cat in a litterbox.

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    9. Silly old fart,

      Your link regarding 'heat sinks' doesn't work. I'm not certain what you're referring to.

      You're pretty good at magically knowing where I got my knowledge of theology.

      And anyway - why do you persist in thinking that the retina doesn't compress visual stimuli before sending it to the brain? Which then creates the rich detail we perceive based on extrapolation and experience? Or that my explanation for auditory sensation is wrong (that the brain does the hard lifting work, not the cochlea)?

      The catholic catechism is that God is always present. It claims that prayer puts the person in the presence of God. Magic.

      I'm a capitalist, not a Bolshevik. I'll put my capital against your capital any day.

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  5. It’s only because you’re in the religious majority and can be confident that the government will be overwhelmingly saying your prayers and honoring your God that you want to make the wall of separation disappear. You want your fellow believers to be able to use the government to subject those of other faiths or no faith to your beliefs and prayers as the price of participating in, serving, and being severed by the Government. You’re blind to the fact that this doesn’t increase religious liberty, it reduces it.

    -KW

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    1. Commissar Boggs, Ministry of TruthApril 3, 2014 at 8:15 AM

      You know, Popeye. I see your point. I recall that gay Stanford student I quoted here a day or two ago who has scientifical-like data showing that gays commit suicide when people are allowed to disagree with them. We know you are a fragile flower.

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    2. “You know, Popeye. I see your point.”

      Am I hallucinating? I refreshed my browser and it’s still there, I cleaned my glasses and it’s still there, OMG what’s happening!

      -KW

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    3. Commissar Boggs, Ministry of TruthApril 3, 2014 at 12:47 PM

      I simply recognized your fragility, that's all.

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    4. If you want to keep the church and state separate, stop telling Catholic charities that it has to give children to homosexual couples.

      The only reason that you support so-called nondiscrimination laws is because you believe, rightly or wrongly, that no one will ever force you to take a contract you don't want to take.

      Your mistake is that you don't possess a capacity for nuanced thought. Your assumption is that the only alternative to a hypersensitive anti-religious police state is a state-supported church. Actually, we can have neither.

      And how many times do we have to mention that the actual text of the Constitution says something very different from separation of church and state?

      JQ

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    5. If this woman doesn't like the prayer, she has a perfectly good remedy at her disposal. She can not participate. That's her right and it's not in jeopardy.

      JQ

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    6. If you don't like prayer, then don't pray. It's that simple.

      TRISH

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  6. I’m confident that the Christians here would come around to my point of view if it this were a majority atheist country and atheists where demanding that they be allowed to give speeches supporting atheism before all government functions, erect atheist monuments at courthouses, and place murals in school auditoriums that explicitly deny the existence of God.

    -KW

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    1. Have I ever advocated censoring atheist speech, in government or private life?

      Let the people decide, through the local democratic process, what civic ceremonies will be used. As long as there is no coercion. This is what no establishment/free exercise of religion means.

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    2. A Buddhist couple has the right to instruct their children in religious matters without the government coercing their 8 year old into saying Christian prayers schools. An Atheist has the right to attend a town meeting without the government forcing them to participate in a religious ceremony. Rights are no longer rights when the people get to decide. It’s our Government that guarantees our freedom of religion, and it can’t do that if it’s not strictly neutral on religious matters.

      -KW

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    3. Having a ceremony is not the same thing as coercion. Offering a voluntary prayer in school is not the same thing as forcing a person to pray.

      Prohibiting prayer in school and civic life is a form of coercion. The purpose of the First Amendment religion clauses was specifically to prevent the federal government from regulating religious expression,which is exactly what courts are doing now.

      We now have an Establishment of Atheism, enforced by courts.

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    4. Megnor,

      Be careful of what you wish for. I can't remember anything I was taught in school. Australia doesn't have separation of church and state. I was taught the 'Lord's Prayer' in primary school, and I can't remember any of it.

      No one is stopping you from pursuing your religion. It's just not allowed in America for you to inflict prayers on students in public schools (and publicly funded meetings) on people who are of other or no religion.

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    5. Bachfiend, you really aren't thinking clearly about this case. Two residents of Greece, New York are suing their town because they have civic prayers at the beginning of city council meetings. The case they has to prove is that the prayer violates the establishment clause of the Constitution, which it clearly does not since the Congress has not passed a law establishing a religion. That's what the document says and you'd know that if'd you read it.

      The question before the court is whether the prayer violates their rights. It does not. But because even you can't think of a reason why it does, you twist the issue 180 degrees, claiming that no one is stopping us from exercising our religion, therefore it would not be a violation of our rights to end the tradition.

      If you were thinking clearly, you would understand that that's not the question before the court and it's also irrelevant. Some things are neither constitutionally prohibited nor constitutionally mandated. The presence or absence of a prayer violates no part of the Constitution. Therefore the issue is left the city of Greece. The plaintiffs can make their case to the people why they shouldn't have a prayer, but of course their only argument is that it violates some made up rule that is only ever invoked to oppress Christians, which people would likely reject when they refer to the Constitution and realize that it isn't there.

      I for one am getting a little sick of anti-Christian bigots like you expecting me to thank them for this oppressive non-constitutional construct. All of this "be careful what you wish for" business. Who even said I wanted to teach kids the Our Father? That's just an ignorant assumption on your part.

      TRISH

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    6. Trish,

      OK, if you don't want to teach children in public schools the Lord's Prayer, then support not having prayers in public schools.

      I'm not an anti-Christian bigot. I have two siblings who are active churchgoers, and religion doesn't play much of a role in our family meetings. I just decided that basically religion is nonsense and dropped it from my life.

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    7. I don't think that TRISH supports leading school children in prayer. I certainly don't and I can only name a few people who do.

      I can name a lot of people who mistakenly believe that schools are supposed to be God-free zones, where all religion, even if student-initiated, is illegal and intolerable. These people are control freaks and they ought to read their Constitutions every once and a while.

      Ben

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    8. Ben,

      So why doesn't Trish state what she thinks?

      Anyhow. How did that short story you had me read do?

      Delete
  7. Bachfiend is certainly lacking in critical thinking skills.

    He asks exactly the wrong question because asking the right question yields the wrong answer. What is the right question? Does a civic prayer violate the establishment clause of the Constitution. Is anyone's rights violated by sitting through a prayer. No.

    Their right to believe in no god or a different god is completely intact, not threatened in any way.

    Ben

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    1. Ben,

      Would your rights be infringed if you were forced to sit through a Muslim prayer in a public meeting.? Or a short statement that God doesn't exist? If not, why not?

      So why should for example a Buddhist or an atheist be forced to waste the time listening to a Christian prayer in a public meeting? Not much of an injury, but still an injury.

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    2. bach:

      Does listening to the free speech of other people at civic meetings violate your right to freedom of speech?

      Why then does listening to other people pray at a civic meeting violate your right to not pray?

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    3. Would your rights be infringed if you were forced to sit through a Muslim prayer in a public meeting.? Or a short statement that God doesn't exist? If not, why not?

      Nope. Because listening is passive. If I were compelled to join that would be a different matter. No violation of my rights or yours.

      You have taken it upon yourself to reformulate the question at hand. It is not whether ending the prayer tradition would violate the rights of theists. It would not, of course. But that's also irrelevant. The question is whether continuing the tradition would violate the rights of atheists or whoever doesn't like hearing it.

      In a sane world this would be a slam dunk case. The plaintiffs would lose, but we don't live in a sane world. We live in a world in which judges invent constitutional language that isn't there while ignoring language that clearly is there.

      Ben

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    4. Let's put it this way. We can't live in a society in which people have a right to say things if other people are constantly claiming a right not to hear things. The "right" not to hear something is not a right at all, its a feeling of entitlement that naturally leads to gagging other people.

      Ben

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    5. Commissar Boggs, Ministry of TruthApril 3, 2014 at 6:51 PM

      Ben: "We can't live in a society in which people have a right to say things if other people are constantly claiming a right not to hear things. "

      Well-said. Perfectly said, in fact.

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    6. Egnor,

      I have the right not to pray because I have the right not to go to church. You have the right to pray because you have the right to go to church.

      You don't have the right to insist on prayers being said at civic meetings. It's an infringement on the right of people who mightn't agree with prayer in wasting their time (that said - most meetings I've attended have been a major waste of time - a short prayer would have been of little matter).

      Delete
    7. bach:

      I have no idea what you mean by your first sentence. Have you been drinking?

      And your expression of your opinion is denying me my right to freedom of speech. Police!

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    8. "You don't have the right to insist on prayers being said at civic meetings"

      Of course I do. And you have the right to insist that prayers not be said. The way we resolve this in a democracy is that I speak my view, you speak yours, and then we vote for school board members who we think will act in accordance with our view.

      You didn't do so well in civics class, did you bach?

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    9. Egnor,

      You've proved again, as you've admitted in previous threads, that you have difficulties in reading comprehension.

      Read my comment again, or better still, get a 10 year old to explain it to you.

      When I was a pathologist, I was told that when I was writing reports for surgeons, I should compose them as though I was writing for a 12 year old (roughly 'Harry Potter' level).

      I now see I need to write at 9 year age level for you.

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    10. Egnor,

      Australia doesn't have civics class. That's a peculiar American custom.

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    11. Egnor,

      'It shows'.

      Yes, it does. America has a lot of peculiar ideas that the rest of the world does well to ignore. Separation of state and church isn't one of them though.

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    12. Egnor,

      'Prayer' isn't 'free speech'. If you don't believe me, next Sunday in church, try standing up and disagreeing with the priest during his sermon, and see what happens.

      The priest doesn't have free speech (he can't alter dogma), you don't have free speech during the sermon or the prayers in church and prayers in civic meetings aren't free speech, because there will always be someone objecting to the form adopted.

      If I suggested that there should be a prayer to a godless Mother Nature (I wouldn't - it's a waste of time) at the start of civic meetings, would you object?

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    13. You think you're being generous with your statement that others still have the right to pray, though apparently not at a public meeting. Why not? Because others might not agree with it? That's what you said.

      So other people aren't allowed to say things Bachfiend doesn't agree with.

      Bachfiend fully supports your right to pray so long as you are hiding and no one can see or hear you.

      Read this country's Constitution. I know it's not your own but you sure seem to speak about it like you know something. It doesn't include a right never to hear other people pray.

      Your right not to pray is not being violated.

      Ben

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    14. If I suggested that there should be a prayer to a godless Mother Nature (I wouldn't - it's a waste of time) at the start of civic meetings, would you object?

      How many times do we have to go down this rabbit trail, Bachfiend? We have answered this question a thousand times already.

      Here's my answer. I wouldn't like it at all but my not liking it wouldn't make it unconstitutional. If it were unconstitutional it would have to violate some part of the Constitution. I can't think of any relevant part. Do you understand?

      You seem to be implying that there is some kind of hypocrisy on the part of conservatives, that we would be up in arms of someone of another faith offered a prayer, and then suddenly we too would adopt the false doctrine of the separation of church and state. To a certain extent, I would be angry as heck because I have been told my whole life that religion has no place in the public sphere, that I'm somehow imposing on other people if I don't hide myself in shame. And then along comes some Wiccan or Buddhist and they can pray at public meetings. Why can't I?

      But it would still not be unconstitutional.

      Ben

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    15. Ben,

      Prayer isn't a free speech issue. If it was, anyone could stand up and invoke a prayer thanking Satan for the good things we have. Would you be happy with that?

      Anyway. Prayers in public aren't illegal. Prayers as part of publicly funded meetings and in publicly funded schools (if it's part of the official school activities not a private matter) are illegal.

      Personally, I don't like prayers as part of public meetings - if the meetings are secular and not religious- because they're a waste of time (then again, I've been to a lot of meetings which I've regarded to be largely a waste of time - including ones in which the speaker appears to be intent on inducing death by PowerPoint with extremely busy slides and insisting on reading aloud all the text on the slide which everyone has read in 10 seconds).

      Anyway - how did that short story you had me read go?

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  8. its still the great error os saying the sTATE is everything the sTATE pays for. They meant the great idea of State and church not bugging each other.
    In these matters of prayer etc and schools its just a boundary that is bumped into.
    The founders were not at war with Christianity, as the bad guys today, but were dealing with important issues of power and influence.
    Banning prayer has nothing to do with thier great historic ideas. They would never allow a banning in such a very Protestant civilization back then.
    Let the people be free. They can handle these things. No constitution should be involved. Its a scam of the bad guys.
    By the way. Many states kept religious things long after the constitution was made. City councils are not the GREAT STATE OF THE UNION.
    The bad guys should not be doing well in these matters.
    However with a supreme court selected for ethnic/sex/liberal identity and ethnic/sex/conservative identity ANYTHING dumb and bad can be expected in these sad days of American judicial doings.

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  9. Yes, the constitutional separation of church and state "exists." You can look it up.

    I realize you assert that the constitutional separation of church and state "doesn't exist" only as hyperbole, but it bears noting nonetheless that that assertion is indeed false--just so we keep this discussion at least remotely grounded in reality, i.e., what exists.

    Under our constitutional system, "[i]t is emphatically the duty of the Judicial Department to say what the law is." (Marbury v. Madison, 5 U.S. 137 (1803).) The law includes the Constitution. The U.S. Supreme Court (our highest court) has declared--repeatedly, authoritatively, and emphatically--that the Constitution separates church and state. So, it exists.

    I understand that you disagree with the Court. That is your right; have at it. You may well opine that the constitutional separation of church and state shouldn't exist, should never have existed, and should be terminated forthwith and forever forgotten. But do all that and huff and puff and hide your eyes as much as you might does not change the reality that the Supreme Court has established as a matter of law that the Constitution separates church and state. That separation--the law of the land--exists. Like I said, you can look it up.

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    1. We can "look it up?" Where? Certainly not in the Constitution, because it isn't there.

      When the court decides, for example, that the rights of Japanese-Americans can in fact be stripped away without due process of law, the court is wrong.

      So the court can be wrong.

      Do you see the circular logic to your argument? The court is always right. How do we know this? Because the court decided it in Marbury vs. Madison. Oh, and how do we know they were correct in that decision? Because the court is always right.

      Ben

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    2. I can see that even you won't defend the point that the separation of church and state is actually in the Constitution. You know it isn't there. Why then do you say that the court has declared--repeatedly, authoritatively, and emphatically--that the Constitution separates church and state.

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    3. Wasn't it obvious? You can look it up in U.S. Supreme Court Reports, which is where you'll find the published decisions of the U.S. Supreme Court. And yes, I am well aware that the Court can be wrong and can change its mind. My point, though, was to poke fun at the hyperbolic claim. As long as the Court says so, the constitutional separation of church and states "exists" as the law of the land.

      And don't doubt that I can and will "defend" the separation of church and state. It is a bedrock principle of our Constitution, much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We the people" (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

      That the words "separation of church and state" do not appear in the text of the Constitution, as you note, assumes much importance, it seems, to some who once mistakenly supposed they were there and, upon learning of their error, fancy they’ve solved a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphorical phrase commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

      To the extent that some nonetheless would like confirmation--in those very words--of the founders' intent to separate government and religion, Madison and Jefferson supplied it. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). Indeed, he understood the original Constitution--without the First Amendment--to separate religion and government. He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

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  10. Bachfiend, I wish you'd answer my question. I've heard this line of reasoning before, usually from people who hate Christians, that I ought to thank my lucky stars for the separation of church and state because it protects me too. In other countries that have established churches, religious belief is tepid at best.

    There are three problem with this lines of reasoning:

    1. I don't want an established state church, of course, because that would be unconstitutional.
    2. Religious belief in this country is already pretty tepid.
    3. The separation of church and state has never protected me from anything. The church meddles in the affairs of my church at will, the schools tell my children that their parents are wrong to teach them key tenets of their faith, etc.

    But explain this to me: if ending this farcical piece of bad jurisprudence called the separation of church and state is going to lead a decline in religious fervor, why aren't you in favor of it?

    JQ

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    1. JQ,

      You're confusing absence of separation of church and state with having an established state church.

      Australia doesn't have separation of state and church. Anything is allowed. Publicly funded chaplains in public schools. Religious instruction in public schools. Nativity scenes in post offices. Prayers in parliament. Churches renting local government services to hold their services on Sunday (such as my local aquatic centre which I attend daily - although presumably the local government gets rent reducing my council rates).

      But Australia doesn't have an established state church. All churches are treated equally.

      If you think religious adherence in America is tepid, then in Australia it's frigid - less than 9% of the population are regular church goers. In America I gather that it's more than 50%.

      I don't understand what you mean in (3) - there seems to be a typo when you state that 'the church meddles in the affairs of my church'.

      I'd actually like Australia to have separation of church and state too - and accept the possibility that religious fervour might increase in Australia. Because it would mean that my taxes wouldn't be going to pay for chaplains in public schools.

      Otherwise, I don't have any opinions. I get along fine with my siblings who are active church goers. I have friends who are active Mormons (and when they offer to take me to temple on Sundays, I decline noting that I couldn't possibly eschew coffee - I tried once and it was the most miserable week of my life due to the caffeine withdrawal). I just like disagreeing with Egnor, because he's such an easy target.

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