The amendment would require Oklahoma courts to "rely on federal and state law when deciding cases" and "forbids courts from considering or using" either international law or Islamic religious law, known as Sharia, which the amendment defined as being based on the Quran and the teachings of the Prophet Mohammed.
In bringing suit, CAIR argued that the amendment violates both the establishment and free-exercise clauses of the First Amendment's guarantee of religious freedom. Awad has said the amendment passed "under a campaign of fearmongering" about Islam.
.... The key exchange begins just after the 17-minute mark. Here's my transcription:Perhaps she emphasized "First" because the discussion had been about what local school boards could do, and restrictions on them would need to come out of the 14th Amendment.* Now, Coons does properly restrict his assertion to the federal government at that point, but:Coons: The First Amendment establishes the separation, the fact that the federal government shall not establish any religion, and decisional law by the Supreme Court over many, many decades—... In expressing her disbelief, she clearly emphasizes the word first. She seems incredulous not just at Coons' position against government-established religion, but that he bases it on the First Amendment. It's the citation that surprises her.
O'Donnell: The First Amendment does?
A minute later, O'Donnell brings the discussion back to this question:"Government shall make no establishment of religion" is a blatant misstatement of the Establishment Clause of the First Amendment. ("Congress shall make no law respecting an establishment of religion...") Now, I'm not trying to skewer Coons for saying that. Coons is doing well enough for speaking purposes. This isn't scholarly writing. But he's open to questioning, and O'Donnell might have pursued the point. Maybe she grinned because she knew he'd said something wrong.O'Donnell: Let me just clarify: You're telling me that the separation of church and state is found in the First Amendment?Again, you need the audio, and in this case full-screen video, to get her meaning. As she says, "That's in the First Amendment," she stares at Coons with a look of contemptuous amusement. (You can see her expression more clearly in this video, about 7 minutes in.) Then she grins knowingly at somebody in the audience. She thinks Coons has just embarrassed himself.
Coons: Government shall make no establishment of religion.
O'Donnell: That's in the First Amendment.
"Where in the Constitution is separation of church and state?" O'Donnell asked while Democrat Chris Coons, an attorney, sat a few feet away.Plainly, the Constitution does not say "separation of church and state," so there's nothing stupid there. It's provocative, because many people like that gloss on the text.
Coons responded that O'Donnell's question "reveals her fundamental misunderstanding of what our Constitution is. ... The First Amendment establishes a separation."He's talking about interpretations of the text, and she was talking about the text. What we're hearing is 2 individuals talking past each other.
She interrupted to say, "The First Amendment does? ... So you're telling me that the separation of church and state, the phrase 'separation of church and state,' is in the First Amendment?"She's telling him to pay attention to her limited point about the text.
He noted again the First Amendment's ban on establishment of religion.Ah, here's where I hate reporters. Give me the quote. I don't think Coons quite gets it. Ah. Here. He says: "Government shall make no establishment of religion."
“I think the president's problem is that he was born a Muslim. His father was a Muslim. The seed of Islam is passed through the father like the seed of Judaism is passed through the mother. He was born a Muslim. His father gave him an Islamic name. Now it's obvious that the president has renounced the Prophet Muhammad and he has renounced Islam and he has accepted Jesus Christ. That's what he says he has done. I cannot say that he hasn't. So I just have to believe that the president is what he has said.”When religionists talk about semen...
Personally, I’m stuck on the word seed. Graham meant it in the Biblical (or Koranical) sense, but when I hear about a “seed passing through” in the context of an American president, I can’t help but see Monica Lewinsky and her “semen-stained blue dress.”Is the author of this piece — Leslie Savan —paying enough attention the the way she is expressing contempt for Muslim beliefs? I didn't know you could do that in The Nation. I mean, I agree that religion originates within the mind of a human being (and not in some guy's testicles!). I agree with James Madison:
Regardless of what the Muslim world may or may not believe, this whole seed fixation is profoundly un-American. It says that genealogy is destiny, that a man is Muslim regardless of what he espouses or believes. It’s all about descent—and nauseatingly close to the “one drop rule” of the post-Reconstruction South. That rule held that if a person had any African or Indian ancestry whatsoever, he or she was classified as “colored” and subject to anti-miscegenation laws, voter disenfranchisement, and segregation at large. At least eighteen states adopted some form of the rule; Virginia’s 1924 law, for instance, was called the Racial Integrity Act.
... "... religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction..." The Religion then of every man must be left to the conviction and conscience of every man...This is one of several arguments for freedom of religion and the separation of church and state that were influential in the development of rights in America. It isn't the way everyone in the world thinks about religion, but it is presented by Madison as "a fundamental and undeniable truth." Of course, under that truth, you are free to believe that religion arrived via semen. And we're also free to laugh at such a ridiculous belief.
"I call upon the citizens of our nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God's continued guidance, grace, and protection as we meet the challenges before us."It's that special day when the President pushes you to pray... or otherwise give thanks... depending on how you feel about these things.
"It's erected as a war memorial. I assume it is erected in honor of all of the war dead... What would you have them erect?...Some conglomerate of a cross, a Star of David, and you know, a Muslim half moon and star?"
Peter Eliasberg, the American Civil Liberties Union lawyer arguing the case, explained that the cross is the predominant symbol of Christianity and commonly used at Christian grave sites, not that the devoutly Catholic Scalia needed to be told that.
"I have been in Jewish cemeteries," Eliasberg continued. "There is never a cross on a tombstone of a Jew."
There was mild laughter in the packed courtroom, but not from Scalia.
"I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion," Scalia said, clearly irritated by the exchange.
There's a theory that the symbol of the red cross was painted on the baseboards of corridors in the great palaces and castles of England during the middle ages and Renaissance to deter people from urinating in those places, a common problem in those times. It was supposed that a person would not want to micturate upon the symbols of Albion and of his saviour Christ. These effluence-protected spots thereby became associated with cleanness, which led to the later use of the cross to connote sanitation and hygiene. This association eventually led to the use of the red cross as a symbol for medical practitioners, once the connection between hygiene and disease prevention was made, that is.
For many Americans, the current version of the Pledge is the only version they have ever known. Some individuals not familiar with our political history may even be under the impression that its language dates back to the founding fathers.Orin Kerr sees the hand of a smartass clerk:
I think it’s notable when a federal court of appeals judge with a well-established political view picks up a meme from political blogs and pokes fun at a politician on the other side in a pretty gratuitous way. It also screams “law clerk idea.” If you don’t think that’s notable, then I suppose we’ll just have to disagree.A Kerr commenters defends Palin. DrGrishka says:
Reinhardt’s citation is misleading. The question to which Sarah Palin responded read:And Palin's task at hand was to be an effective political candidate, and that is not about parsing the question and saying the most technically correct thing. People who assume they are smarter than Palin need to perceive the contextual dimension of intelligence. Are you smart at doing the thing you are currently trying to do or smart in the abstract? Because life is not in the abstract, and the people who are smartest in the abstract are not the ones who win political power. Reinhardt/his law clerk was overconfident, perhaps, in his own intelligence and failed to pay attention to the context in which he was operating, a judicial opinion. Fortunately, the political process is pretty good at filtering out individuals afflicted with this form of stupidity. But if they have life tenure, as judges do, we are stuck with it. And yet, Reinhardt needed votes too, and here we see he is writing in dissent, having lost.11. Are you offended by the phrase “Under God” in the Pledge of Allegiance? Why or why not?The answer wasNot on your life. If it was good enough for the founding fathers, its good enough for me and I’ll fight in defense of our Pledge of AllegianceIt could be that she gave a stupid answer in which the “it” referred to the Pledge itself. That would be historically inaccurate. But the “it” could have just as easily referred to the phrase “under G-d.” If so, the answer would be completely plausible as founding fathers used such phrases all the time.
What a sad reflection on Reinhardt. When a judge gets to doing this, it’s past time to hang up the spurs.
On the topic of a 133-page dissent with its own table of contents, on a rather simple issue, I’m reminded of EZ Rider’s dictum: “simple arguments are winning arguments; convoluted arguments are sleeping pills on paper. . . . when judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief”
[I]magine if Judge Bybee or Justice Scalia said “we have 50 states– a fact unknown to some Americans in power” with a footnote saying “see, e.g., President Obama’s remarks he had visited ’57 states.’”What if the other side had done the equivalent? That question pops up so often these days.
I believe in an America where the separation of church and state is absolute; where no Catholic prelate would tell the President -- should he be Catholic -- how to act, and no Protestant minister would tell his parishioners for whom to vote; where no church or church school is granted any public funds or political preference, and where no man is denied public office merely because his religion differs from the President who might appoint him, or the people who might elect him.
I believe in an America that is officially neither Catholic, Protestant nor Jewish; where no public official either requests or accept instructions on public policy from the Pope, the National Council of Churches or any other ecclesiastical source; where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials, and where religious liberty is so indivisible that an act against one church is treated as an act against all....
I do not speak for my church on public matters; and the church does not speak for me. Whatever issue may come before me as President, if I should be elected, on birth control, divorce, censorship, gambling or any other subject, I will make my decision in accordance with these views -- in accordance with what my conscience tells me to be in the national interest, and without regard to outside religious pressure or dictates. And no power or threat of punishment could cause me to decide otherwise.So, according to JFK, the President is supposed to make decisions "in the national interest, and without regard to outside religious pressure or dictates," and if, because of religion, he can't do that, he should resign. Kennedy doesn't limit his resignation imperative to the presidency. Such a limit would make sense, as there is only one President, and the nation's reliance on his judgment and action is extreme and unique. Kennedy applies his imperative to "any ... public servant." If you take a public service job, that is, then what you owe the public is service according to the public interest "without regard to outside religious pressure or dictates."
But if the time should ever come -- and I do not concede any conflict to be remotely possible -- when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do likewise....
Pittman: Would you pass a health care bill that had a conscientious objector [sic] toward certain procedures including abortion.She's a lawyer, and she ought to know that Roe v. Wade — along with other abortion cases — does not require services. There is a world of difference between having a right to do something and having the power to make other people do things for you as you try to exercise that right. If you don't know the difference between those two things, you don't understand how rights work. Other people have rights too. Refusing to perform an abortion is not a violation of the constitutional right to privacy.
Coakley: I don't believe that would be included in the health care bill. I don't understand exactly what the question is. I would not pass a bill, as Scott Brown filed an amendment, to say that if people believe that they don't want to provide services that are required under the law and under Roe v. Wade that they can individually decide to not follow the law. The answer to that question is no.
Coakley: And let's be clear, because Scott Brown filed an amendment to a bill in Massachusetts that would say that hospital and emergency room personnel could deny emergency contraception to a woman who came in and had been raped.Coakley is choosing to press forward on the importance of abortion and contraception rights. It can be effective political argument to focus on rape victims. (Remember "Rape Gurney Joe"?) I imagine Coakley believed at this point that she was making a powerful argument that would win political support and make Scott Brown look like an unsympathetic lout and/or a right-wing extremist. But that was to be blind to the appeal of religious freedom.
Pittman: Right, if you are a Catholic, and believe what the Pope teaches that any form of birth control is a sin. You don't want to do that.In American constitutional law, we have a proscription of federal laws "respecting an establishment of religion, or prohibiting the free exercise thereof." It is difficult to coordinate the Establishment Clause and the Free Exercise Clause, and anyone who serves in the United States Senate will need to have some idea of the meaning of both clauses. Coakley invokes the "separation of church and state" as if it has obvious meaning and a simple reminder should end the debate. But the meaning of religious freedom in America has been the subject of endless debate, a Senator will be an important participant in that debate, and the issue right now is whether Coakley should be a Senator.
Coakley: No, but we have a separation of church and state here, Ken, let's be clear.
Pittman: In the emergency room you still have your religious freedom.
Coakley: Uh, well, uck, u, uk, the, the law says that people are allowed to have that. And so then you.. you can have religious freedom. You probably shouldn't work in an emergency room.
Pittman: Wow.Why the horrible stammering? The followup is utterly obvious. The answer should have been carefully prepared and couched in real sympathy for the workers who would be caught in the terrible dilemma between giving up their jobs and following their religion.
Two weeks after giving the measure preliminary approval, the Washington, DC, City Council on December 15 adopted a marriage equality law. The 11-2 vote in support of the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 was identical to the first-round tally on December 1.In a church???
Three days later, in a ceremony at All Souls Unitarian Church in the city’s Mount Pleasant section, Democratic Mayor Adrian Fenty signed the measure, with his parents, Phil and Jan Fenty, an interracial couple looking on....
Mayor Adrian M. Fenty['s...] staff scrambled to find the perfect location....What a shameful and embarrassing display! Here you are, purporting to extend rights to people, and flouting the fundamental principle of keeping government separate from religion. The perfect location? Yes, it was the perfect location to show your lack of respect for constitutional limitations on government.
Would it be All Souls Unitarian Church, a Northwest house of worship known for its diversity, liberalism and welcoming of same-sex couples? Would it be Covenant Baptist Church...?...
[The Rev. Robert Hardies, All Souls' senior pastor] said Fenty's decision to sign the bill in a church was telling. "This is symbolic of the strong religious support for this bill in D.C.," he said, noting that more than 100 clergy members had signed a declaration in support of same-sex marriage.
The measure was opposed by other religious leaders. The Catholic Archdiocese of Washington has strongly opposed the bill, saying that its charitable arm might have to cancel its contract with the city to deliver social services.
Had the states not decided to make license plates a forum for a sometimes comical array of messages, the “Choose Life” cases would easy. But many states have turned their motor vehicle departments into a kind of souvenir shop. They may also have given up the right to decide what gets sold in them.Mm... yes... it's called "free speech," and much of it is foolish and/or opinionated. Religion is one more category of expression. Deal with it.
“We think it is fair to say that throughout our nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity,” and properly so, Justice Samuel A. Alito Jr. wrote for the court....Here's the whole text of the case, which I'm eager to read, but I have a class in a few minutes, so what I have to add will have to come later. There are 4 concurring opinions, which is interesting: Stevens, Scalia, Souter, and Breyer.
The Summum group has contended that the Pleasant Grove City officials were no more entitled to discriminate among private monuments donated to a public park than they were entitled to forbid speeches and leaflets advocating viewpoints that they found unpalatable....
The core issue is not private speech in a public forum but, rather, the power of government to express itself, in this case by selecting which monuments to have in a public park, Justice Alito wrote.
“The Free Speech Clause restricts government regulation of private speech... It does not regulate government speech.”
I think it's pretty obvious that the city will win as the Justices (like Scalia) who support free speech for the government will have the support of the Justices (like Breyer) who look at real-world consequences and think practical thoughts.It's this aspect of the case that makes me want to comb through the various opinions. But first, it's time to go to class and talk about McCulloch v. Maryland one more time (something I will never get tired of doing).
But there still should be some hand-wringing over the one hypothetical that really did freak out everyone -- well, not Scalia, but almost everyone: What if the United States had decided to express itself by excluding the names of gay soldiers from the Vietnam memorial? Justice Stevens posed the hypothetical, and the Justices struggle with it....
So will the city win with a clearly stated rule, will the city win with a "legal judgment" based on the whole context, or will the city win based on a clearly stated rule that has an escape clause comprising Justice Stevens's Vietnam memorial hypothetical?
