1. Comment #82286 by gcdavis on October 26, 2007 at 1:59 am

If you have problems displaying this PDF (I did) it may be because the file name has spaces, if you use "Save Target As" (right mouse click the link on a PC) you should be able to save it to your desktop and then read it.

Quote from page 6 of the document
James Madison, the author of the initial draft of the Establishment Clause, had, along with Thomas Jefferson, his closest ally in separating government and religion, always demonstrated a commitment to a government that was totally neutral in matters of religion, and not just a government that could favor religion, generally, over nonbelief. Four years before initially introducing the concept of the Establishment Clause intoCongress, Madison opposed a general assessment in Virginia, that would have used taxpayer money for the benefit of all clergy.

It is interesting (for a Brit) to see a clause written into the US constitution in 1789 being used in evidence for a current dispute. I wish we in the UK had something more concrete to cite in similar disputes. Ok I know many will say what good has it done to stem the rise in religious influence in the US and its body politic, well in the longer term it may be the persistence of people like Tabash who will be able to use it to re-establish the separation of church and state that the original drafters intended back in the 18C.


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2. Comment #82287 by Veronique on October 26, 2007 at 2:17 am

Good on you gcdavis

I also think Tabash has been doing a good job over the years.

I wish that we weren't merely an act of your parliament. There's a push in Oz to develop a republican model; I don't have a problem with it. The last Constitutional Convention rejected the proposed model because of the added power to be given to the PM (proposed President).

I guess we will keep trying and try to ensure good checks and balances and limitation of Presidential power.

Seeing the Bush administration's abuse of power has put our republican aspirations on the back burner for a while:-)

In the US, separation was sought and written into the Constitution, but the country was founded by dissenting and ex-patriot religites. It was always bound to be problematic, in my view. What is happening there is appalling, but it hasn't the same punch in the Commonwealth countries (I hope!!)

Anyway, thanks for your comment - I, at least, appreciate it:-)
V

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3. Comment #82354 by Flagellant on October 26, 2007 at 6:20 am

A fascinating, if slightly repetitive exposition. It is interesting to be able to go back to see what the Constitution writers really meant, simply by looking at clauses that they didn't include. The meaning can then be safely and unambiguously deduced. I wonder if there are similarly extant rejected clauses about 'The Right to Bear Arms'... Lol.

As for the Aussie Constitution, I love it apart from the theoretical possibility of having Brenda say 'No!' to a piece of Australian legislation. Still, with a Governor General like this, http://governor_general.blogspot.com/ who would complain now, eh?



Religion - an activity for consenting adults in private.

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4. Comment #82370 by Erik on October 26, 2007 at 7:16 am

I wish Tabash had spent more time on the issue of whether there is no secular purpose to the same-sex marriage ban, and less time on the basics of First Amendment principles, which are well understood. It may simply not be sufficient to show that legislators were motivated primarily by religious tenets. Otherwise, one might be tempted to strike down laws prohibiting murder on the grounds that the Ten Commandments were the prime motivation for the laws.

This is not to say that there are valid secular reasons for banning same-sex marriages. But clearly a lot of people will be uncomfortable with that notion, even outside of religious thought. Opponents of same-sex marriage bans on First Amendment grounds are doing good work, but sooner or later they will have to face this issue.

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5. Comment #82460 by DNAtheist on October 26, 2007 at 11:29 am

Erik wrote:

I wish Tabash had spent more time on the issue of whether there is no secular purpose to the same-sex marriage ban, and less time on the basics of First Amendment principles, which are well understood.

I have to disagree with you that these principles are well understood. Having read the historical interpretations given by the U.S. Supreme Court judges in the Newdow and 10 Commandment cases, it is clear to me that even our highest judges lack a solid understanding of this history. The California justices might be better informed, but any opportunity to combat the massive misinformation campaign that the religious have been waging for decades should be taken.

But I do agree with your larger point. I have never heard one sensible, coherent, non-religious objection to same-sex marriage. Come to think of it, that may be why Tabash didn't focus on it much. It is hard to argue against a position that doesn't exist.

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6. Comment #82516 by Marcus Hill on October 26, 2007 at 2:25 pm

The brief does need to go on about the Establishment Clause. There are still plenty of religious litigants who try to argue that it's OK to favour religion over nonreligion.

I also don't think there's a need to go into greater depth about the fact that the reasoning behind the ban is religious. There is enough in the brief to argue that it should be clear, and thus the burden of proof rests with those who favour the ban. In fact, the brief addresses the possibility that this isn't the case, asking the court to put the case of whether the reasoning behind the ban has any separable secular reasoning back into an evidentiary court rather than uphold the appeal if it isn't certain the case has been made.

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7. Comment #82804 by scooternyc on October 27, 2007 at 5:22 pm

Erik, I spoke with Tabash at the AAI convention and he mentioned this issue you speak of.

What he said was that the original brief filed didn't establish "why" (meaning the Establishment Clause) this was unconstitutional, which is the basis of the case to begin with, followed by your great observation of the non-secular reasons for banning gay marriage.

If the original case had already laid this foundation, I think he would've gone the direction you speak of, more quickly. He's hoping for a positive ruling, if not, then at least laying the ground work for the next chapter in it all.

If you check out his website and write to him, he'll give you the 411 on it all; he was a very nice guy and really knows his stuff - we need more like him.

Cheers!

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8. Comment #83166 by Erik on October 29, 2007 at 6:23 am

After reading your posts and rereading the brief, I realize I was perhaps being a bit hasty. We had a similar situation here in Texas with the Lawrence case (regarding the anti-sodomy statute). The case was not decided on First Amendment grounds, but in dissent, Justice Scalia touched on the notion that was really bothering him: the ruling provides a springboard for arguing that every law passed by a legislature must have a rational basis. Scalia realized that, to accept the Court's ruling in Lawrence, you cannot justify passing a law based purely on a religious notion.

In other words, a guy like Scalia can't see that there is really no conceptual difference between a law that advances, say, a religious ritual (like a law against eating meat on Fridays) and a law that advances a religious tenet (like a law prohibiting homosexuality). He thinks the latter is just fine, and the former would be if it weren't for that pesky First Amendment.

And, indeed, the lawyers for Lawrence didn't look at it this way, either, although it was staring them right in the face. At trial, the State of Texas admitted that the only basis of the anti-sodomy law was religious, but Lawrence's counsel did not argue that the law was unconstitutional based on the First Amendment. And when I talked to them at a meeting here in Houston, it was plain that the argument did not even occur to them.

But it seems to me that there is no First Amendment justification for permitting the enforcement of a substantive religious view vs. a law addressing a societal issue (like the prohibition on murder). The trouble is finding where these things diverge, since there are plenty of religious admonishments that coincide with secular ethics. My guess is that Scalia, and a whole lot of other people, would find it an odd exercise to have to determine the secular basis for having a law against murder. So before we even get to the pros and cons of a particular piece of legislation, I suppose we have to get folks used to the idea that the only proper way to legislate is through evidence and reason. Maybe that is too broad a view of the First Amendment, but it is my firm wish.

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