Re: Flag burners unite


McDuck wrote:
On 1 Jul 2006 09:41:55 -0700, john.vampatella@xxxxxxxxx quacked:


McDuck wrote:
On 1 Jul 2006 05:58:03 -0700, john.vampatella@xxxxxxxxx quacked:



You did jump in and say you could not understand what the
constitutional problem was. I gave you a pretty full (and correct)
answer. You made the mistake of agreeing with AY before you knew the
law. Given your position, I'd have thought you might care that the
article you posted contradicted your position and his.

Or not. Your choice, of course.
--McDuck

I do not agree that a person listening to a graduation speech where the
valedictorian talks about how important his or her faith in Christ is
violates the religious freedom of the person in the audience. And the
explanation you gave me isn't satisfactory to me. It doesn't really -
in my view - demonstrate where the audience member's religious freedom
is violated.

Whether the law says otherwise is immaterial to my opinion on the
matter. I am sure there are laws on the books that you do not agree
with. This is one for me, if, in fact, your explanation of the law is
correct. Which it probably is, if you are a law professor (because I
sure am not).


Well, you change the premise and add your spin and then you claim not
to see the problem. If you change the facts to Quiggy's facts, there
is no problem. But you have to deal with the facts as we know them.

The school officials, presumably acting in good faith, concluded that
the intended speech was a religious speech, promoting a particular
view on religion. If they are right, then you really have a very hard
time not agreeing that there would be a violation of the Establishment
Clause if the school officials let the girl give that speech

That is, you have all the elements:

1. Is the forum government sponsored? Yes, no debate.

2. Is the "speech" a religious presentation, tending to promote
religion, or a particular religion? Yes, that is the premise and the
conclusion reached by the school officials. That it is promoted by a
personal testimonial is irrelevant.

3. Was it a "captive" audience --- was this just some speech at the
mall, where people could just walk away at no cost, or did the
audience have to give up something significant to avoid the speech?
Yes, it was a captive audience. The students and parents (?) would
have to leave the graduation ceremony to avoid the speech ---
something they obviously might care a LOT about.

Now, if you want to dispute #2 on the facts, fine. Line drawing issue,
as I've explained in detail in other posts.

That's all fine, McDuck. But - and I understand the three points
above...really, I do - I *still* do not see how someone in the crowd's
freedom of religion is violated.

You see, this keeps going back and forth. Originally, it appeared that
you were saying that this violated the "freedom" clause of the first
amendment's statement on religion. I questioned that, and you said
that in fact what you meant was that it violated the "establishment"
clause. Fine, it violated the establishment clause. But point #3
above - which seems like a key component in the argument - sure seems
to me like it falls under the "freedom" clause again. Points 1 and 2
would be sufficient to constitute a violation of the establishment
clause (in my view). Point 3 is relevant to the violation of someone's
religious liberty (being "captive" in that situation).

What am I missing?

And you can disagree with the law. Fine, but you cannot criticize the
school officials for obeying the law. Nor can you say that the
constitutional rights of the people in the audience were not being
violated.

See, this is what I mean. If the school did it correctly, and if the
law was followed correctly, then all they did was avoid a situation
where the school (via the speaker) violated the establishment clause.
Not the freedom clause.

Let me give you an example. Suppose the U.S. government decided that
the "official" state religion was going to be to associate itself with
the Methodist Church. The government would give special financial
breaks to the Methodist Church, even pumping federal dollars into the
promotion of that church, etc. That would represent a clear violation
of the establishment clause, right? I assume there's no debate about
that.

But let's say that, in addition, the government also said that people
didn't have to follow the official state-sponsored religion if they
didn't want - at no penalty (i.e., they wouldn't be prosecuted or
harrassed by the government or anything like that). In other words,
people could still worship freely, and the government would allow
people individual religious liberty.

Now, in that situation, their freedom of religion is not violated -
after all, they can still worship as they like - both in private and in
public. It's just that the government has decided that state dollars
and state programs were going to promote the Methodist faith. So we
have an establishment of religion but not a violation of individual
religious freedom.

The point is that it's possible - in my view, anyway - for there to be
a situation where the government "establishes" a religion but still
allows for individual religious liberty. In the case of this girl's
graduation speech, even if what she would have done would have
constituted an establishment of religion (I'm not conceding the point
because I'm not conceding that her speech was "as bad" as they said it
was...that is a matter of opinion), it wouldn't necessarily violate the
religious freedom of others (even in a "captive" audience...after all,
they're not being forced to worship in a different manner).

But you keep insinuating that the two are automatically linked; that an
establishment of religion automatically violates the religious freedom
of the audience members.

THAT is what the girl did (or tried to do), plain and
simple, if you accept #2. So you really have to contest #2 to make the
point you seem to want to make.

<snip>

When we are near the line on an issue, the law can fluctuate. The line
of the Establishment Clause has moved in the past and undoubtedly will
move again. But as long as the law is what it is, that girl was trying
to violate the constitutional rights of the graduation audience ---
assuming, of course, that the speech she was giving was a religious
speech that cross the line (see #2 above).
--McDuck

I doubt the girl was "trying to violate the constitutional rights of
the graduation audience". It would have been the school (or the state,
technically) doing it by allowing it. But again, you're conflating the
establishment with the denial of religious liberty. I think they're
related, but not necessarily the same thing.

John

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