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FF Sparks (Casual)

Huh...

Okay, normally I don't post political stuff in my journal, but this, linked from technoshaman's journal, is something which unsettles me slightly.

I admit, being an engineer and not a legal sort, I don't know precisely how to read HR 3799 (the original text is available from Thomas, just enter 'HR 3799' for the bill), but the analysis in jmthane's journal unnerves me slightly, even though I'm not sure every element of it is accurate.

For those who don't want to follow the link or wade through the legal text on HR 3799, what it appears to do is declare that 'the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government.'

Which basically seems to mean if this passes, the Supreme Court does not have the authority to handle cases where someone accuses a government official of not respecting separation of church and state; if someone proposes a new law saying that all businesses must be closed on Sunday because God hath decreed it so, the federal government has no authority to stop them. Additionally, this bill is retroactive, so any previous separation-of-church-and-state cases are to be considered invalid precedent and overturnable by any state court which wants to?

I'm not sure, I'm not really a legal sort, as I said, but something about this bill unsettles me.

Comments

HR 3799

Can a House Resolution limit the judicial power of the Supreme Court? Isn't the bill unconstitutional on its face?

Re: HR 3799

I would have thought so, yes.

But then again, if you had asked me several years ago if I thought someone would seriously try to push through a constitutional amendment specifically defining marriage as between a man and woman, I would have laughed in your face on the grounds that assuming separation of church and state, the only sort of marriage which can be regulated is the civil contract nature of it -- i.e. for medical benefits and whatnot -- and that the government could not constitutionally limit the rights of the states to allow their citizens to make or enter into contracts with each other.

And I would have been wrong. So who the heck knows. ;P
Unfortunately, due to the way Article III is set up, it is not necessarily unconstitutional on its face, and it should scare the shit out of you.

It's something that our professors in law school used to throw out there to us as a crazy "what if" scenario based on the language of Article III and the conclusion was always, "Yeah, maybe, but nobody would be crazy enough to try that shit."
Whee...

Am I allowed to laugh nervously now at the Bush administration campaign ads which have the tagline of something like 'Stable Leadership in Times of Change'?
You're certainly allowed to laugh nervously. Please continue to do so, as I pack hurriedly to move abroad.

Don't worry, I'll wait for you to catch up.
The thing that bugs me about this is that if someone tried to make a new law which said the Supreme Court couldn't try any case where a person said that Poncy the Sacred Dancing Divine Purple Hippo was the source of all government, they'd be looked at as if they were really insane. Yet replace Poncy with 'God' and suddenly it's alright? Would it be equally alright if you put in 'Allah' in place of God? Or heck, what about Isis? Or Zeus?

I admit, Canada is starting to sound good. Or perhaps England.
See, the thing about Poncy is that everyone knows he's a wimp.
Whereas Zeus is a big manly man that throws lightning bolts and everyone knows that Allah is all-mighty.

Seriously though...
While you all are scared of the religious right, this bill came into being because the religious right (and I'm speaking as a "member" of it here) is scared s*-less of you. From our perspective, everytime we turn around there's another liberal dragging a matter into the courts and we're being told we can no longer pray in public (florida), private christian schools accepting federal money must abide by certain federal laws, some of which are against their beliefs, and the banning of religious symbols in public places as being "offensive."

While this law is scary in it's implications, please remember that it's writers were not thinking of this as an "attack" law, but as a "defense" law. Most members of the religious right are honestly scared to death that one day they will wake up to a US where merely holding certain beliefs is illegal.
This is an interesting perspective, I think.

I'm not in the slightest bit religious; I'm uncomfortable with most revealed religions, in fact, if we want to get down to it, so you know where I'm coming from.

I can agree with a bit of both of these -- I think that certainly the Supreme Court should not be barred from considering such cases, as I find separation of church and state to be one of the prime tenants of the constitution. On the other hand, I believe we've also gotten so very defensive of it that it's gone in the other direction.

My reading of the constitution has always been that while you cannot enforce it, you cannot bar it either. The Ten Commandments in a government building doesn't bother me. Nor does a Christmas tree. I gloss over this, and choose to believe my own way. Enforced prayer at school would bother me. Someone choosing to does not. Requiring me to swear on a Bible might bug me. I'll sign an affidavit, thank you.

I don't know why people aren't able to find a balance and realize that just because you mention god doesn't mean someone else has to be offended. Of course, I also think that we are going so far to keep people from being offended that we're cutting into free speech and starting censorship. You don't have the right to not be offended :P

I think my biggest problem is that many people don't seem to be able to realize that this can coexist. People are stupid.
I agree with you here, that happens to be my perspective.

I'm afraid that one day, we'll become like France which just passed a law forbiding Muslim girls from wearing their head scarfs in school...something that is very important to their religion.

We're going that way too, take for example the recent court case that said catholic charities /had/ to offer birth control in their medical plan to their employees, something that everyone knows the catholic church disagrees with.

I think sometimes people look at the first amendment and read "The government shall make no law respecting the establishment of a religion." and skip over the part that reads "or preventing the free exercise thereof."
Yeah, I'm inclined to agree with this, too. Like I've said, I don't tend to post religion much in my journal or talk about it much, but I tend to have a fairly strong faith. And I do definitely understand the desire to defend the right to practice your faith.

When I was in high school, there was a big flap at one point when some of the school district administration wanted to have female Muslim students not allowed to wear their scarves; everyone in our class came together to protest that one. Because it was wrong to deny them that, just as it would have been wrong to tell another classmate she couldn't wear her small crucifix necklace.

My approach to religion has always been that it should not be forced down your throat, but it should not be restricted as long as it does not hurt someone else. (I.e., if your religion says you are supposed to kidnap and ritually sacrifice a toddler from one of your neighboring families, I have absolutely no problems with restricting /that/.) If, however, you worship Poncy the Divine Dancing Purple Hippo and Poncy's dogma says you must always wear one purple sock to school, that belief should be just as protected as Muslim head scarves, to be true to the spirit this nation was founded on. (Even if everyone's likely to think you're silly when you preach Poncy's gospel to them.)

Now, of course, if you try to convert me to your religion -- be it the Church of Latter Day Saints, the Born Again Pagan Society, or the Cult of Poncy -- I reserve the right to debate it with you and tell you why I think your belief system is not right for me. But neither will I stop you from practicing it.

I have no problem with someone wanting to pray in school; I have a problem with a teacher /making/ everyone pray in school. The first allows someone to exercise their own religion, the second forces everyone else to follow someone else's religion. I have no problems with someone not wanting to learn evolution (though, honestly, I think it's worth learning even if you don't believe in it, because it's always easier to debate something when you understand the other side's position) and so not taking a particular biology course. I have a great problem with someone wanting evolution removed from a school curriculum on the grounds that it's against their religion.

I think both sides lash out, wrongly. But the side forcing religion onto the populace scares me more, and I'll tell you why; it's very, very easy to say 'because God decrees it.'

A zealot can simply hold their faith up as a shield for any action -- the Islamic extremists we're supposedly taking all these actions to fight against /do/ -- and we've seen the same thing done in smaller ways by our current administration. And the idea that we can say 'if I invoke God as my authority, I am unimpeachable on this subject' scares me more and more the more I think about it. And it's scarier because it's one specific belief system; it's not 'if I invoke Allah' or 'if I invoke the goddess Isis' or 'if I invoke Poncy the Dancing Hippo.'

Anyway, there's my take on it.
One aspect of the issue of "voluntary" public praying that tends to be overlooked: sometimes something called voluntary doesn't really feel that way: saying the Pledge in school, praying before a meal, and so on. See, if you're in a disciplined, regimented culture, like school or the military, something called "voluntary" rarely seems to be so. If the teacher starts reciting a pledge or praying, the class feels obligated to do so as well. The same in the military: if your CO bows his head and starts to pray, you bow your head too. You're trained to follow lead. Calling something voluntary doesn't make it so.

And on the public displays, ala the Alabama courthouse: don't you think the "Religious Right" would've been the ones that took it to court if it'd been the Koran? I'm not sure where the line gets drawn, but if you want to draw it, it needs to be drawn by both sides, or the other side won't respect the boundaries.
if your CO bows his head and starts to pray, you bow your head too
Yes, but that's respect for other's religion. No one is forcing you to actually say anything, or even think anything specific. No one should be punished for remaining silent.

If such a law does pass, I expect someone to start campaigning for a law preventing the sale of seafood and pork for human consumption. After all, Leviticus reads (paraphrased) "Any animal which does not have split hooves and chews cud is not to be eaten" and "Anything that swims in the sea which does not have fins and scales is not to be eaten".
I doubt they'll be successful, but I expect them to try and gain media attention...
Yes, but that's respect for other's religion.

This implies that, if my CO gets down on his knees towards Mecca and begins to pray, I should get down on my knees too. Would you agree to that? There shouldn't be an stigme, punishment, or censure to come from this soldier holding his head straight up and staring silently as his squad members pray... but there is. Respecting someone else's religion doesn't mean you have to follow their rituals.
What scares me more is the recent trend to shoot down anyone who dare mentions the word "God." If this track continues mentioning God anywhere, anytime will be outlawed. Not only would that be a devastation to myself, but...I happen to believe that acknowledging God is the only way to salvation, and I fear for the souls of those people who will never have the chance that everyone in this discussion has had...to hear, atleast once, the truth and make a decision on how they will live their life.

I know this attitude will offend many of the friends on here, so to make you all more comfortable, please also remember it's my right to worship in public, it is these rights that are being stripped away, and it is in reaction to this that the law was proposed.
I've always been uncomfortable with the 'separation of church and state' theory, mostly because I keep missing that part of the constitution. There is a segment that prohibits the establishment of a state religion, but there's a significant difference from establishing a religion and having to deny all religions.

That aside, let's take your example. Someone proposes a law that says that all stores must be closed on Sundays because God said so. Why on Earth should this be challenged on religious grounds? The central issue should be if the city (or county) has the ability to cause the businesses that they license to be closed on a particular day. Which has already been established over and over again as 'sure they can.'

Usually the court issue is if it would apply to already licensed businesses or only new businesses.

Yet time and time again, someone will take this to court to challenge it on the basis of separation of church and state. And rather than the court simply finding (using their theory of separatation) that 'because God said so' is invalid and struck down, they overturn the entire law. There are cases presently across the country of people suing their cities and counties over being closed on Christmas Day; since it is a religious holiday, it is therefore violating the separation theory. The 9th circuit found that the pledge was against the law, since it included 'under God'.

Another view of this is that the government is voicing it's refusal to wave it's natural immunity as a soverign entity for these particular types of cases.

All in all, I think it's utterly stupid that such a law has to be even considered, much less proposed. It is in reaction to activist courts who have become precident for future cases and I view it as a natural balancing of power. As for overturning such a law instantly - well, does that law establish a religion? No? Oh well.

It could always be overturned by a future congress/president.
Beautifully put.
Thank you, this is a good way of putting it.

I think it will be a tragedy if we ban religion entirely; I value the ability to display my faith when I choose -- and while I don't often choose, when I do, I want that right -- and for others to do so, and I value the right to discuss what faiths other people follow with them. Respecting another's religion is good; if I am saying grace over my food audibly (or visibly bowing my head), I prefer people wait until I finish before they start eating, even if they don't have to join in. (I tend to say grace silently to myself rather than making others wait, however, since I'm a bit of a pragmatist.)

But I think equally it will be a tragedy if we legislate on the basis of religion -- of any one, single religion -- for various things.

Both sides lose sight of the fact that "separation of church and state" meant that the state could not restrict your right to worship as you saw fit. That the state could not /control/ the churches, as the Anglican church was. Yes, it also meant that the churches should not control the state, but that was only part of it. Saying 'everyone should pray in school' violates the separation of church and state (as the liberals would point out), but so does trying to quash displays of faith. Neither side has entirely the right course.

That said, this law still scares me. Not solely because of what it does, or even what the intent is... but because of the precedent. There's no way that anyone would pass a law saying that public figures are indemnified and outside court jurisdiction if they invoked 'Allah willed it so,' and so while I consider myself a Christian (Quakerism is a form of Christianity where the main belief is in a personal relationship with God rather than going through a priesthood), I consider this law a violation of the separation of church and state, not because it protects someone's right to their faith, but because it protects only one specific faith.

If that makes any sense, I guess?
I'm not sure if you got that part of my point, so let me state it again. Someone is not indemnified by saying 'Allah willed it so,' it is just not a cause that could be persued in court.

You have to challenge what it was that they did. Such as, oh, to take a case here in our city. The city council opens their meetings with an invocation. One person in the city deems this to be a 'state sponsored religion' and is trying to get a court order prohibiting a prayer before the meeting. (Mind, it's so non-denominational that I'm not sure it even counts as being a prayer anymore.)

With this proposed law in place, the challenger would have to basically prove that the city council can not invite someone to make a statement at the start of the meeting. That the substance would be a prayer would be imaterial; does the city council have the right to have someone speak before the meeting begins.

When Christmas rolls around again this year, the annual lawsuit of the living nativity begins yet again. A town tradition dating back to the founding of the city, every year it is a court battle that runs about 20,000 for the city (paid for by the living nativity group.) The issue would then be 'Can the city permit a live dramatic moment' on city property -- it takes the religious context out of it.

Now, if we're talking about a law that says that only prayers to Allah would be permitted, you're dealing with an establishment issue; Congress could write laws until they were blue in the face, but until they actually modified the constitution (with the many states agreeing) they couldn't prevent the court from reviewing such a case.

I'll also note that this type of checks and balance occurs all the time; congress can determine at any time what type of court cases can be heard or filed -- such as the recent bill in the House that would indemnify restaruants from consumers sueing them because they got fat from the food.
Perhaps I misunderstood.

What I've seen in all the press is that this law is presented as saying, basically, not 'you cannot take someone to court for following their religion' (which is fine) but 'you cannot take someone to court for any cause where they invoked the name of God.' Now, even the first has some issues, but less of them.

Regardless, I think the part that unsettles me is still not coming across in my posts, so let me try again.

I am fine with defending the right of people to pratice their faiths; this is a good thing, PROVIDED that the right of /all/ people to follow their faiths is defended. I.e., even if ALL this law does is say 'you cannot prosecute someone solely on the grounds of them following their faith,' it needs to say it in a generic way. The law reads as focused only on Christianity, in its phrasing; I may be a Christian myself, but if there's a law defending the rights of citizens, I want to see those defenses and rights extended to /all/ our citizens. Christian, Muslim, Jewish, /any/.

Singling out any one group as defended while others aren't is something which always unnerves me.
I think we're both aware enough to know that the press does not report the parts of the story that are boring, and more specifically, they'll usually cover their rumps by having someone else say what they want to report. For example, mischaracterizing it as saying any law that invokes 'God' would make that law, and the person proposing it, immune from lawsuits.

Sec 1260[...]by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government.'

Christian, Muslim, Jewish faiths wouldn't find anything wrong with that.. Most scholars of those faiths would readily admit that they're all talking about the same God.

The people who will have the biggest problems with this law are the ones who want every law and lawmaker to acknowledge that there are (many/no) gods. Who not only want the freedom of religion, but they want the freedom from 'mainstream' religions.

And it's really funny that I'm defending this, because I'm the guy in the crowd who is usually rolling his eyes when someone starts going on about how Jesus gave so-and-so the energy to continue, or when God is given credit for a lottery winning. Like a devine hand reached down and moved those bouncing balls in the right combination so that someone in particular won.

I may have no/little faith, but I'll defend someone's right of freedom of speech to express their faith up to the point of establishment. A law that contains a reference to God doesn't offend me; a law that says that only those who follow God can benefit - there I'll be reached for the picket sign. And until a constitutional amendment is put in that specifically strips away a lawmaker's right to freedom of speech, I'll also defend their right to free expression of their religion.

'course, I'll also be watching and voting as well.