This page is updated and published by me, Dennis Rogers. You will find here my musings on coffee (I'm a home-roaster in training), philosophy (especially epistimological musings), and legal related
stuff. And, of course, any and all opinions expressed here are mine and mine alone.
Four friends, four dinners: spinach angel hair pasta with four cheeses, eggplant parmesan, unfolded spinach and veggie ravioli and shrimp Alfredo with angel hair -- the joy of Italian food, eating something off of everyone's plate, an $8 glass of cabernet (expensive for Montana) that was actually worth its price, and wondering how you possibly fit in those last 25 bites . . . . Then walking uphill three blocks on a 95 degree cloudless evening on concrete next to asphalt alongside of brick buildings with a stomach overloaded with cheese and semolina to see My Big Fat Greek Wedding which was sold out when we arrived. But that's fine. Our alternative in this fine town of Helena was taking a 20 minute drive to Houser Lake and going for a vigorous swim. And a fine alternative it was! How could I have ever possibly forgotten just how refreshing a swim in a clear, fresh water lake can be on a 95 degree day after a huge dinner, glass of wine, and after having sat all day long in front of a computer?! To make sure I don't forget again soon, I'm going again on Friday.
And so as to not too promptly extinguish the terrific restorative effects, I'm now setting down the computer and heading to the roaster . . .
Not sure how or when I missed its arrival, but the new trailer for The Two Towers is now available. I downloaded the full screen version (32mb zipped) last night and had high hopes that it would be the same "Introduction" that was shown at the end of the Fellowship. Damn that was a good preview. But alas, it's not the Introduction but an altogether new trailer that doesn't compare. Dammit Peter Jackson! Don't give us such an elegant introduction and then release such a flimsy, anaemic, namby-pamby, spineless trailer!
Maybe I'm being too hard on it. I'll have to watch it another ten times and see if I change my mind . . .
There has been some interesting Pledge discussion while I've been gone. John Rosenberg discusses the possibility of a new standard to determine Establishment Clause violations based on intent of the legislation as well as unintended effects of "neutral intent" legislation. Garrett Moritz takes him to task for wanting it both ways - for overlooking the ostensible effects of the voucher ruling (religious schools getting a lot of money), while simultaneously arguing for a reversal of the 9th Circuit by focusing on the de minimis effects of the words "under God" in the Pledge. Rosenberg responds that he would happily sacrifice the "under God" phrase in the Pledge to maintain the principle of neutrality. The entire discussion is definitely worth reading.
Another person who stands by the principled concept of neutrality is Judge Fernandez in his dissent in Newdow (FindLaw)(PDF). Or at least one would think so based upon his introductory language:
We can run through the litany of tests and concepts which have floated to the surface from time to time. Were we to do so, the one that appeals most to me, the one I think to be correct, is the concept that what the religion clauses of the First Amendment require is neutrality; that those clauses are, in effect, an early kind of equal protection provision and assure that government will neither discriminate for nor discriminate against a religion or religions. [Emphasis supplied].
It is interesting to note, however, that this is his last mention of neutrality - as actually applying the principle of neutrality to the 1954 Act could not support his position that the Pledge is constitutional. Notice that, although preferring the principled concept of neutrality, thereby implying the necessity of neutral intent, Judge Fernandez does not refer to, mention, or attempt to confront the legislative history of the 1954 Act, which clearly discloses the Act's religious intent. Rather, to reach his desired conclusion he entirely disregards intent in deference to a minimal impact/effect analysis regarding the phrase "under God."
In his conclusory final footnote he states:
Lest I be misunderstood, I must emphasize that to decide this case it is not necessary to say, and I do not say, that there is such a thing as a de minimis constitutional violation. What I do say is that the de minimis tendency of the Pledge to establish a religion or to interfere with its free exercise is no constitutional violation at all.
I do not know how one draws the line between or defines a (de minimis) Constitutional violation verses de minimis effects that have no Constitutional implication at all, nor am I sure why or how its de minimis effects trumps or precludes any discussion of the Act's lack of neutrality toward religion.
On that note, I have had an enlightening e-mail discussion regarding the concept of religious neutrality in the sphere of public education with a very good friend of mine, Brian Mattson, who is currently working toward his Doctor of Divinity at Westminster Theological Seminary. Brian has his own, historically well-grounded theory of the original purpose of the Establishment Clause as well as the reality or unreality of religious neutrality in public education. Brian's ideas deserve a wider audience and, as he doesn't currently have his own blog, I am taking liberty (with his permission) to publish his ideas here (with minimal comments on my part).
Without further ado, his original e-mail to me at the start of our Pledge discussion:
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IT SEEMS TO ME that the purpose of the Establishment (as well as Free Exercise) clauses of the First Amendment are designed for one purpose: to protect the individual citizen's freedom of conscience. Our founders unequivocally believed that one ought to be able to worship or not according to the "dictates of one's own conscience." Now, to violate the liberty of conscience there must be at least two elements involved. 1) Coercion to a certain practice. 2) Sanctions applied for disobedience. Without these two things, there is no violation of the freedom of conscience. Now, granted, I don't know enough about the history of the Pledge of Allegiance, its purpose, etc., but it seems to me that nobody is "coerced" into saying the pledge, and there are certainly no sanctions applied to one who abstains from saying it. Ergo, I fail to see the standing that someone has to object when his neighbors (fellow students) elect to say the pledge.
In this vein, Thomas Jefferson profoundly wrote: "The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg." What, exactly, is the "injury" done to the atheist whose neighbor affirms the existence of God?
Now, one may perhaps legitimately argue that the Pledge of Allegiance is an official Congress-sanctioned pledge, and one who refused to acknowledge the "under God" clause may de facto be a second-class citizen in the United States of America. Okay. I'll grant that for the sake of argument. However, I myself for years, when reciting the pledge, have abstained from declaring the word "indivisible." That is a word that truly IS unconstitutional, for individual states have a right to withdraw from the union when remaining in the union is no longer beneficial for them (I seem to have lost this argument in 1865, I realize). But even disregarding my argument for succession, "indivisible" goes against the very grain of our founding documents, which declared, "Whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government." In other words, if the Union of states becomes tyrannical, it may become necessary to "dissolve the bonds" that unite us. Hence, the United States are patently NOT "indivisible." But back to the point. I do not feel in the slightest less a citizen of the USA because when I refrain from saying that word, everybody else in the ballpark affirms it enthusiastically. My liberty of conscience is simply not violated by this. There is no Congressional coercion forcing somebody to affirm the existence of God, and certainly no sanctions if one doesn't comply.
But there really is another, deeper issue involved here. Federal money is being directed to schools that have "religious" overtones when reciting the pledge. Is it a violation of one's liberty of conscience to have his taxes go to institutions of which he disapproves? The answer is yes. Listen to Jefferson again: "[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern..." Wow. Even coercing a contribution to a cause with which one AGREES is "sinful and tyrannical"!
This is where the rubber meets the road, but where all of society is blind: Education itself is an inherently religious activity, touching on the most fundamental subjects and disciplines of belief, such as metaphysics, ethics and epistemology. To think otherwise is utter insanity. There IS no religious neutrality. Some examples, perhaps.
Teaching notions about the operations and origins of the universe that place Chance and Randomness as the twin fates governing the universe is required in Government Schools. Teaching the 4,000 year old tradition of God's creative activity is ILLEGAL. This is "religiously neutral"?
Teaching that human beings are biologically no different than animals, and teaching sexual behavior concomitant with this view in "Sex Education" classes is required in Government Schools. Teaching the dignity, uniqueness and sanctity of human life and responsible, monogamous sexual behavior is ILLEGAL. This is "religiously neutral"?
Teaching "situational ethics" or having students evaluate their ethical worldview by "believing in themselves" or other such nonsense is standard fare in Government Schools. Teaching a 4,000 year old belief in unchanging, universal, revealed moral absolutes is ILLEGAL. This is "religiously neutral"?
Teaching epistemological skepticism in every single discipline (No one can REALLY know for sure) except the sacred cow of "science," is standard fare, again, in Government Schools. Teaching a 4,000 year old believe in Divine revelation as epistemological certainty is ILLEGAL. This is "religiously neutral"?
No, this is sheer religious bias. It is a grotesque thing that the Federal Government extracts by coercion taxes that support this institution that "propagates opinions I disbelieve and abhor." Not only that, but there are COMPULSORY attendance laws as well! If one does not wish their children to attend government schools, he or she is free to choose a private school. But they are still coerced into financially supporting the school system they never use. If the 9th Circuit ever stops fiddling while Rome burns, perhaps they ought to take up the real issue: What is the Federal Government doing financially supporting ANY school whatsoever? This is pure coercion, and, in the words of Jefferson, "sinful and tyrannical," a violation of the 1st Amendment and liberty of conscience on a grand scale. Until there is no Federal financial assistance to educational institutions, and therefore complete and unhindered free-market educational competition in America, the problem of the "Establishment Clause" will continue to be a "problem." But try arguing THAT to a teacher's union meeting!
Federal monies supporting education simply cannot be religiously neutral. According to the 1st Amendment, it should not be done at all. In the words of Jefferson, Federal education programs DO "pick my pocket." It's surely ironic, isn't it, that the Plaintiff's argument in the 9th Circuit case was that he shouldn't have to have his taxpayer dollars go to a school that recites a "religious" pledge? Gee, what about MY taxpayer dollars going to support an institution promoting secular humanism? I rather think that the saying of the words "under God" are quite overshadowed by the staggering removal of God from every subject taught at that poor, California school.
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In part of my initial response I disagreed with Brian regarding the original purpose of the Establishment Clause, finding John Rosenberg's post on avoiding sectarian conflict, Separation of Race and State, compelling. I referred Brian to John's post. His response was thus:
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AS FOR THE PERSPECTIVE that the purpose of the Establishment Clause was to prevent "sectarian violence," I think that is patently untrue. The link you sent me to, written by Rosenburg, was very interesting in that he did nothing but quote some popular Supreme Court precedents (Abington v. Schempp; Lee v. Weisman, etc.), but never actually considered the founders themselves. I've got to tell you, Dennis, that is the most aggravating thing in discussing constitutional law. Everybody tries to understand the meaning of the document without consulting the authors, which seems like a complete absence of common sense to me. What did the founders indicate regarding the purpose of the Establishment Clause?
Jefferson, in the very context of his letter to the Danbury Baptist Association, wherein he invokes the "wall of separation" between church and state, gives us the purpose: "Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights."
Okay? Pretty clear that the freedom of conscience is the issue here. What about early drafts of the 1st Amendment? June 8, 1789, James Madison's proposal: "The civil rights of none shall be abridged on account of religious belief or worship...nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed."
House Select Committee, August 15, 1789: "No religion shall be established by law, nor shall the equal rights of conscience be infringed."
Fisher Ames's proposal, August 20: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." This is the version that went to the Senate.
Senate, September 3: "Congress shall not make any law infringing the rights of conscience, or establishing any religious sect or society."
September 9: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion."
This version went to committee with the House and the hashed out wording ended in our 1st Amendment Establishment Clause. Dennis, what is the concern of all these drafts? Freedom of conscience. Sectarian violence? Perhaps that is a natural PRODUCT of the State violating freedom of conscience, but that was certainly not the primary, much less most important, purpose of the Establishment Clause.
I realize that my comments on the Pledge of Allegiance will probably sound looney to most people, but my argument about Federal involvement in education being an inherent violation of the 1st Amendment is sound. And that's the issue that will raise hackles, no doubt. People don't want to lose precious Federal dollars for anything, which explains why people vote for Democrats. But, suffice it to say, if I were dictator tomorrow, the Federal Department of Education would cease to exist, along with a lot of other offices.
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Although this was not the end of our discussion, this is where I will end this particular post on the subject. As I imagine that Brian's ideas will prompt further discussion, as it has in our e-mail exchange, Brian can be reached via e-mail here. Write to him and encourage him to start his own blog for the betterment of all of us . . .
I, of course, will refer him to any published responses.
