Today in Supreme Court History: June 27, 2005

6/27/2005: McCreary County, Kentucky v. ACLU and Van Orden v. Perry are decided.

Comments

[Dan Schiavetta]

Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (decided June 27, 2016): strikes Texas requirement that doctors performing abortions have privileges at local hospitals (a pretext for making it hard to obtain doctors to perform abortions) and requiring abortion clinics to meet standards of ambulatory surgery centers (irrelevant) as placing an “undue burden” on women inconsistent with Roe (probably no longer good law after Dobbs)

​Kennedy v. Bremerton School District, 597 U.S. --- (decided June 27, 2022): violation of Free Exercise Clause to terminate football coach for kneeling after games “to offer a quiet prayer of thanks” at a time when students and players were free to go elsewhere (Sotomayor’s dissent calls this impermissible “official-led prayer” and attaches photo of what looks like forty players kneeling around the praying coach) (I wonder what Jesus would say about this, Matt 6:5-6)

Bates v. State Bar of Arizona, 433 U.S. 350 (decided June 27, 1977): strikes down on First Amendment grounds prohibition on attorney advertising (thus subjecting us to decades of angry-looking TV actors pretending to be lawyers -- grrr!! snarl!! woof!! woof!!)

​Ruan v. United States, 597 U.S. --- (decided June 27, 2022): In his last majority opinion, Breyer holds that doctors convicted of running a narcotics racket could not be convicted under the Controlled Substances Act if they were objectively authorized to prescribe those substances, and it was up to the Government to rebut beyond a reasonable doubt that they were acting in an unauthorized manner (21 U.S.C. §841)

McCreary County, Kentucky v. ACLU, 545 U.S. 844 (decided June 27, 2005): Ten Commandments posted on walls of county courthouse violated Establishment Clause (county executive had stated in public that the Decalogue was the basis of the civil code) ( -- what? I thought statements of purpose by heads of government were irrelevant -- see Trump v. Hawaii, 2018)

Van Orden v. Perry, 545 U.S. 677 (decided June 27, 2005): Ten Commandments display outside state capitol did not violate Establishment Clause (you can look up the photo, it’s a small monument, easily passed by)

Printz v. United States, 521 U.S. 898 (decided June 27, 1997): Brady Law provision requiring local sheriffs to perform background checks violated the Tenth Amendment (no, not the Ten Commandments)

Dothard v. Rawlinson, 433 U.S. 321 (decided June 27, 1977): upholds regulation that women could not serve in “contact” positions in male prisons because sex offenders would be more likely to assault them (hiring only men was a “bona fide occupational qualification”, or “bfoq” -- did the Justices really say “b-fock” at conference?)

Republican Party v. White, 536 U.S. 765 (decided June 27, 2002): First Amendment violated by Minnesota law forbidding candidates for judicial office from giving views on issues

Rios v. United States, 364 U.S. 253 (decided June 27, 1960): ends the “silver platter” doctrine (wherein evidence illegally seized by state police could be used in federal prosecutions)

[The Margrave of Azilia]

"(I wonder what Jesus would say about this, Matt 6:5-6)"

I'm surprised that the Supreme Court ruled in favor of an obvious heretic.

[The Margrave of Azilia]

"Bates v. State Bar of Arizona, 433 U.S. 350 (decided June 27, 1977): strikes down on First Amendment grounds prohibition on attorney advertising (thus subjecting us to decades of angry-looking TV actors pretending to be lawyers — grrr!! snarl!! woof!! woof!!)"

In the old days, attorneys advertised by taking on prominent cases, by giving speeches on civic occasions, and by running for office - raising their profile and (not to impugn their civic dedication) making it more likely that people who recognized the attorney would sign on as clients.

[Mr. Bumble]

"you may be entitled to compensation..."

[bevis the lumberjack]

Now here in Houston, we’ve got Jim Adler, the Texas Hammer on the tube every day.

His practice appears to consist of whacking 18-wheelers with a sledgehammer.

[SMP0328]

Now that the Lemon Test has been repudiated by the Supreme Court, it's highly likely that McCreary County will be overruled.

[JasonT20]

I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage. Thou shalt have no other gods before me.

Right. Totally does not "establish religion" to post that in public buildings.

[Michael P]

Do you also think the Three-Fifths compromise irrevocably committed the United States to chattel slavery? Or are you just trolling as per your usual?

[JasonT20]

That's a big non sequitur. Unlike the Three-Fifths Compromise, the Establishment Clause is still in effect and fully part of the Constitution.

Some conservative Christians want to read the Establishment Clause as being very weak. They do that because they want to be able to mark their territory with Ten Commandment monuments and giant crosses on public property, start government meetings with (Christian) prayers, and so on.

It isn't trolling to say any of this. It is a reasoned conclusion based on their behavior and how they argue their position.

[Brett Bellmore]

I read the Establishment clause as meaning what it originally meant: That the federal government, (And the states after ratification of the 14th amendment.) are categorically prohibited from legislating on the topic of an establishment of religion, which is to say a state church, like the Anglican Church’s status in England. The whole topic is just off limits for legislation.

At the time the Constitution was adopted, several states had established state religions, and they neither wanted the new federal government from interfering with this, nor setting up a competing federal Church. So the whole topic was barred, but the topic was “established” state churches, “establishment of religion” had a particular meaning.

Most 'establishment clause' cases today should really be decided on the basis of the free exercise clause, instead.

[Krychek_2]

We have avoided a lot of the religious violence that takes place in other parts of the world by calling a truce in which no religion gets to set public policy. Practice as you please but don't use the power of the state to make anyone else adhere to your practice or fund you. And I think that's a good thing. I don't think the people who want to mix church and state realize just how malevolent the genie they're trying to let out of the bottle really is.

[Brett Bellmore]

There's a difference between saying that a religion can't set public policy, and saying that no public policy can originate in religious opinions. I mean, the 10 commandments prohibit murder, that doesn't mean that having laws against murder is a 1st amendment violation.

[Krychek_2]

But there's a secular rationale for laws against murder. If tomorrow everyone became an atheist, laws against murder would still be good public policy. Most so-called morality legislation, on the other hand, is pure religion. Many of its proponents don't even bother to hide it. "God hates pornography/abortion/gay rights/easy divorce" and so do we."

[Brett Bellmore]

You do realize that it's possible to construct a secular rationale for any of those laws, right?

[Dan Schiavetta]

As to abortion, perhaps. As to the rest, no.

[Krychek_2]

Yes, and it's possible to construct a secular rationale for laws requiring businesses to close on Sunday -- the Supreme Court did just that in Braunfeld v. Brown. It's possible to construct a secular rationale for laws requiring people to go to church -- it builds social cohesion and inculcates positive social values. It's possible to construct a secular rationale for laws requiring people to abstain from meat on Fridays -- too much meat isn't good for you.

But at the end of the day, nobody really believes those secular rationales. Unlike laws against murder, which really do provide a non-religious benefit to society, the secular rationales are just a pretext to promote religion. And I would allow a court to make that inquiry.

[Brett Bellmore]

But it's easy to construct genuinely plausible secular rationales for a lot of these.

Easy divorce? Don't you want stable families? And what's wrong with treating marriage as a binding contract, since people make rather important long term decisions based on it?

Abortion? You do realize that not every atheist is comfortable with elective abortion right up to birth, right? You might have trouble generating a secular basis for laws prohibiting early abortion, but late abortion is a slam dunk.

Even birth control: We're faced with a "birth dearth", sub replacement birth rates, this is a existential emergency!

[Krychek_2]

Brett, if you think forcing miserable people who can't stand each other to stay together fosters stable families, I've got some great Florida swampland to sell you. The only thing a divorce does is give someone permission to remarry. It does not stop someone from simply walking out and abandoning his family, which still happens with some regularity. It does not stop angry people from taking out their anger on their spouses and kids. And the "birth dearth" is peculiar to certain regions; the planet as a whole is overpopulated.

That said, you're right; one can find a pretextual rationalization for just about anything. I would allow the rationalization to be tested.

[Purple Martin]

"But it’s easy to construct genuinely plausible secular rationales for a lot of these."

...and as experiences shows, it's just as easy to create entirely pretextual, implausible rationales for a lot of these, and get them passed. At least in Red states.

[bernard11]

And what’s wrong with treating marriage as a binding contract, since people make rather important long term decisions based on it?

Even the most binding contract can be dissolved by agreement between the parties.

[Bob from Ohio]

"You might have trouble generating a secular basis for laws prohibiting early abortion"

No trouble at all. Its a "human being" being destroyed. At either, for instance, 2 days or 8 3/4 months, the unborn human has a complete DNA structure separate from the mother's.

[not guilty]

Most fertilized ova naturally fail to implant and are washed away with the menstrual flow. Should feminine hygiene products be given a Christian burial on the chance that one may contain a microscopic "human being"?

[Krychek_2]

Not only that, but why stop with fertilized eggs? Any male who masturbates is depriving his sperm of the opportunity to implant an egg. Don't those sperm have the right to life too? I mean, if you're going to protect fetuses, why not go the next step?

[Rev. Arthur L. Kirkland]

Should a woman whose consumption of alcohol, herbal tea, caffeine or tobacco precipitates miscarriage be charged with a crime? A woman whose consumption of a medium-rare hamburger or steak tartar causes miscarriage? A woman whose obesity causes miscarriage?

[Purple Martin]

"There’s a difference between saying that a religion can’t set public policy, and saying that no public policy can originate in religious opinions. I mean, the 10 commandments prohibit murder, that doesn’t mean that having laws against murder is a 1st amendment violation."

Really Brett? From the first four commandants (ERV, plain-language Easy-to-Read Version of the Bible):

1. I am the Lord your God. I am the one who freed you from the land of Egypt, where you were slaves. You must not worship any other gods except me.
2. You must not make any idols. Don’t make any statues or pictures of anything up in the sky or of anything on the earth or of anything down in the water. Don’t worship or serve idols of any kind, because I, the Lord, am your God. I hate my people worshiping other gods. People who sin against me become my enemies, and I will punish them.
3. You must not use the name of the Lord your God to make empty promises. If you do, the Lord will not let you go unpunished.
4. You must remember to keep the Sabbath a special day. You may work six days a week to do your job. But the seventh day is a day of rest in honor of the Lord your God. So on that day no one should work—not you, your sons and daughters, or your men and women slaves. Even your animals and the foreigners living in your cities must not work!

Sorry, but there's no reason for anyone not freely agreeing to follow such sect-specific mandates unrelated to wider societal values, to pay the least bit of attention to them.

Conversely, consider this language from the other six commandants (ERV):

5. You must honor and respect your father and your mother.
6. You must not murder anyone.
7. You must not commit adultery.
8. You must not steal anything.
9. You must not tell lies about other people.
10. You must not want to take your neighbor’s house. You must not want his wife. And you must not want his men and women servants or his cattle or his donkeys. You must not want to take anything that belongs to another person.

These are examples of Golden Rule morality—Social Compact values of a of a type both common to and independent of most religions.

Not sure why people of faith (that is, willful belief without evidence) believe that my lack of belief without evidence in their chosen deity, lessens my ability to abide by a moral code based on the common good.

Tell you what, let’s just both agree that The Six Moral Principles could be defensible as capturing part of non-sectarian, Golden-Rule-based moral code. Indeed, much of their content is already captured in our own non-religious, government-enforced legal statutes.

But, please, keep The Four Judeo-Christian Commands inside your own belief system and feel free to enforce them—solely with those who agree to be bound by them.

[Magister]

As presented there, these seem to promise that God will punish violations. Probably better to leave it there for those who choose to be bound by these. Judgement is God's, I've heard.

[bernard11]

Only 6,7,8, and 9 represent reasonable legal prohibitions.

[ReaderY]

Secular rights and religious tolerance activist John Calhoun raised this issue a lot. He said that public policy on slavery should be based exclusively on secular principles of tolerance, diversity, inclusion, and respect for others’ different beliefs and traditions, not narrow Bible-thumping religious fundamentalists out to stir up hate against minority practices. He said specifically, that the Establishment Clause protects slaveholders’ freedom not to have Abolitionist religious doctrines established down dissenters’ throats as America’s public policy.

But we didn’t follow this progressive, tolerant view. Not only did the religious fundamentalists get their way on slavery, the religious folk were further permitted to run amuck when the theological doctrine of the Rev. Martin Luther King Jr., that segregation is sinful and un-Christian, was again permitted to dictate public policy down the throats of secular segregationists. We even created a public holiday honoring this strident religious figure and his fundamentalist religious beliefs, which is certainly a violation of the Establishment Clause if a mere 10 Commandments monument violates it.

[Magister]

King's activism was persuasive to people who strongly disagreed with his religious beliefs. Modern bigots are all "how dare you offend someone's deep religious convictions that conveniently support their bigotry" because they don't have an argument beyond their religious beliefs.

I don't think barring people motivated by their religious beliefs from advocating on secular issues would be progressive or tolerant.

[bernard11]

He said that public policy on slavery should be based exclusively on secular principles of tolerance, diversity, inclusion, and respect for others’ different beliefs and traditions,

Respect for his views, anyway. Did the slaves' opinions count, or did the desire for diversity and inclusion not cover them?

Anyway, as magister points out below, just because religious people pushed abolition and civil rights does not mean that others - many others, of many faiths and none - also favored these policies.

Not too many non-Christians are actually eager to see crosses on public buildings.

[bernard11]

categorically prohibited from legislating on the topic of an establishment of religion, which is to say a state church, like the Anglican Church’s status in England. The whole topic is just off limits for legislation.

One problem with this is that it is possible to establish a religion without establishing a state church. Suppose Congress simply declared Christianity to be the official religion of the US. Well, there are lots of Christian denominations, which differ on various points, so this wouldn't establish a religion under your view.

More broadly, it is possible, as Jason points out, to establish a set of religious beliefs without establishing a state church.

[BravoCharlieDelta]

This is a nonsense parse.

Obviously moral frameworks and belief systems guide much policy. It's nonsense to say government policy can be informed by or implement secular ideologies but not religious ones.

It privileges secularist beliefs and ideologies over religious ones. It doesn't make sense to believe that is the way to interpret the Establishment Clause.

[Drewski]

Simple-minded nonsense. The same men who lobbied protection from a state church also pushed for secular government, neutral to religion. The wording of the Amendment comes from Leland's letter, which explains:

"I contemplate with sovereign reverence that act of the whole American people which declared that heir legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State."

See that? The founders understood the Establishment Clause to prohibit not only the establishment of a state church but to necessarily imply complete separation at the federal level.

Sure, the desire to avoid state religion was one of many factors that figured into the Amendment. The founders were deep thinkers, who considered and debated many facets of their work. Reducing their nuanced and varied philosophies to simple-minded bumper stickers is an insult to them.

[Michael P]

The Three-Fifths compromise was never specifically repealed.

The Ten Commandments were never enacted.

Which has a better claim to be good law?

[Brett Bellmore]

The argument is that the 3/5ths compromise,

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

Was repealed by this line in the 14th amendment:

“Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.”

Because it omitted any reference to “all other Persons”.

The remainder of that Section replaces the 3/5ths compromise with a 0/5ths no compromise…

You could non-frivolously argue that the 3/5ths compromise is still in place as far as direct taxes are concerned, because Section 2 made no reference to that...

[defaultdotxbe]

I think it would be a frivolous argument, as once you've counted the "whole number of free persons" there are no "other persons" remaining to be counted as 3/5ths.

While the 3/5th compromise may have been specifically repealed by the 14th amendment, it was already rendered effectively moot by the 13th.

[SRG]

Yup. I assume that the rulings in every single last case decided on Lemon principles are no longer in effect. It will only be a matter of time before some parts of the country bring creationism/ID back into classes, or attempt to halt the teaching of evolution.

[Rev. Arthur L. Kirkland]

It will only be a matter of time before some parts of the country bring creationism/ID back into classes, or attempt to halt the teaching of evolution.

Maybe more advanced, less gullible Americans would respond by refusing the recognize accreditation of schools that teach nonsense, suppress science to flatter superstition, and warp history to enforce silly dogma.

A school that teaches Biblical creationism deserves no more respect from competent adults than a school that teaches that Jack and the Beanstalk, Animal House, and the Simpsons are nonfiction. Competent adults neither advance nor accept superstition-based arguments in reasoned debate.

[Frank Drackman]

OK, OK, you're related to apes, happy now?

[SRG]

Frank: we are apes

[apedad]

And another entry in Today in Supreme Court History, June 27, 2023

(In Moore v Harper, the) Supreme Court on Tuesday ruled that North Carolina's top court did not overstep its bounds in striking down a congressional districting plan as excessively partisan under state law.

The U.S. Supreme Court released a decision on a case that deals with the legitimacy of a controversial legal theory about who oversees elections and whether that authority has limits.

The "independent state legislature" theory, backed by a group of conservative advocates, contends that state lawmakers have the ultimate power to regulate federal elections. That power of elected representatives, the theory's supporters argue, isn't subject to the traditional restrictions provided by state constitutions, state courts and governors' vetoes.

But the theory, if embraced by the justices in its most extreme application, could have a dramatic impact on how congressional maps are drawn, voting rules are written and more, according to election experts who spoke with ABC News.

The theory could undermine how American democracy works now, these experts said, raising concerns about what it could mean for how the 2024 presidential race and other contests are run.

The concept is at the center of Moore v. Harper, a redistricting case out of North Carolina, and concerns how two key clauses in the U.S. Constitution should be interpreted.

https://6abc.com/supreme-court-case-elections-moore-v-harper-decision-independent-state-legislature-scotus/13231544/

[SRG]

SC decision in Moore v Harper

Unsurprisingly, Alito and Thomas dissented, with Gorsuch as the third dissenter.

[SMP0328]

The Supreme Court rejected the Independent State Legislature theory, but with this caveat:

In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution.

What does this mean?

[Brett Bellmore]

It's a warning to state courts not to interpret this ruling as a license to substitute their own judgments for legislative judgements, just using state constitutions as a pretext. You'd better have some on point constitutional language to point to, not just some vague hortatory statement about 'democracy', if you as a judge are going to overturn a state election law.

At least that's how I take it. The majority doesn't want to say anything goes.

[Krayt]

I’ve seen two cases of this in the past 5 years. One where the judge substituted his judgement regarding drop boxes, claimimg Covid. The problem was the legislature had considered covid and rejected it as sufficient.

The other was during Trump’s barring of people from certain countries, and whether that was a pretext for racist impulses. The judge went further than considering that, though, deciding basically “and anyway, I don’t think his official reasoning is good enough.”

I, of course, encourage the overturning of laws because of facetious false rational basis when everyone knows it’s another reason. Somehow I don’t think those who cheered on that ruling want that.

[Bob from Ohio]

"bounds of ordinary judicial review"

It means nothing. There are no "bounds" to "ordinary judicial review"

It always means "we decide whatever we want".

[SMP0328]

It can't mean nothing. Roberts had something in mind when he added the caveat. It could mean what Brett said (using a State Constitution as a pretext), but how would "pretext" be determined. To me, it seems Roberts disagrees with the ISL generally but sees it as a useful tool is very narrow circumstances; he did not explain those circumstances.

[Bob from Ohio]

"Roberts had something in mind "

Yeah, he's always playing 20 dimension chess or something.

[Brett Bellmore]

Like I said, "pretext" would be determined on the basis of whether you had on point constitutional text to appeal to, or just vague hortatory language.

For instance, there has been litigation in a couple of states over the extension of mail in/absentee balloting to anybody who wants it, instead of just for cause, because those states have actual constitutional language specifying when absentee ballots are permissible. That sort of language is a pretty solid basis for overturning a law.

OTOH, if you just had a vague clause about democracy, and used it to overturn a law requiring absentee ballots to arrive within 3 days of an election in order to be counted? The Court might think that was a pretextual effort to usurp legislative policy making.

[David Nieporent]

I call it the "This time you've gone too far" doctrine. If SCOTUS looks at a state court decision and decides that it's so outrageously beyond the pale that the state court is essentially just making stuff up, then SCOTUS can step in.

There were hints about that in Bush v. Gore.

[Brett Bellmore]

Pretty much.

[Brett Bellmore]

Over at ELB they can't decide whether to be horrified or relieved.

They're glad they won, (ELB doesn't even pretend to be non-partisan anymore...) but terrified at the thought that there's the possibility that the Supreme court might balk at SOME state court ruling in their favor.

"In the end, the liberals had to swallow a bitter pill without a word presumably to keep a majority with the conservative justices and reject the most extreme version of the theory. The writing was on the wall at oral argument, when attorneys defending voting rights in North Carolina had to concede there was to be some judicial review when a state supreme court goes completely nuts in purportedly applying election laws."

They really wanted to not have any federal review if a state supreme court goes completely nuts...

[Brett Bellmore]

But ISL theory doesn't give state lawmakers "ultimate" power. Even under that theory, they're still subject to Congress' "time, place and manner" authority, as well as federal courts enforcing the Constitution. They're 'just' not subject to override by other branches of the state government.

A lot of the recent invigoration of ISL theory is due to judicial and executive branch power grabs during Covid, where non-legislative actors up and decided to make changes to election administration which the legislatures had considered and rejected. (Granted, it's also being used as a weapon in the fight over which sorts of gerrymandering are permissible/mandated.) Even legislators who aren't up to anything sketchy get their hackles up when other branches of government usurp legislative prerogatives.

[bernard11]

A lot of the recent invigoration of ISL theory is due to judicial and executive branch power grabs during Covid, where non-legislative actors up and decided to make changes to election administration which the legislatures had considered and rejected.

No. The recent invigoration is a result of gerrymandered state legislatures wanting to be free to control elections, or even override them, without being bound by niceties such as the state constitution.

[Sarcastr0]

A lot of the recent invigoration of ISL theory is due to judicial and executive branch power grabs during Covid

So it's not about what the law actually says, it's a power play.

A telling admission!

[Brett Bellmore]

Of course it's a power play. Power plays can be legitimately grounded in law, or just totally off the wall.

I'd say ISL is about half and half.

[Sarcastr0]

Naw dude; not from you.

You talk too much about what the Platonic Constitutional Law *is* to talk as though it is flexible enough to be a legitimate instrument for the judiciary to do battle with the other branches on how power should be distributed.

It's also quite a bit of judicial supremacy - fencing off a whole area of law from federal regulation.

It's also not explicit in the text.

A consistent Brett would *hate* ISL.
But here you are.

[Brett Bellmore]

I'm primarily a textualist, and it SAYS "legislature", so why the hell would I hate ISL?

[Sarcastr0]

It says legislature, but it doesn't say anything about the legislature being sole arbiter - that you need to read in.

You're not so much a textualist, as you are someone who confuses the interpretive assumptions you make as the only possible ways to read the text.

[Brett Bellmore]

Yeah, it doesn't say that the President of Kenya has no say in the matter, either. If it says it gives a power to the "legislature" it doesn't mean "the legislature and some random other institution I think would be a good idea".

[Bob from Ohio]

"it’s a power play."

Dude, that describes the whole concept of "judicial review" too.

[David Nieporent]

And another entry in Today in Supreme Court History, June 27, 2023

As long as we're talking about today, an odd lineup in Mallory.

Gorsuch, Alito, Thomas, Sotomayor, and Jackson (for the most part) in the majority; Barrett, Roberts, Kagan, and Kavanaugh in dissent.

Haven't had a chance to read the opinion yet.

[Syd Henderson]

It's going to be hard to dismiss that lineup as being partisan.

[BravoCharlieDelta]

It seems incredible that a person can now a sue a company in a state where the events didn't occur nor any party has a physical presence in solely because the company has a charter there.

As if judge shopping wasn't bad enough.

[David Nieporent]

Not that I agree with the court's decision, but I assure you that Norfolk Southern had an extensive physical presence in the state.

[BravoCharlieDelta]

Oh okay, thank you.

[SRG]

Going back to 10 Commandments - if someone insists it's the basis for secular law as a rationale for displaying them, then by all means permit exhibiting those commandments that are civil, not religious.

I predict resistance...

[BravoCharlieDelta]

What's the difference between displaying the 10 Commandments and displaying BLM and Pride flags on government buildings?

[not guilty]

If you have to ask I doubt that you would understand.

[BravoCharlieDelta]

FYI, that’s not an argument.

Expressions of the Ten Commandments, BLM, and Gay Pride are all ideological ones.

Why are the latter two privileged, while the former is unconstitutional?

I dont subscribe to the ideologies represented by BLM and Gay Pride, why must I be subjected to religious-like government speech in support of them? Why are those two "secular religions" so privileged?

[not guilty]

The Ten Commandments were directions given by a specific deity to govern His Chosen People., the ancient nation of Israel. Multiple commandments are directed to that nation's relationship to Yahweh. That is the epitome of an establishment of religion.

BLM and Gay Pride are not religious organizations.

[BravoCharlieDelta]

All three are belief systems, moral frameworks, codes to live by, and contain matters of faith.

Why do you privilege two of them? Your basis seems to be "Well, the government can express and even impose moral frameworks, belief systems, matters of faith, and codes to live by IF AND ONLY IF those were developed in a secular fashion."

IOW, you are okay with the government expressing belief and value systems, you just want to discriminate against particular ones and privilege others. You know, basically use the government to impose your choice of beliefs because you think they're somehow better.

[not guilty]

As I predicted, you don't understand.

One of These Things Is Not Like the Other is a Sesame Street trope. I don't wish to stoop to that level on a legal blog.

And instead of speculating about my beliefs and opinions in order to set up a straw man reply, just ask me instead.

[BravoCharlieDelta]

I clearly do understand. I explained your position quite clearly. I was more inferring from your statements your beliefs. That's kinda what people do.

The Ten Commandments are religious, so very bad for government to express.

Gay Pride ideology and BLM ideology "not religious" so not very bad for government to express.

However, Abrahamic religion, BLM movement, and Gay pride movement are all moral frameworks, belief systems, codes to live by, and matters of faith. That's what religions are.

The only real differences between them are their ages amd their ultimate objectives. One is salvation for mankind, the other two are closer to the opposite.

[not guilty]

As to your representation of my beliefs, you are simply making shit up. Why am I unsurprised?

I have said nothing about Gay Pride ideology and BLM ideology. I merely observed that they are not religious organizations. Unlike the Ten Commandments, there is nothing theistic about them. The Establishment Clause accordingly has nothing whatsoever to do with BLM and/or Gay Pride.

[BravoCharlieDelta]

I have this incredible human ability to infer beliefs and premises from statements made!

Maybe you don't? Is that the issue here?

I have said nothing about Gay Pride ideology and BLM ideology. I merely observed that they are not religious organizations.

I did dude, that was part of my argument. Wtf. I asserted they were essentially, and practically, no different than a religion.

I explained this several times. Further, theism is not a requirement for a belief system to be a religion.

[not guilty]

I agree that your claimed ability to infer beliefs and premises is "incredible."

As in, entirely unworthy of belief.

[Krayt]

Hey, that's my line! These secular religions adopt all the bad sides of real relions, and there should be separation of politics and state, just as there is religion and state, and for the same reason.

"Cancel culture" is just the shoe being on the other foot from religion, where gays weren't just canceled, but jailed.

I don't blame the viciousness of the flip flop, but a kinder, gentler nation it is not.

Then again, maybe gay freedom is not out of the woods, yet, to hear the desires of some about here. So vicious away and dagger the back of your oppressor while they're still down.

[bevis the lumberjack]

Lol. I know this changes the subject but somebody got their hands on some of the Trump tales.

He just flat out says these are classified and I can’t declassify them anymore because I’m not president. And it wasn’t just one guy he was talking to, several people were laughing at his jokes.

And he told them “look, this guy (Chairman of the Joint Chiefs) wanted to attack Iran!”

What a bleeping chucklehead.

[BravoCharlieDelta]

Do you think that's worse than Hunter saying this to his CCP handler: "The Bidens are the best I know at doing exactly what the Chairman wants from this partnership. "

???

[David Nieporent]

Do I think that "CCP handler" is a fabrication? Yes. Do I think BDC is a shameless liar? Yes.

And yes, I think Trump doing illegal things is a heck of a lot worse than Hunter Biden saying things that aren't illegal. Setting aside that you still deliberately pretend that Hunter and Joe Biden are the same person, there's nothing illegal about private citizen Hunter Biden entering into business investments with foreign companies. (Note, too, that even if Joe Biden were involved in this, for which there's no evidence, Joe Biden was a private citizen also. He was not a senator, vice president, or vice president in August 2017.)

[BravoCharlieDelta]

It's weird because the document referred to in that audio wasn't included in the charges.

That's weird.

P.S. there's also that whatsapp message where hunter is shaking down that CCP agent and saying his dad was right there with him. And Bidens recent confession about selling state secrets.

[Rev. Arthur L. Kirkland]

Not included . . . yet.

[David Nieporent]

Why is that weird? They only picked a subset of the classified documents Trump was caught with stealing to charge him with stealing. They apparently haven't found this one, which means that it would be messy to include that in the indictment. But it shows mens red.

You have now sub silentio switched from "CCP handler" to "CCP agent," which I guess is at least 15% less tendentious. Though you make up for it by calling "Pay me what our contract says you owe me" as "shaking down." Still can't show any involvement by Joe Biden or any wrongdoing, though. Again: both Hunter and Joe were private citizens at the time.

And unlike Donald Trump confessing to sexual assault and stealing classified information, Biden did not "confess" to anything, as you well know.

[BravoCharlieDelta]

Those were two different events.
You'd know this if your braintenders would let you know this.

"These women let you grab them by the pussy" - confession of sexual assault!'

"I sold a bunch of state secrets" - teehee just a joke dude amiright?

[Michael P]

There continues to be "no evidence" that David Nieporent has a brain. It seems to run entirely off of far-left talking points and scripts, accusing others of being shameless liars in a comment full of shameless lies.

Extortion is illegal even if you're a private citizen. Income tax evasion is illegal even if you're a private citizen. Selling access to politicians might be legal -- but when they collect "half your income" or you pay their living expenses, that's bribery, which is also illegal even if you're a private citizen.

[David Nieporent]

"Pay me what our contract says you owe me" is not extortion, but at least you used a word that sounded vaguely legal-ish, so kudos to you.

Tax evasion is indeed illegal, which is presumably why Hunter Biden had to pay lots of back taxes and plead guilty to tax evasion.

Oh, and selling "access" — especially to a private citizen! — is not actually bribery. That's the lesson of McDonnell v. U.S. that your ilk keep referring to without understanding.

[Sarcastr0]

Yes, DMN is a big far lefty.

Really tells on oneself to equate being anti-Trump with being far left.

[JasonT20]

"historical practices and understandings"

It's very convenient for conservative Christians today that majorities of the past in most places in the U.S. wanted to display their Christian faith conspicuously in government as well as in their private lives. And that people of minority religious traditions or none just kept their heads down and didn't fight it, of course.

[ReaderY]

I see Town of Greece as different, and narrow. Town of Greece stands for the idea that legislative prayer is the speech of the chaplain, not the legislature, and hence isn’t state action. This made limits on it articulated in previous cases (e.g. it had to be “nonsectarian” in character) irrelevant. No state action, no constitutional limits on the speech involved.

I don’t see that principle as applicable to monuments put up by the state.

[SRG]

That of course is the whole point of "history and tradition" arguments - it allows conservative justices to render unlawful practices immune from challenge by noting that "we've always done it like this" and refusing to consider the circumstances under which they were done.

[Rev. Arthur L. Kirkland]

As church membership, church attendance, religious affiliation, and similar elements of religiosity decline in America, we should expect religious claimants -- especially Christians -- to shift gears and become less interested in the role of popularity with respect to legal treatment of religion.

I expect an increasing number of Americans to recall how religion was used as a club and a path toward special privilege and reject appeasement of those who favor prayer, religious symbols, and the like in government and public affairs.

[ReaderY]

No, at the time of the Founding it really was a purpose of the Establishment Clause to protect state religious establishments from federal interference.

The idea that the Establishment Clause limits the states at all only comes into being with the 14th Amendment.

I think these historical facts are basically incontestable.

I think a potential implication of this line of reasoning is the idea that the Establishment Clause might mean something different when applied to states v. the Federal government. Perhaps only the “fundamental” part of the Clause applies to the states, and prohibiting states from putting up 10 Commandments monuments and the like isn’t “fundamental.” It’s an argument.

But to my knowledge, nobody in the current debate, liberal or conservative, argues that states and the federal government should be treated differently. People who want a narrow interpretation of the Establishment Clause want a narrow interpretation as applied to the federal government, not just the states.

[Brett Bellmore]

I think the argument is that minor things like 10 Commandment displays and ceremonial prayers don't amount to establishing a state religion, so long as they are reasonably non-sectarian. Not at the state OR federal level. The 1st amendment doesn't require relentless secularization of all things government is involved in, it just forbids preferential (Or hostile!) treatment towards a specific religion.

[Bob from Ohio]

"government promoting or supporting specific “sides” in what you might call the marketplace of religion"

If your view is correct, they could have said so.

They used a term of art for a reason.

[bernard11]

I think a potential implication of this line of reasoning is the idea that the Establishment Clause might mean something different when applied to states v. the Federal government.

This seems doubtful to me, just as a matter of logic.

The 1A put some restriction - broad or narrow - on the Federal Government. If the 14th A extended that to the state governments, why wouldn't it be the same restriction?

[Brett Bellmore]

The distinction here is that the EP clause may have been intended specifically to protect blacks, because blacks were the group being targeted at the time, textually the language is very general. You can argue about what constitutes "equal protection", but EVERYBODY is entitled to it, whatever it may be.

The similar analysis of the Establishment clause would be that it was intended to protect a few state religions from federal interference/competition, but textually, it just flat out banned legislation on the topic of "an establishment of religion", which is well established to have meant "a state church".

So, once incorporated against the states, it prohibited states from legislating state churches, too, even if it had originally been intended to protect such churches from federal interference.

[bernard11]

it just forbids preferential (Or hostile!) treatment towards a specific religion.

Like monotheism, for example? Or religions that treat one day in seven as a special day for rest and prayer?

[bernard11]

That of course is the whole point of “history and tradition” arguments – it allows conservative justices to render unlawful practices immune from challenge by noting that “we’ve always done it like this” and refusing to consider the circumstances under which they were done.

Exactly.

[grb]

Facing long-term unemployment & divorce, I hiked the Appalachian Trail back in 2010 (Maine to Georgia). I was stuck in Delaware Water Gap for a few days because of foot problems and holed-up at the local church hostel. There I met a lawyer from the Midwest who was section hiking a portion of trail.

Per his description, he made his living off TV class action lawsuits, but in his own special way. His firm specialized in providing support and logistics for TV ad lawyers as a group, always staying well in the background. Being just a humble architect myself, this seemed like quite the savvy capitalist endeavor, identifying a unique niche market with mucho profit as the result.

But the church Pastor - a very handsome woman - once came down to talk to all us hikers staying there (preaching vehemently against Yellow Blazing among other things). When the lawyer described his shtick to her, I thought I saw her mouth twist in a faint moue of distaste.

[Bob from Ohio]

I have no idea what you mean. The two points are not inconsistent.

[David Nieporent]

I hiked the Appalachian Trail

Mark Sanford, is that you?

[grb]

I think Mark's divorce & unemployment followed the "Appalachian Trail", not preceded it....

[Ridgeway]

Well played