Title: Message
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Doesn't this suggest a possible weakness of
inquiring into whether a purpose is "primary"? Those who see government
action as manifestations of a supposed Protestant Empire, and thus naturally
suspect Protestant government officials of a desire to suppress non-Protestants,
may easily decide that the purpose to promote religion is the primary
one. Those who see the Court's jurisprudence as misguided or at least
highly questionable, and those who think that both Protestants and
non-Protestants have legitimate reason to question it, may naturally see that
the purpose to criticize the Court and bring about valuable (or at least
respectable) legal change is the primary one. Moreover, if one of the
city's purposes is indeed to criticize the Court's majority view, I suspect that
the majority Justices would be especially handicapped in objectively judging
their critics' motives.
I realize that sometimes we do judge legislative intent -- but
fairly disentangling what is "primary" and what is "secondary" seems
extraordinarily difficult even compared to the normal legislative intent
inquiries.
Eugene
I cannot believe that
that the religious purpose in the hypothetical is, in the real world, anything
other than primary.
-----Original
Message-----
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
Sent: Friday, July 08, 2005 12:30
PM
To:
[email protected]
Subject: Re: Government
displaysprotestingagainsttheSupremeCourt'sEstablishment
Cla...
In a
message dated 7/8/2005 12:18:52 P.M. Eastern Daylight Time,
[EMAIL PROTECTED] writes:
Would city councils be permitted to express their dissenting views this
way?
In Roe,
the Supreme Court concluded that states could not entirely prohibit abortion,
that they could, in fact, do almost nothing about abortion practices in the
early parts of the now disregarded trimester approach. But in subsequent
cases, the Court affirmed the ability of states and municipalities (the City
of St. Louis in one case) to prefer child birth over abortion. It seems
to me that the principle that the Court sustains in those cases is that the
people, acting through their elected representatives, may take a collective
view of things -- even when contrary to the machinations of that eminent
tribunal. So really the question is focused on whether there is a
violation of the Establishment Clause in such a
display.
But the
way Eugene presents the hypothetical, religious purpose is, in fact,
non-existent or tertiary at best. So, rather than the purpose problem,
the question would be effect. While she remains pending appointment of
her successor, would O'Connor's reasonable observer be informed of the long
(back beyond colonial days) tradition of dissent and disagreement that runs
through this nation's civil veins? If so, how could such a reasonable
observer draw any conclusion but that anger at the Court and justification for
that anger drove that display, and understanding of that anger and
understanding of the justification for that anger were the primary effects of
it?
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