FW: descriptive scholarly accounts of religious identityandjudicial behav...

Robert Sheridan rs at robertsheridan.com
Sat Apr 24 13:04:24 PDT 2010


Here's what I don't get:   How can the religious right talk in terms of 
"their" religion when it seems to be divided into so many different 
competing sects, each existing because of some important disagreement 
with the other?

The history of religion suggests that there cannot be, for any great 
length of time, a religious doctrine impervious to splitting off.  Great 
empires have been unable to control religion.

How does the religious right (RR) propose to deal with life if and when 
they get their way?

What do they say to those who oppose what they urge?

Will it make for a more harmonious society, or less?

For some reason we don't seem to hear about this, although I may have 
missed the discussion.  We hear, "My ox is gored, you're disrespecting 
me," when the RR is told it cannot have its way in the display of 
favored symbols in public places, but not what their overall program is.

Why not forthrightly lay out the program so we can see the full 
dimension and its implications.  It might do both sides a lot of good to 
see what we're talking about.

rs

On 4/24/2010 12:40 PM, Finkelman, Paul <paul.finkelman at albanylaw.edu> 
wrote:
>
> The establishment clause does not say "Congress shall make no law 
> /actively/ respecting an establishment of Religion."  Or did I miss 
> read something somewhere?
> There is nothing "passive" about using my tax dollars to support your 
> religious beliefs.  This was Madison's basic point in his remonstrance 
> to the state of Virginia and it still holds true.  If is on public 
> land it is tax money. What about that is so hard to see?
> Here is what I don't get. Why are you so determined to use the 
> government to proclaim your faith in God?  If you were serious about 
> you political views /and/ your religious views, you would be demanding 
> that the government stop exploiting your faith for political 
> purposes.  Alternatively, you really want to use the government 
> promulgate your faith.  That is what the esablishement clause 
> prohibits, whether it is active or passive.
> *************************************************
> Paul Finkelman, Ph.D.
> President William McKinley Distinguished Professor of Law
> Albany Law School
> 80 New Scotland Avenue
> Albany, NY 12208
> 518-445-3386 (p)
> 518-445-3363 (f)
> paul.finkelman at albanylaw.edu <mailto:paul.finkelman at albanylaw.edu>
> www.paulfinkelman.com <http://www.paulfinkelman.com/>
> *************************************************
>
> ------------------------------------------------------------------------
> *From:* conlawprof-bounces at lists.ucla.edu 
> [conlawprof-bounces at lists.ucla.edu] On Behalf Of Rick Duncan 
> [nebraskalawprof at yahoo.com]
> *Sent:* Saturday, April 24, 2010 2:00 PM
> *To:* conlawprof at lists.ucla.edu
> *Subject:* RE: FW: descriptive scholarly accounts of religious 
> identityandjudicial behav...
>
> Paul says:"The problem with Rick's argument is that in "running to 
> defend" religious arguments he runs smack into the First Amendment 
> which says that the monument should never have been up there in the 
> first place."
>
> But of course the Establishment Clause says no such thing about 
> passive religious displays being forbidden merely to protect those who 
> choose to heckle religious displays rather than avert their eyes. The 
> wrongdoer is the judicially-created endorsement test, not the 
> Establishment Clause.
>
> Just as the willing audience for a gay pride display in a public 
> school suffer a free
> speech injury when govt tears it down to appease hecklers, the willing 
> audience
> for a war memorial or holiday display suffers a free speech injury 
> when religious
> displays are torn down to appease hecklers. In both case, those who 
> dislike
> the displays could have merely averted their eyes rather than deprive 
> the willing
> audience of their right to view the displays.
>
> The problem with the endorsement test is it takes liberty from one 
> group to appease
> another group's mere interest in not being offended. The heckler's 
> suffer no serious harm to any liberty interest (only the slight burden 
> of averting their eyes), but those who are deprived of a neutral 
> public square, when religious displays are cleansed from a
> public square open to all other displays, suffer a serious burden on 
> their equal right
> to be a willing audience for govt displays they would like to see.
>
> Cheers, Rick
>
> "And against the constitution I have never raised a storm,It's the 
> scoundrels who've corrupted it that I want to reform" --Dick Gaughan 
> (from the song, Thomas Muir of Huntershill)
>
> --- On *Sat, 4/24/10, Finkelman, Paul <paul.finkelman at albanylaw.edu> 
> /<Paul.Finkelman at albanylaw.edu>/* wrote:
>
>
>     From: Finkelman, Paul <paul.finkelman at albanylaw.edu>
>     <Paul.Finkelman at albanylaw.edu>
>     Subject: RE: FW: descriptive scholarly accounts of religious
>     identityandjudicial behav...
>     To: "Rick Duncan" <nebraskalawprof at yahoo.com>,
>     "Hamilton02 at aol.com" <Hamilton02 at aol.com>,
>     "conlawprof at lists.ucla.edu" <conlawprof at lists.ucla.edu>
>     Date: Saturday, April 24, 2010, 10:42 AM
>
>     The problem with Rick's argument is that in "running to defend"
>     religious arguments he runs smack into the First Amendment which
>     says that the monument should never have been up there in the
>     first place.
>     *************************************************
>     Paul Finkelman, Ph.D.
>     President William McKinley Distinguished Professor of Law
>     Albany Law School
>     80 New Scotland Avenue
>     Albany, NY 12208
>     518-445-3386 (p)
>     518-445-3363 (f)
>     paul.finkelman at albanylaw.edu
>     www.paulfinkelman.com <http://www.paulfinkelman.com/>
>     *************************************************
>
>     ------------------------------------------------------------------------
>     *From:* Rick Duncan [nebraskalawprof at yahoo.com]
>     *Sent:* Saturday, April 24, 2010 11:59 AM
>     *To:* Hamilton02 at aol.com; conlawprof at lists.ucla.edu; Finkelman,
>     Paul <paul.finkelman at albanylaw.edu>
>     *Subject:* RE: FW: descriptive scholarly accounts of religious
>     identityandjudicial behav...
>
>     Paul Finkelman writes:
>
>     To Rick's comment below, we might respond:  "No one's liberty is
>     harmed by remoing a religous display from public property.  If you
>     want the monument then put it up on your property; you have
>     liberty to do that.  In fact, Rick, my liberty is harmed when you
>     take my tax dollars and the political power of my country, and use
>     it to support /anyone's/ religion, whether it is yours or mine. 
>     BUt, if you put the monument on your land than it affects no one's
>     liberty.  I am simply don't comprehend the argument that /your/
>     religious liberty depends on using public land and public money to
>     promote your faith.  This is precisely what the First Amendment is
>     designed to prevent.
>     More to the point, why would anyone who takes religion seriously
>     /want/ to have the government putting up religious monuments?  Do
>     you want your religous values subject to who wins an election?
>
>
>     Suppose a group of dissenters attacked a "gay pride" display put
>     up by school authorities in a public school. Under pressure from
>     the dissenters, the school board ordered that the display be taken
>     down.
>
>     Would Paul view this decision-under-fire as a good one, protecting
>     the right of the dissenters not to be offended by controversial
>     govt displays? Or as amounting to a heckler's veto denying those
>     who wish to see the display their right to be a willing audience
>     for the governmental display?
>
>     As to Paul's second question, I don't particularly want govt to
>     put up any
>     displays, religious or secular. I prefer a quiet government.
>
>     But when someone attempts to cleanse one of many govt displays
>     from the public square precisely because it has religious
>     significance,
>     I will rush to defend it because if we care about neutrality in
>     the public square
>     religious displays are no less appropriate than secular displays.
>     If we are going to decorate
>     the public square, we should do so with a thousand points of light
>     (both secular and religious) not with 500 points of secular light.
>     That is not neutral. It sends the message that religious holidays
>     and symbols are not part of our public culture, which of course is
>     simply neither neutral nor true.
>
>     Rick Duncan
>     cleansed from the public square
>     Rick Duncan
>     Welpton Professor of Law
>     University of Nebraska College of Law
>     Lincoln, NE 68583-0902
>
>
>     "And against the constitution I have never raised a storm,It's the
>     scoundrels who've corrupted it that I want to reform" --Dick
>     Gaughan (from the song, Thomas Muir of Huntershill)
>
>
>
>
>
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