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"So Help Me God" in Judicial Oath:

Reader Dominic Markwordt writes:

I happened to be doing some research for my law review comment and came across the oath all U.S. judges/justices are required to take.

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, _______ _______, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _______ under the Constitution and laws of the United States. So help me God." 28 U.S.C.A. § 453....

Is it constitutional? It would seem suspect under the Court's current establishment clause jurisprudence given that the oath required for the president in the Constitution does not include the phrase "So help me God." ...

Well, the judicial oath dates back to 1789, and the same First Congress that proposed the First Amendment. Simply including this religious reference would therefore not be an unconstitutional endorsement of religion, under the Marsh v. Chambers Give Me That Old-Time Religious Speech principle.

The Supreme Court has also read the Establishment Clause as prohibiting the coercion of religious behavior. This prohibition is much less controversial than is the prohibition of endorsement of religion. (Lee v. Weisman, which held high school graduation prayer to be unconstitutional coercion, was controversial, but because the dissenters didn't see the prayer as coercive -- they agreed, as I read the opinion, that genuine coercion of religious behavior was indeed unconstitutional.)

On the other hand, in this instance the prohibition of coercion is so uncontroversial that the statute will almost certainly be read as not requiring the "so help me God." Recall that Article VI of the Constitution says (emphasis added),

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The statute echoes this by allowing an "affirmation," as did the 1789 statute. But the whole point of an affirmation is that it does not involve calling on God; an affirmation would thus necessarily omit the "so help me God." (As I understand it, the affirmation option was placed in the Constitution because some Christian denominations -- such as Quakers -- oppose swearing to God.) And this is further confirmed by the No Religious Test Clause; requiring acknowledgment of God would itself be a religious test.

So never fear coercion here: No judge has to say "so help me God"; he is free to affirm and thus avoid mention of God or even of swearing (with its potentially religious connotation) altogether. But if you're worried about endorsement, Marsh says such endorsement is fine.

Ira Brad Matetsky:
Confirming Eugene's analysis, Torcaso v. Watkins, 367 U.S. 488 (1961) would prohibit requiring a declaration of religious belief as a condition to assuming public office.
2.2.2009 11:08am
Rock Chocklett:

But the whole point of an affirmation is that it does not involve calling on God; an affirmation would thus necessarily omit the "so help me God." (As I understand it, the affirmation option was placed in the Constitution because some Christian denominations -- such as Quakers -- oppose swearing to God.)


Although for some the point of an affirmation would be to avoid calling on God, I don't think that's necessarily true for everyone who would wish to affirm. Certainly, some would want to "affirm" and omit the reference to God because they do not worship the Judeo-Christian God. But for some Christians, the problem with oaths is not that they invoke God as a witness or ask for His aid in truth-telling or promise-keeping, but that they require the oath-taker to "swear," going beyond Jesus' command to let your yes be yes and your no, no. I'm an evangelical, and if I were being administered the oath, I might very well want to "affirm" while keeping "so help me God."

I don't think this changes the constitutional analysis, however, as I agree one could affirm and omit the reference to God.
2.2.2009 11:11am
DangerMouse:
Of course it's constitutional. If not, you have to ask what Church is being "established" here? What's the doctrine of that Church? Is the President the head of that Church the way the Queen is the head of the Church of England? Would you have to pay taxes to support that Church, and would you go to jail if you didn't go to Church on Sunday?

It'd be nice if the Supreme Court actually learned what the heck it means to "establish" a Church. Even if the oath said, "So help me Allah," or "So help me, mere matter with no higher power at all."
2.2.2009 11:17am
David M. Nieporent (www):
DangerMouse, did you bother to read Eugene's post?
2.2.2009 11:23am
Clayton E. Cramer (mail) (www):

It'd be nice if the Supreme Court actually learned what the heck it means to "establish" a Church.
But that would blow out so much of the ACLU's ahistorical definition that lots of existing precedents would require being revisited--and the same crowd that believes in a living, breathing, constantly mutating Constitution couldn't have that.
2.2.2009 11:24am
KevinM:
"Elegance" is not a word that comes to mind in connection with the Chief Justice's administration of the oath to President Obama. Nevertheless, I did notice one neat detail. As many have pointed out, "so help me God" does not appear in the version that's in the Constitution. C.J. Roberts administered the body of the oath in a declarative (somewhat sing-song) intonation. The last phrase, however, was was spoken as a question: "So help you God?" It could be considered a nod to the traditional, but technically optional, tag.
2.2.2009 11:35am
NowMDJD (mail):

Of course it's constitutional. If not, you have to ask what Church is being "established" here?

Please note the actual test of the First amendment regarding religion:


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

Please note that this says nothing about a Church. Establishing a Church a la the Anglican Church in England or the Catholic church in Ireland is one way to establish religion, but not the only way.

Reread Prof.Volokh's column more carefully.

Requesting that someone confess a belief in God to become a judge is unconstitutional. Ceremonial stuff such as a sectarian prayer by a Congressional chaplain or the President's minister at his inauguration does not violate the Establishment clause as interpreted by the Supreme Court.
2.2.2009 11:40am
non-native speaker:
I would read the statute as having "So help me God" in brackets, ready for customization.

"I, _______ _______, do solemnly affirm (or swear) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _______ under the Constitution and laws of the United States. (So help me God.)".
2.2.2009 12:03pm
Sk (mail):
That depends. Does the presiding judge believe that its constitutional? Any other question is a distraction.

Sk
2.2.2009 12:11pm
DangerMouse:
Please note the actual test of the First amendment regarding religion:

Fine. What doctrines are being "established" here? What's the penalty for disobediance? Do your taxes support the people who are supposed to enforce or teach this religion?

The same tests apply to "religion" as they do to "Church." There's no difference. The key word isn't necessarily "religion," which is broad, but "establish" which has a specific meaning. A meaning that the Court seems unable to understand. Perhaps they lost their dictionary. It seems to have been misplaced for quite a while.

Hey, here's an idea! Maybe the next time a religious case comes before the Supreme Court, they can invent a 3 part test! My copy of the constitution has 3 part tests everywhere! The framers loved 3 part tests, because they hated the number 4.
2.2.2009 12:11pm
Barbara Skolaut (mail):
but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States
Too bad the Senate Democrats can't remember that when quesitoning a right-leaning Supreme Court candidate....
2.2.2009 12:15pm
J. Aldridge:
The constitution would had been more clearer if "religious test" was replaced with "preference of one christian sect over another" which was the affect intended.
2.2.2009 12:34pm
Andrew Maier:
Dangermouse seems to be ignoring the fact that if one doesn't believe in any religion, being required to swear to even a vague or ambiguous God would establishing religion. Just because they aren't writing down specific doctrines or taxing people to support a religion (though ardent atheists might argue that having a reference to a God in a government function is using taxpayer money for said religious exercise...) doesn't mean that they aren't establishing religion. And in this case, Church and religion ARE highly different words. You can establish religion without establishing a Church (for example, by requiring a person to swear to a God). I know these ideas wouldn't make much sense if you maintain a world view that sees God as implicit in all things, but it's crucial for people who do not share that view to be able to express it (by not sharing it), just as it's important to be able to express religion.
2.2.2009 12:43pm
PubliusFL:
Rock: But for some Christians, the problem with oaths is not that they invoke God as a witness or ask for His aid in truth-telling or promise-keeping, but that they require the oath-taker to "swear," going beyond Jesus' command to let your yes be yes and your no, no.

What's the difference? Traditionally, "swear" MEANS "invoke God as a witness." Quakers were Christians, and for them, not "swearing" an "oath" also meant leaving out "so help me God," because including those words would effectively make an "affirmation" into an "oath."
2.2.2009 12:57pm
Snaphappy:
Setting the First Amendment aside, why doesn't the oath as written violate the Article VI provision that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States"?

Saying the oath is a qualification. The "religous test" is whether you are willing to swear (or affirm) your oath using the words, "So help me God." Some religions would prohibit the person from doing so. Some non-adherents would object to saying the words on principle. I agree with Eugene that no Judge is likely to be denied his seat for refusing to say the words, but the oath as written is unconstitutional.
2.2.2009 1:09pm
Dilan Esper (mail) (www):
Danger:

Even if one were to accept the religious right's view of Establishment (which you apparently do but the courts do not), you are ignoring the Religious Test clause, which specifically bars requiring federal judges to swear allegiance to a deity.
2.2.2009 1:11pm
NTB24601:
Note that the statute passed by First Congress in 1789 specifically allowed Judges to omit the "So help me God" phrase if they chose an affirmation.

Which words, so help me God, shall be omitted in all cases where an affirmation is admitted instead of an oath.

I would be curious to know why that qualifer was omitted from the current statute.
2.2.2009 1:12pm
Snaphappy:
I should add that I disagree with Eugene that the "(or affirm)" option would necessarily omit "So help me God." Certainly there is no texual basis to omit the second sentence.
2.2.2009 1:13pm
Clayton E. Cramer (mail) (www):

Even if one were to accept the religious right's view of Establishment (which you apparently do but the courts do not), you are ignoring the Religious Test clause, which specifically bars requiring federal judges to swear allegiance to a deity.
Actually, what the clause says is: "but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." This was generally understood as prohibiting a requirement that a person be member of (or at least pretend to be a member of) a particular religion to hold office--as was the case in many of the states at the time. This clause does not "specifically bar" swearing allegiance to a deity. That's an inference that you are making, and one that I would agree with, but it does not "specifically bar" such.
2.2.2009 1:17pm
Clayton E. Cramer (mail) (www):

I agree with Eugene that no Judge is likely to be denied his seat for refusing to say the words, but the oath as written is unconstitutional.
Take a look at some of the other oaths that the First Congress wrote--at the same time that they were writing the First Amendment.


Resolve, That the form of the oath to be taken by the members of this Houses, as required by the third clause of the sixth article of the Constitution of Government of the United States, be as followeth, to wit: "I, A B a Representative of the United "States in the Congress thereof, do solemnly swear (or affirm, as the case may be) in "the presence of Almighty GOD, that I will support the Constitution of the United "States. So help me GOD."
[Journal of the House of Representatives of the United States, 1789-1793, Monday, April 6, p. 7]
Pretty clearly, they didn't see any conflict with either the Religious Test clause, or the First Amendment.
2.2.2009 1:21pm
NTB24601:
Snaphappy:

Certainly there is no texual basis to omit the second sentence.

There was in the original version though. (See above.) Does that mean that Congress considered the authority to omit "So help me God" surplusage (because its implicit in choosing an affirmation as Professor Volokh suggests). Or does the fact that Congress removed authority to omit "So help me God" when re-enacting the statute mean that Congress intended to require it from all judges?
2.2.2009 1:22pm
DangerMouse:
Dangermouse seems to be ignoring the fact that if one doesn't believe in any religion, being required to swear to even a vague or ambiguous God would establishing religion.

You don't know what it means to "establish" a religion. Look up the history of the Church of England. Catholics were barred from practicing Mass, Catholic priests were put to death for preaching Catholicism instead of the state-approved religion, taxes paid the state-approved religion, etc.

When the colonies were founded in America, many of them had state-established Churches. Massachusetts, for example, had a state-funded and run Church. The reason why the First Amendment only initially applied to the Federal Government is because there existed at the time of the Constitution's ratification many state-established Churches. Virginia led the way towards de-establishement, but Massachusetts only de-established its church in 1833. By the time the 14th amendment was ratified, the issue was largely moot regarding the state established churches, as they were all gone by then.

The fact is, establishment of religion has a very long history and it is very well known what that is, except for the morons on the Supreme Court who seem to believe that it's the coming of the DREADED THEOCRACY if a student prays before taking a test.
2.2.2009 1:25pm
Clayton E. Cramer (mail) (www):

Would you have to pay taxes to support that Church, and would you go to jail if you didn't go to Church on Sunday?
It isn't even clear that Congress understood that definition. As late 1801, Congress still is making provisions for the income from one section of each township in Ohio Territory to fund whatever church a majority of the township wants to support. This is sometimes known as "multiple establishment of religion," as Massachusetts did for many years, where a majority decided which church would be funded from taxes.
2.2.2009 1:27pm
DangerMouse:
Pretty clearly, they didn't see any conflict with either the Religious Test clause, or the First Amendment.

That's because they knew that the Federal Government didn't have an established religion. Their individual states sure as heck did.

See here for more info:

2.2.2009 1:28pm
Rock Chocklett:

What's the difference? Traditionally, "swear" MEANS "invoke God as a witness." Quakers were Christians, and for them, not "swearing" an "oath" also meant leaving out "so help me God," because including those words would effectively make an "affirmation" into an "oath."



I can't speak for Quakers, and I don't deny that they or other Christians would object to "so help me God." But I do not read Jesus' admonition against swearing (Matthew 5:33-37) as prohibiting making commitments or promises in the sight of God or asking God's help in keeping those promises. The swearing He was referring to was the practice of invoking God or some part of His creation to assure a listener that one surely was going to fulfill a promise--as if to imply that one had some kind of power or control over the person or thing being invoked. Jesus' point was that we should always mean what we say, making such swearing unnecessary. I'm unconfortable with "I swear" because it implies that one is making a promise that is more than a simple yes or no. I'm sure some Christians would disagree with my interpretation (of the Bible passage and the text of the oath), but my point was that an "affirmation" can be accompanied "so help me God" according to the conscience of a particular speaker.
2.2.2009 1:29pm
DangerMouse:
2.2.2009 1:31pm
Snaphappy:
Claton, see NTB's link above. In 1789, Congress found it necessary to state that in cases of affirmation, "So help me God" should be omitted.

I note, however, that the option to omit the phrase appears in the clerk's oath (section 7), not the oath for judges (section 8). The clerk's oath is currently found at 28 USC 951, and does not now permit omitting the phrase. The current version was enacted in 1948, 62 Stat. 925 (June 25, 1948). There is a note to the 1948 act which states:


The last sentence of section 512 of title 28, U.S.C., 1940 ed., reading "The words 'So help me God.' shall be omitted in all cases where an affirmation is admitted instead of an oath," was omitted as unnecessary because on affirmation such words would not be included. As revised, the section conforms with section 453 of this title providing for the form of judicial oath.


So I guess that settles it.
2.2.2009 1:33pm
DangerMouse:
This is sometimes known as "multiple establishment of religion," as Massachusetts did for many years, where a majority decided which church would be funded from taxes.

Correct you are, and in practice since many places in Massachusetts were Congregationalists, people view Massachusetts as having an established Congregational Church until the law was changed in 1833.
2.2.2009 1:35pm
Question about Historical Sources for Volokh's Proposition:
Professor Volokh,

I'm not sure the historical aversion to "swearing" extended to the phrase "so help me God." My understanding has always been that the aversion was to the actually "swearing" via use of the word "swear" (as opposed to "affirm") in light of the religious belief that it is sin unto death to break an oath, that one should avoid swearing oaths, or that one should not swear oaths at all. See, e.g., Numbers 30:2; Ecclesiastes 9:2; Hosea 10:4; Malachi 3:5; Matthew 5:34; James 5:12. I always understood that the religious denominations did not oppose affirming to do something with the help of God.

That said, my understanding may be based on erroneous teachings by misguided professors. Do you have historical support for the proposition that those religious denominations who desired to affirm their loyalties also desired to exclude any reference to God.
2.2.2009 1:36pm
NTB24601:
Rock Chocklett:

I can't speak for Quakers, and I don't deny that they or other Christians would object to "so help me God."

I'm a non-practicing member of the Religious Society of Friends (i.e., "Quakers"). My vague recollection is that early Quakers objected to oaths because they believed in telling the truth all of the time. They objected to the suggestion that they had to invoke the presence of God to assure people of their honesty. My recollection is very sketchy though.
2.2.2009 1:39pm
NTB24601:
Snaphappy:

I note, however, that the option to omit the phrase appears in the clerk's oath (section 7), not the oath for judges (section 8).

Thanks for the catch. Careless reading on my part. I would argue that the language in the clerks' oath was assumed in the judges' oath as well. Thanks for pointing out the annotation to the 1948 act as well.
2.2.2009 1:44pm
Randy R. (mail):
It doesn't bother me one way or another if a judge has to say So Help me God. Even better if he doesn't have to, but still does it. More power to him.

What concerns me more is the societal pressure. We are at the point now where our president and other elected and appointed officials have to invoke god into everything, and if they don't, they are jumped on for being godless. A person should be free to NOT invoke god at every football game, natural disaster, regular election, without provoking reactions that he "offended god"
2.2.2009 1:52pm
Snaphappy:
NTB: I agree that the 1789 option to omit strongly suggests that the same option was available for judges. I also think that the note I block quoted above strongly indicates that the last sentence is optional for affirmations.

One final note I would make is that the block quote above came from Lexis's online version of the 1948 act. I did not see it in (my cursory look through) the pdfs. So I'm not sure where exactly it came from. Accordingly, although good enough for me, it could well have come from a conference report or other document that was not passed by Congress and signed by the President. Some members of the Supreme Court might not consider it authoritative over the plain text (though the one I'm thinking of has lamented the loss of God from the public discourse and so could probably figure another way to make the phrase optional, like a plain text reading taking Eugene's view).
2.2.2009 1:52pm
NowMDJD (mail):

Hey, here's an idea! Maybe the next time a religious case comes before the Supreme Court, they can invent a 3 part test! My copy of the constitution has 3 part tests everywhere! The framers loved 3 part tests, because they hated the number 4.

Great minds run in the same channel. The Supreme Court already has established the three- ppart Lemon test (from Lemon v. Kurtzman) to determine whether a law violates the Establishment clause:


The government's action must have a secular legislative purpose;
The government's action must not have the primary effect of either advancing or inhibiting religion;
The government's action must not result in an "excessive government entanglement" with religion.

You could argue that the phrase "So help me god" satisfies this test. You could also argue that it does not.
2.2.2009 1:55pm
martinned (mail) (www):
You could argue that the phrase "So help me god" satisfies this test. You could also argue that it does not.

Indeed. One could wonder whether those last four words actually make it more likely that the person taking the oath will keep their promise. Personally, I doubt it.

In any case, Re remarks by DangerMouse and others, I would suggest that the establishment clause is one of those areas of constitutional law where originalism doesn't immediately give a very reasonable result. The role of faith in society has simply changed too much for that.

(The story of state religious tests is also informative here, IIRC, the last one, from Maryland, was only invalidated on 1A grounds in the 1960s.)
2.2.2009 2:00pm
Bill Harshaw (mail) (www):
As a sidenote: certain Presbyterians refused to perform civic duties (like vote or jury duty) or take any oath to a sinful government which did not recognize Jesus as King. The Reformed Presbyterians split in 1833, I believe, over whether to relax that stricture.
2.2.2009 2:01pm
Happyshooter:
My promotion warrant to NCO in the Marine Corps is signed as follows "Given under my hand at [blank] this [blank] day of [blank],in the year of Our Lord ninteen hundred and [blank]"

The person signing is signing in his authority as Commanding Officer, using the authority given to a commissioned officer holding that appointment.

The "Our Lord" clearly extends to him in his office, most likely to me, and I read it to extend to the government.

I assume several million were issued that way.
2.2.2009 2:03pm
Dilan Esper (mail) (www):
Actually, what the clause says is: "but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." This was generally understood as prohibiting a requirement that a person be member of (or at least pretend to be a member of) a particular religion to hold office--as was the case in many of the states at the time. This clause does not "specifically bar" swearing allegiance to a deity. That's an inference that you are making, and one that I would agree with, but it does not "specifically bar" such.

Clayton, I think you are picking nits, in that there's no substantive difference between a test that requires membership in a religious faith and a test that requires that the person taking an oath swearing allegiance to a religious faith.

I am sure that the framers thought both were unconstitutional (which is consistent with the text of the Judiciary Act that they passed, which called for "so help me God" to be optional).
2.2.2009 2:06pm
Clayton E. Cramer (mail) (www):

In any case, Re remarks by DangerMouse and others, I would suggest that the establishment clause is one of those areas of constitutional law where originalism doesn't immediately give a very reasonable result. The role of faith in society has simply changed too much for that.
The role of faith in society hasn't changed all that much in the last two centires; the role of faith among lawyers and another elites has changed quite dramatically. But don't confuse lawyers and other elites with the vast majority of Americans.
2.2.2009 2:07pm
DangerMouse:
I would suggest that the establishment clause is one of those areas of constitutional law where originalism doesn't immediately give a very reasonable result. The role of faith in society has simply changed too much for that.

What are these "unreasonable results"?

The strictures of the Constitution don't change merely because atheists are politically organized. Establishment of a religion has a history and a meaning. If you want something more strict, like federal persecution of Christians and other religious people, then you can try to amend the Constitution. You'll probably find that a Religious Persecution Amendment would be very popular, at least with the libs who comment on this blog.
2.2.2009 2:09pm
Dilan Esper (mail) (www):
And to be clear, what I mean is that I think the framers thought REQUIRING either was unconstitutional. "So help me God" is fine as long as it is optional.
2.2.2009 2:09pm
Clayton E. Cramer (mail) (www):

Clayton, I think you are picking nits, in that there's no substantive difference between a test that requires membership in a religious faith and a test that requires that the person taking an oath swearing allegiance to a religious faith.

I am sure that the framers thought both were unconstitutional (which is consistent with the text of the Judiciary Act that they passed, which called for "so help me God" to be optional).
The objective of the First Amendment's establishment clause was not to prohibit governmental encouragement of Christianity, but to prevent preference for a particular denomination. That's not just my opinion, but that of Joseph Story:

The real object of the amendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cuts off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. [Joseph Story, Commentaries on the Constitution of the United States, 5th ed. (Boston: Hilliard, Gray &Co., 1833), 701]
2.2.2009 2:11pm
DangerMouse:
Happyshooter, even worse, the Constitution ITSELF uses that language:


Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.


OH. MY. GOD. The Constitution ITSELF is unconstitutional!

/sarc
2.2.2009 2:12pm
NowMDJD (mail):

A person should be free to NOT invoke god at every football game, natural disaster, regular election, without provoking reactions that he "offended god"

Why?

If you do something unpopular or rude, or if you call attention to yourself, people are free to be offended, and should be. If you don't say please, even though you think what you are requesting is your right to have, rather than at the other person's pleasure, people are free to think you are a boor.

If you refuse to say "So help me, God" when you take your oath, and most people think you should (for whatever reason) it's the same thing. If you're a federal judge, you're on the bench forever. You've been confirmed. If you're president, and you're taking the oath for the first time, people who don't like it are at liberty to decide if it is important enough an issue that they should vote against you in four years. A candidate's religious beliefs, or absence of them, comprises a reasonable contribution to evaluating the candidate.

In the real world, you would tell the person administering the oath to have you affirm it, and to omit the phrase, "So help me, God." I once read that Hoover, a Quaker, did this (don't know if it's true). Most people who administer oaths have the social skill and politesse to accommodate.

Once I was a defendant (I ultimately won the case) before a judge who required witnesses to swear with their hand on a Bible that contained the New Testament (the NT has no religious significance for me) and had her court officer administer an oath whose wording was objectionable to my own beliefs. I wasn't certain whether I would object when I was sworn in; after all, I was a party and didn't want to antagonize the judge.

The solution was a deux ex machina. For some reason or other, and ffor the only hour during the entire 4-week proceeding, the judge's trusty court officer took a break. The replacement was someone whose dress mclearly marked him as non-Christian, and he appreciated that I wasn't either. He didn't bring the Bible and simply asked me if I wouls swear or affirm that I would tell the truth.
2.2.2009 2:15pm
martinned (mail) (www):

DangerMouse:
What are these "unreasonable results"?

Dilan Esper:
And to be clear, what I mean is that I think the framers thought REQUIRING either was unconstitutional. "So help me God" is fine as long as it is optional.

Well, based on what I know about the founding era, I doubt that mr. Esper is right. I think the original understanding of the religious test clause and the establishment clause was that neither forbade the requirement of a generalised affirmance of belief in god. (I remember someone posting an SSRN paper to that effect on VC once, I can look for it if someone cares.) Requiring such a thing in the present day would presumably be "unreasonable" in the sense that it would go against the fundamental values most Americans ascribe to their constitution, including the value that religion is among the most personal of matters, not for the government to interfere with.
2.2.2009 2:17pm
Clayton E. Cramer (mail) (www):

And to be clear, what I mean is that I think the framers thought REQUIRING either was unconstitutional.
You know, if the state governments hadn't already demonstrated a profound, nearly universal willingness to impose religious tests as a condition for holding office, I might be prepared to accept the assumption that making this optional was the intent. But I'm going to demand a bit more proof of this than your desire to imagine that the Framers were like you.
2.2.2009 2:18pm
Clayton E. Cramer (mail) (www):

Indeed. One could wonder whether those last four words actually make it more likely that the person taking the oath will keep their promise. Personally, I doubt it.
I will agree with you that requiring politicians to swear an oath before God, or affirm a belief in God, doesn't make them any better--it makes them into liars. But just because a particular oath is a bad idea, or ineffective, doesn't make it unconstitutional.
2.2.2009 2:28pm
Michelle Dulak Thomson (mail):
martinned,

In any case, Re remarks by DangerMouse and others, I would suggest that the establishment clause is one of those areas of constitutional law where originalism doesn't immediately give a very reasonable result. The role of faith in society has simply changed too much for that.

IANAL and all that, but how so? I assume that an originalist would take cognizance of what an "establishment of religion" meant at the time, and argue that the Constitutional clause forbids that. "The role of faith in society" hasn't changed so much that we can't look abroad and see contemporary examples of states with "established" religions, has it?

Even if there weren't, e.g., Britain around to model "establishment" for us, I don't see why that would make the clause mean something more expansive. If "establishment" of the sort the First Amendment was meant to prohibit isn't a likely thing now, what's the problem? I'm not trying to be snide, but we don't feel the need to exercise every item in the Bill of Rights periodically, whether needed or not.
2.2.2009 2:29pm
NowMDJD (mail):

You know, if the state governments hadn't already demonstrated a profound, nearly universal willingness to impose religious tests as a condition for holding office

As you know, originalism here is of limited relevance. The First Amendment (whatever it means) has been extended to the states through the Fourteenth (whatever you think of the doctrine of incorporation, it is the Constitution as interpreted by the Supreme Court over many years).

So the question is not what states were allowed to do in the Republic's early years, but what the Federal government was allowed to do. That is, if you are an originalist, whether that means to you original meaning or original intent.

What martinned says:


Requiring such a thing in the present day would presumably be "unreasonable" in the sense that it would go against the fundamental values most Americans ascribe to their constitution

makes little sense, at least to me. The Constitution does not contain values. It contains rules. If the majority of people do not want a pro forma nod to God in judicial oaths, they can ask their legislators to take it out of the statute. The Constitution does not require it. (And, from what I gather from Prof. Volokh's original post and subsequent comments) statute makes it optional for the judge-designee, and this is constitutional..
2.2.2009 2:34pm
martinned (mail) (www):
@Clayton E. Cramer: I was responding to a summary of the Lemon test. If adding the reference to God does not make it more likely that the politician will keep their oath, the reference serves no secular purpose and is therefore unconstitutional under the first prong of the test.

@Michelle Dulak Thomson: My argument reflected the fact that the establishment clause has come to mean much more to contemporary Americans than the relatively modest scope it had originally. If one were to argue for an originalist approach here, one would have to offer some substitute for the remainder. Going back to the original would simply leave a lot of things constitutional that very few Americans would want to be constitutional. (That's what I wrote before, about how the underlying value of the clause is much broader, going to general government messing around with religion.) Clearly amending the constitution is the best way to keep it in line with contemporary values, but I think any theory of constitutional interpretation that ignores the tremendous difficulties involved in doing so is naive, at best. The legitimacy of a system of governance requires loyalty to the text as written, but it also requires that the constitutional practice does not conflict too much with - let's say - people's constitutional values. That is not the same as changing the rules based on those horrible left-wing media, New York Times people c.s., but it does mean a slow, common law style evolution in constitutional doctrines where original understanding/meaning/whatever is not the only factor.
2.2.2009 2:40pm
Jon Rowe (mail) (www):
Dangermouse,

In the Year of the Lord is the customary way of stating the date like "AD."
2.2.2009 2:42pm
martinned (mail) (www):
The Constitution does not contain values.

On the contrary, my dear Watson, it contains almost nothing but values. Even the basic working rules of government reflect values about the relative importance of democracy and rule of law, of equal representation, etc. Why the different voting rules for Senate and House, why this balance of power between Congress and President instead of another one? (During the constitutional convention, it looked for a long time like the Senate would end up as some kind of Cabinet, with executive branch powers.) Everything in the Constitution is the concrete application of a large number of often conflicting values.
2.2.2009 2:44pm
DangerMouse:
In the Year of the Lord is the customary way of stating the date like "AD."

That just mean that for libs, saying "AD" is unconstitutional as well.

And let's not get started on Los Angeles or San Francisco. ALL NAMES THAT ARE UNCONSTITUTIONAL!

Then there's the pictures of Moses in the Capital. Tsk tsk, federal government. Establishing a religion via artwork. That's UNCONSTITUTIONAL!

The Gettysburg address, chisled onto the Lincoln Memorial, paid with by your tax dollars, says "this nation, under God." UNCONSTITUTIONAL! BULLDOZE THE LINCOLN MEMORIAL!

Or, maybe they're wrong about their quack theories of the Establishment clause.
2.2.2009 2:49pm
Mike G in Corvallis (mail):
Heh ...

As an erstwhile systems engineer, I'd like to see how the system holds up with unexpected inputs.

How about "So help me Gods"?

How about "So help me Satan"?

Not that either of these is particularly likely to happen, of course. But our society does include at least a few polytheists and even Satanists, so why should these people be barred from including an affirmation of their beliefs when Christians are not?
2.2.2009 2:51pm
martinned (mail) (www):
How about "So help me Gods"?

Battlestar Galactica Rules!


@DangerMouse: Strawman much?
2.2.2009 2:54pm
DangerMouse:
martinned,

Yet, when you ask libs their opinion, they think that Government should not have any involvement in religion and that there should be no references to religion at all, and that things like the government paying for the Lincoln Memorial to say "under God" is wrong.

Where they want to go, the Court is going. Give it time. They'll throw the Christians to the lions yet again.
2.2.2009 2:57pm
martinned (mail) (www):
@DangerMouse: And yet it is a long way from that to any objection to describing the year as "Anno Domini" = The Year of Our Lord. Which is why your comments (and those of others) about the terms used to decribe the year in official documents are a strawman.

(BTW, I don't know if you'd noticed but in my previous comment, when I called you out on your strawman I linked to a very sensible CA10 ruling from September last year about whether Las Cruces, NM, should be allowed to have crosses in its logo. Apparently, some dumb*sses did have a problem with that.)
2.2.2009 3:02pm
Jon Rowe (mail) (www):
I think the language of Art. VI is quite clear, government can't impose any religious test including SHMG if the official doesn't want to say those words. However I don't think article VI forbids individuals from adding those words (or asking the judge who swears them in to add those words) if so desired. After Newdow's lawsuit, I'm fairly certain that's what prompted Obama to communicate with Justice Roberts (before they bungled the Oath) that Obama wanted to say it. If you listened carefully to the very end of the Oath (yes, the one they bungled) Roberts said "so help YOU God?" as a question, stressing the voluntary nature of it. That's the way it should be.
2.2.2009 3:02pm
Katl L (mail):
I live in Southamerica. 90% of the population is catholic. Every sunday 1% of the populatipon go to the Church. But even communists have their daughters married by the church. I studied in a catholic schol , among my classmate were the daughter of a communist party leader and two jews.Nobody forced them to assit to the mass. They went anyway. Im agnostic so i was the only not to attend regularly. I went too in the end because a teacher asked me to go because she couldnt go if I remained in the classroom. She was forced to be in the classroom if someone didnt go.Sind i m agnostic go to the church is only one of the burden associated with the social life .it is like to say goodmornig when you would have rather remained in your bed.If you are agnostic god doesnt mean anything tou you. I married by the church because my wife is worth a mss( and more)
BTW, the Declaration of Independence is also nconstitutional:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's GOD entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their CREATOR with certain unalienable Rights, that a
2.2.2009 3:04pm
Oren:

But our society does include at least a few polytheists and even Satanists, so why should these people be barred from including an affirmation of their beliefs when Christians are not?

Is there any evidence that they are not allowed to do such a thing? If the next President swears by Thor, will the Secret Service take him down for it?

I see no reason to think that anyone would stand in the way of such an invocation (Loki might give it a shot, but I'm restricting myself to mortal means here).
2.2.2009 3:04pm
dr:

...and that things like the government paying for the Lincoln Memorial to say "under God" is wrong.

Where they want to go, the Court is going. Give it time. They'll throw the Christians to the lions yet again.



I'll bite.

I don't think my tax dollars should be used to pay for prayers. I can't say it's something that consumes a whole lot of my time and energy, but yes, I would be happier if "in god we trust" weren't on all my federal dollars, literally.

But it takes a highly developed sense of martyrdom to leap from "they don't want to pay me to pray" to "also, I think they're probably going to try to have me killed." Kudos to you, Dangermouse!

(Also: Loved the Grey Album.)
2.2.2009 3:05pm
Jon Rowe (mail) (www):

martinned,

Yet, when you ask libs their opinion, they think that Government should not have any involvement in religion and that there should be no references to religion at all, and that things like the government paying for the Lincoln Memorial to say "under God" is wrong.

Where they want to go, the Court is going. Give it time. They'll throw the Christians to the lions yet again.


Yes I hope you meant this as hyberbole. It's important to put in perspective that there WAS a time when Christians were thrown to the lions and the worst the ACLU and sympathetic courts are doing is like swatting away flies. Traditional Christians aren't persecuted in America.
2.2.2009 3:06pm
Michelle Dulak Thomson (mail):
martinned,

Going back to the original would simply leave a lot of things constitutional that very few Americans would want to be constitutional.

If that were really true (I mean both that a lot of things would be seen to be constitutional that weren't so seen before, and that "very few Americans" would want them so), there'd be no problem. People don't generally pass laws that they think they ought to be forbidden from passing. I mean, sometimes they plead for advance legal restrictions on their own spending behavior (e.g., lawmakers sometimes argue for balanced-budget restrictions and the like on "stop me before I run a deficit again!" grounds), but they don't pass laws that offend their own sense of what the Constitution requires.

So it is hard to see how these "very few" Americans' policy wishes, which by hypothesis are contrary not only to what the overwhelming majority of Americans want, but to what the overwhelming majority of Americans think consonant with bedrock American tradition, are going to make it into law at all.
2.2.2009 3:06pm
Aultimer:

J. Aldridge:
The constitution would had been more clearer if "religious test" was replaced with "preference of one christian sect over another" which was the affect intended.

There's a good bit of evidence that the founders were fully considerate of Jews and Muslims.
2.2.2009 3:11pm
martinned (mail) (www):

People don't generally pass laws that they think they ought to be forbidden from passing.
(...)
So it is hard to see how these "very few" Americans' policy wishes, which by hypothesis are contrary not only to what the overwhelming majority of Americans want, but to what the overwhelming majority of Americans think consonant with bedrock American tradition, are going to make it into law at all.


@Michelle Dulak Thomson: Really? Have you been paying attention to Washington lately? Laws get passed because they please special interests, in this case the religious right.
2.2.2009 3:13pm
Putting Two and Two...:

so help me God


Since the purpose of the clause is to voluntarily invoke reprisal from a Greateer Force in case one fails to uphold the requirements of the pledge, wouldn't something along the lines of "so help me theocrats" be more pragmatic?
2.2.2009 3:22pm
Jon Rowe (mail) (www):
The DOI is a pretty important document for arguing generic monotheism should be subject to a different set of rules than anything more specific. And "Christianity" is not generic monotheism. I think there is something to the "ceremonial deism" or "ceremonial theism" argument.

Even with "Christianity in general" it's pretty much impossible to promote it in a non-sectarian sense. The history of disestablishment in Mass. in 1833 bears this out. A court ruling came down that said theological unitarianism (i.e., Trinity denial) constituted "Christianity" eligible for state establishment aid. The orthodox were shocked that this heresy that presented itself as "Protestant Christianity" could get govt support. But then again there were some unitarians on the MA S. Ct. that issued the decision (the "Dedham" decision) whom the "orthodox" blamed. Though, who could blame them John Adams himself (who helped write the Mass. Constitution) believed in this heresy as did Joseph Story.

Even today manymost orthodox Christians (of the Protestant, Catholic, or capital O Orthodox vein) use the same theological test that excluded the unitarians from "Christianity." How many times have we heard certain Christians say "Mormons are not Christian."

Well, even though Mormonism didn't exist during the Founding era, there was a heresy, very popular in elite circles, that, like Mormonism presented itself as "Christianity" but denied central tenets of historic Christianity that made the defenders thereof claim: This isn't "Christianity."

Theological unitarianism is also relevant to Art. VI, Cl. 3. This theological system was far more popular than strict "Deism." Indeed, Jefferson &Franklin the supposed "Deists" believed in this system. It's entirely possible that all of those elite theological unitarians conspired to scrap religious tests from the US Constitution because they were sick of being subject to Trinitarian oath tests at other levels of government, even in their churches to which they nominally &formally belonged.

Jefferson was, don't forget a vestryman in the Anglican Church in VA (which was more of a social and legal position, before VA disestablished said Church). He absoluted hated Trinitarian Christianity and it must have made him want to puke when had to take said oaths to become a Vestryman. Though he drew the line and refused to become a Godfather for that reason.
2.2.2009 3:23pm
Michelle Dulak Thomson (mail):
martinned,

@Michelle Dulak Thomson: Really? Have you been paying attention to Washington lately? Laws get passed because they please special interests, in this case the religious right.

To echo you: Really? You mean that a majority of Congressional lawmakers (that being what it takes to pass anything in Washington) are voting for things they either think are already unconstitutional, or wish were so?

These "very few" must be powerful indeed if they can get a Democratic-majority Congress (or even a Congress with a strong Democratic minority) to pass stuff that all but a "very few" of the populace think unconstitutional.

What did you have in mind exactly, by the way?
2.2.2009 3:26pm
Arkady:

Give it time. They'll throw the Christians to the lions yet again.


Dunno about Christians, but a few mice to the lions might not be a bad idea--if only to enhance the gene pool
2.2.2009 3:35pm
Dilan Esper (mail) (www):
The objective of the First Amendment's establishment clause was not to prohibit governmental encouragement of Christianity, but to prevent preference for a particular denomination. That's not just my opinion, but that of Joseph Story:

And that has zero relevance to whether forcing someone to swear allegiance to God to take office would constitute an improper "Religious Test".

We can have the discussion about the Establishment Clause another time, although, suffice to say, it's one of those debates that your side has lost and that isn't going to change.
2.2.2009 3:38pm
martinned (mail) (www):
@Michelle Dulak Thomson: I don't think a great many lawmakers think something should be unconstitutional that isn't so already, except things that the other party want. The question isn't what members of Congress think should be unconstitutional, but what the people think should be unconstitutional.

Thought experiments are difficult here, since it's hard to imagine a situation where 1A interpretation goes back to the state it was in ca. 1800 overnight. So let's try something easier. Abortion is a controversial subject, but IIRC about 2/3 of Americans think an outright ban on abortion on all circumstances is/should be unconstitutional. Imagine Roe gets overturned completely tomorrow. What would an equally hypothetical Republican congress do? (Ignoring strategic considerations of the kind discussed on this blog in the past, ignoring other reasons why a federal ban on abortion would/could be unconstitutional and taking the Federal view because the 2/3 number is probably much lower in many "red states".) Given how much banning abortion would please its base, why would a Republican controlled Congress not push for a ban in these circumstances?

In many other hypotheticals, the constitutionality of the proposed measure could be much more uncertain, allowing lawmakers to plead "Dunno", and the measure would be much less visible, making it easier for the lawmakers to ignore the general public to the benefit of the special interest.

As a matter of fact, laws that are quite likely unconstitutional get passed with some frequency, knowingly and willingly. Examples don't just include a lot of the Bush-9/11 legislation, but also certain free speech regulations from the Clinton era. Politicians can be quite opportunistic that way. ("If the Court strikes it down, so be it, we at least tried, and if the Court doesn't, our donors will be pleased!")
2.2.2009 3:40pm
Dilan Esper (mail) (www):
You know, if the state governments hadn't already demonstrated a profound, nearly universal willingness to impose religious tests as a condition for holding office, I might be prepared to accept the assumption that making this optional was the intent. But I'm going to demand a bit more proof of this than your desire to imagine that the Framers were like you.

Clayton:

We are talking about a FEDERAL statute. The framers' tolerance of state sectarianism (which, in any event, was overturned by the Fourteenth Amendment) is not relevant here. Focus your arguments just a bit.
2.2.2009 3:41pm
Dilan Esper (mail) (www):
If that were really true (I mean both that a lot of things would be seen to be constitutional that weren't so seen before, and that "very few Americans" would want them so), there'd be no problem. People don't generally pass laws that they think they ought to be forbidden from passing. I mean, sometimes they plead for advance legal restrictions on their own spending behavior (e.g., lawmakers sometimes argue for balanced-budget restrictions and the like on "stop me before I run a deficit again!" grounds), but they don't pass laws that offend their own sense of what the Constitution requires.

This is kind of off topic, but public policy doesn't work this cleanly, which may be a sort of deep under the surface justification for non-originalist constitutional interpretation.

Essentially, there are all sorts of laws that remain on the books for years despite being unpopular or generally outrageous. A very nice recent example of this is sodomy statutes. Even though no state was routinely locking up gays and lesbians, these statutes remained on the books because there was a loud and vocal constituency demanding them and the people who were more tolerant of gays didn't really care enough about the issue because the statutes were being very lightly enforced.

This is why conservative critiques of Lawrence v. Texas are so offensive and morally bankrupt. If conservatives had spent 1/10 of the energy condemning homophobia that they did condemning Lawrence, maybe there wouldn't have been any sodomy statutes on the books that the Court would have to reach out and overturn.

Originalism might work better in some Platonic perfect world, where the people always diligently clear unjust and awful statutes from the books. But that isn't the world we live in.
2.2.2009 3:48pm
Jon Rowe (mail) (www):

You know, if the state governments hadn't already demonstrated a profound, nearly universal willingness to impose religious tests as a condition for holding office, I might be prepared to accept the assumption that making this optional was the intent.


An interesting dynamic that I've discovered is that while the Framers didn't seem to mind oaths to a general Providence (in which they all believed) they tended to hate those state sectarian religious tests, even ones that were generally "orthodox Christians, because they themselves were not orthodox Christians and couldn't pass those tests. As Ben Franklin said of PA's sectarian religious test (that required belief in the divine inspiration of the Bible), which, as acting Gov. of PA, he helped see abolished in the 1780s:


I agreed with you in Sentiments concerning the Old Testament, and thought the Clause in our Constitution, which required the Members of Assembly to declare their belief that the whole of it was given by divine Inspiration, had better have been omitted. That I had opposed the Clause but being overpower'd by Numbers, and fearing might in future times be grafted on [it, I Pre]vailed to have the additional Clause that no [further or more ex]tended Profession of Faith should ever [be exacted. I ob]serv'd to you, too, that the Evil of it was [the less, as no In]habitant, nor any Officer of Government except the Members of Assembly, were oblig'd to make that Declaration. So much for that Letter. To which I may now add, that the[re are] several Things in the old Testament impossible to be given by divine Inspiration, such as the Approbation ascrib'd to the Angel of the Lord, of that abominably wicked and detestable Action of Jael the Wife of Heber the Kenite. If the rest of the Book were like that, I should rather suppose it given by Inspiration from another Quarter, and renounce the whole.
2.2.2009 3:55pm
eyesay:
What is the meaning of "So help me God"? Is it an non-parse-able idiomatic expression, and if so, does it mean something like, "I really mean it"? Or is it "God, punish me if I break my oath"?

If it is parse-able, what is "So"?
* Thus, in this manner, e.g. "Make it so!"
* Therefore, or consequently, e.g. "I had a cold, so I stayed home."
* ______ ?

The first of these suggests, "What I just swore to do, please help me to do, God."

The second of these suggests, "I just made a big oath. Therefore, please help me keep it, God."

I suspect that a lot of people have a meaning for "So help me God" that they think is universal, when the meaning is not even close to universal.
2.2.2009 4:45pm
Michelle Dulak Thomson (mail):
martinned,

I don't think looking at the case of abortion helps much, because the only thing that emerges from looking at polls, in my experience at least, is that people are very confused. You can find 2/3 opposition to overturning Roe at the same time that you find 2/3 support for abortion restrictions that have been ruled unconstitutional under Roe and its successors. An amazing fraction of the public thinks that overruling Roe would ban abortion everywhere and under all circumstances, &c.

If there were a Republican majority, and if Roe were overturned, and if somehow the Republicans who have been talking about abortion as a state issue for 30+ years were suddenly unanimous in thinking it belonged to Congress (some, sure, but all of them?), would a Republican Congress ban all abortions? Of course not. That's not a winning position in any state, let alone more than half of them.

I agree with you, though, about the "posibly but not certainly unconstitutional" sort of legislation. People pass laws all the time to find out where the law actually is as the judges see it. How else can you know?

Dilan Esper,

Of course reams of idiotic laws sit on the books unenforced (or rarely enforced). Most often they don't even have a "vocal constituency," at least not until someone suggests removing them. Still, a law presumably can strike almost everyone who reads it as dumb without necessarily being unconstitutional, can't it?
2.2.2009 4:45pm
Clayton E. Cramer (mail) (www):
Dilan Esper writes:

Clayton:

We are talking about a FEDERAL statute. The framers' tolerance of state sectarianism (which, in any event, was overturned by the Fourteenth Amendment) is not relevant here. Focus your arguments just a bit.
My point was that you should not assume a liberal tolerance for atheism or even freethinking in light of the dominant views of the time.

And the Fourteenth Amendment certainly imposes the Bill of Rights onto the states--but what view of "establishment of religion" is that? I'll agree that the 1789 view probably isn't the appropriate standard--but then 1868 view would be. But again, that's not the view that the Court has taken.

Jon Rowe writes:

An interesting dynamic that I've discovered is that while the Framers didn't seem to mind oaths to a general Providence (in which they all believed) they tended to hate those state sectarian religious tests, even ones that were generally "orthodox Christians, because they themselves were not orthodox Christians and couldn't pass those tests.
A true statement about Franklin and some of the Framers, but if this was a widely held belief, it's a bit weird that so many of the state constitutions provided for religious tests for holding office. This suggests that Franklin and other freethinking Framers were (like the elites today) holding a viewpoint that the population generally did not accept. And Franklin's remarks to Ezra Stiles about keeping Franklin's views of Jesus's Messiahship certainly show that Franklin knew full well how far outside the mainstream his views were.
2.2.2009 5:01pm
arbitraryaardvark (mail) (www):
When I was sworn into the Ashcroft administration, I said "... so help me." And when called once as a witness, I said "I so affirm." I tend to get a slight doubletake then a knowing look from the person doing the swearing.
2.2.2009 5:03pm
Clayton E. Cramer (mail) (www):

I don't think looking at the case of abortion helps much, because the only thing that emerges from looking at polls, in my experience at least, is that people are very confused. You can find 2/3 opposition to overturning Roe at the same time that you find 2/3 support for abortion restrictions that have been ruled unconstitutional under Roe and its successors. An amazing fraction of the public thinks that overruling Roe would ban abortion everywhere and under all circumstances, &c.
Alas, the strongest argument for elite rule is the stupidity and easily led nature of the masses--until you realize who is telling them what to think. Mencken got it right when he called democracy "jackals leading jackasses."

The difficulty is that a constant stream of liberal media propaganda tells the masses that abortion is good; that Roe v. Wade is necessary to prevent a tiny minority of religious zealots from banning abortion under all conditions, while their consciences tell them that abortion is a horrifying (if occasionally necessary) situation. But the reality is that:

1. Even before Roe, some states allowed abortion under very mild restrictions.

2. Even states that theoretically banned it except to save the life or health or the mother had enormous numbers of abortions. Oregon, for example, had 199 abortions per 1000 live births in 1970.

3. Roe does not preclude elective abortions in the third trimester.

4. It isn't clear how many states would actually ban abortion if Roe v. Wade went away tomorrow. My guess is that about 15-20 states would ban elective abortions, and perhaps another 10-15 would impose the sort of restrictions that California had 1967-69 (which discouraged, but did not completely prevent it). I suspect that 40-45 states would ban third trimester abortions, and partial birth abortion would probably be banned everywhere.

If pro-choicers spent the money that they now spend on politics paying for bus fare for pregnant women in abortion ban states, and pro-lifers spent the money that they spend on politics promoting abstinence, contraception, adoption, and marriage counseling, we would all be a lot better off.
2.2.2009 5:14pm
Clayton E. Cramer (mail) (www):

Imagine Roe gets overturned completely tomorrow. What would an equally hypothetical Republican congress do? (Ignoring strategic considerations of the kind discussed on this blog in the past, ignoring other reasons why a federal ban on abortion would/could be unconstitutional and taking the Federal view because the 2/3 number is probably much lower in many "red states".) Given how much banning abortion would please its base, why would a Republican controlled Congress not push for a ban in these circumstances?
Because Congress banning abortion (except on federal lands and military reservations) is a violation of federalism. States have the authority to regulate matters in the public health and safety area. That's why murder that takes place entirely within a state is a state jurisdiction, not a federal jurisdiction.

Fifty states, 50 laboratories, 50 experiments, 50 localized sets of circumstances. Unless a state law clearly violates the U.S. Constitution, or its own state constitution, Congress needs to butt out. Liberals are all for this when it comes to drug laws, and euthanasia laws, but not when it comes abortion.
2.2.2009 5:19pm
martinned (mail) (www):
@Clayton E. Cramer: I ruled out federalism concerns under "other reasons why this would be unconstitutional". In retrospect, I probably should have chosen a different example...
2.2.2009 5:28pm
dr:
<blockquote>
Liberals are all for this when it comes to drug laws, and euthanasia laws, but not when it comes abortion.
</blockquote>

Conservatives are all for this when it comes to abortion, but not when it comes to drug laws, and euthanasia laws.

I agree. Everyone's a hypocrite.
2.2.2009 5:38pm
Bill McGonigle (www):
NTB24601: Thanks for the link to the original text.

DangerMouse: 'AD' reflects the specification of the Gregorian Calendar. What's next, 'Tyr, Odin, Thor, Freyja, Saturn' protests?
2.2.2009 5:52pm
DangerMouse:
I admit to using a little hyperbole, but I do think it's true to say that the Court will assist in throwing Christians to the lions again.

There are too many stories of Christians being persecuted for not agreeing with the gay agenda, for instance, whereby the threat of violent force or jail time in becoming increasingly common. See the photographer in New Mexico who didn't want to photograph a so-called homosexual "marriage", or the threats aginst Catholics and Mormons in California to revoke tax exempt status or to burn down the churches by the mobs.

The libs have to attack the Church because the Church will not agree to homosexual marriage or abortion, and the libs can't stand the opposition. They don't merely want tolerance, they want approval. It will be state policy that anyone who does not approve of abortion and homosexual marriage will be pushed out of the public sphere.

They'll be thrown to the lions, but driven to the catacombs first. Right now, Christians are being driven out of the public sphere. The libs are very happy with that because it removes opposition to their political goals. It's only a matter of time before persecution becomes a full-blown lib policy.
2.2.2009 6:52pm
DangerMouse:
For an example of where America is headed, see here:

Nurse suspended for offering to pray for patient

Once national health care is imposed, you can bet this will happen here too.
2.2.2009 6:59pm
Clayton E. Cramer (mail) (www):

Even though no state was routinely locking up gays and lesbians, these statutes remained on the books because there was a loud and vocal constituency demanding them and the people who were more tolerant of gays didn't really care enough about the issue because the statutes were being very lightly enforced.
There was such a constituency? Where? You sure that it wasn't just that such laws had been on the books a long time, they were seldom enforced (and when they were, usually for outrageous conduct, such as in public restrooms) and so there was no pressure to repeal them?


This is why conservative critiques of Lawrence v. Texas are so offensive and morally bankrupt. If conservatives had spent 1/10 of the energy condemning homophobia that they did condemning Lawrence, maybe there wouldn't have been any sodomy statutes on the books that the Court would have to reach out and overturn.
You are assuming that disapproval of homosexuality (what you incorrectly call "homophobia") is something about which conservatives should agree with you. You are also arguing that if we don't want to be murdered, we should just commit suicide.

I'm sure that you can't imagine why ANYONE would disapprove of homosexuality. I can't imagine why anyone would find it acceptable. But that's the difference between a liberal and a conservative: a conservative is prepared to tolerate a difference of opinion, instead of fining people for refusing to photograph a same-sex committment ceremony.
2.2.2009 7:09pm
DangerMouse:
And here's more:

Canada - Christians have no human rights

And here:

State college philosophy professor requires student to agree with critiques of religion to pass class (warning: PDF)

I'd find more if time permitted. Anyway, the point is, in the name of "diversity," abortion, and homosexuality, the libs will find it convenient and acceptable to destroy the Church.
2.2.2009 7:09pm
Clayton E. Cramer (mail) (www):


Liberals are all for this when it comes to drug laws, and euthanasia laws, but not when it comes abortion.


Conservatives are all for this when it comes to abortion, but not when it comes to drug laws, and euthanasia laws.

I agree. Everyone's a hypocrite.
Uh, not quite. Conservatives support drug laws and euthanasia laws because they believe that the government has a right--even a duty--to promote moral standards. Liberals explicitly reject the notion of moral standards--except if the moral standard is intolerance of "homophobia" or racism, or sexism. And liberals are full of excuses why this isn't self-righteous moralism.
2.2.2009 7:12pm
Randy R. (mail):
"As a sidenote: certain Presbyterians refused to perform civic duties (like vote or jury duty) or take any oath to a sinful government which did not recognize Jesus as King. The Reformed Presbyterians split in 1833, I believe, over whether to relax that stricture."

It's just this sort of nuttiness that gives religion a bad name. A group of people can't agree on how best to honor their Father? It's like a monty python skit, really.

"here are too many stories of Christians being persecuted for not agreeing with the gay agenda, for instance, whereby the threat of violent force or jail time in becoming increasingly common. See the photographer in New Mexico who didn't want to photograph a so-called homosexual "marriage", or the threats aginst Catholics and Mormons in California to revoke tax exempt status or to burn down the churches by the mobs. "

No, not "too many" Try three or four. The NM photographer is the ONLY case -- after several years of nondiscrimination clauses in many jurisdictions -- where threat of anything happened. There were a few threats to burn down churches in CA, but again,very few. And in fact, none were actually torched or harmed in any way. Oh, there were protests outside the church. But when do you claim that freedom means freedom from criticism? Compare that to the gay church in Texas that was recently attacked and had some windows broken.

But I guess when a heterosexual attacks a gay church, that doesn't make it onto your radar.
2.2.2009 7:15pm
Clayton E. Cramer (mail) (www):

Originalism might work better in some Platonic perfect world, where the people always diligently clear unjust and awful statutes from the books. But that isn't the world we live in.
Two problems with your argument, Dilan:

1. You assume that sodomy laws are "clearly unjust and awful statutes." Yet until 1961, it was a felony everywhere. Even in California it remained a felony until 1975. Maybe the "unjust and awful" nature of these laws wasn't so "clear," after all?

2. These laws have seldom been enforced against adults for private conduct. Even in the Colonial period, when these were capital crimes, there are few convictions. I can find one buggery execution in Colonial Maryland, and years often pass in Revolutionary Pennsylvania without a single conviction. (Of course, this may be because these were felonies, and you could be executed or sent away for ten years or more upon conviction.)

Most of the prosecutions under these laws into the 1960s and 1970s involve people getting caught having sex in places that aren't private by any but the more absurd stretching of definitions. Note that both of the cases the Court heard--in Bowers and Lawrence--were pretty darn odd. Bowers was the result of the service of a search warrant that accidentally led to the discovery of the crime, and Lawrence the result of a false report of domestic violence. (Did someone set this up, perhaps?)
2.2.2009 7:22pm
Clayton E. Cramer (mail) (www):

The NM photographer is the ONLY case -- after several years of nondiscrimination clauses in many jurisdictions -- where threat of anything happened.
So the very few prosecutions of sodomy before those laws were repealed is evidence that sodomy laws don't have any effect?

Laws have consequences, largely because they scare people into compliance, or at least into lying about why they are refusing a photographic assignment. And of course that's the goal--so that people that have to spend their whole lives lying to others can force others to start lying as well.
2.2.2009 7:25pm
Clayton E. Cramer (mail) (www):

There were a few threats to burn down churches in CA, but again,very few. And in fact, none were actually torched or harmed in any way.
The white powder mailed to Mormon churches was, I guess, just a form of freedom of speech.
2.2.2009 7:27pm
Dilan Esper (mail) (www):
You are assuming that disapproval of homosexuality (what you incorrectly call "homophobia") is something about which conservatives should agree with you.

Clayton, homophobia is a word which means anti-gay bigotry. You've lost that debate. You have to learn to give up debates that you've lost.

And I no objection to anyone's right to hate gays or lesbians, or to object to same-sex sexual relations. But that's not what Lawrence was about. It was about getting awful laws that conservatives refused to make any effort to repeal off the books. (Indeed, some conservatives even supported these laws.)

Your right to hate gays, or gay sex, stops when we start talking about using state power to stop gays from being gay or having sex with each other. It's an obvious, crucial distinction that you want to elide in order to pretend that anyone who supports a court decision getting rid of a sodomy law has it in for religious conservatives.
2.2.2009 7:44pm
whit:

Conservatives support drug laws and euthanasia laws because they believe that the government has a right--even a duty--to promote moral standards.


a heck of a lot of conservatives (myself included) don't support the drug laws. let's remember, the national review magazine is the "conservative flagship" and they came out against drug laws LONG before it was cool and trendy to do so.
2.2.2009 7:57pm
whit:

It's an obvious, crucial distinction that you want to elide in order to pretend that anyone who supports a court decision getting rid of a sodomy law has it in for religious conservatives.



i am 100% against sodomy laws and i am for gay marriage.

however, another reason to be against the court decision to get rid of sodomy laws is that it's an absurd decision.

this is yet another court decision that invents yet another constitutional right - the right to have sex however you want to. while i certainly think it SHOULD be a constitutional right, it clearly isn't if you actually read the constitution unless one starts whippin' out penumbras, emanations and other such claptrap.

iow, good result. bad decision.
2.2.2009 8:01pm
Michelle Dulak Thomson (mail):
Randy R.,

There were a few threats to burn down churches in CA, but again, very few. And in fact, none were actually torched or harmed in any way.

This isn't quite true. See, e.g., here. The headline is "Vandals desecrate pro-gay Catholic church," but the story is about the church — the one in whose parish San Francisco's Castro District lies — being spray-painted with swastikas and various other graffiti by anti-Prop. 8 activists. That the parishoners themselves were mostly opposed to Prop. 8 is just one of those little ironies.
2.2.2009 8:03pm
Jon Rowe (mail) (www):
Clayton Cramer wrote


A true statement about Franklin and some of the Framers, but if this was a widely held belief, it's a bit weird that so many of the state constitutions provided for religious tests for holding office. This suggests that Franklin and other freethinking Framers were (like the elites today) holding a viewpoint that the population generally did not accept. And Franklin's remarks to Ezra Stiles about keeping Franklin's views of Jesus's Messiahship certainly show that Franklin knew full well how far outside the mainstream his views were.


This may be true. I also think, if their beliefs were a minority point of view, they tried to secretly "found" America according to their "elite" viewpoint.

I would count George Washington as one as well. Here is GW on Art. VI. Cl. 3, in a letter to the Swedenborgs, a non-Nicene sect of "Christians" arguably "not Christian at all" according to orthodox theology:

To the members of the New Church at Baltimore.


Gentlemen,

It has ever been my pride to mind the approbation of my fellow citizens by a faithful and honest discharge of the duties annexed to those Stations to which they have pledged to place me; and the dearest rewards of my Services have been those testimonies of esteem and confidence with which they have honored me. But to the manifest interpretation of an over-ruling Providence, and to the patriotic exertions of United America, are to be ascribed those events which have given us a respectable rank among the nations of the earth. --

We have abundant reason to rejoice that in this land the light of truth and reason has triumphed over the power of bigotry and superstition and that every person may here worship God according to the dictates of his own heart. In this enlightened Age &in this Land of equal liberty it is our boast, that a man's religious tenets, will not forfeit his protection of the Laws, nor deprive him of the right of attaining &holding the highest offices that are known in the United States.

Your Prayers for my present and future felicity were received with gratitude; and I sincerely wish, Gentlemen, that you may in your social and individual capacities, taste those blessings which a gracious God bestows upon the Righteous.

G. Washington
2.2.2009 8:08pm
NowMDJD (mail):

On the contrary, my dear Watson, it contains almost nothing but values. Even the basic working rules of government reflect values about the relative importance of democracy and rule of law, of equal representation, etc.

The authors of the Constitution undoubtedly had "values." which they would have called principles, and they differed in their principles. What they wrote, and what the states ratified, was a set of tules. Not a set of "values" which could be substituted for the rules by someone wise enough to read past the words into the deep text of the document. Or read into the document his own values, calling them the values of the authors.

In reading that congress shall enact no law concerning the establishment of religion, it is permissible to ask what theyy meant by "establishment of religion." It is not permissib le to ask why one or more of them wanted to proscribe this.
2.2.2009 8:30pm
Oren:

Uh, not quite. Conservatives support drug laws and euthanasia laws because they believe that the government has a right--even a duty--to promote moral standards.

Absolutely, so long as it's the correct moral standard we are promoting -- to wit, the morality which considers denying a free human being the right to alter or end his own consciousness to be contrary to God's will.
2.2.2009 9:10pm
http://volokh.com/?exclude=davidb:
I'm sure that you can't imagine why ANYONE would disapprove of homosexuality. I can't imagine why anyone would find it acceptable.

Is that the best you can muster, Mr. Cramer? Your glory days are behind you -- frankly I think your criticisms of homosexuality have all been downhill since this gem:

Male homosexuality definitely is one of those examples of a consensual activity that produces enormous externalities that justify government intervention. (Lesbians don't seem to be spreading AIDS, both because of the mechanics involved, and because lesbians do not generally engage in the wanton, anonymous, highly promiscuous sex that is common, though not universal, among male homosexuals.)

Does it offend you that your freedoms are being violated? Good. My freedoms are violated by having to pay for treatment for AIDS--a disease that almost no one who became sexually active after 1990 should be getting. It's not that hard to dramatically reduce the spread of AIDS--but you have to be willing to not use dirty needles, use condoms, and change sexual partners less often than you change socks. For many homosexual men and heroin addicts, that seems to be more willpower than they can muster.

It's like your fire is gone, or something. Sad, in a way.
2.2.2009 9:46pm
Fub:
whit wrote at 2.2.2009 8:01pm:
this is yet another court decision that invents yet another constitutional right - the right to have sex however you want to. while i certainly think it SHOULD be a constitutional right, it clearly isn't if you actually read the constitution unless one starts whippin' out penumbras, emanations and other such claptrap.
My girlfriends always liked it when I whipped out my penumbras. And their emanations weren't claptraps either, you insensitive clod!
2.2.2009 9:52pm
Putting Two and Two...:

The headline is "Vandals desecrate pro-gay Catholic church," but the story is about the church — the one in whose parish San Francisco's Castro District lies — being spray-painted with swastikas and various other graffiti by anti-Prop. 8 activists.


Uh... no one has yet been arrested for that crime, so there's no basis for blaming anti-Prop 8 "activists".

The parish is well-known in the community as a gay-supportive one. Any "activist" in the city's gay community would know that.
2.2.2009 10:11pm
http://volokh.com/?exclude=davidb:
I may have spoken too soon. Mr. Cramer, did you actually write what is attributed to you in this exchange? Because if so, it's your masterpiece of scholarly analysis.

Money quote:


cramer@optilink.COM (Clayton Cramer) writes:

# #I used to think that homosexuals were OK -- but havng now gotten a
# #chance through USENET to know quite a few, I've realized that I was
# #misled in my youth. Homosexuals are vicious, screwed-up, often
# #really evil people.


If you did not write this, then I apologize, and revert to your earlier work, which I located on your website.
2.2.2009 10:14pm
Putting Two and Two...:

I'm sure that you can't imagine why ANYONE would disapprove of homosexuality. I can't imagine why anyone would find it acceptable.


One of two things is going on here. Clayton's disgust at the idea of homosexual sex is so irrationally intense that he cannot imagine a gay man finding homosexuality acceptable. Or -- much more likely -- gay people don't fall into the category of "anyone" for Clayton. We're just not human...
2.2.2009 10:16pm
ArthurKirkland:
The most remarkable point of this thread: Someone whose asserted belief in the supernatural animates a desire to have others pay homage to the supernatural derides others for "quack theories."

It is always difficult to argue with one who believes "just because" constitutes a legitimate argument.
2.2.2009 10:21pm
Michelle Dulak Thomson (mail):
Putting Two And Two:

You're quite right; no one has been arrested for the attack on Most Holy Redeemer. We must therefore go by the evidence that we have. There were swastikas; the names Ratzinger (= Pope Benedict XVI) and Niederauer (= Archbishop of San Francisco); and (IIRC) "where is the love?"

It's possible that this is just random anti-Catholic bigotry. But I haven't run across anyone who actually thinks so.
2.2.2009 10:28pm
loki13 (mail):
Original Post=

Regular, keen analysis by EV about "so help me god" in judicial oath.

OP + DangerMmouse=
Religion (ok) + Everyone's out to get the Christians(tm) (hum?) + Abortion (what?)

OP + Clayton=
Originalism (sure) + homosexuality (Clayton just doesn't have to be tolerant of your choices, darn it!)

The posts might change, but the song remains the same. It's always back to the gays and abortion.
2.2.2009 10:46pm
Oren:

this is yet another court decision that invents yet another constitutional right - the right to have sex however you want to.

I see no reason to invent new constitutional rights to engage in activities that the government had no power to prohibit in the first place.

Then again, Hamilton inveighed against the Bill of Rights on exactly these grounds and think about how screwed we'd be if he'd prevailed against their ratification!
2.2.2009 10:51pm
MarkField (mail):

(link)DangerMouse:
I admit to using a little hyperbole


Irony lives.
2.2.2009 10:57pm
Clayton E. Cramer (mail) (www):

Clayton, homophobia is a word which means anti-gay bigotry. You've lost that debate. You have to learn to give up debates that you've lost.
Disapproval of homosexuality isn't the same as anti-gay bigotry, nor a loaded term such as "homophobia" which, by its roots, implies "irrational fear."


And I no objection to anyone's right to hate gays or lesbians, or to object to same-sex sexual relations. But that's not what Lawrence was about. It was about getting awful laws that conservatives refused to make any effort to repeal off the books. (Indeed, some conservatives even supported these laws.)
I have never defended sodomy laws. They are ineffective and stupid. But that doesn't make them unconstitutional.


Your right to hate gays, or gay sex, stops when we start talking about using state power to stop gays from being gay or having sex with each other. It's an obvious, crucial distinction that you want to elide in order to pretend that anyone who supports a court decision getting rid of a sodomy law has it in for religious conservatives.
You seem to have some difficulty understanding the concept that just because a law is stupid, or foolish, or even destructive, that this doesn't make it unconstitutional.
2.2.2009 11:05pm
Clayton E. Cramer (mail) (www):

I may have spoken too soon. Mr. Cramer, did you actually write what is attributed to you in this exchange? Because if so, it's your masterpiece of scholarly analysis.

Money quote:


cramer@optilink.COM (Clayton Cramer) writes:

# #I used to think that homosexuals were OK -- but havng now gotten a
# #chance through USENET to know quite a few, I've realized that I was
# #misled in my youth. Homosexuals are vicious, screwed-up, often
# #really evil people.



If you did not write this, then I apologize, and revert to your earlier work, which I located on your website.
Yup. About 20 years ago. At a time when homosexuals were making obscene phone calls to my kids, making threats against my personal safety, trying to get me fired from my job, threatening to hold obscene demonstrations in front of my house, and in general, behaving the way that homosexual activists usually behave. (See the post-Prop. 8 crap.)

And all because I asked a question: Why was NAMBLA marching in the San Francisco gay pride parade if homosexuals were trying to get past the child molester stereotype. And the responses that I received persuaded me away from the "homosexuality is an alternative lifestyle" position that I had previously held--and that it is a sign of very severe psychological problems.
2.2.2009 11:08pm
Chris Bell (mail):
I recently had to take an oath as part of a mass swearing-in ceremony for the NY bar. I looked up the oath ahead of time (being a militant atheist) and was pleased to find that "So help me God" was not included in the particular oath I was taking. I have always thought that "So help me God" worked much better as a voluntary add-on anyway.

I was very upset when the clerk reading the oath added the phrase anyway....

I mean, I know that it doesn't hurt anyone, but in a room full of Christians, atheists, Hindus, Buddhists, Muslims, Jews, and all the other faiths I saw there, could they not have just stuck to the God-free text and let people make their own religious affirmations if they wished?
2.2.2009 11:10pm
Clayton E. Cramer (mail) (www):

a heck of a lot of conservatives (myself included) don't support the drug laws. let's remember, the national review magazine is the "conservative flagship" and they came out against drug laws LONG before it was cool and trendy to do so.
And even those of us who have moved away "legalize all drugs" recognize that prohibition can be, at most, a tiny part of the solution. There are effective strategies and ineffective strategies. Drug prohibition can be, at most, a small part of the solution. Reducing demand through education and social pressure are far more likely to be effective.

Nonetheless, the constitutionality of states regulating intoxicants is about as clear as it can be. Federal regulation is a lot more problematic, as examination of U.S. v. Nigro (1925) and the Harrison Narcotic Act demonstrates.
2.2.2009 11:15pm
Clayton E. Cramer (mail) (www):

One of two things is going on here. Clayton's disgust at the idea of homosexual sex is so irrationally intense that he cannot imagine a gay man finding homosexuality acceptable. Or -- much more likely -- gay people don't fall into the category of "anyone" for Clayton. We're just not human...
Oddly enough, I have no particular disgust about homosexual sex. I've seen it over the years (I'm from California) and it doesn't disgust me. What disgusts me is the totalitarian impulse of gay activists who are terrified that someone, somewhere, isn't going to approve of them.
2.2.2009 11:17pm
Clayton E. Cramer (mail) (www):

OP + Clayton=
Originalism (sure) + homosexuality (Clayton just doesn't have to be tolerant of your choices, darn it!)

The posts might change, but the song remains the same. It's always back to the gays and abortion.
Nice try, but I'm not the one who brought up homosexuality. That was Dilan Esper.
2.2.2009 11:19pm
Clayton E. Cramer (mail) (www):

I see no reason to invent new constitutional rights to engage in activities that the government had no power to prohibit in the first place.

Then again, Hamilton inveighed against the Bill of Rights on exactly these grounds and think about how screwed we'd be if he'd prevailed against their ratification!
Except Hamilton was discussing how the federal government lacked that authority. That the states had authority to regulate all sorts of private behaviors in the interests of public morality and safety was undisputed. Not every regulation in that realm is necessarily sensible, useful, or appropriate. But the U.S. Constitution did not create a libertarian paradise.
2.2.2009 11:21pm
Jon Rowe (mail) (www):

Yup. About 20 years ago. At a time when homosexuals were making obscene phone calls to my kids, making threats against my personal safety, trying to get me fired from my job, threatening to hold obscene demonstrations in front of my house, and in general, behaving the way that homosexual activists usually behave. (See the post-Prop. 8 crap.)


I think it's unfortunate that a small % of gay psychos (for all we know it was one person) led to CC being so obsessed with this issue.

Why doesn't CC focus on the bright side of gay folks. I didn't know Charles Whitebread was gay until I read his obituary (many of you may have had him for Crim. Law bar review). Why don't we focus on folks like him when we think of gay folk?

I won't even raise the Fred Phelps straw man when it comes to conservative Christians (there aren't too many of him). But there are quite a few Randall Terrys. Maybe we should invoke him as the typical anti-abortion, anti-gay Christian conservative.
2.2.2009 11:22pm
Randy R. (mail):
Michelle Thompson: "It's possible that this is just random anti-Catholic bigotry. But I haven't run across anyone who actually thinks so."

Right. so if the majority thinks someone is guilty, why bother with a trial? And indeed you don't, as you are spreading inforamtion that you have no idea whether it's true or not. But hey, it supports your notion that gays are violent and intolerant, so who cares about the facts, right?

When you show as much concern for gay churches being vandalized by random anti-gay bigotry, then perhaps you will have a bit of credibility.

Oh, by the way, the Mormon church admitted it lied. after stating that they didn't contribute any money to Prop. 8, it turns out that they actually contributed about $200,000 based on their tax return. I guess any lie or unsupported statement is okie-doke when you are doing the Lord's work, right Michelle?
2.2.2009 11:37pm
Dilan Esper (mail) (www):
clayton:

i know the arguments against Lawrence as constitutional law. but you conservatives miss the pragmatic point. had you guys repudiated homophobia and repealed sodomy laws, there would not have been a Lawrence. if you don't like Lawrence, it's your own fault.
2.2.2009 11:39pm
loki13 (mail):
Clayton,

Again, perhaps someone else raised it somewhere else at sometime. But, have you noticed (maybe?) that you're always, always, always in the thick of it? On threads that have nothing to do with it? You and homosexuality are like Dangermouse and abortion- it's not a question of if, but when.

I'm just sayin'- you seem to have some other good points; well, not ones I would always agree with, but at least well-argued ones that have some archival research. That's more than most posters could say. But they tend to get lost in your desire to continually state your distaste for homosexuality. At some point, it's not other posters bringing it up- it's you seeking it out.

Make of that what you will.
2.2.2009 11:40pm
Michelle Dulak Thomson (mail):
Randy R.,

It wasn't I that made the connection with Prop. 8. Did you read the article?

A priest walking his dog early Sunday outside the church at 100 Diamond St. found the black swastikas and angry messages about Proposition 8, the state constitutional amendment banning same-sex marriage that voters approved in November, a church employee said Monday. The vandalized walls were washed Monday morning to remove most of the scrawlings.

Prop. 8 received prominent support from Catholics, including San Francisco Archbishop George Niederauer, who used his position as former bishop of Salt Lake City to organize the Church of Jesus Christ of Latter-day Saints to campaign for Prop. 8.

The vandals wrote Niederauer's name on the side of the church along with the question, "Where is the love?"

Now, this is the San Francisco Chronicle here. They are not in the business of giving cover to people faking anti-Prop.-8 vandalism.

I am inclined to think, therefore, that this actually was anti-Prop.-8 vandalism. That doesn't mean that this sort of thing was common in the wake of the election. (It's the only incident I've heard of involving vandalism, though I gather that churchgoers at Oakland's Mormon Temple were harassed and intimidated).

As you know perfectly well from my past comments here that I opposed Prop. 8 myself, I don't know why you're jumping on me here. You said that no church had been damaged, and I pointed to a counterexample I knew about. That's all.
2.2.2009 11:57pm
whit:

I see no reason to invent new constitutional rights to engage in activities that the government had no power to prohibit in the first place.

Then again, Hamilton inveighed against the Bill of Rights on exactly these grounds and think about how screwed we'd be if he'd prevailed against their ratification!



if the govt. has the power to tell people what they can and can't put in their bodies (dumb war on drugs) then they have the power to make similar pronouncements about where we stick our john thomases.

and note, this was a STATE law. so, it wasn't an example of creeping federal power.

a state is not constitutionally prohibited (lawrence notwithstanding) from criminalizing sodomy. that so called right is just another invention of an activist court.

like i said, i think sodomy laws are abhorrent, but they are not unconstitutional, at least not under the federal constitution.

maybe in my state, where we have a right to privacy, that right could be argued.
2.3.2009 12:36am
whit:

My girlfriends always liked it when I whipped out my penumbras. And their emanations weren't claptraps either


if you whip out your penumbra indiscriminately, you may find yourself with the CLAP, and that is a trap, my friend.
2.3.2009 12:39am
Randy R. (mail):
Michelle: "You said that no church had been damaged, and I pointed to a counterexample I knew about. That's all."

I apologize. I did not recognize your name from other discussions, but that's my own fault.

I get a little caught up on this-- of course, I abhor violence of any kind, as it does little to change anyone's minds, and it's bad anyway. So when I see a person condemning (rightly, actually) violence by gays, I wonder why they didn't condemn violence against gays with the same vehemence.

There seems to be a notion among some people (not you) that rights for gays should be denied because a few gays are not nice. You know, they might be rude, call a person names, file lawsuits, even throw a fit now and then. And as long as that happens, well, gays just don't deserve rights.

I, on the other hand, believe that rights are for everyone, even for people we don't like. Especially for people we don't like, because it's precisely those people who are denied rights.

Whit:"a state is not constitutionally prohibited (lawrence notwithstanding) from criminalizing sodomy. that so called right is just another invention of an activist court."

However, I would argue that sodomy laws that single out prohibitions based on the actors (IOW, sodomy is legal between a man and woman, but illegal between a man and a man), are unconstitutional as it violates the equal protection clause. In fact, most of the states that still had sodomy laws made that distinction, so I think the court was certainly on proper grounds to rule that the application is unconstitutional.

For the remaining few states that prohibited sodomy for everyone, not just gay couples, you would have an argument. But then, you would have a due process argument -- what is the compelling state interest for prohibiting a sex act that nearly everyone engages in? It could also be ruled as void for vagueness -- if sodomy covers such a wide number of acts by nearly all couples, what does it really prohibit? And why?
2.3.2009 1:24am
DangerMouse:
At some point, it's not other posters bringing it up- it's you seeking it out.


I see. The old, tired canard that a person who attacks homosexuality is really himself a homosexual. So cliche. So American Beauty.

You guys need to get a new playbook. I don't think that one works anymore. It's just too ridiculous. Hey, maybe because I oppose abortion all the time, I'm secretly a baby murderer myself! Your keen logic sees through all lies! And this logic extends to all of conservatives! All conservatives secretly support the very ideologies, programs, and social issues that they publicly oppose, because they're all self-hating jerks who can't admit that liberals are right about everything! It's all so easy!

Or, you know, he could disagree with you. Perhaps you should stop reading Freud. I hear he's pretty much discredited anyway.
2.3.2009 1:33am
DangerMouse:
So when I see a person condemning (rightly, actually) violence by gays, I wonder why they didn't condemn violence against gays with the same vehemence.

Randy, you should know better. Nobody takes jukeboxgrad seriously because his entire schtick when presented with an argument is deflection. You're going to have to deal with the crap that your side engages in. The people who focus on the minority of actors on your side are people without an argument anyway (just like the same people who bring up the Crusades, or the priest molester scandals, or the inquisition, when discussing Catholicism). It's easily dealt with. But you're too easily tempted to deflect. It's the internet equivalent of "I know you are but what am I?"
2.3.2009 1:38am
whit:

However, I would argue that sodomy laws that single out prohibitions based on the actors (IOW, sodomy is legal between a man and woman, but illegal between a man and a man), are unconstitutional as it violates the equal protection clause. In fact, most of the states that still had sodomy laws made that distinction, so I think the court was certainly on proper grounds to rule that the application is unconstitutional.

For the remaining few states that prohibited sodomy for everyone, not just gay couples, you would have an argument. But then, you would have a due process argument -- what is the compelling state interest for prohibiting a sex act that nearly everyone engages in? It could also be ruled as void for vagueness -- if sodomy covers such a wide number of acts by nearly all couples, what does it really prohibit? And why?




I agree with you that laws that single out sex acts between same sex actors vs. complementary/opposite sex actors would fail the epc test.

we have no disagreement there.

however, i disagree that sodomy in general cannot be prohibited and not run afoul of the constitution.

this is one decision (of many) where i like the RESULT but i do NOT buy the logic/law.
2.3.2009 2:20am
http://volokh.com/?exclude=davidb:
Wow. Let's review the bidding.

Clayton Cramer wrote:

Homosexuals are vicious, screwed-up, often really evil people.

He claims that he wrote this about 20 years ago (I make it more like 16 from the context, but who's counting), and he's unapologetic, to say the least. He says he wrote it when:

homosexuals were making obscene phone calls to my kids, making threats against my personal safety, trying to get me fired from my job, threatening to hold obscene demonstrations in front of my house, and in general, behaving the way that homosexual activists usually behave. (See the post-Prop. 8 crap.)

I suppose if blonde activists harassed Clayton for making blonde jokes, he would likewise declare that blondes were "vicious, screwed-up, often really evil people." And I chose that analogy carefully; remember that some people choose to be blonde....

Anyway, far from disowning that overwrought gem, which he perhaps could do with some grace given the passage of time and the circumstances surrounding it, Clayton now adds that homosexuality

is a sign of very severe psychological problems.

but that,

Oddly enough, I have no particular disgust about homosexual sex. I've seen it over the years (I'm from California) and it doesn't disgust me.

I call shenanigans. Clayton, it appears that for twenty years (by your count) you have unapologetically indicted homosexuals, all of them, as "vicious," "screwed up," and having a sign of "very severe psychological problems." You even have said they are "often really evil."

Yet just about the only thing that homosexuals actually have in common, as a group, is homosexual sex. Roy Cohn and Harvey Milk probably wouldn't agree on much, and they appear to have led slightly different lives. There are likely better examples.

So I think you are, in fact, skeezed out at some level by homosexual sex. I'm not saying you're secretly gay -- the idea that all rabid haters of homosexuals are gay is a stereotype, albeit regularly supported by an actual example. No, I'm saying that your irrational and bizarre hatred of homosexuals has unhinged your intellect and has caused you to write outrageous, unsupportable, and hateful things.

You're obsessed.

But I guess you actually would say these kinds of things at a dinner party, so perhaps you aren't violating the comment policy.
2.3.2009 9:11am
Clayton E. Cramer (mail) (www):

I think it's unfortunate that a small % of gay psychos (for all we know it was one person) led to CC being so obsessed with this issue.
Try again. It wasn't one person. And the sickness is widespread. Look at the threats after Prop. 8 lost? That same psycho? Or how about the sickness on display at "Up Your Alley 2008" in the streets of San Francisco? (Even the censored version isn't worksafe. It wouldn't be worksafe in hell.)

Or this picture outside the Folsom Street Fair in San Francisco.

Or the "pig sex" event that was scheduled for the Doubletree in D.C.?

We've now got a KILLER line up of DEMOS, including super skilled rope bondage, sounds play, and flogging. LIVE Music and Sound is gonna be provided by THE BLACK PARTY DJ Rich King. So you can suck, fist, rim, and [f--k] TO THE BEAT. 15 Slings, Piss Tubs, Rimming Stations, a Bondage Cross, and a Flogging Station.
I know that a lot of gay people don't do stuff like this, and are even a bit repelled by this. But significantly, San Francisco police were present at the "Up Your Alley 2008" event and were instructed not to arrest anyone for public indecency. Is that because San Francisco government is on the side of the homophobes? No, it's because homosexual activists have defined deviancy down to a level where there seems to be nothing that is outside the realm of acceptable behavior.
2.3.2009 9:19am
loki13 (mail):
Dangermouse,

Um, no. In now way do I think (or can I infer) that Clayton is gay. I just think it's unfortunate that a poster who occasionally has valuable (if often wrong, in my normative opinion) things to say ends up losing credibility by returning to a subject that he has been shown to have personal animus towards, and not anything new or insightful. While I don't think that it would be inappropriate on threads about homosexuality (although we've all heard this from Clayton before), I think it detracts from his points on other threads.

Dangermouse- you're just pretty much:
Clayton - homosexuality + abortion - substance + invective.
2.3.2009 9:25am
Clayton E. Cramer (mail) (www):

At some point, it's not other posters bringing it up- it's you seeking it out.
I'm not going to stand idly by while liberals destroy the Constitution in pursuit of their depravity. It's the same reason that I don't stand idly by when liberals rationalize the creation of a police state by disarming law-abiding adults.

Randy R. writes:


However, I would argue that sodomy laws that single out prohibitions based on the actors (IOW, sodomy is legal between a man and woman, but illegal between a man and a man), are unconstitutional as it violates the equal protection clause. In fact, most of the states that still had sodomy laws made that distinction, so I think the court was certainly on proper grounds to rule that the application is unconstitutional.
Except Lawrence struck down all such laws, even that of Idaho, which is the traditionally crime against nature statute. And your notion of the equal protection clause doesn't make a lot of sense from an originalist standpoint. Take a look at the court decisions immediately after ratification of the 14th Amendment with respect to sex discrimination laws. In any case, it would be possible to defend homosexual anal sex prohibitions based on public health, since the opportunities for spread of AIDS from man to man to man are much higher than from man to woman to man. (I'm not arguing that I would support such a law on that basis, but it could be an effective argument against an EPC claim.)

For the remaining few states that prohibited sodomy for everyone, not just gay couples, you would have an argument. But then, you would have a due process argument -- what is the compelling state interest for prohibiting a sex act that nearly everyone engages in?
What is the compelling state interest for prohibiting speeding, an act that nearly everyone engages in? Public safety? Any individual act of speeding has a very tiny risk of causing injury or death--probably comparable to any individual act of anal sex. Yet you aren't arguing that speeding laws violate due process.
2.3.2009 9:25am
Clayton E. Cramer (mail) (www):

I suppose if blonde activists harassed Clayton for making blonde jokes, he would likewise declare that blondes were "vicious, screwed-up, often really evil people." And I chose that analogy carefully; remember that some people choose to be blonde....
If blonde activists behaved that way, and regularly engaged in behavior that promoted vicious stereotypes of blondes as stupid, I suppose that I might start to wonder a bit about them. But oddly enough, for all the controversial statements that I made 20 years ago (in support of free markets, against restrictive gun control, in opposition to Communism), and for which I received considerable criticism, both intelligent and stupid no other political faction felt the need to engage in obscene phone calls to my kids, threats against me, attempts to get me fired. Why do you suppose that is?


I call shenanigans. Clayton, it appears that for twenty years (by your count) you have unapologetically indicted homosexuals, all of them, as "vicious," "screwed up," and having a sign of "very severe psychological problems." You even have said they are "often really evil."
See above. It isn't just that homosexuals are disproportionately substance abusers, but that they respond to criticism in such bizarre and childish ways. Look at the Prop. 8 vote reactions.
2.3.2009 9:31am
Clayton E. Cramer (mail) (www):

So I think you are, in fact, skeezed out at some level by homosexual sex.
No, I'm "skeezed out" by the totalitarian tendencies of homosexual activists. I'm rather like those Northerners in the 1830s who didn't care all that strongly about slavery itself, but became increasingly concerned about the loss of freedom of speech and the press that the slaveocracy (a tiny minority of the population, and even a tiny but rich minority of slave owners) was beginning to exert.

When homosexuals argue that they had a privacy right to do what they did, I was sympathetic, partly because I hadn't studied the bogus nature of the "privacy right" that was found hiding in the Constitution by Griswold. But I was also sympathetic because my natural tendencies then and now is for the government to leave people alone. Unfortunately, homosexuals have moved from a privacy right argument--an essentially libertarian view of government--to a right to force others to do what they want--an essentially totalitarian view of government.
2.3.2009 9:37am
loki13 (mail):
*shrug* I tried. Didn't you used to blog here? I was told at a young age that sometimes it is better to remain silent, and have others think you are clueless, than speak up and remove all doubt. I am occasionally successful at following this advice.


I'm not going to stand idly by while liberals destroy the Constitution in pursuit of their depravity.


Yes, and every time you make your point, in countless threads that have nothing to do with homosexuality, advances your cause, just as others here convince "the libs" to stop following "the annointed one" and "the obamessiah" with their insightful commentary on Prof. Lindgren's threads.

-last note, then no more posts on this thread (I've hit my limit). Clayton- I wouldn't bother if you were completely useless like some posters. But by coming back to this single issue over and over again you lose credibility for everything else.
2.3.2009 9:50am
http://volokh.com/?exclude=davidb:

If blonde activists behaved that way, and regularly engaged in behavior that promoted vicious stereotypes of blondes as stupid, I suppose that I might start to wonder a bit about them.

Nice try. When you were harassed you didn't "start to wonder a bit" about homosexuals as a group. You decided, at the time, that they were -- all of them, I saw no qualifiers and still don't -- vicious, really screwed up, suffering from severe psychological problems, etc.

"Starting to wonder" about a group as a whole might be understandable. But declaring all of them to be vicious, really screwed up, etc., "often evil," and continuing to do so for 20 years, even adding to the denunciations, demonstrates an irrational and obsessive hatred.

Despite the interesting and provocative things you have to say about the Second Amendment, that kind of thing makes you look like some sort of crank.
2.3.2009 9:57am
ArthurKirkland:
I've never observed a homosexual, even one with the most intense "totalitarian tendencies," to propose mandatory homosexuality.

I have, however, observed some Americans -- including many of those who oppose voluntary homosexuality most ardently -- argue that the norm should be to have everyone ask "God" for help (regardless of whether the speaker believes in a divine being, let alone a particular supernatural tale) in an oath, or to mouth the incongruous words "under God" if he wishes to pledge allegiance to his country.

Juxtaposition can generate odd points about freedom and reason.
2.3.2009 10:01am
Oren:

What is the compelling state interest for prohibiting speeding, an act that nearly everyone engages in? Public safety? Any individual act of speeding has a very tiny risk of causing injury or death--probably comparable to any individual act of anal sex. Yet you aren't arguing that speeding laws violate due process.

Speeding risks injury or death to someone else. Sex risks injury to only to those consenting adults that chose to engage in it.

If a State claimed the power to shut down a race that takes place entirely on private property (e.g. Daytona 500) that would be comparable to banning sodomy inside a private residence.
2.3.2009 10:13am
Oren:

Unfortunately, homosexuals have moved from a privacy right argument--an essentially libertarian view of government--to a right to force others to do what they want--an essentially totalitarian view of government.

And yet your response is to support sodomy laws? I have no problem with opposing any measure in which gays want to "force others to do what they want" provided that you do so evenhandedly.
2.3.2009 10:19am
Clayton E. Cramer (mail) (www):

And yet your response is to support sodomy laws? I have no problem with opposing any measure in which gays want to "force others to do what they want" provided that you do so evenhandedly.
I have repeatedly in this thread made it clear that I do not think sodomy laws are a good idea, and I would oppose them. But that doesn't make them unconstitutional. There is a difference between "stupid, not a good idea" and "violates the Constitutional." But since you are stuck on the idea that the ends justify the means, you can't understand the difference.

Would it be a good idea if every state was obligated to recognize concealed weapon permits issued by other states? Yup, it would. But from my reading of the original intent of the 14th Amendment, that is required.
2.3.2009 10:24am
Clayton E. Cramer (mail) (www):

Nice try. When you were harassed you didn't "start to wonder a bit" about homosexuals as a group. You decided, at the time, that they were -- all of them, I saw no qualifiers and still don't -- vicious, really screwed up, suffering from severe psychological problems, etc.

"Starting to wonder" about a group as a whole might be understandable. But declaring all of them to be vicious, really screwed up, etc., "often evil," and continuing to do so for 20 years, even adding to the denunciations, demonstrates an irrational and obsessive hatred.
I started to find surprising amounts of information that was coming out of completely reputable, mainstream journals that demonstrated that the sickness was not just a few individuals.


I've never observed a homosexual, even one with the most intense "totalitarian tendencies," to propose mandatory homosexuality.
But you can see homosexuals insist that you better photograph our "wedding" or we'll see you fined thousands of dollars. You can see homosexuals insist that churches rent out their facilities for a civil union--or the heavy hand of the State of New Jersey will come down on them.
2.3.2009 10:27am
Clayton E. Cramer (mail) (www):

Didn't you used to blog here?
Yup. But homosexuals wouldn't allow it, based on stuff that I written more than nine years earlier. I had said nothing about homosexuality in the meantime--but homosexuals tolerate no dissenting views.
2.3.2009 10:28am
Clayton E. Cramer (mail) (www):

Speeding risks injury or death to someone else. Sex risks injury to only to those consenting adults that chose to engage in it.
Assuming, of course, that they realize the risks that they are engaged in. Amazingly enough, there's no big tag that warns you, "HIV+" on someone's forehead.


If a State claimed the power to shut down a race that takes place entirely on private property (e.g. Daytona 500) that would be comparable to banning sodomy inside a private residence.
Does anyone seriously doubt that a state government has the authority to prohibit such? They don't, but they could certainly use their authority for public safety, air pollution, public health, to do so.

I'm not a fan of the nanny state, and that's part of why I think sodomy laws are dumb. But homosexuals who oppose that kind of nanny-statism and then insist that antidiscrimination laws are okay are being terribly inconsistent.
2.3.2009 10:31am
Clayton E. Cramer (mail) (www):

But from my reading of the original intent of the 14th Amendment, that is required.
should have been: "But from my reading of the original intent of the 14th Amendment, that is not required."
2.3.2009 10:33am
trad and anon:
The libs have to attack the Church because the Church will not agree to homosexual marriage or abortion, and the libs can't stand the opposition. They don't merely want tolerance, they want approval. It will be state policy that anyone who does not approve of abortion and homosexual marriage will be pushed out of the public sphere.

They'll be thrown to the lions, but driven to the catacombs first. Right now, Christians are being driven out of the public sphere. The libs are very happy with that because it removes opposition to their political goals. It's only a matter of time before persecution becomes a full-blown lib policy.
Oh, that explains why the President is a Christian, the Vice President is a Christian, the last President was a Christian, the Secretary of State is a Christian, the Secretary of Defense is a Christian, the Speaker of the House is a Christian, the Chief Justice is a Christian, most of Congress is Christian, and the vast majority of state and local officeholders are Christian. It's because Christians are being persecuted and driven out of the public sphere!
2.3.2009 10:37am
Oren:


I have repeatedly in this thread made it clear that I do not think sodomy laws are a good idea, and I would oppose them. But that doesn't make them unconstitutional. There is a difference between "stupid, not a good idea" and "violates the Constitutional." But since you are stuck on the idea that the ends justify the means, you can't understand the difference.

Sorry, I'll revise my statement -- you support a narrow and cramped version of basic human freedom that would allow such rank tyranny.

At some level, this is a rehash. I know that you consider (at least in the abstract ideal) the US a union of police-states. I can only hope that you will keep this view if, hypothetically, those police-states chose to implement policies that you disagree with.

For instance, if the State can legally dictate what can and cannot happen in my bedroom (the most intimate part of my castle), then, a fortiori, it can regulate what can and cannot happen in my convention center or photography studio (neither private nor intimate and certainly absent any longstanding Anglo tradition of respect). If the state can ban a shirt that says "bong hits for jesus", surely it can ban a shirt that says "homosexuality is a sin".

I'm perfectly willing to let the photographer chose her clients or the high school student wear hateful clothing, but are you willing to give up using State power to advance your agenda? If not, then why should I have any sympathy when the State turns against you?
2.3.2009 10:49am
Fub:
whit wrote at 2.3.2009 12:39am:
if you whip out your penumbra indiscriminately, you may find yourself with the CLAP, and that is a trap, my friend.
Good grief! This thread has become entirely too solemn. It was an old hackneyed joke, whit, honest! For origins, look up "insensitive clod" here.
2.3.2009 1:53pm
whit:

For instance, if the State can legally dictate what can and cannot happen in my bedroom (the most intimate part of my castle), then, a fortiori, it can regulate what can and cannot happen in my convention center or photography studio (neither private nor intimate and certainly absent any longstanding Anglo tradition of respect). If the state can ban a shirt that says "bong hits for jesus", surely it can ban a shirt that says "homosexuality is a sin".




IF (and it can, unfortunately) the state can tell you that you cannot inject, smoke, or snort any # of drugs in the privacy of your bedroom, then it can also tell you what you can do with your john thomas there.

like i said, i don't LIKE the fact that this is true, but it is true.

i don't see how anybody who believes the state can regulate private use of drugs thinks there is some kind of reason they can't regulate use of your genitals.

i wish it wasn't true, but it is.

as for your t-shirt example, we have this pesky thing called the 1st amendment for good reason.

so, i see it as disanalogous.
2.3.2009 5:28pm
Oren:
Well, as it turns out, High School students aren't allowed to wear either of those shirts, first amendment or not.
2.3.2009 5:35pm
ArthurKirkland:
It seems strange for someone who shills for churches and religion to fault others for "wanting approval." Churches and their members want everyone to mouth "so help me God" and "under God" as part of civil society.

It is difficult to accept any argument that Christians are being thrown out of the public sphere. As someone catalogued, many of our country's most prominent figures are (or claim to be) Christians. Christians receive preferential treatment in countless ways in our society. The entitlement of Christians to require others to mouth approval of certain supernatural tales is being questioned, and rightly so.

Those who advocate for homosexuals customarily don't scare me much, particularly when I recall that no one has ever proposed mandatory homosexuality, but I wonder whether some who viciously attack them might -- in the right context -- enjoy a good old-fashioned witch-and-heretic bonfire or two, perhaps with a stone-the-homos warmup act.
2.3.2009 5:38pm
whit:

Well, as it turns out, High School students aren't allowed to wear either of those shirts, first amendment or not.



i'm aware of that case. i am also aware that kids have a lot less freedom than adults (mom and dad can quell their free speech quite effectively and send them to their room) and that schools, acting in loco parentis are essentially surrogate parents.

because the kids are minors, they have all sorts of liability and duty to "protect" the kids, and thus have the concomitant authority to reign in all sorts of stuff.

we may not agree with that logic, but kids under the authority of a school (not college, but high school and below) do and should have significantly less rights than free adults.

again, i don't necessarily agree with the bong hits for jesus rationale in total, but there is a big difference because it's a loco parentis thang.
2.3.2009 8:45pm
whit:
also note kids can't generally exercise their 2nd amendment rights. 16 yr olds can't own a gun nor can they get a CCW or carry lawfully with open carry, except in limited circ's where they are being supervised by an adult.


moral: kids are different.
2.3.2009 9:01pm
Oren:
Pretty weak sauce whit. A tee-shirt is not comparable to a firearm in its ability to cause harm.
2.4.2009 3:33pm

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