Friday, June 24, 2005

Secular Discrimination

The Bob, Carol, Ted and Alice of the blogosphere (left, right, secular, tolerant) launched by Kevin, continuing at True Grit, here at NOfP, and MaxedOutMama, generated interesting comments. He's a reply to a few.
  • Dan goes further, arguing secular liberals discarded all morality. While I agree that the invention of the pill was the Fort Sumter of a Second Civil War against Judeo-Christian ethics, augmented by abortion and pants suits" liberals aren't against all constraints--they're just swapping in new absolutes. Ilona, SC&A and M_O_M agree, M_O_M calling the left's morality a soupcon of pessimism blended with the isolationismand the refusal to seek, or identify, evil. I agree with them--and with SC&A and Dan that Radical Islam's cranked the moral machine knob up to "11." As previously mentioned, so long as a sizable percentage of the faithful retain the Koran's cradle-to-grave, head-to-toe dictates and blend worship with government, the feared "clash of civilization" is a race against time:
    Where the West started dis-entangling worship from statecraft as far back as 1648, the Koran recognizes no distinction between Islam the religion and Muslim nation state governance. The West no longer struggles against the Islamic world, yet many Muslims still "divide[] the world into two spheres, known as the Dar al-Islam--the "house of Islam" or "house of submission" to God--and the Dar al-Harb, or "house of war"--those who are at war with God. . .

    [P]eace between the West and followers of radical Islam can come only after Islam undergoes something like the Protestant reformation, a "Martin al-Luther" who can distinguish between state and mosque.
  • boomr took issue with my tone and disputed my previous points:

    1. boomr's approach: His doctrine deprecates the intelligence and sincerity of opponents, by equating religion with irrationality and forcing the faithful -- but only the faithful -- to supply additional justification independent of and without reference to religion. And if Judge boomr can't spot a "non-religious purpose," he'd exclude or hinder that viewpoint from the public and political spheres. Put differently, boomr suggests a content-dependant censor to silence the sacred.


    2. Neutrality: I say secularism is neither private/personal nor value neutral. boomr's defense only argues it's more neutral than religion. I disagree; and his use of "opposition" suggests he secretly agrees. If neutrality has opposition, it can't qualify for the center square. Is boomr conceding? Are we playing out the old joke?--agreeing on what you are; arguing only about price.


    3. Quo Warranto?: I don't understand how boomr denies advocating "supression." His argument treats opponents as cretins whose dim reasoning ensures every "vague" "extrapolat[ion]" will be "unsubstantiated." Can he point to any provision authorizing citizens, backed by police powers, to discount another's belief? Someone, anyone, dig up the authority to condition the liberty of believers on evidence of divinity without transgressing religious freedom.

      Don't bother--the cases virtually outlaw the content-based restrictions boomr prefers:
      "Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 670 (1943). It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. . . [even though the] religious views espoused by respondents might seem incredible, if not preposterous, to most people." United States v. Ballard, 322 U.S. 78, 86-87 (1944).
      "If judicial inquiry into the truth of one's religious beliefs would violate the free exercise clause, an inquiry into one's reasons for adopting those beliefs is similarly intrusive. So long as one's faith is religiously based at the time it is asserted, it should not matter, for constitutional purposes, whether that faith derived from revelation, study, upbringing, gradual evolution, or some source that appears entirely incomprehensible." Callahan v. Woods, 658 F.2d 679, 687 (9th Cir. 1981) (citation omitted), quoted in Hobbie v. Unemployment Appeals Comm'n Of Fla., 480 U.S. 136, 144 n.9 (1987).
      "[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an "equality of status in the field of ideas," and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone." Police Department Of Chicago v. Mosley, 408 U.S. 92, 96 (1972).
    4. Eradicating without Evidence: Who made you God? Even assuming you were -- doubtful on logic alone -- what quantum of evidence would suffice: a million teachers convicted of Stat. Rape? A hundred? A preponderance of the evidence or beyond a reasonable doubt? Does your focus on "actual practice" imply a "one bite" rule? You've no answer, because your plan is noxious and nonexistent in Constitution and statute, as shown above.

      boomr knows the parent's wrong. He's certain there's no issue; thus needs no proof; thus can ignore contrary claims. Has he found a way to "look into the heart" of conservatives? But why assume boomr's hierarchy of approved ideas is accurate or shared? Similarly, how could such unreviewable closed-minded authority, backed by state coercion, override representative democracy? His scheme makes his opinion unfalsible and thus irrational. At bottom, boomr's applying to be a nationwide mute button, hiding totalitarianism by insisting involuntary secularism isn't theocracy.


    5. Word Games: boomr asserts, without citation, that my hypothetical parent would transgress a "right" preventing "discriminatory" treatment of gays: "Replace "homosexual" in your hypothet with "black" and we wouldn't even be having this conversation."

      But discrimination isn't unlawful. Rather, as the court held in Ferguson v. Skrupa, 372 U.S. 726 (1963), "Statutes create many classifications which do not deny equal protection; it is only 'invidious discrimination' which offends the Constitution." And Washington v. Glucksberg reaffirmed substantive due process isn't infinite:
      [T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition," id., at 503 (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) ("so rooted in the traditions and conscience of our people as to be ranked as fundamental"), and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed," Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937).
      So, governmental discrimination normally isn't illegal unless it's "invidious" or disparate as to a "fundamental" right protected by the 14th Amendment. And some classifications aren't covered--were the Amendment comprehensive, the suffragettes would have been superfluous:
      [T]hough the 14th Amendment guaranteed every "person . . equal protection of the laws" and all "privileges and immunities," that didn't authorize women to vote in Federal elections--because that was beyond the Amendment's scope and intent. So women's suffrage advocates campaigned and won support for the 19th Amendment--via the democratic process. If "equal protection" didn't apply to women, how could it possibly authorize gay marriage?"
      Even after a half-century of Gumby Constitution, much "discrimination" requires only some rational basis, such as:

      intelligence;

      height

      wealth; and

      sex, still.

      boomr's comparison to racial exclusions would be more convincing if sexual preference were "fundamental" or the relief "invidious." Yet that's not the law:
      [[N]owhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right."
      I concede such an argument could be made--by overruling a library worth of precedent. Still, discrimination against homosexuals is not prohibited now, and nowhere near as simple as boomr assumes.


    6. Tone: boomr faults the rhetoric from my earlier reply, boomr asks, "How is this not 'dismiss[ing] and belittl[ing my] views and conclusions,' something you accuse the liberals of doing? Or is it OK if the person doing it is a conservative, but not if he's liberal?"

      No actually, I'm not. I'm not offended by complaints about tone. But I'm innocent; indeed, I think you've turned it upside down.

      boomr proposes an authoritarian gag order, and advocates abridging the marketplace of ideas. He must know both are odious and unconstitutional under the First and Fourteenth Amendments. Despite earlier concerns about discrimination, he favors a content based classification to gag the faithful because of their faith. He evades opinions his prejudice fears he might dislike. boomr "belittles" the wisdom of believers and bootstraps that into a dispensation to "dismiss." Scared of voter rejection, boomr sneaks his thumb on the scales by deep-sixes his opponents, gaining a monopoly on perspective and policy.

      I'm not burning the First Amendment (somehow) to save it. Sure, I know boomr's nuts. But my approach treats all speakers and voters alike; never questioning their unencumbered access to the press, to Congress and to the megaphone. Unlike boomr, I welcome debate and diversity, unafraid of November's annual unambiguous evaluation. I'll win on the merits -- "one man, one vote" -- without cheating.

      As between us, whose tone is more offensive?
The conservative concept of politics, liberty and rights is Constitutional. Not so boomr and his ilk. Increasingly accustomed to judicial and regulatory coercion, the Democrats forgot democracy. Talk about tone deaf.

9 comments:

Boomr said...

1. I've never advocated precluding a viewpoint from discussion in the public sphere. Like I said in response to MoM's post, the parent who doesn't want his kid to be taught by gay teachers can yell in the public forum as much as he wants. Again, though, that someone voices an opinion on the subject doesn't mean the government has to accept that opinion as the basis for legislation. I'm not saying you can't talk about it; I'm just saying that legislation requires further scrutiny than what's written in the Bible or on your blog.

And since the First Amendment prohibits Congress from making a "law respecting an establishment of religion," then it is, in fact, constitutional to require religious-only opinions to show an additional, secular purpose before becoming law. If not, then Congress could pass a law requiring all citizens to "keep the Sabbath holy," without any further designation of a public purpose for such practice other than it's in keeping with religious doctrine. So, back to your hypothet, if the only purpose behind discrimination against gay teachers is that homosexuality is prohibited by religious doctrine, then the Constitution does, in fact, require some sort of additional public purpose for excluding gay people from teaching positions. Which means you'll actually have to show that there is a rational relationship between homosexuality and the "danger to children" you ascribe to homosexuals. Prove it, and this discussion is at an end, and I'll support your ban on gay teachers.

And, by the way, if you don't want your kids to be taught by gay people, then SEND THEM TO PAROCHIAL SCHOOLS where they're allowed to discriminate on the basis of church doctrine. To force the public schools to bow before your religious views is quite clearly "respecting an establishment of religion."

2. Secularism and neutrality: First of all, arguing in favor of a secular government is not arguing against religion. Secularism (in terms of government influence) does not seek to stamp out religions; it merely seeks to restrict the government from being controlled by religious views. You can have all of the religious views you want, and so can I. I can even be a regular churchgoer and still argue for a secular government -- the two are not mutually exclusive.

But this raises another question: Is it the government's job to legislate morality? I say no. I say the government's job is to protect its citizens and the property within its borders, no more, no less. This is why I argue for a secular government, because a parochial government becomes a government legislating the way people think, and thus moves beyond its mandate of protection of people and into protection of people's souls. That's the church's job, not government's.

My "opposition" was merely on this particular point (gay teachers). Show me a rational public purpose served by prohibiting gay people from teaching, and my "opposition" will fade.

3. My arguments treat opponents as cretins no less than do yours. That I may treat other discussant's opinions as less valid than my own doesn't mean that I'm telling them they can't voice such opinions. In fact, the whole fact that I continue to engage in this discussion with you is fairly cogent evidence that I'm not seeking to "suppress" your opinion from the public forum. I merely advocate that the government not base its legislation on your views. You do the same with respect to mine. So are you suppressing me? I don't think so.

The cases you cite do not support your position. Ballard was a case dealing with mail fraud, and the main issue was whether the defendants actually believed in the doctrines noted in their mailings. Thus, it WAS about suppression of a religious voice in the public square. I'm not advocating this -- send whatever opinions or theories or beliefs you want over the internet, in the mails, on TV, etc.

Hobbie was a case dealing with an employee who was fired after her conversion to the Seventh Day Adventist faith required her not to work on the Sabbath. Her unemployment claims were denied. This case has absolutely nothing to do with suppression of a religious voice in the public forum -- and, again, I've never advocated such suppression in the first place.

Mosley involved a Chicago ordinance banning picketing within 150 feet of schools, unless such picketing was a peaceful protest of a labor dispute with the school in question. It has nothing to do with religion, except insofar as it ruled that you can't discriminate against the content of a peaceful public protest. For the 187th time, I'm not advocating the suppression of religious views in the public arena.

Disagreement with an opinion is not suppression of that opinion.

4. Yes, I KNOW the parent's wrong, because I've actually read the studies on child abuse/molestation and its connection (or lack thereof) to homosexuality. At the same time, you KNOW I'm wrong, because the Bible told you so, and you need no other proof. Who's opinion is more right? I don't know, but mine is based at least in part on some sort of scientific methodology. Show me studies contradicting my opinion, that link homosexuality to child abuse/molestation, and my opinion might CHANGE. Will yours, if shown evidence of the lack of "danger to children" by homosexuals? So whose opinion is more rigidly entrenched?

5. Yes, I agree that homosexuality is not (yet) a "suspect class" for discrimination purposes, which would require "strict scrutiny" of such discrimination. I predict it will be in our lifetimes. But, according to you (and actual legal doctrine applicable to this discussion, for once), non-"suspect class" discrimination still requires a "rational basis." What's the "rational basis" for denying gay people the ability to teach? You still haven't provided one.

I'll give you another example, since I concede that the racial comparison wasn't wholly apt. Let's take a white single male who's a teacher at a public school. He's living with his girlfriend (out of wedlock), and gets her pregnant. The local school board, upon urging from the citizenry, passes a rule stating that no teacher in public schools may "live in sin" or have a child out of wedlock. Under your interpretation of the law, would this be constitutional? If not, why is this different from gay people?

6. Again, I've never "propose[d] an authoritarian gag order, [or] advocate[d] abridging the marketplace of ideas." I've never once said that you can't say what you want, believe what you want, shout what you want to shout from the mountaintop in the marketplace of ideas. Never once. Let's get this clear, please. Opposition to your opinion, again, is not suppression of your right to state that opinion.

So, talk all you want. Proselytize all you want. Speak in the town square about God and gay people and abortion and marriage and family and everlasting redemption ALL YOU WANT. I'd rather have you talking about it than not, to be honest, because it spurs discussion (like this one, which I enjoy). But just because I disagree with you doesn't mean I'm "burning the First Amendment ... to save it." I'm actually putting the First Amendment into action, as are you. I'm not denying anyone "unencumbered access to the press, to Congress and to the megaphone" merely because I want to use the press, Congress, and the megaphone to voice my own opinions. Why do you automatically think that dissent equals suppression of your voice?

And I don't insult my opponents merely because I think their opinions are wrong. That's the "tone" to which I object in the "marketplace of ideas."

Boomr said...

Sorry, make that "Whose opinion is more right...."

I hate those mistakes.

SC&A said...

This is an excellent post- and exchange. I do wonder if there is all that fundamentally different between yourself and boomr, in terms of the 'rules of engagement.' That is to say, neither one of you is even remotely attempting to disenhage the other.

That said, opinions can and do change- as they should, as matters become clearer or more obscure. I wonder how much of that we will see.

I like these exchanges, alot.

This one happens to be a 72 oz'er.

Anonymous said...

boomr needs to understand that -clearly- the mask is off:


"The conflict in American public life today then is not a conflict between morality and secularism. It is a conflict of moralities in which one moral system calls itself secular and insists that the other do likewise as the price of admission to the public arena. That insistence is in fact a demand that the other side capitulate..." -Richard John Neuhaus

Boomr said...

ilona: First, there's a difference between calling secularism a "moral system" and calling it a "faith" or "religion" as some people like to say. Clearly secularism contains some moral fiber in it -- but it doesn't require its proponents to believe in something without proof, which is pretty much the standard definition of "faith." Prove a particular secular theory wrong, and it will change. Try that with a "faith."

Second, as soon as there is a constitutional amendment banning Congress from "respecting an establishment of secularism," then I'll fight against secular laws. But what we have right now is an Amendment that says "respecting an establishment of religion." That means that religion is constitutionally required to capitulate to secularism in the legislative process. Change the amendment, and you change this debate -- and possibly my stance on the issue. But it would, in fact, require a redrafting of the First Amendment to do so.

SC&A: Thanks. I enjoy this debate, too, even if it does devolve into some name-calling from time to time.

Carl: Still waiting for a "rational relationship" between gay teachers and child abuse....

Boomr said...

Update to include language from today's Supreme Court opinion:

"Ever since Lemon v. Kurtzman summarized the three familiar considerations for evaluating Establishment Clause claims, looking to whether government action has“a secular legislative purpose” has been a common, albeit seldom dispositive, element of our cases. 403 U. S., at 612.

...

"The touchstone for our analysis is the principle that the “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” Epperson v. Arkansas, 393 U. S. 97, 104 (1968); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15–16 (1947); Wallace v. Jaffree, supra, at 53. When the government
acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 335 (1987)....

...

"Indeed, the purpose apparent from government action can have an impact more significant than the result expressly
decreed: when the government maintains Sunday closing laws, it advances religion only minimally because many working people would take the day as one of rest regardless, but if the government justified its decision with a stated desire for all Americans to honor Christ, the divisive thrust of the official action would be inescapable. This is the teaching of McGowan v. Maryland, 366 U. S. 420 (1961), which upheld Sunday closing statutes on practical, secular grounds after finding that the government
had forsaken the religious purposes behind centuries-old predecessor laws. Id., at 449–451.

...

"Lemon said that government action must have “a secular
. . . purpose,” 403 U. S., at 612, and after a host of cases it is fair to add that although a legislature’s stated reasons will generally get deference, the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective. See, e.g., Santa Fe Independent School Dist. v. Doe, supra, at 308 (“When a governmental entity professes a secular purpose for an arguably religious policy, the government’s characterization
is, of course, entitled to some deference. But it is nonetheless the duty of the courts to ‘distinguis[h] a sham secular purpose from a sincere one’ ”); Edwards, 482 U. S., at 586–587 (“While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham”); id., at 590, 594 (referring to enquiry as one into “preeminent” or “primary” purpose); Stone, supra, at 41 (looking to the “pre-eminent purpose” of government action).

...

"If the observer had not thrown up his hands, he would probably suspect that the Counties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.

...

"The importance of neutrality as an interpretive guide is no less true now than it was when the Court broached the principle in Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947), and a word needs to be said about the different view taken in today’s dissent. We all agree, of course, on the need for some interpretative help. The First Amendment
contains no textual definition of “establishment,” and the term is certainly not self-defining. No one contends
that the prohibition of establishment stops at a designation of a national (or with Fourteenth Amendment incorporation, Cantwell v. Connecticut, 310 U. S. 296, 303 (1940), a state) church, but nothing in the text says just how much more it covers. There is no simple answer, for more than one reason. The prohibition on establishment covers a variety of issues from prayer in widely varying government settings, to financial aid for religious individuals and institutions,to comment on religious questions. In these varied settings,
issues of about interpreting inexact Establishment Clause language, like difficult interpretative issues generally,
arise from the tension of competing values, each constitutionally respectable, but none open to realization to the logical limit.

...

"Given the variety of interpretative problems, the principle
of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative
of individuals under the Free Exercise Clause. The principle has been helpful simply because it responds to one of the major concerns that prompted adoption of the Religion Clauses. The Framers and the citizens of their time intended not only to protect the integrity of individual
conscience in religious matters, Wallace v. Jaffree, 472 U. S., at 52–54, and n. 38, but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate; nothing does a better job of roiling society, a point that needed no explanation to the descendants of English Puritans and Cavaliers (or Massachusetts
Puritans and Baptists). E.g., Everson, supra, at 8 (“A large proportion of the early settlers of this countrycame here from Europe to escape [religious persecution]”). A sense of the past thus points to governmental neutrality as an objective of the Establishment Clause, and a sensible
standard for applying it.

...

"The fair inference is that there was no common understanding
about the limits of the establishment prohibition,and the dissent’s conclusion that its narrower view was the original understanding, post, at 2–3, stretches the evidence beyond tensile capacity. What the evidence does show is a group of statesmen, like others before and after them, who proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with edges still to be determined. And none the worse for that. Indeterminate
edges are the kind to have in a constitution meant to endure, and to meet “exigencies which, if foreseen
at all, must have been seen dimly, and which can be best provided for as they occur.” McCulloch v. Maryland,4 Wheat. 316, 415 (1819).

...

"We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual."

MCCREARY COUNTY v. AMERICAN CIVIL LIBERTIES UNION OF KY., 545 U. S. ____ (2005).

@nooil4pacifists said...

boomr:

1) I'm confused. On the one hand, you say "I've never advocated precluding a viewpoint from discussion in the public sphere." Yet you proposed discounting advocacy, or legislative proposals, without some secular purpose. Even apart from the "who gets to judge purposes" question, are you saying ignoring a viewpoint isn't preclusion? What if that viewpoint were the majority, and passed a law. You "merely advocate that the government not base its legislation on" such views. How does that differ from preclusion?

2) How do you know, how do you propose judging, a law's purpose? As I've previously argued, were there no religious references in law or legislative history, would that suffice? And your "only purpose" argument fails if I can reach the same result after applying white-out to Jesus.

3) Same question, re gay teachers. Assume neither mention nor hint of religion in gay teachers legislation and legislative history. Assume a plethora of studies showing a non-zero integer number of gay teacher consequences for students. Assume a finding that "just like global warming, the science isn't certain; but just like the Kyoto treaty, we don't want to take the risk that gay teachers increase homosexuality among students." Obviously, the logic's valid, and the syllogism’s true if the premise is correct. How, do you propose, a court conclude this fails as a "rational basis?" How would you distinguish, say, a mandatory retirement age that plainly would be unfortunate in some cases? (This, by the way, is a partial answer to your "pregnant girlfriend" question, because there's the hypothetical law is based on in-class behavior.) Or adding a local speed bump that, in fact, will worsen congestion. Rational doesn't mean "right." Outside of fundamental rights, the people and their representatives have the right to be wrong.

4) If all depends on your view that "the government shouldn't legislate morality," what do you mean by morality? Would you void the criminal laws? Sunday closing? Adult incest? Polygamy? Whose morals? The Court allows Christian Scientists to refuse medical treatment of minor children. Ok, or not?

5) Today, law increasingly uses one morality to overrule another. California Catholic churches must hire gays; druggists must sell birth control; doctors must perform abortions. Would your approach be different? If not, aren't you, too, legislating morality?

6) You don't support distinguishing the cases I've cited on their assertedly different facts. Sure Mosely involved picketing--and prohibited most content regulation. You're proposing to ignore legislative purposes based on content. The picketing don't matter; the holding does. Callahan and Ballard are similar, specifically prohibiting investigating the truth of any belief. The facts are, of course, different. But you argue: "Yes, I KNOW the parent's wrong, because I've actually read the studies on child abuse/molestation and its connection (or lack thereof) to homosexuality." How is that different? You admit that my hypothetical parent is equally certain. But you insist his viewpoint is irrelevant, compelling a second purpose, science you suggest. How is that not content-based and unlawful discrimination? Who judges whether the science is sufficient? Some say CO2 causes warming, some don't. Is a nose-count enough? Do PhD's count twice as much as one with only a Masters? Courts are the worst place to resolve that question; elections are the best.

7) Finally, don't assume I'm a literal bible advocate. Actually, on this issue, I agree with you. But -- like Justice Thomas in Lawrence -- I don't believe that the Constitution says my view automatically trumps others. If it's not in the Constitution, it's up to the people and democracy. You agree it's not (yet) there. But, you propose stacking the "rational basis" analysis too, via content-specific exclusion of some viewpoints that you know to be wrong--without asking your fellow citizens. Why don't you trust the people? Why don't you trust the process?

@nooil4pacifists said...

Ilona:

Agreed. Prof Stanley Fish -- who disputes some Neuhaus concepts -- may of had boomr in mind when saying this:

If, as Neuhaus says, a secularist liberal and a committed Christian recognize and deploy the same "rules of reason, evidence, and critical judgment," sooner or later they will disagree about whether something is or is not evidence or about what it is evidence of, and such disagreements cannot be resolved by the rules of reason because the rules of reason unfold in relation to a proposition they do not generate. . .

Does this mean, as Neuhaus asks, that the central beliefs of Christianity cannot be falsified? No, it means that the central beliefs of Christianity cannot be falsified (or even strongly challenged) by evidence that would not be seen as evidence by those who hold the beliefs. If you tell a believer that no one can walk on water or rise from the dead or feed five thousand with two fishes and five loaves, he will tell you (in the mode of Tertullian) that the impossibility of those actions for mere men is what makes their performance so powerful a sign of divinity. For one party the reasoning is, "No man can do it and therefore he didn't do it"; for the other the reasoning is, "Since no man could do it, he who did it is more than man." For one party falsification follows from the absence of any rational account of how the purported phenomena could have occurred; for the other the absence of a rational explanation is just the point, one that, far from challenging the faith, confirms it.

Boomr said...

1. Now you're mixing your constitutional provisions. That I'm in favor of enforcing the First Amendment's "no establishment" clause doesn't mean that I'm in favor of restricting the First Amendment's free speech clause. I support the right of everyone to speak, even the KKK's advocating discrimination in violation of civil rights statutes. That doesn't mean that I'm in favor of legislation based on the KKK's views. It's the same with every political issue -- even ones that have nothing to do with religion -- since one side is always fighting for legislation based on its views to the exclusion of its opponent's views. You wouldn't say the Republicans are trying to suppress the free speech of Democrats, just because the Republicans want legislation based on their political views and not the Democrats', would you? Same here. However, I do, in fact, have a constitutional provision requiring a secular purpose for laws that have a religious basis (see the quotes in my previous post culled from 60 years of Supreme Court precedent) -- even if those religious views are from the majority of voters. This does not mean I'm in favor of restricting the rights of religious people to speak their religious views in the "marketplace of ideas." Again, opposition does not mean suppression.

2. A law's purpose can be judged from a number of sources: legislative history, actual real-world effect, history pre-dating the law, media surrounding the law's debates, etc. All of these are well-established judicial means of determining a law's purposes. And even if you put "white-out to Jesus," a religious purpose can still be determined if its ultimate effect is to promote one religion, or religion in general -- although, admittedly, it is much more difficult to determine a religious purpose in this case.

3. If I "[a]ssume a plethora of studies showing a non-zero integer number of gay teacher consequences for students," as I've said before, then there would, in fact, be a secular purpose for the religion, just like prohibiting a convicted sex offender from teaching in public schools. But if the "consequences" are merely an increase in the instances of homosexuality in teens, since homosexuality is neither illegal nor "abuse" nor inherently a "danger," then this, alone, would not be the "rational relationship" to danger to kids that you assume. See the court opinions striking down various states' sodomy laws recently, as evidence that the attempt to lessen the instances of homosexuality by itself is no "rational secular purpose" for a law.

The entire point of your hypothet is that homosexuality, in and of itself, with no further qualifiers, is somehow a danger to kids. This is a religious view, rooted in the "man shall not lie down with man" Judeo-Christian ethic. Apart from a showing that homosexuality of one person entails a danger to another person other than a danger to that other person's soul, then a law restricting the rights of homosexuals does not meet the "rational basis" analysis.

Mandatory retirement ages are as inapt in this instance as an analogy to minorities, as special laws apply to the aged. So is the analogy to a speed bump, as no one is being discriminated against by a speed bump (because everyone is subject to the same "congestion" in traffic). Laws against gay people for the sole purpose of excluding gay people from certain areas of life, are, in fact, discriminatory to a single group of people.

4. No, I wouldn't void the criminal laws, since they by and large don't mandate morality, but instead provide protection to the public and the public's property, in keeping with my original stated purpose of government. As shown in the quotes in my previous comment, Sunday closings do have a rational secular purpose apart from the purely religious -- but, again, if the law were written in such a way as to mandate "keeping the Sabbath holy," then it wouldn't have such a secular purpose.

As for Christian Scientists, that's the PRACTICE of religion, not the ESTABLISHMENT of religion -- that is, allowing someone to practice his own faith to his own detriment is much different from someone of faith trying to make other people live by the tenets of that faith. In your example, if a Christian Scientist wanted to pass a law requiring all parents to withhold medical treament from minor children, then it would be analogous to the gay teacher issue -- and also clearly violative of the establishment clause.

5. Cite your sources, please, for all of these requirements for churches, druggists, doctors. Until I know exactly what these requirements are, I can't respond to your questions.

6. The gay teacher issue has absolutely nothing to do with "investigating the truth of any belief." In Ballard, the issue was whether the "believers" were running a scam to get money from the recipients of their mailers -- thus, whether the "believers" actually believed what they preached in their mailers was definitely material to whether they were conducting a scam through the federal mail system. How is this analogous to the gay teacher issue? No one is asking the parent to demonstrate the depth of his belief in religion -- such belief is assumed, but the difference is he's trying to force his belief into legislation, not into mailers. Again, if he's trying to make his religion a law, then all of the Supreme Court precedent interpreting the establishment clause requires another, secular reason for the law beyond just his belief. It's the simple difference between having a faith and forcing that faith on others.

Why are courts the worst place to resolve the question of competing authorities on an issue? What makes courts (and their multiple levels of appellate review) less capable than the average voter on the issue? Just because they will almost always reject the religious-only position? And, most importantly, where in the Constitution or the laws of the United States or the various states does it say that the people get to vote on every issue?

7. I apologize if it came across that I think you're a literalist when it comes to the Bible. I'm quite sure you're not -- but you do a great job of making a literalist argument for debate purposes. Thank you for that.

As for "trumping" arguments, the establishment clause and its interpretation clearly requires something secular in addition to any religious purpose for legislation. Thus, a purely religious-based law is, indeed, "trumped" by a secular-based one.

It's true that the Tenth Amendment leaves anything not designated in the Constitution "to the States respectively, or to the people." This does not mean that "the States respectively, or ... the people" can abridge rights or restrictions already stated in the Constitution. A citizen of the United States has the First Amendment right to be free of laws based solely on religious doctrine; the Fourteenth Amendment applies that legislative restriction on "the States repsectively." This is not "stacking the rational basis analysis;" this is adopting it. So, even if "the States respectively, or ... the people" decide that gays shouldn't teach, they still need to provide a secular purpose for such law pursuant to the establishment clause. By my count, that still hasn't been provided by you (apart from assuming premises that aren't actually in existence) or anyone else.

It is just this sort of "[dis]trust [of] the people" that the Framers of the Constitution had in mind -- the oft-cited "tyranny of the majority." It's what led to religious persecution in England and the resultant pilgrimage to the New World. Why don't you trust the process that these Framers enacted?