posted
Honestly, I'm not sure why your (katherina's) previous arguments don't apply just as easily to the actual first amendment. What exactly is the "establishment of religion?" Who gets to decide? This issue HAS in fact been the subject of much debate, which is the reason scifibum proposed this amendment in the first place.
I don't think this amendment would help all that much for various reasons, but I don't think kat's particular arguments are the reason why.
[ February 13, 2010, 11:43 AM: Message edited by: Raymond Arnold ]
Posts: 4136 | Registered: Aug 2008
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quote:It'd be nice if someone could give me a good example of how this would go wrong.
Okay, let's say I want to submit a law banning homosexual schoolteachers. I happen to be a conservative Christian, but I'm really motivated to do this because my son was abused by a homosexual schoolteacher and I'm not a particularly bright person.
How do I prove to the satisfaction of the Court that my motivation behind writing this law is to keep my son "safe" from predators, and not because my God tells me homosexuals are bad people? Do they just trust me when I tell them that?
Posts: 37449 | Registered: May 1999
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Rakeesh, I'd like to know if you think that this would potentially actually push religious motivations out of government, rather than (as I suspect, and would like) just force people to justify their acts via government with something other than faith.
Would this, in fact, deny people the ability to act on their deepest, most important beliefs? Which of those beliefs is vulnerable to the rule, in other words?
That's why I keep asking for examples. I want to know what, in particular, people feel exists or should exist that would be threatened by such a rule.
I suspect that either people can still get what they want, even with such a rule, or it will help people examine why they want certain things, and perhaps even reevaluate how they should try to accomplish them.
Believe it or not, I'm trying to be open to persuasion that this would be a bad idea, it's just that I don't think it's been shown yet.
Posts: 4287 | Registered: Mar 2005
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quote:It'd be nice if someone could give me a good example of how this would go wrong.
Okay, let's say I want to submit a law banning homosexual schoolteachers. I happen to be a conservative Christian, but I'm really motivated to do this because my son was abused by a homosexual schoolteacher and I'm not a particularly bright person.
How do I prove to the satisfaction of the Court that my motivation behind writing this law is to keep my son "safe" from predators, and not because my God tells me homosexuals are bad people? Do they just trust me when I tell them that?
Assuming you meant that such a law passed, and was challenged in court...(because I'd seriously wallbash if that's not what you meant at this point)...
This is addressed by katharina's "no stupid laws" amendment. just kidding.
The court could hear the arguments and determine whether the secular justification offered is sufficient. (Actually, in this case, wouldn't there be a more applicable equal protection test?) It'd be similar to the scrutiny applied in equal protection issues, at least how I imagine it. The default level of scrutiny could be "does this even make sense?" If there's no evidence that banning homosexual teachers will protect children, then it's tossed out.
Posts: 4287 | Registered: Mar 2005
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quote: all you need is a secular justification. Not a secular motivation.
In that case, it is utterly meaningless (except for saying "we don't like religion!"). I can give you a secular justification for anything.
Posts: 16551 | Registered: Feb 2003
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quote:The court could hear the arguments and determine whether the secular justification offered is sufficient.
Then you are giving to the Supreme Court the right to overturn any act of the legislature based on their opinon of its wisdom.
Posts: 37449 | Registered: May 1999
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quote:The Court's decision in this case established the "Lemon test", which details the requirements for legislation concerning religion. It consists of three prongs: The government's action must have a secular legislative purpose; The government's action must not have the primary effect of either advancing or inhibiting religion; The government's action must not result in an "excessive government entanglement" with religion. If any of these 3 prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.
The Lemon Test was used in finding the ID materials in the Dover case to be unconstitutional.
Posts: 3275 | Registered: May 2007
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quote:The court could hear the arguments and determine whether the secular justification offered is sufficient.
Then you are giving to the Supreme Court the right to overturn any act of the legislature based on their opinon of its wisdom.
I wouldn't quite agree...I think it's actually quite similar to the rational basis test, which is a low bar. I'm not saying they need to say your hypothetical act is wise...
but the Lemon test seems to pretty much provide what I would want, anyway. Thanks, Matt!
Posts: 4287 | Registered: Mar 2005
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quote:Originally posted by katharina: The central tenet - a litmus test for legislation - is forbidden by the present constitution.
Gee wiz, remarkable how a "constitutional ammendment" might change the constitution! We can't have that!
Posts: 9912 | Registered: Nov 2005
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quote: the Lemon test seems to pretty much provide what I would want, anyway. Thanks, Matt!
It's worth nothing that the Lemon test is not consistently applied. A Constitutional amendment would fix that. But it's existence shows, I think, that such guidelines haven't resulted in the off-the-rails judicial activism that some of the naysayers have suggested.
Posts: 3275 | Registered: May 2007
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quote:The central tenet - a litmus test for legislation - is forbidden by the present constitution.
I'm curious as to where such a test is forbidden. It seems to me that the constitution itself creates a variety of such litmus tests.
Test: Can Congress make a law with respect to the establishment of religion? Lemon provides guidance as to how to apply this test, but the test is certainly there.
Posts: 3735 | Registered: Mar 2002
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<snort> Good luck. It'll never pass. Nor should it. The litmus test should be whether a law does violate religious freedom. Judging intent is setting a really, really bad precedent.
Nor is an amendment of this sort at all necessary. Rather than giving scifibum an example of how this would go wrong, it'd be interesting to hear how the first paragraph would fix anything that's currently broken. If it were stricken from the amendment, leaving only the second and third paragraphs, I could get behind it. Though I still doubt it'd pass.
And kat is right, btw, that mandating intent will require someone to rule on intent. Not a board, perhaps, but it creates a tool that can be used to squash an opponent's legislation by arguing spuriously that the "secular" justification isn't secular enough.
I can't speak for her, but I imagine she also probably wouldn't have a problem if the first paragraph were removed.
Posts: 12266 | Registered: Jul 2005
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scifibum, you have been told, over and over again, why it is a dumb idea and bad constitution writing, and how it can and would go wrong. At this point, you are deluding only yourself.
That's okay. You can still vote. I trust the American people are smarter than you are.
Posts: 26077 | Registered: Mar 2000
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quote:Originally posted by katharina: scifibum, you have been told, over and over again, why it is a dumb idea and bad constitution writing, and how it can and would go wrong. At this point, you are deluding only yourself.
That's okay. You can still vote. I trust the American people are smarter than you are.
I'm sorry if I hurt your feelings, katharina. I'm a little bemused by your claim of winning the thread, but that's OK.
I'm not going to argue it any more now that it's been shown that the principles I wanted to introduce have already been introduced by precedent.
Posts: 4287 | Registered: Mar 2005
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quote:Rakeesh, I'd like to know if you think that this would potentially actually push religious motivations out of government, rather than (as I suspect, and would like) just force people to justify their acts via government with something other than faith.
Not really. What it would certainly do, though, is push them to secondary status. It would in many cases in fact push them 'underground'. And since it wouldn't actually push religious motivations out of government, and since any religiously-motivated bill can find some secular motivation to justify it, I don't see the need for the amendment in the first place. It wouldn't really do what you want it to do, but just slap a coat of veneer over the issue.
quote:Believe it or not, I'm trying to be open to persuasion that this would be a bad idea, it's just that I don't think it's been shown yet.
*shrug* People have listed many ways. I don't think I can find the words to persuade you if Tom and Lisa can't.
Posts: 17164 | Registered: Jun 2001
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posted
I think that a lot of the arguments offered against the idea were theoretically reasonable... except that then it was pointed out that the amendment essentially already exists and hasn't caused the problems people were worried about.Posts: 4136 | Registered: Aug 2008
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That's because a legal precedent has a very different standing (both legally and politically) than a constitutional amendment. Among other things, no retroactivity.
I have no problem with the Lemon Test; I have lots of problems with the suggested amendment.
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