Theoretical Church/State Thread

[Blackadar]

I'm bored...(and this is just for fun, I don't think this is a likely scenario)

We all know today what the Bill of Rights says: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. We know that's been interpreted to mean there's a "wall" between Government and Religion.

Scenario:

Fast forward to a few years in the future. A very conservative court re-interprets that clause very literally - that Congress (and by extention, the Federal Government) will not establish a religion. But that nothing prohibts the individual States from doing so and that they can establish religions as long as they don't restrict others. That all other court rulings regarding religious discrimination, abortion, etc. are null and void on the State level.

What happens? And to further muddy up the waters, the State that you reside in - and since it's in the future, assume you have a job, bills, mortgage and kids - selects a religion that's different than yours. Maybe a liberal form of Methodist, or strict Catholic or Jewish (let's assume it's Judeo/Christian). What do you do?

How do you react to...
The threat of losing your private job?
Having your kids led in prayer at school?
What's allowed? What's not?

[flere-imsaho]

I'm pretty sure the religion of choice in Illinois would be Catholicism (not my religion). However, I don't see Illinois going that conservative.

[flere-imsaho]

I think the more likely scenario to posit is what happens if the Religious Right gets its way and controls Congress and the balance of power in the Supreme Court?

Probably the following:

1. Overturn Roe v. Wade: abortions go back into the alley.
2. More federal & state funding to evangelical Christian organizations.
3. More prayer in schools.
4. Creationism taught in schools, sometimes in place of evolution.
5. Stricter penalties for "sin" crimes (especially drug use).
6. Greater censorship.

If all that were to happen, there's no doubt: I'd leave the country.

[John Galt]

Originally Posted by Blackadar

I'm bored...(and this is just for fun, I don't think this is a likely scenario)

We all know today what the Bill of Rights says: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. We know that's been interpreted to mean there's a "wall" between Government and Religion.

Scenario:

Fast forward to a few years in the future. A very conservative court re-interprets that clause very literally - that Congress (and by extention, the Federal Government) will not establish a religion. But that nothing prohibts the individual States from doing so and that they can establish religions as long as they don't restrict others. That all other court rulings regarding religious discrimination, abortion, etc. are null and void on the State level.

What happens? And to further muddy up the waters, the State that you reside in - and since it's in the future, assume you have a job, bills, mortgage and kids - selects a religion that's different than yours. Maybe a liberal form of Methodist, or strict Catholic or Jewish (let's assume it's Judeo/Christian). What do you do?

How do you react to...
The threat of losing your private job?
Having your kids led in prayer at school?
What's allowed? What's not?

Blackie, your scenario is missing some important historical context. Generally speaking, none of the parts of the Bill of Rights mention state conduct. Read literally, they almost all entirely focus on the actions of the federal government. For a time, this became an important legal issue and states tried to argue that they didn't have to follow federal decisions on the Bill of Rights. You can imagine that the desegragation struggle really made these positions more prominent.

However, the Court resolved these disputes by saying the due process clause of the 14th amendment (not the less famous equal protection clause of the 14th amendment and not the due process clause of the 4th amendment) applied the rights to the states. This principle was called "incorporation" and over time, almost all of the Bill of Rights were applied to the states. Strangely, for reasons that aren't entirely clear, the 6th Amendment's right to jury trial has never been applied to the states (you don't have a federal constitutional right to a jury trial in a state court).

This was all well and good and pretty much how things have gone, so I would normally say your example just doesn't make sense. But . . .

Clarence Thomas did something a little unusual in the last year. In a dissenting opinion, he tried to argue that the Establishment Clause didn't apply to the states. His opinion was truly bizarre as it was against all precedent on the book (Thomas, unlike most every other judge in the land, does not see any real value to stare decisis - that makes him a true "activist" if there is such a thing).

So, your example still is totally outlandish because none of the other conservatives would join Thomas's opinion and I think they all thought he was a little crazy. However, Thomas has given a little breath of life to what was thought to be a dead doctrine.

[Fonzie]

Originally Posted by Blackadar

How do you react to...
The threat of losing your private job?
Having your kids led in prayer at school?

How do I react to these things? I get angry. And when Fonzie gets angry, people die!

Though sometimes, when Fonzie gets angry, he drinks a beer.

One or the other.

[John Galt]

Originally Posted by flere-imsaho

I think the more likely scenario to posit is what happens if the Religious Right gets its way and controls Congress and the balance of power in the Supreme Court?

Probably the following:

1. Overturn Roe v. Wade: abortions go back into the alley.
2. More federal & state funding to evangelical Christian organizations.
3. More prayer in schools.
4. Creationism taught in schools, sometimes in place of evolution.
5. Stricter penalties for "sin" crimes (especially drug use).
6. Greater censorship.

If all that were to happen, there's no doubt: I'd leave the country.

I think your list is pretty off. Depending on which way the court moves to the right (you emphasize religion, but that isn't necessarily the case among some of the best qualified right-wing judges). I think Roe v. Wade will always be a target, but it is a hard case to overturn without constructing a wholly new consistent view of the 14th Amendment and potential "privacy" rights. There are some conservatives, mostly of the libertarian strain who would actually like to see the 14th Amendment (along with the 9th) further expanded which would preclude overturning Roe v. Wade.

As for the rest of the issues, 5 is impossible for the SC to do - they don't have any role in that. Penalties are the sole province of the legislature.

Similarly, 2 has nothing to do with the court and it is easy to accomplish 2 without running afoul of current Establishment Clause doctrines.

4 is a pretty big stretch. At worst, and I do fear this, Intelligent Design will gain a foothold and be upheld by the court, but more than that seems highly unlikely.

3 is also pretty unlikely, although possible. The only reason that I think it is doubtful is there is pretty good precedent now and the SC usually doesn't like to reverse clear precedent and develop a whole new doctrine on the same issue. In other words, it is only likely to uphold school prayer if it has already developed a whole new Establishment Clause test, in which case school prayer is the least of your worries.

6 is a total unknown for me. There aren't many censorship cases and the current conservative SC hasn't been overly prone to censorship.

I think the areas where the court is most likely to make changes if Bush gets two appointees (Rehnquist and O'Connor) are:

1) Incredibly strong pro-government decisions in crime and terrorism areas. Defendant rights will be really trampled. This scares me the most.

2) A new Establishment Clause test - which could cause some of the harms you name.

3) A strong deference to executive privilege - essentially allowing the President and Congress cart-blache in many areas.

4) A reversal of the gains in gay rights - this is a harder area to call. If lower courts don't force this issue, there won't be as much for the SC to reverse, but if the issue is forced, I don't know what the SC will do.

[Klinglerware]

Originally Posted by flere-imsaho

I think the more likely scenario to posit is what happens if the Religious Right gets its way and controls Congress and the balance of power in the Supreme Court?

Probably the following:

1. Overturn Roe v. Wade: abortions go back into the alley.
2. More federal & state funding to evangelical Christian organizations.
3. More prayer in schools.
4. Creationism taught in schools, sometimes in place of evolution.
5. Stricter penalties for "sin" crimes (especially drug use).
6. Greater censorship.

If all that were to happen, there's no doubt: I'd leave the country.

I wouldn't worry too much about this happening. Most of the country considers themselves moderate--and they will punish either party if they are seen to overstep into extremism. The Republicans are actually a bit more vulnerable after their handling of the Schiavo controversy. The split vote within the Republicans in congress over stem-cell research is another indication that some in the Republican party are concerned about looking too extreme...

[flere-imsaho]

John - Note that I was talking about the RR gaining a controlling influence in Congress, as well as their being a more Right Supreme Court.

[st.cronin]

I think such a thing is possible in only one or two states. Utah, maybe some of the old South where Baptists are an overwhelming majority.

Most Americans take freedom of religion very seriously, even the religious conservatives, and aren't interested in state-established religion.

[Bubba Wheels]

Originally Posted by Fonzie

How do I react to these things? I get angry. And when Fonzie gets angry, people die!

Though sometimes, when Fonzie gets angry, he drinks a beer.

One or the other.

Since you are talking about in the future, I really don't see it out of the realm of possibilities for us going into a second 'civil war.' I really do believe that if organizations such as the ACLU continue on their course they could quite conceivably become the catalyst for such a thing occuring.

[Arles]

I actually agree with most of what John has said. First, even if the court were to replace Rehnquist and O'Connor with "staunch conservatives", that would really only be a net gain of about half a vote as Rehnquist is already a pretty strong conservative and O'Connor is a swing on most votes.

And, even if there was some type of movement in the SCOTUS to overturn Roe V Wade, the odds that many states would ratify a full repeal seem slim to none. While there are certainly some on the right in favor of a full repeal, even most of Pro-Lifers don't necessarily want to see the ability to have an abortion repealed. And there are many on the right (myself included) that are not Pro-Life.

1) Incredibly strong pro-government decisions in crime and terrorism areas. Defendant rights will be really trampled. This scares me the most.

This is probably the most likely case and I agree it is a little disturbing. Still, even with Rehnquist, Scalia and Thomas, the court has come down very hard on the justice department on a few of the Guantanamo cases - so anything really drastic doesn't seem very likely.

2) A new Establishment Clause test - which could cause some of the harms you name.

I could see this in a limited form as well. But I think it would be more along the lines of classifications than somehow allowing states or municipalities to have their own sanctioned religion. The courts have been crystal clear on that issue and I don't think one more conservative would change that.

3) A strong deference to executive privilege - essentially allowing the President and Congress cart-blache in many areas.

I seriously doubt this. Scalia and Thomas have been big on separation of powers and it would be a big jump to assume they would go along with this - not to mention the other members of the court.

4) A reversal of the gains in gay rights - this is a harder area to call. If lower courts don't force this issue, there won't be as much for the SC to reverse, but if the issue is forced, I don't know what the SC will do.

This scares me a little as well, but I can't see that drastic a change in the courts on this issue either. Plus, I think they will continue to skirt the issue whenever given the chance.

Overall, I don't see much of a change in the "base cases" that many on the left seem predicting doom and gloom for if one more conservative joins in. I think most of the changes would involve some of the more activist decisions on reading legislation - some that could actually hurt some of the "religious right's" causes as well.

[John Galt]

Originally Posted by flere-imsaho

John - Note that I was talking about the RR gaining a controlling influence in Congress, as well as their being a more Right Supreme Court.

I realize that, but the RR largely has control of Congress and many of the things you identified don't really involve the court (ie funding of religous programs) because it is easy to be consistent with existing doctrines.

[John Galt]

Originally Posted by Arles

I seriously doubt this. Scalia and Thomas have been big on separation of powers and it would be a big jump to assume they would go along with this - not to mention the other members of the court.

The problem is that Scalia and Thomas are big on separation of power issues in terms of deference. They often feel it is not the Court's duty to second guess the executive. This is even true on non-"political question" cases. As a result, and consistent with my first prediction of allowing very pro-government positions, I think the war on terrorism will be used to support a whole lot of abuses.

Remember that the existing terrorism cases haven't fully decided the issues. So far, all that has been established is that U.S. citizens have some right to due process and some other prisoners may need to have a hearing (although one with what protections we don't know). It is still quite possible that the military will design sham trials and the SC will uphold them.

[Subby]

Originally Posted by Bubba Wheels

Since you are talking about in the future, I really don't see it out of the realm of possibilities for us going into a second 'civil war.' I really do believe that if organizations such as the ACLU continue on their course they could quite conceivably become the catalyst for such a thing occuring.

That would be awesome. Then I could legally kill you.

[Bubba Wheels]

Originally Posted by Subby

That would be awesome. Then I could legally kill you.

Would I be the first? Do you keep a list?

[Blackadar]

Originally Posted by Bubba Wheels

Would I be the first? Do you keep a list?

Maybe not the first, but likely the easiest.

[Bubba Wheels]

Originally Posted by Blackadar

Maybe not the first, but likely the easiest.

If you answer for him, do you live together?

[Blackadar]

Originally Posted by Bubba Wheels

If you answer for him, do you live together?

Not last time I checked, but when I go home tonight, I'll see if he's living in the crawl space or something. That's where I hide the bodies...

[Subby]

Originally Posted by Bubba Wheels

Would I be the first? Do you keep a list?

I don't know. I guess it depends on how fat you are. My moped tops out at 15mph.

[Bubba Wheels]

Originally Posted by Blackadar

Not last time I checked, but when I go home tonight, I'll see if he's living in the crawl space or something. That's where I hide the bodies...

Maybe its just the voice in your head

[judicial clerk]

Thomas, unlike most every other judge in the land, does not see any real value to stare decisis - that makes him a true "activist" if there is such a thing).

I don't think that a supreme court justice declining to follow stare decisis makes him or her activist. When I think activist, i think of legislating from the bench or enforcing the laws that the judge thinks the legislature (including constitutional convention) should have passed, not the law that the legislature actually passed.

BubbaWheels, why do you think the ACLU and its actions could lead to some sort of civil war-like conflict?

[st.cronin]

Originally Posted by John Galt

It is still quite possible that the military will design sham trials and the SC will uphold them.

That would be a VASTLY better scenario than what we have right now with Guantanamo Bay etc.

[Huckleberry]

Originally Posted by Bubba Wheels

Since you are talking about in the future, I really don't see it out of the realm of possibilities for us going into a second 'civil war.' I really do believe that if organizations such as the ACLU continue on their course they could quite conceivably become the catalyst for such a thing occuring.

Wow.

[John Galt]

Originally Posted by st.cronin

That would be a VASTLY better scenario than what we have right now with Guantanamo Bay etc.

I'm not sure I agree. If the trials are just shams, I would almost prefer they don't occur at all. I don't like the idea of giving legitimacy when it is only a facade.

[st.cronin]

Originally Posted by John Galt

I'm not sure I agree. If the trials are just shams, I would almost prefer they don't occur at all. I don't like the idea of giving legitimacy when it is only a facade.

I don't think it's likely that they would be 'shams' in the sense that there would be no consideration of evidence. What we have right now, on the other hand, is beyond question a 'sham' or a 'travesty' or whatever word you want to use.

[ISiddiqui]

Originally Posted by John Galt

Strangely, for reasons that aren't entirely clear, the 6th Amendment's right to jury trial has never been applied to the states (you don't have a federal constitutional right to a jury trial in a state court).

Nitpick: That's the 7th Amendment right to jury trial.

Also there are other Bill of Right Amendment (or Amendment subparts unincorporated), such as the 2nd Amendment, the 5th Amendment right to grand jury indictment in criminal cases, and the 8th Amendment right against excessive fines.

Originally Posted by Arles

Still, even with Rehnquist, Scalia and Thomas, the court has come down very hard on the justice department on a few of the Guantanamo cases - so anything really drastic doesn't seem very likely.

Actually, in Hamdi v. Rumsfeld, Scalia came down the HARDEST on the Justice Department. He said charge him with a crime and try him, or let him go.

[Blackadar]

Originally Posted by Bubba Wheels

Maybe its just the voice in your head

Must be God talking to me, right?

[st.cronin]

Originally Posted by Subby

That would be awesome. Then I could legally kill you.

???

How do people get away with talking like this?

[John Galt]

Originally Posted by st.cronin

I don't think it's likely that they would be 'shams' in the sense that there would be no consideration of evidence. What we have right now, on the other hand, is beyond question a 'sham' or a 'travesty' or whatever word you want to use.

True. I just worry about a situation where the tribunals are secret or heavily biased against the defendants and that those trials are used to make the process of indefinite detainment legitimate. I won't disagree what is going on now is horrific.

[John Galt]

Originally Posted by ISiddiqui

Nitpick: That's the 7th Amendment right to jury trial.

Also there are other Bill of Right Amendment (or Amendment subparts unincorporated), such as the 2nd Amendment, the 5th Amendment right to grand jury indictment in criminal cases, and the 8th Amendment right against excessive fines.

Oops. I'm sloppy sometimes. I remember that was a trick question I got right on a civ pro exam - thankfully, I'm not in law school anymore.

As for the other non-incorparated amendments, I didn't want to mention those because they are generally less important. But you never know if the failure to incorporate the quartering act will come back to haunt us.

[Bubba Wheels]

Originally Posted by judicial clerk

I don't think that a supreme court justice declining to follow stare decisis makes him or her activist. When I think activist, i think of legislating from the bench or enforcing the laws that the judge thinks the legislature (including constitutional convention) should have passed, not the law that the legislature actually passed.

BubbaWheels, why do you think the ACLU and its actions could lead to some sort of civil war-like conflict?

While I could give alot of personal opinions on this one, suffice to say that the ACLU threatens personal sovereignty of people in this country like nothing in history before it has done. The ACLU was founded by communist Roger Baldwin in the 1920s and this organization has now become the defacto vehicle being used to undermine every basic sense of right and wrong in traditional-minded people. If you concede that there already is a 'cultural war' existing in this country then you could start to maybe draw some parallels between what is happening here now and what took place amongst different 'camps' or groups of people (including countries) during the cold war. I would argue that the ACLU is akin to Mao and his forces using China's centralized government to force the 'cultural revolution' during the 1960s.

The ACLU doesn't do its work directly, but it overrides the will of the majority by appealing to activist judges and those rulings are then backed up by governmental force if disobeyed. I mean, the ACLU is defending NAMBLA in a Massachussets case going on right now. How much more depraved does it get?

But on the other side, things like this were predicted long ago to begin with. Bible says in the last days things 'would be shaken to determine what would shake loose and what would remain." (paraphrased) A great divide is really the essence of Biblical prophecy.

And Thomas Jefferson himself wrote the famous "The tree of liberty must be periodically watered with the blood of patriots." Individuals in this country determine when governmental actions go to far in taking away individual sovereignty and many rebel piecemeal. But that's not to say some future event or series of events might create enough of a consensus amongst certain segments of people that feel the government is not only not looking out for their best interests but are actively working against them. A small example of this now might be the reactions we are seeing along the Mexican border due to lax enforcement of immigration laws. Not saying a civil war will happen, but not saying that it never could either.

[Crapshoot]

So, what are the odds that Bubba understands or knows of Voltaire ?

[Daimyo]

Originally Posted by Bubba Wheels

I would argue that the ACLU is akin to Mao and his forces using China's centralized government to force the 'cultural revolution' during the 1960s.

I would argue that from that statement you have a very small understanding of the internal politics in China that led to the Cultural Revolution.

[Subby]

Originally Posted by st.cronin

??? How do people get away with talking like this?

Hey little girl, war is bad.

REAL BAD.

[John Galt]

I hear the ACLU is setting up this sweet re-education camps. There kind of like day spas, but really a lot of it is focused on crazy ideas like free speech and civil liberties. The ACLU has gotten so big and powerful that these camps will be open nationwide. And they are inviting NAMBLA to come and take care of your children. In July, they are going to bring in some crazy activist judges (who are those again?) to lead some camp counseling groups.

Really, Bubba, you are almost funny, but your shit just doesn't even make sense. ACLU = Mao?!?! I mean, can a worse analogy be made? I tried thinking of one. Even comparing the NRA to Greenpeace makes more sense than that. You have simultaneously displayed that you have ZERO knowledge about China and ZERO knowledge about the ACLU - that is a truly impressive feat.

As for the NAMBLA thing, it's called free speech. The ACLU defends anyone (even total dumbass morons like you) if a basic civil liberty is in jeopardy. In the NAMBLA case, they are defending NAMBLA's right to disemminate pamphlets just like any other organization. But I guess it is easier to play guilt by association than actually talk about the facts of the case.

[John Galt]

BTW, are you so freakin' America-centric that you think Biblical prophecy about a great divide is about our little culture war? I mean in the scale of history and in even in the scale of current world affairs, America's culture war is equivalent to a spitball fight during recess.

[Fonzie]

Originally Posted by John Galt

I mean in the scale of history and in even in the scale of current world affairs, America's culture war is equivalent to a spitball fight during recess.

Hey, those things can get out of hand.

[Bubba Wheels]

Originally Posted by John Galt

I hear the ACLU is setting up this sweet re-education camps. There kind of like day spas, but really a lot of it is focused on crazy ideas like free speech and civil liberties. The ACLU has gotten so big and powerful that these camps will be open nationwide. And they are inviting NAMBLA to come and take care of your children. In July, they are going to bring in some crazy activist judges (who are those again?) to lead some camp counseling groups.

Really, Bubba, you are almost funny, but your shit just doesn't even make sense. ACLU = Mao?!?! I mean, can a worse analogy be made? I tried thinking of one. Even comparing the NRA to Greenpeace makes more sense than that. You have simultaneously displayed that you have ZERO knowledge about China and ZERO knowledge about the ACLU - that is a truly impressive feat.

As for the NAMBLA thing, it's called free speech. The ACLU defends anyone (even total dumbass morons like you) if a basic civil liberty is in jeopardy. In the NAMBLA case, they are defending NAMBLA's right to disemminate pamphlets just like any other organization. But I guess it is easier to play guilt by association than actually talk about the facts of the case.

I won't even try to respond to this one. Anyone sympathetic to defending NAMBLA, regardless of how they think its protected 'free speech' is just nuts.

[st.cronin]

Comparing the Aclu to Mao is pretty much just like those bumper stickers I see comparing Bush to the Taliban. In both cases, you pretty much lose all credibility with anybody who cares to think on his own even a bit.

[DaddyTorgo]

i actually don't have a problem with the ACLU defending NAMBLA's right to disseminate pamphlets. Then again, I think the cops should be first in line to pick up a pamphlet and then they can arrest all the NAMBLA members distributing said pamphlets for "promoting child pornography" or "promoting child endangerment" or some other statute like that. That's the way the world should work. Let them distribute their filth, but they then will have to pay the legal price for that that they should be paying in the first place.

and yes, I'd say the same about the KKK for instance. Let them burn crosses on people's land...sure fine. But then let them be arrested for harassment and inciting people to riot.

[Blackadar]

Originally Posted by Bubba Wheels

I won't even try to respond to this one. Anyone sympathetic to defending NAMBLA, regardless of how they think its protected 'free speech' is just nuts.

No, it's called understanding the fundamentals of the Bill of Rights. NAMBLA's right to exress their (repulsive) views is no different from the Ayran Nation's rights to do the same - or you right to espouse your ideas. Defending the Constitution/Bill of Rights often means having to put up with ideas that are abhorrent and diametrically opposed to ones you hold dear. Until you understand that, you really don't know what it means to be a citizen of the United States of America.

[Bubba Wheels]

Originally Posted by Blackadar

No, it's called understanding the fundamentals of the Bill of Rights. NAMBLA's right to exress their (repulsive) views is no different from the Ayran Nation's rights to do the same - or you right to espouse your ideas. Defending the Constitution/Bill of Rights often means having to put up with ideas that are abhorrent and diametrically opposed to ones you hold dear. Until you understand that, you really don't know what it means to be a citizen of the United States of America.

Oh, I see. Well then enlighten me on this one: A couple of years ago someone put up a website with nothing more than the pictures of doctors who performed abortions. A couple of those pictures had red Xs thru them. Those doctors had been killed. Nothing more was on the website. No text advocating any kind of position.

News media got ahold of the site and gave it some exposure. And sure enough, some federal judge made them take it down. Reasoning was that the site was 'promoting violence" against those same doctors. Privacy was not the issue. So how is the one "free speech" protected from the bill of rights and the next not allowable because it is 'promoting violence?"

BTW, with the recent case in Chicago regarding the attack on the judge's family (falsely believed at first to have been done by a white supremacist) and that same judge lashing out verbally against certain media critics of activist judges claiming that they are 'creating an atmosphere' this is an issue potentially just beginning to come on strong.

Claims by liberals vs. conservative talk show hosts also presents this 'promoting violence' and 'posioning the atmosphere' approach in general. C-Span just had congressman John Conyers listening to basically the entire lineup from Air America whine about conservative talk show hosts and pleading that something 'be done about it."

How is it that violence against kids is considered 'protected free speech' but when it comes to activist judges, liberal politicians and abortionist doctors suddenly its 'promoting violence' and needs to be stopped? Just more subjective liberal double-standards as I see it.

[Blackadar]

I might respond BW if you had your facts correct. But you don't - your examples are factually incorrect - so I won't until you get off your butt and fix them. I'll let you find them...it's time you did your own research...