Ray K

Given Judge Moore's defense of the monument, I think it is clearly establishment.

Moore's interpretation of the relationship between God and our government was a textbook definition of theocracy and he made it clear that the monument was intended to strengthen that perceived relationship.

fromtheright

Here is the dissent C & P'd from the link to it:

Like a majority of the Members of this Court, I have previously expressed my disapproval of the Lemon test. See Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398—400 (1993) (Scalia, J., joined by Thomas, J., concurring in judgment); County of Allegheny, supra, at 655—657 (Kennedy, J., concurring in judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latter&nbhyph;day Saints v. Amos, 483 U.S. 327, 346—349 (1987) (O’Connor, J., concurring in judgment); Wallace v. Jaffree, 472 U.S. 38, 107—113 (1985) (Rehnquist, J., dissenting). I would grant certiorari in this case if only to take the opportunity to inter the Lemon test once for all.

Even assuming, however, that the Fifth Circuit correctly chose to apply the Lemon test, I believe the manner of its application so erroneous as independently to merit the granting of certiorari, if not summary reversal. Under the second prong of Lemon, the “principal or primary effect [of a state action] must be one that neither advances nor inhibits religion.” Lemon, supra, at 612. Far from advancing religion, the “principal or primary effect” of the disclaimer at issue here is merely to advance freedom of thought. At the outset, it is worth noting that the theory of evolution is the only theory actually taught in the Tangipahoa Parish schools. As the introductory paragraph of the resolution suggests, the disclaimer operates merely as a (perhaps not too believable) “disclaimer from endorsement” of that single theory, and not as an affirmative endorsement of any particular religious theory as to the origin of life, or even of religious theories as to the origin of life generally. The only allusion to religion in the entire disclaimer is a reference to the “Biblical version of Creation,” mentioned as an illustrative example–surely the most obvious example–of a “concept” that the teaching of evolution was “not intended to influence or dissuade.” The disclaimer does not refer again to the “Biblical version of Creation,” much less provide any elaboration as to what that theory entails; instead, it merely reaffirms that “it is the basic right and privilege of each student to form his/her own opinion or maintain beliefs taught by parents on this very important matter of the origin of life and matter,” and neutrally encourages students “closely [to] examine each alternative” before forming an opinion.

As even this cursory discussion of the disclaimer amply demonstrates, the Fifth Circuit’s conclusion that “[t]he disclaimer . . . encourages students to read and meditate upon religion in general and the ‘Biblical version of Creation’ in particular,” 185 F.3d, at 346, lacks any support in the text of the invalidated document. In view of the fact that the disclaimer merely reminds students of their right to form their own beliefs on the subject, or to maintain beliefs taught by their parents–not to mention the fact that the theory of evolution is the only theory actually taught in the lesson that follows the disclaimer–there is “no realistic danger that the community would think that the [School Board] was endorsing religion or any particular creed, and any benefit to religion or to the Church would have been no more than incidental.” Lamb’s Chapel, supra, at 395. At bottom, the disclaimer constitutes nothing more than “simply a tolerable acknowledgment of beliefs widely held among the people of this country,” Marsh v. Chambers, 463 U.S. 783, 792 (1983). See also Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (“Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any").

In denying the petition for rehearing, the Fifth Circuit panel took another tack: “In denying rehearing, we emphasize that we do not decide that a state-mandated statement violates the Constitution simply because it disclaims any intent to communicate to students that the theory of evolution is the only accepted explanation of the origin of life, informs students of their right to follow their religious principles, and encourages students to evaluate all explanations of life’s origins, including those taught outside the classroom. We decide only that under the facts and circumstances of this case, the statement of the Tangipahoa Parish School Board is not sufficiently neutral to prevent it from violating the Establishment Clause.” 201 F.3d, at 603. Inasmuch as what the disclaimer contains is nothing more than what this statement purports to allow, the explanation is incoherent. Reference to unnamed “facts and circumstances of this case” is not a substitute for judicial reasoning. The only aspect of the disclaimer that could conceivably be regarded as going beyond what the rehearing statement purports to approve is the explicit mention–as an example–of “the Biblical version of Creation.” To think that this reference to (and plainly not endorsement of) a reality of religious literature–and this use of an example that is not a contrived one, but to the contrary the example most likely to come into play–somehow converts the otherwise innocuous disclaimer into an establishment of religion is quite simply absurd.

In Epperson v. Arkansas, 393 U.S. 97 (1968), we invalidated a statute that forbade the teaching of evolution in public schools; in Edwards v. Aguillard, 482 U.S. 578 (1987), we invalidated a statute that required the teaching of creationism whenever evolution was also taught; today we permit a Court of Appeals to push the much beloved secular legend of the Monkey Trial one step further. We stand by in silence while a deeply divided Fifth Circuit bars a school district from even suggesting to students that other theories besides evolution–including, but not limited to, the Biblical theory of creation–are worthy of their consideration. I dissent.

Maybe I'm missing something but what exactly is abusive about this dissent? The word "absurd", for Pete's sake? Hezekiah, WADR, if that is abusive, you guys really are on edge about Scalia. Have a beer or something.

[ December 04, 2002: Message edited by: fromtheright ]</p>

hezekiah jones

Haha, okay. Pardon the hyperbole. I should have said, "atypically non-abusive." Although:

To think that this reference to (and plainly not endorsement of) a reality of religious literature, and this use of an example that is not a contrived one, but to the contrary the example most likely to come into play, somehow converts the otherwise innocuous disclaimer into an establishment of religion is quite simply absurd.

Not many justices would write of circuit court of appeals decisions that they were "simply absurd," which actually is pretty mild for Scalia. Except maybe Judge Posner of 7th circuit fame, who once wrote, after assessing an argument in a lower court decision: "Well ... so what?" (Can't find the damn case at the moment ...)

Still, as "brilliant" as Scalia is widely acclaimed to be, I think he is totally messed up on these creationist cases, and he has been ever since Edwards v. Aguillard, for reasons I have no time to get into at the moment.

Living Dead Chipmunk

So the government saying "You shall have no other gods besides Me", referring to Yaweh, is not an establishment?

fromtheright

Hezekiah,

Just mostly "funnin' ya". I've seen some of his other dissents and you're right, this one is pretty mild comparatively. But though he may be rather atypical as to how regularly he does so, I don't think the tone itself is that uncommon or out of place when compared to comments of some other Justices, including Thurgood Marshall, and Brennan as I recall. Personally, I also think it is mild compared to Romer v. Evans' assertion that Colorado's attempted Constitutional amendment was unconstitutional because of some perceived animus against homosexuals.


LDC,

While I can see an argument that it was improper, especially given the tight relationship with Coral Ridge Ministries, yes, it is quite removed from the government actually requiring that its citizens worship through only one church or a particular god, or even finance a denomination's preachers or missionaries.

[ December 04, 2002: Message edited by: fromtheright ]</p>

Living Dead Chipmunk

Can non-Christians expect equal treatment under the law in such a government?

fromtheright

LDC,

I think that Constitutionally what matters is not what someone expects but what they receive. In any case, I think then the issue is an equal protection/14th amendment issue and not an establishment/1st amendment one.

g2g, time to crash.

FTR

[ December 04, 2002: Message edited by: fromtheright ]</p>

Living Dead Chipmunk

Alright, will non-Christians recieve equal protection under the law in this government?

If not, it's establishment because the government is forcing people to be Christian in order to take advantage of governmental functions.

fromtheright

LDC,

Alright, will non-Christians recieve equal protection under the law in this government?

I don't know and can't predict.


If not, it's establishment because the government is forcing people to be Christian in order to take advantage of governmental functions.

I understand your point but I think any unequal treatment would be due to improper judicial ethics by Moore, and though it would be due to the same principles that animated his placing the "brick", it is a separate action. Though he is certainly an agent of the government, any unfair treatment would not arise as a government policy; e.g., Moore instructing subordinate Courts in whatever authority/capacity this Chief Justiceship affords and that policy actually being carried out. Another example would be the Federal or State Justice Departments (I'm embarrassed to say I don't know what that is called in Alabama, except the AG's office) so instructing judges or in any other purported authority they might claim. If it arose from government policy I would agree with you 100%.

Toto

ftr: We have a clear example of Moore's judicial unfitness in the custody decision discussed in this prior thread:

<a href="http://iidb.org/cgi-bin/ultimatebb.cgi?ubb=get_topic&f=59&t=000080&p=" target="_blank">Judge cites scripture to condemn gays</a>