Freethought & Rationalism Archive

fromtheright · 02-17-2002, 08:09 PM

Mageth,
"[S]triving for an American Taliban"? Give me a break. The last I heard, not even Pat Robertson or Jerry Falwell have advocated women being executed in the street or requiring them to wear burkhas. And I don't think either one really cares whether I wear a beard. You people just make yourselves look ridiculous with such hyperbole.
By the way, for what it's worth, Judge Moore didn't write the opinion for the court but wrote a concurring opinion. I'm not a lawyer but I don't know if his reliance on Scripture in a concurring opinion can be the basis for appeal, though I do strongly tend to agree with most of you that the Bible is an improper reference in a legal ruling, unless it is cited with references from other religions as to the morality of this custody issue. Judge Gorman Houston's opinion stated simpy, from what I understand, that the state appeals court erred in re-hearing the evidence, that the Circuit Court judge was in a better position to weigh the evidence.

[Edited for typo)

[ February 17, 2002: Message edited by: fromtheright ]</p>

fromtheright · 02-17-2002, 08:14 PM

By the way, Toto a few weeks ago pointed me helpfully to a website that identified some fraudulent quotes by David Barton/Wallbuilders. Can any of you point me to further information on such misquotes? Though I tend strongly toward Barton's interpretation of church-state original intent (though I am probably much closer to Robert Cord's more moderate position), I am disgusted when those on my side of the issue rely on fraudulent evidence to make our case.

hezekiah jones · 02-18-2002, 07:43 AM

Quote:

Originally posted by fromtheright:
Though I tend strongly toward Barton's interpretation of church-state original intent (though I am probably much closer to Robert Cord's more moderate position), I am disgusted when those on my side of the issue rely on fraudulent evidence to make our case.

Since you are at least familiar with one of the more reasonable nonpreferentialists(Robert Cord), why don't you start a thread and present your case?

You might want to begin by explaining how "no law," a clear restriction on Congress' power, somehow becomes the ability to pass "some laws," respecting an establishment of religion.

fromtheright · 02-18-2002, 08:15 PM

hezekiah,
I'll think about it but not enough time right now. I think the crucial point, as does Cord, is what constitutes an "establishment of religion" or even "respecting" same. For example, it stretches reason to argue that a Proclamation of Thanksgiving establishes a religion, or that posting "God Bless America" in schools as some kooks protested is some threat to establish religion. Talk about extremists!

SLD · 02-18-2002, 09:22 PM

Quote:

Originally posted by Dark Jedi:
<strong>Hey folks. I haven't the time to rebut this claim, but it sorely needs it.
cpatriot500 on the Baptistboards posted a detailed claim that this was a Christian nation in it's founding, using mostly early court cases and decisions of the court.

The claims are <a href="http://www.baptistboard.com/cgi-bin/ultimatebb.cgi?ubb=get_topic&f=18&t=000148&p=2" target="_blank">On this page</a>. You can rebut there, or outline the fallacies here and I can re-word them.

His source material appears to be <a href="http://members.aol.com/TestOath/deism.htm" target="_blank">Here</a> and <a href="http://members.aol.com/TestOath/deism.htm" target="_blank">here.</a>

I have seen similar arguements before, but this guy is getting a lot of attention, and needs a sound logical thrashing. I will be back on a bit Monday, and in force Tuesday. I appreciate any help I can get.

Thanks, folks.</strong>

The following is an article you might find useful; remember James Madison was the primary mover of the 1st Amendment and his views are legally entitled to greater weight. Don't let them quote Story to you without hammering them on how Madison, the very author of the amendment, vehemently disagreed with him.

<a href="http://secularsouth.org/show.php?column=facts_for_thought&story_id=25" target="_blank">James Madison's Legacy</a>

SLD (the secret author of the paper, shhhh)

hezekiah jones · 02-19-2002, 04:27 AM

Quote:

Originally posted by fromtheright:
I'll think about it but not enough time right now. I think the crucial point, as does Cord, is what constitutes an "establishment of religion" or even "respecting" same.

Yes, that's important. There is also a considerable semantic struggle (initiated by Cord et al) over the use of the word "an" as opposed to "the." All of which studiously avoids the crucial words, "no law."

Of course this type of strict constructionist nitpicking leads to the inescapable conclusion that, in the context of the entire First Amendment, Congress may "abridge" the free exercise of religion as long as Congress does not "prohibit" it. Not even the most zealous separationist would make this argument.

It's no wonder that even Antonin Scalia, in his book A Matter of Interpretation, calls strict construction a "degraded" method of jurisprudence. (Please don't tell George W. Bush. He thinks his favorite Justice is a strict constructionist, and therefore a "degraded" jurist. You must be proud to have such a clever man in the White House, but that's another story.)

Quote:

For example, it stretches reason to argue that a Proclamation of Thanksgiving establishes a religion, or that posting "God Bless America" in schools as some kooks protested is some threat to establish religion. Talk about extremists!

As you know, the phrase is "respecting an establishment of religion." Anyway I agree there are extremists - on both sides. I don't support many of the more ridiculous objections, at least for the reason that some day a written opinion may backfire on the separationists.

Buckster · 02-19-2002, 11:14 AM

When the House and Senate were originally considering the First Amendment, they defeated motions that would have changed the language to prohibit only laws that established a particular religion over religion in general, as a 'thing'.

Language such as:

Quote:

(1.) "Congress shall make no law establishing one Religious Sect or Society in preference to others, nor shall the rights of conscience be infringed."

(2.) "Congress shall not make any law, infringing the rights of conscience or establishing any Religious Sect or Society"

(3.) "Congress shall make no law establishing any particular denomination of religion in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed."

Any one of those, had it been adopted, would have made the case that it means no PARTICULAR religion, yet all were rejected.

The reason why they were rejected is explained fully and eloquently by the U.S. Supreme Court on this page:

<a href="http://supct.law.cornell.edu/supct/html/90-1014.ZC2.html" target="_blank">SUPREME COURT OF THE UNITED STATES - Lee v. Weisman (90-1014), 505 U.S. 577 (1992)</a>

It starts thus:

Quote:

Forty five years ago, this Court announced a basic principle of constitutional law from which it has not strayed: the Establishment Clause forbids not only state practices that "aid one religion . . . or prefer one religion over another," but also those that "aid all religions." Everson v. Board of Education of Ewing, 330 U.S. 1, 15 (1947). Today we reaffirm that principle, holding that the Establishment Clause forbids state sponsored prayers in public school settings no matter how nondenominational theprayers may be. In barring the State from sponsoring generically Theistic prayers where it could not sponsor sectarian ones, we hold true to a line of precedent from which there is no adequate historical case to depart.

Since Everson, we have consistently held the Clause applicable no less to governmental acts favoring religion generally than to acts favoring one religion over others. [n.1] Thus, in Engel v. Vitale, 370 U.S. 421 (1962), we held that the public schools may not subject their students to readings of any prayer, however "denominationally neutral." Id., at 430. More recently, in Wallace v. Jaffree, 472 U.S. 38 (1985), we held that an Alabama moment of silence statute passed for the sole purpose of "returning voluntary prayer to public schools," id., at 57, violated the Establishment Clause even though it did not encourage students to pray to any particular deity. We said that "when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all." Id., at 52-53

I love what comes immediatly after:

Quote:

This conclusion, we held,

"derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects--or even intolerance among `religions'--to encompass intolerance of the disbeliever and the uncertain."

Now, on to the 'meat':

Quote:

Some have challenged this precedent by reading the Establishment Clause to permit "nonpreferential" state promotion of religion. The challengers argue that, as originally understood by the Framers, "[t]he Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion." Wallace, supra, at 106 (Rehnquist, J., dissenting); see also R. Cord, Separation of Church and State: Historical Fact and Current Fiction (1988). While a case has been made for this position, it is not so convincing as to warrant reconsideration of our settled law; indeed, I find in the history of the Clause's textual development a more powerful argument supporting the Court's jurisprudence following Everson.

When James Madison arrived at the First Congress with a series of proposals to amend the National Constitution, one of the provisions read that "[t]he civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." 1 Annals of Cong. 434 (1789). Madison's language did not last long. It was sent to a Select Committee of the House, which, without explanation, changed it to read that "no religion shall be established by law, nor shall the equal rights of conscience be infringed." Id., at 729. Thence the proposal went to the Committee of the Whole, which was in turn dissatisfied with the Select Committee's language and adopted an alternative proposed by Samuel Livermore of New Hampshire: "Congress shall make no laws touching religion, or infringing the rights of conscience." See id., at 731. Livermore's proposal would have forbidden laws having anything to do with religion and was thus not only far broader than Madison's version, but broader even than the scope of the Establishment Clause as we now understand it. See, e. g., Corporation ofPresiding Bishop of Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327 (1987) (upholding legislative exemption of religious groups from certain obligations under civil rights laws).

The House rewrote the amendment once more before sending it to the Senate, this time adopting, without recorded debate, language derived from a proposal by Fisher Ames of Massachusetts: "Congress shall make no law establishing Religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed." 1 Documentary History of the First Federal Congress of the United States of America 136 (Senate Journal) (L. de Pauw ed. 1972); see 1 Annals of Cong. 765 (1789). Perhaps, on further reflection, the Representatives had thought Livermore's proposal too expansive, or perhaps, as one historian has suggested, they had simply worried that his language would not "satisfy the demands of those who wanted something said specifically against establishments of religion." L. Levy, The Establishment Clause 81 (1986) (hereinafter Levy). We do not know; what we do know is that the House rejected the Select Committee's version, which arguably ensured only that "no religion" enjoyed an official preference over others, and deliberately chose instead a prohibition extending to laws establishing "religion" in general.

The sequence of the Senate's treatment of this House proposal, and the House's response to the Senate, confirm that the Framers meant the Establishment Clause's prohibition to encompass nonpreferential aid to religion. In September 1789, the Senate considered a number of provisions that would have permitted such aid, and ultimately it adopted one of them. First, it briefly entertained this language: "Congress shall make no law establishing One Religious Sect or Society in preference to others, nor shall the rights of conscience be infringed." 1 Documentary History, supra, at 151 (Senate Journal). After rejecting two minor amendments to that proposal, see ibid., the Senatedropped it altogether and chose a provision identical to the House's proposal, but without the clause protecting the "rights of conscience," ibid. With no record of the Senate debates, we cannot know what prompted these changes, but the record does tell us that, six days later, the Senate went half circle and adopted its narrowest language yet: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." Id., at 166. The Senate sent this proposal to the House along with its versions of the other constitutional amendments proposed.

Though it accepted much of the Senate's work on the Bill of Rights, the House rejected the Senate's version of the Establishment Clause and called for a joint conference committee, to which the Senate agreed. The House conferees ultimately won out, persuading the Senate to accept this as the final text of the Religion Clauses: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." What is remarkable is that, unlike the earliest House drafts or the final Senate proposal, the prevailing language is not limited to laws respecting an establishment of "a religion," "a national religion," "one religious sect," or specific "articles of faith." [n.2] The Framers repeatedly considered and deliberately rejected such narrow language and instead extended their prohibition to state support for "religion" in general.

There is much more there that I've not quoted, though it is relevant. I encourage all who are interested in the topic to check it out.

fromtheright · 02-19-2002, 10:17 PM

Dark Jedi, It looks like Buckster has given you a lot to chew on. I'll keep an eye on cpatriot500's reply to you. From judging your latest posting at BaptistBoard you're holdling your own quite well (I'm still rooting for cpatriot, though).
hezekiah, while I would agree with your assessment of strict construction based on the example you cited, I suspect that Dubbya would agree with you that "prohibit" would encompass "abridge" and would likewise disapprove of strict construction per se as that definition is illumined by your example. I don't agree, though, that Cord's distinction is nitpicking. While Scalia denounced strict construction he did defend originalism and textualism and said that strict construction is still better than nontextualism/"living Constitution" claptrap.
As to Madison's viewpoint, SLD, I believe that his "no national religion" language is greatly informed by the amendments suggested by several of the states' ratifying conventions which stated that no national religious sect should be favored or established.

The August 15, 1789 House debate includes the following from Madison:

Quote:

Mr. Madison said, he apprehended the meaning of the words ("no religion shall be established by law...) to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the [necessary and proper clause of the Constitution] enabled them to make laws of such a nature as might infringe the rights of conscience and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit

Also, from Madison, on the same day, regarding the same proposed language,

[QUOTE]
Mr. Madison thought, if the word national was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought that if the word national was introduced, it would point the amendment directly to the object it was intended to prevent.

Edited for boldface.

[ February 19, 2002: Message edited by: fromtheright ]

[ February 19, 2002: Message edited by: fromtheright ]</p>

hezekiah jones · 02-20-2002, 03:04 AM

Since those appear to be reports of Madison's statements in the House debates, I suspect they were culled from the Annals of Congress?

The Annals of Congress were assembled from contemporary newspaper reports, and especially, in the case of the House debates, from Thomas Lloyd's Congressional Register, which, Leonard Levy tells us, was not an official Congressional publication, despite its title.

Madison noted of Lloyd that he was "indolent and sometimes filled up blanks in his notes from his memory or imagination," and that Lloyd had become "a votary of the bottle and perhaps made too free use of it sometimes at the period of his printed debates."

The so-called doctrine of original intent, as practiced by pseudo-historians like William Rehnquist for example, is often not the rigorously objective pursuit its adherents claim it to be.

GPLindsey · 02-20-2002, 05:36 PM

Several people here are much better read than I on the legislative history on this, but I have always thought the response to this kind of claim could be rebutted with reference to a few obvious truths:
1) Athens had a functioning democracy 500 years before the birth of Christ. The world recognizes Athens as the cradle of democracy, not Jeruselem.
2) There is nothing in the Bible about the secret ballot, elections, equal rights, the separation of powers, or any of the other hallmarks of democracy. Laws come from the Law Giver, not a legislature in the Bible.
3) When Christians groups first came to this country to escape religious persecution, they weren't running away from atheists--they were running away from other Christians!

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02-17-2002, 08:09 PM	#11
fromtheright Senior Member Join Date: Jan 2002 Location: Huntsville, AL Posts: 633	Mageth, "[S]triving for an American Taliban"? Give me a break. The last I heard, not even Pat Robertson or Jerry Falwell have advocated women being executed in the street or requiring them to wear burkhas. And I don't think either one really cares whether I wear a beard. You people just make yourselves look ridiculous with such hyperbole. By the way, for what it's worth, Judge Moore didn't write the opinion for the court but wrote a concurring opinion. I'm not a lawyer but I don't know if his reliance on Scripture in a concurring opinion can be the basis for appeal, though I do strongly tend to agree with most of you that the Bible is an improper reference in a legal ruling, unless it is cited with references from other religions as to the morality of this custody issue. Judge Gorman Houston's opinion stated simpy, from what I understand, that the state appeals court erred in re-hearing the evidence, that the Circuit Court judge was in a better position to weigh the evidence. [Edited for typo) [ February 17, 2002: Message edited by: fromtheright ]</p>

02-17-2002, 08:14 PM	#12
fromtheright Senior Member Join Date: Jan 2002 Location: Huntsville, AL Posts: 633	By the way, Toto a few weeks ago pointed me helpfully to a website that identified some fraudulent quotes by David Barton/Wallbuilders. Can any of you point me to further information on such misquotes? Though I tend strongly toward Barton's interpretation of church-state original intent (though I am probably much closer to Robert Cord's more moderate position), I am disgusted when those on my side of the issue rely on fraudulent evidence to make our case.

02-18-2002, 08:15 PM	#14
fromtheright Senior Member Join Date: Jan 2002 Location: Huntsville, AL Posts: 633	hezekiah, I'll think about it but not enough time right now. I think the crucial point, as does Cord, is what constitutes an "establishment of religion" or even "respecting" same. For example, it stretches reason to argue that a Proclamation of Thanksgiving establishes a religion, or that posting "God Bless America" in schools as some kooks protested is some threat to establish religion. Talk about extremists!

02-20-2002, 03:04 AM	#19
hezekiah jones Veteran Member Join Date: Feb 2001 Location: WI Posts: 4,357	Since those appear to be reports of Madison's statements in the House debates, I suspect they were culled from the Annals of Congress? The Annals of Congress were assembled from contemporary newspaper reports, and especially, in the case of the House debates, from Thomas Lloyd's Congressional Register, which, Leonard Levy tells us, was not an official Congressional publication, despite its title. Madison noted of Lloyd that he was "indolent and sometimes filled up blanks in his notes from his memory or imagination," and that Lloyd had become "a votary of the bottle and perhaps made too free use of it sometimes at the period of his printed debates." The so-called doctrine of original intent, as practiced by pseudo-historians like William Rehnquist for example, is often not the rigorously objective pursuit its adherents claim it to be.

02-20-2002, 05:36 PM	#20
GPLindsey Regular Member Join Date: Dec 2001 Posts: 221	Several people here are much better read than I on the legislative history on this, but I have always thought the response to this kind of claim could be rebutted with reference to a few obvious truths: 1) Athens had a functioning democracy 500 years before the birth of Christ. The world recognizes Athens as the cradle of democracy, not Jeruselem. 2) There is nothing in the Bible about the secret ballot, elections, equal rights, the separation of powers, or any of the other hallmarks of democracy. Laws come from the Law Giver, not a legislature in the Bible. 3) When Christians groups first came to this country to escape religious persecution, they weren't running away from atheists--they were running away from other Christians!

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