RE: Justice Thomas in Newdow
So its ok for the New Deal-Warren Court to re-write the Constitution to its pleasure, but somehow lunatic fringe for Justice Thomas even to ask the question what the Constitution as written and ratified actually meant? Seems to me that the oath of office for him (and indeed every other officer in government) is to the Constitution, not what the Court said about it in dicta in 1947, particularly when the dictum was verifiably wrong. Verifiable--else how can you explain the efforts to pass the Blaine Amendment, an effort that would not have been necessary had the 14th Amendment already accomplished what you think is so obvious that no discussion about it ever grace the pages of the U.S. Reports. And I dont' see how state support of religion is any more an infringement on the liberty protected by the 14th Amendment than state indoctrination in public schools, or via the slanderous anti-tobacco ad campaigns that have run throughout the nation, etc. No one is compelled to adhere to a particular faith--that's the line between free exercise and establishment as originally understood. The non-interference aspect of the First Amendment is a close call, but I think the stronger original understanding, and there is certainly nothing in the 14th Amendment's drafting or ratification history even to suggest, much less to dispositively determine, that the 14th Amendment was designed to confer on the Federal Courts the very power prohibited to Congress by the Establishment Clause itself. The 14th Amendment wrought a monumental change in federal-state relations, to be sure, but that was not among them--at least, not on any evidence I have seen. John Eastman Chapman Law School From: [EMAIL PROTECTED] on behalf of Steven Jamar Sent: Thu 6/17/2004 1:48 PM To: Law Religion issues for Law Academics Subject: Re: Justice Thomas in Newdow bedrock. Still, is there a reason why we should not concede that he is -- or, at least, MAY be -- correct? Best, Rick Garnett The Civil War Amendments rewrote the Constitution. People are entitled to protection against establishment period. Limiting the states is what happened with our second Constitution. Broadening the federal power happened then and again with our third Constitution (New Deal-Warren Court). While an academic may be excused for pondering parallel universes in writing, a Supreme Court Justice who does so in writing (as opposed to raising a point for discussion with law clerks and other judges) is perhaps not at the lunatic fringe, but is at at the very least near it. What we may toss around as ideas on our listserve or in our classes or in person or even in serious scholarship is different from published opinions of the court. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar Lay not up for yourselves treasures upon earth, where moth and rust doth corrupt, and where thieves break through and steal; but lay up for yourselves treasures in heaven, where neither moth nor rust doth corrupt, and where thieves do not break through nor steal. For where your treasure is, there will your heart be also. Matthew 6:19-21 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw winmail.dat___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
New religious speech at school controversy
A student at the public high school in Poway, California has sued the school district, challenging his suspension for wearing a T-Shirt on national gay rights day (or the Day of Silence, I think it was called) that stated his religious objection to homosexuality. See http://www.signonsandiego.com/news/northcounty/20040603--1mi3suit.ht ml Any thoughts on this suit? On the School's action suspending the student? John Eastman ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Religion Clauses question
Paul, With all due respect, your are stating a conclusion without providing any evidentiary support. What scientific studies do you believe support your conclusion to such a degree of certainty as to warrant your comparison of the opposing view to flat-earthers? John Eastman Dr. John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence One University Dr. Orange, CA 92866 (714) 628-2587 -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman Sent: Friday, June 04, 2004 1:03 PM To: Amar D. Sarwal Cc: Law Religion issues for Law Academics Subject: Re: Religion Clauses question but that is like believing the earth is flat, and even in good faith, that would not be a pssing answer on a science test! Amar D. Sarwal wrote: Following your reasoning below, if one believes (in good faith) that homosexual orientation/proclivity to homosexual conduct is not immutable, then that person would not be akin to segregationists, et al. Right? - Original Message - From: Paul Finkelman [EMAIL PROTECTED] To: Amar D. Sarwal [EMAIL PROTECTED] Cc: Law Religion issues for Law Academics [EMAIL PROTECTED] Sent: Friday, June 04, 2004 3:41 PM Subject: Re: Religion Clauses question I do not know enough about transgendered relationships to comment; as for incest -- my first thought is that unlike gay people, it would be hard to argue that adults can only marry close family members. Part of my arguemnt is that Mr. Summerlin makes a strong case that marriage is good for people -- he wants to narow this to straight people but with not much evidence that gay people cannot also benefit. My point is that on equal protection grounds if marriage is good for all people then all people should be allowed to participate in the way they can; gay people cannot be expected to marry straight people so they should be able to marry other gay people. But, this argument would not work for and incest marriage. We have no reason to believe that a straight adult male can *only* marry his sister; he might want to marry her, but that would be a different issue. Similarly, this arguent would cut against polygamy; there is no evidence that the benefit of marriage is possible *only* if a straight man has three wives; or a straight women had three husbands. There may be 1st amndment arguments for allowing polygamy, but that is a different argument. Amar D. Sarwal wrote: Does your analysis (in your POV) apply with equal force to the transgendered and adult incest situations? If not, why not? - Original Message - From: Paul Finkelman [EMAIL PROTECTED] To: [EMAIL PROTECTED] Cc: 'Law Religion issues for Law Academics' [EMAIL PROTECTED] Sent: Friday, June 04, 2004 3:07 PM Subject: Re: Religion Clauses question We are actually not entirely talking by each other; you just are uninterested in the possibility that allowing same sex marriage might improve the lives of gay people; you make a very good point that marriage improves life; You are just unwilling to give that opportunity to all Americans. Instead, you fall back on the argument that there is no proof same sex marriage is good for people so therefore we should never allow it. In the context of this list I would suggest you ponder the concept of doing unto others and ask yourself the simple question: if some gay people might benefit from the right marry, should we not give them that right? If most do not benefit from it, what harm will have been done? Gene Summerlin wrote: Paul, I think we are talking past each other here, so I will leave it at this: the statistics don't show that marriage improves the quality of life, but that heterosexual marriage improves the quality of life. The limited statistics that we do have concerning same-sex marriage indicates that it will not provide these same benefits. The proponents of such a major change in social policy should, in my opinion, provide more justification than let's try this experiment and see what happens. Gene Summerlin Ogborn Summerlin Ogborn P.C. 210 Windsor Place 330 So. 10th St. Lincoln, NE 68508 (402) 434-8040 (402) 434-8044 (FAX) (402) 730-5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: Paul Finkelman [mailto:[EMAIL PROTECTED] Sent: Friday, June 04, 2004 1:37 PM To: [EMAIL PROTECTED] Cc: 'Law Religion issues for Law Academics' Subject: Re: Religion Clauses question this only shows that the exeperiment is not working as well as opposite sex marriage (but you don't offer number on those marriage in Holland); neverhteless if the statistics show that marraige improves life then all people should be allowed to be married. If the succdess rate of gay marriage is half that of straight marriage, that woulc certainly be a benefit to those who are in it; and in any event you offer no statistics
RE: Religion Clauses question
Hmm. Since when does the ad hominem pass for science, Paul? You made a specific contention earlier--that the science on this was so clear as to not warrant discussion. You added to that below with the comparison of those who would hold otherwise to flat-earthers. All I asked was for a single citation to back up your claims, a single study that actually demonstrates what you think to be irrefutable. I don't think it exists, but I would genuinely like to know of this science if you can point me to it. John -Original Message- From: Paul Finkelman [mailto:[EMAIL PROTECTED] Sent: Friday, June 04, 2004 1:20 PM To: Eastman, John Cc: Law Religion issues for Law Academics; Amar D. Sarwal Subject: Re: Religion Clauses question what evidence do you have that people in this homophobic and oppressive society choose to be gay, facing discrimination and inability to marry or in other ways live their life as other people do? Are you arguing that being gay is a choice, like voting Republican or choosing to go to college? I would urge you to talk to some gay people and read about their lives. Eastman, John wrote: Paul, With all due respect, your are stating a conclusion without providing any evidentiary support. What scientific studies do you believe support your conclusion to such a degree of certainty as to warrant your comparison of the opposing view to flat-earthers? John Eastman Dr. John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence One University Dr. Orange, CA 92866 (714) 628-2587 -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman Sent: Friday, June 04, 2004 1:03 PM To: Amar D. Sarwal Cc: Law Religion issues for Law Academics Subject: Re: Religion Clauses question but that is like believing the earth is flat, and even in good faith, that would not be a pssing answer on a science test! Amar D. Sarwal wrote: Following your reasoning below, if one believes (in good faith) that homosexual orientation/proclivity to homosexual conduct is not immutable, then that person would not be akin to segregationists, et al. Right? ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Michigan Muslim decision
A funny aside. Many years ago I represented a southern California beach city in an appeal challenging its anti-barking ordinance. The offended dog owner who brought the suit claimed that the ordinance was void for vagueness because it barred barking that was audible at the property line after 10pm. He wanted greater clarity by use of a decibel level. We beat back that challenge when we pointed out that the court's own rule against cell phones and pagers in the courtroom used the same word: audible. More interesting was the plaintiff's claim that the ordinance was overbroad. Apparently, he thought the ordinance was having a chilling effect on his dog's speech!! Fun case -- my very first appellate argument, in fact. I have had great fun with the story in the years since. John Dr. John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Alan Leigh Armstrong Sent: Friday, May 14, 2004 8:15 AM To: Law Religion issues for Law Academics Subject: Re: Michigan Muslim decision How about an ordnance that prohibited noise above 65 dba (or any other number) at the property line? Generally applicable and can be measured irrespective of content. I think Glendora CA had a similar ordnance. Alan Law Office of Alan Leigh Armstrong Serving the Family Small Business Since 1984 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 714-375-1147 Fax 714 375 1149 [EMAIL PROTECTED] [EMAIL PROTECTED] www.alanarmstrong.com KE6LLN On May 14, 2004, at 7:51 AM, Douglas Laycock wrote: The old ordinance apparently prohibited any excessive, unnecessary or unusually loud noise, or any noise which either annoys or disturbs. Easy to see why the imam thought he wasn't violating that, and why sensitive neighbors thought he was. This is hardly a neutral ordinance; it is reminiscent of the ordinance struck down in Coates v. Cincinnati, which made it illegal to conduct yourself in a manner annoying to persons passing by. Most of the annoyance being expressed seems to flow more from the content than from the noise. We don't know how loud this is, or how far it can be heard, or how early in the morning. Maybe it is such a problem that it would have been regulated independently of its content. But my hunch is that if that were so, the City Council would not have amended the ordinance to expressly permit it. The underlying legal issue is how strong an interest is required to justify suppressing speech or a religious practice. I assume that under Kovacs v. Cooper they could ban all loudspeakers. But they may not want to live with the consequences of that. It may shut down events they would like to permit. I don't think they can ban only those loudspeakers that someone finds annoying. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (voice) 512-471-6988 (fax) [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: NRO Article
Mr Darrell: No one has claimed that a Senate resolution has the force of law, certainly not me. But if your contention is that a sense of the Senate resolution, and language in a conference committee report, is never looked to (by courts or administrative agencies) when adopting regulations or interpreting the law, then your contention is patently false (except, perhaps, under Justice Scalias view of legislative history, which last I checked had not garnered the support of a majority of the Court). Yet you repeat once again that in Ohio (and you now add that also in Texas) the claim was made that the law required the teaching of intelligent design (although you now admit that it was not made by the Discovery Institute, which was your initial assertion). Whether anyone else made the claim should be easy to verify. All I asked was for a citation. If there is one, I should very much like to see it, so that I can assessso that we can all assesswhether the claims being made are accurate or not. Sincerely, John Eastman -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, March 15, 2004 8:33 PM To: [EMAIL PROTECTED] Subject: Re: NRO Article I have two responses: First, no sense of the Senate resolution has the force of law, according to the U.S. Senate Counsel. U.S. Senate: Legislation Records Home Legislative Process Legislation, Laws, and Acts (see Simple Resolutions) Any suggestion otherwise is false. This is well-established law, and I find efforts to fudge the lines reprehensible. This not a subject for opinion. Second, Sen. Santorum did not propose this as a sense of the Senate resolution. He proposed it as a full-blown amendment. Sen. Kennedy made it clear that the bill was dead if the language remained, and Sen. Santorum backed down, agreeing to a sense of the Senate resolution instead. As Sen. Kennedy's office has made clear, he does not endorse the idea, and had he agreed that the idea deserved to be law, he would not have demanded it be removed from the bill. If you want a good earful, call Kennedy's office and ask if they think problems with evolution should be taught. Santorum's protestations are interesting, but ineffective. The language is not law. The language of the Santorum amendment is ambiguous to someone who does not understand the code words used by creationists, and I doubt more than two or three senators realized how the resolution would be represented. In Ohio, the claim was that the law required intelligent design to be taught. That was repeated, though not by the Discovery Institute, in several pieces of testimony to the Texas SBOE this summer. The Department of Education is forbidden from participating in writing curricula by tradition and law -- as was the the Commissioner of Education before ED was established. Congress refrains as well. So the claims that a sense of the Senate resolution which gets a nice mention in a conference report are law are false, and continuing efforts to fudge the lines go against law, tradition and wisdom, in my view. There may be a court test of this stuff. I'm willing to wager who will win on the point. Ed Darrell Dallas In a message dated 3/15/2004 10:15:06 PM Central Standard Time, [EMAIL PROTECTED] writes: Ed Darrell has made some specific new claims of fraud below. (at least if done under federal research aegis). A couple I have been able to review are worth exploring further. 1. Among other false claims made against science by the campaign against Darwin in the past several years are these: That the No Child Left Behind law requires intelligent design to be taught (before the Ohio School Board) (the law has no such requirement); The Conference Report of the NCLB contains language, tracking a sense of the Senate resolution that had been adopted in the Senate 91-8 on June 3, 2001 (CR S6153) that urges: Where topics are taught that may generate controversy (such as biological evolution), the curriculum should help students to understand the full range of scientific views that exist, why such topics may generate controversy, and how scientific discoveries can profoundly affect society. If Professor Darrell has a specific citation to the Ohio School Board depicting whether someone argued that NCLB requires the teaching of intelligent design, I would like to see it. My understanding is that the argument was simply that NCLB permitted (even encouraged) the teaching of scientific views that called Darwins theory into question. 2. that a sense of the Senate resolution is as good as law (it has no force of law); I am not aware of any claim by The Discovery Institute that the Senate resolution (or the conference committee report language tracking it) attached to the NCLB has the force of law or that it was legally mandatory. Their point, which is available at http://www.discovery.org/articleFiles/PDFs/santorumLanguageShouldGuide.pdf, is that a
RE: NRO Article
The tyrannical orthodoxy of the Darwinian crowd is truly amazing. Herein the key charge by University of Texas professor Brian Leiter: The author of this incompetent book note [a review of Francis Beckwith's book on intelligent design]. . . is one Lawrence VanDyke, a student editor of the [Harvard Law] Review. Mr. VanDyke may yet have a fine career as a lawyer, but I trust he has no intention of entering law teaching: scholarly fraud is, I fear, an inauspicious beginning for an aspiring law teacher. And let none of the many law professors who are readers of this site be mistaken: Mr. VanDyke has perpetrated a scholarly fraud, one that may have political and pedagogical consequences (italics mine). Scholarly fraud? That is a pretty serious accusations and, from what I have learned of the science on the subject, clearly false. Has Leiter opened himself up to a libel claim? Have the devotees of Darwinism grown so concerned about the correctness of their own theories that they have to resort to the ad hominum in response to a challenge to the Darwinian citadel that takes seriously Darwins own methodology? John Eastman Chapman University School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Monday, March 15, 2004 12:30 PM To: [EMAIL PROTECTED] Subject: NRO Article I found an article at National Review Online that I thought you'd like to see: http://www.nationalreview.com/comment/baker200403150909.asp FYI. An interesting religionlaw article. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
