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This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Wednesday, July 16, 2008

Lemon and Endorsement Tests are incompatible

The Lemon Test and the Endorsement Tests are judicial tests that courts use to determine when there is a violation of the 1st Amendment's establishment clause. Both tests are often used in the same opinion, as in the Kitzmiller v. Dover intelligent design case. The Endorsement Test is sometimes considered to be a refinement of the Lemon Test. I assert that the two tests are incompatible because the Lemon Test requires consideration of religious motivations whereas the Endorsement Test when correctly interpreted prohibits such consideration.

The Endorsement Test is based on a paragraph in a concurring opinion of Justice O'Connor in Lynch v. Donnelly, 465 U.S. 668 (1984). So far as I know the paragraph's statement of the test has not been modified by the court and remains the official statement of the test. Here is the paragraph(465 U.S. 668, 687-688), quoted in part:
.
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions. . . .The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. (emphasis added, citations omitted)

In my previous discussions of the endorsement test, I have focused on the "political insider/outsider" stuff of the last sentences above. Now I want to focus on the first sentence. I assert that the first sentence prohibits courts from considering religious motivations as a factor in determining whether there has been an Establishment Clause violation, because such consideration would -- according to the first sentence -- violate the Establishment Clause's prohibition on making adherence to a religion relevant to a person's standing in the political community. I assert that the first sentence is an important part of the statement of the test and should not be arbitrarily dropped from the statement of the test -- a feeling of bad standing in the community as a result of religious beliefs would result in a feeling of "political outsider" status. IMO the way the test should be applied is by a determination of whether there is an endorsement or disapproval that has the effect of making some people feel like political insiders or outsiders. For example, the Dover evolution disclaimer statement said nothing overtly religious (except that perhaps the term "intelligent design" implies the existence of a supernatural designer) and only evolution was actually taught, so this statement should not reasonably have the effect of making anyone feel like a "political outsider." On the other hand, censoring the statement on the grounds that it expresses endorsement of religion would make some people feel like "political outsiders" and hence would be unconstitutional under the Endorsement Test.

The Lemon Test, named for Lemon v. Kurtzman, 403 U.S. 602 (1971), originally consisted of three parts or "prongs":

1. The government's action must have a secular legislative purpose;

2. The government's action must not have the primary effect of either advancing or inhibiting religion;

3. The government's action must not result in an "excessive government entanglement" with religion.

The first prong, or "purpose" prong, requires determination of whether the public officials who are responsible for the government's action in question have religious motivations.

The second and third prongs are often combined into a single "effect" prong. The Selman v. Cobb County district-court opinion says,

Both the Supreme Court and the Eleventh Circuit have acknowledged that the second and third prongs of the Lemon test are interrelated insofar as courts often consider similar factors in analyzing them. . . . . In fact, the Eleventh Circuit, like several other circuit courts, has combined the second and third prongs of the Lemon analysis into a single "effect" inquiry. . . . The Court will do the same in the instant Order. (citations omitted)

IMO the best way to resolve this conflict between the Lemon Test and the Endorsement Test is to get rid of the Lemon Test, which is already highly disfavored. As long ago as 1993, Justice Scalia wrote of the Lemon Test,

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again ....... no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart...and a sixth has joined an opinion doing so........When we wish to strike down a practice it forbids, we invoke it....when we wish to uphold a practice it forbids, we ignore it entirely.......I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced." Citations omitted. -- from Concurrence in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993).

The Supreme Court can hardly expect lower courts to use the Lemon Test when the SC itself often does not use it. I suspect that the only reason why the SC has not officially dumped the Lemon Test is that the SC wants the test to be available in case the SC itself wants to use the test in the future.

The Kitzmiller v. Dover opinion notes that the defendants agreed to use the Lemon Test but opposed use of the Endorsement Test:
The parties are in agreement that an applicable test in the case sub judice to ascertain whether the challenged ID Policy is unconstitutional under the First Amendment is that of Lemon v. Kurtzman, 403 U.S. 602 (1971), (hereinafter "the Lemon test"). . . . Defendants maintain that this Court should not apply the endorsement test to the challenged ID Policy because the Supreme Court did not apply the test to the creationism statutes at issue in Epperson and Edwards. As Plaintiffs aptly state however, Epperson was decided in 1968, five years before Lemon, and accordingly nearly two decades before Justice O' Connor first began to articulate the endorsement test as a way to conceptualize Lemon.(pages 9-10)

It should have been the other way around -- the defendants should have agreed to the Endorsement Test and opposed the Lemon Test. Because of the fundies on the school board, the Lemon Test was the kiss of death for the defendants because of this test's consideration of religious motivations. IMO the defendants at least stood a chance under the Endorsement Test, which IMO when correctly interpreted prohibits consideration of religious motivations, as I noted. The Supreme Court's wishy-washiness towards the Lemon Test is certainly a strong argument against using it.

As long as the Lemon Test is available, school board members and legislators can help criticisms of evolution in public school curricula pass this test by quitting churches, stomping on bibles, etc. to demonstrate that they are not motivated by religion.

Related post: Aptly named "Lemon test" sucks
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10 Comments:

Anonymous Martian Buddy said...

Unfortunately for Larry, this article depends on a total misinterpretation of Justice O'Connor's concurring opinion. The paragraph that he cites as being the basis of the test is, in fact, an introductory paragraph, as the very next paragraph makes clear:

"Our prior cases have used the three-part test articulated in Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), as a guide to detecting these two forms of unconstitutional government action. [*] It has never been entirely clear, however, [p689] how the three parts of the test relate to the principles enshrined in the Establishment Clause. Focusing on institutional entanglement and on endorsement or disapproval of religion clarifies the Lemon test as an analytical device."

This interpretation is line with the beginning of the concurring opinion, in which Justice O'Connor states:

"I concur in the opinion of the Court. I write separately to suggest a clarification of our Establishment Clause doctrine. The suggested approach leads to the same result in this case as that taken by the Court, and the Court's opinion, as I read it, is consistent with my analysis."

(bolded emphasis added.)

The Endorsement Test is, in fact, based on O'Connor's discussion of the "purpose" and "effect" prongs of Lemon which begins in section III of the concurring opinion. First, there's subsection A, which states the following:

"The purpose prong of the Lemon test requires that a government activity have a secular purpose. That requirement [p691] is not satisfied, however, by the mere existence of some secular purpose, however dominated by religious purposes. In Stone v. Graham, 449 U.S. 39 (1980), for example, the Court held that posting copies of the Ten Commandments in schools violated the purpose prong of the Lemon test, yet the State plainly had some secular objectives, such as instilling most of the values of the Ten Commandments and illustrating their connection to our legal system, but see 449 U.S. at 41. See also Abington School District v. Schempp, 374 U.S. at 223-224. The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.

An analysis of the purpose prong can be seen in section 2 of O'Connor vs. Washburn University.

Subsection B examines the "effect" prong of the test:

"Focusing on the evil of government endorsement or disapproval of religion makes clear that the effect prong of the Lemon test is properly interpreted not to require invalidation of a government practice merely because it in fact causes, [p692] even as a primary effect, advancement or inhibition of religion. The laws upheld in Walz v. Tax Comm'n, 397 U.S. 664 (1970) (tax exemption for religious, educational, and charitable organizations), in McGowan v. Maryland, 366 U.S. 420 (1961) (mandatory Sunday closing law), and in Zorach v. Clauson, 343 U.S. 306 (1952) (released time from school for off-campus religious instruction), had such effects, but they did not violate the Establishment Clause. What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion. It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community.

There is an obvious parallel between the language used here and the citation from section I that Larry erroneously believes to be the Endorsement Test. This does not salvage Larry's claim that courts cannot consider religion as a factor in Endorsement Test cases. As the judge in O'Connor vs. Washburn University notes:

"The "effect" prong of the endorsement test asks whether a reasonable observer aware of the history and context of the forum would find the display had the effect of favoring or disfavoring a certain religion."

and:

"The effect prong of the endorsement test, however, presumes a reasonable observer "aware of the history and context of the community and forum" in which the display appears. Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 317 (2000) (quotation omitted); see McCreary County, 2005 WL 1498988, at *14. The awareness of this reasonable observer is not limited to "the information gleaned simply from viewing the challenged display." Wells v. City & County of Denver, 257 F.3d 1132, 1142-43 (10th Cir. 2001) (quoting Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O'Connor, J., concurring in part and concurring in judgment))."

It is evident that Larry does not understand this when he argues that the defense should have accepted the Endorsement Test while objecting to the Lemon Test. The transcript is available here; it's quite obvious that the defense is concerned about the public's perception being harmful to their case.

Wednesday, July 16, 2008 11:14:00 AM  
Blogger Phae said...

Hahaha holy crap, I take a few days off and someone else steps in to annihilate Larry at will? But somehow, I bet he is going to manage to fail to see the clarity here, and insist that his own clumsy fumblings should be addressed by the Justices.

Wednesday, July 16, 2008 4:38:00 PM  
Blogger Erin said...

I would also like to point out that Larry asserting something does not necessarily make it true. I'm not sure it even makes it more likely to be true. It could, possibly, make it less likely to be true.

Good job martian buddy!

(I'd add more, but martian buddy has done it so succinctly)

Wednesday, July 16, 2008 11:19:00 PM  
Blogger Larry Fafarman said...

Martian Buddy said,
>>>>>> The paragraph that he cites as being the basis of the test is, in fact, an introductory paragraph, as the very next paragraph makes clear: <<<<<<

So? Why can't an introductory paragraph be the basis of a test? I assert that this introductory paragraph (of Section I) that I cited is generally regarded as the official statement of the Endorsement Test -- I challenge you to find me a reference that says otherwise. The Endorsement Test can be treated as being completely independent of the Lemon Test. A court decision can use the Endorsement Test without using the Lemon Test.

>>>>>>>(citing Justice O'Connor) . Focusing on institutional entanglement and on endorsement or disapproval of religion clarifies the Lemon test as an analytical device. <<<<<<

I am focusing here on the first sentence of the paragraph that defines the Endorsement Test, not on the paragraph's later sentences that talk about entanglement and about endorsement or disapproval of religion. The first sentence says, "The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community." To me, that statement prohibits a court from considering religious motivations. When the fundies on the Dover school board were grilled in court about their religious beliefs and consequently publicly ridiculed, that definitely made their "adherence to a religion relevant" to their "standing in the political community" and also had the effect of making them "political outsiders." I take back what I said about the Lemon Test requiring consideration of religious motivations -- IMO the Lemon Test neither explicitly requires nor explicitly prohibits such consideration, but IMO the Lemon Test is often interpreted as requiring such consideration.

>>>>>>This interpretation is line with the beginning of the concurring opinion, in which Justice O'Connor states:

"I concur in the opinion of the Court. I write separately to suggest a clarification of our Establishment Clause doctrine. <<<<<<

You are helping me to prove my case. She said that she was suggesting a clarification of Establishment Clause doctrine, not the Lemon Test.

>>>>>> The Endorsement Test is, in fact, based on O'Connor's discussion of the "purpose" and "effect" prongs of Lemon which begins in section III of the concurring opinion. <<<<<<

As I said, the Endorsement Test can be treated as being completely independent of the Lemon Test.

>>>>>> There is an obvious parallel between the language used here and the citation from section I that Larry erroneously believes to be the Endorsement Test. <<<<<<

That belief is not erroneous -- as I said, that first paragraph in Section I is generally regarded as the official statement of the Endorsement Test, and I challenge you to give me a reference that says otherwise.

As I discussed above, the first sentence of the Endorsement Test paragraph prohibits the courts from considering religious motivations. Also, the "political insider/outsider" concept of the last sentences of the paragraph may be interpreted as prohibiting consideration of religious motivations.

>>>>>> This does not salvage Larry's claim that courts cannot consider religion as a factor in Endorsement Test cases. <<<<<

There are no such things as "Endorsement Test cases" -- there are "Establishment Clause" cases.

>>>>>>(citing O'Connor vs. Washburn University) "The "effect" prong of the endorsement test . . . <<<<<<<

There is no "effect" prong of the endorsement test -- the endorsement test has no "prongs." Those dumb judges confused the endorsement test with the Lemon test.

>>>>>> It is evident that Larry does not understand this when he argues that the defense should have accepted the Endorsement Test while objecting to the Lemon Test. <<<<<<

I do understand -- you're the one who doesn't understand. I showed that the Endorsement Test when properly interpreted prohibits consideration of religious motivations whereas the Lemon Test does not (my previous position was that the Lemon Test requires such consideration, but my current position is that the Lemon Test is often interpreted as requiring such consideration).

>>>>>> The transcript is available here <<<<<<

That is just bibliography bluffing -- you don't quote the transcript's statements that you think support your position.

To dunghills Erin and Phae --

If you bozos have anything to contribute to the discussion, then let's hear it -- otherwise you are nothing but big bags of hot air.

Thursday, July 17, 2008 12:42:00 AM  
Anonymous Martian Buddy said...

Larry wrote: So? Why can't an introductory paragraph be the basis of a test?

Because it's nothing more than a quick gloss on what topics will be discussed in the body of the opinion; in this case, clarifying how the various parts of the Lemon Test are supposed to work. The "meat" of the concurring opinion is in the sections on entanglement and endorsement.

Larry wrote: I assert that this introductory paragraph (of Section I) that I cited is generally regarded as the official statement of the Endorsement Test -- I challenge you to find me a reference that says otherwise.

A clear reading of the paragraph you've cited says otherwise:

"Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message."

You can't just arbitrarily clip off the entire section expanding on what she means by "endorsement" and the two subsections describing the purpose and effect prongs because they're inconvenient for your case.

Larry wrote: The Endorsement Test can be treated as being completely independent of the Lemon Test. A court decision can use the Endorsement Test without using the Lemon Test.

Non sequitir. Your thesis was that "the two tests are incompatible because the Lemon Test requires consideration of religious motivations whereas the Endorsement Test when correctly interpreted prohibits such consideration." Whether the Endorsement Test is sometimes applied independently of the Lemon Test is irrelevant.

Larry wrote: I am focusing here on the first sentence of the paragraph that defines the Endorsement Test, not on the paragraph's later sentences that talk about entanglement and about endorsement or disapproval of religion.

That's the point; your whole thesis is based on a serious misinterpretation of that one sentence, while ignoring even the parts of the concurring opinion that you agree are part of the Endorsement Test. The rest of your claim is based on that faulty reasoning and does not merit discussion.

Larry said: I take back what I said about the Lemon Test requiring consideration of religious motivations -- IMO the Lemon Test neither explicitly requires nor explicitly prohibits such consideration, but IMO the Lemon Test is often interpreted as requiring such consideration.

Then you yourself are arguing that your thesis ("the two tests are incompatible because the Lemon Test requires consideration of religious motivations whereas the Endorsement Test when correctly interpreted prohibits such consideration") is in error.

Larry wrote: That belief is not erroneous -- as I said, that first paragraph in Section I is generally regarded as the official statement of the Endorsement Test, and I challenge you to give me a reference that says otherwise.

Will Justice O'Connor do? From her concurring opinion in County of Allegheny v. American Civil Liberties Union:

"In Lynch, I concluded that the city's display of a creche in its larger holiday exhibit in a private park in the commercial district had neither the purpose nor the effect of conveying a message of government endorsement of Christianity or disapproval of other religions. The purpose of including the creche in the larger display was to celebrate the public holiday through its traditional symbols, not to promote the religious content of the creche. Id. at 691. Nor, in my view, did Pawtucket's display of the creche along with secular symbols of the Christmas holiday objectively convey a message of endorsement of Christianity. Id. at 692."

There you have it, Larry; the justice who wrote the very sentence you're quibbling over does not agree that it forbids inquiries into religious motives.

Larry wrote: There is no "effect" prong of the endorsement test -- the endorsement test has no "prongs." Those dumb judges confused the endorsement test with the Lemon test.

Including the "dumb judge" that wrote the concurring opinion in the first place?

Larry wrote: That is just bibliography bluffing -- you don't quote the transcript's statements that you think support your position.

"First, I want to suggest that what's being offered to you here is a flawed chain of reasoning, and it runs as follows: Mr. Stough has no personal knowledge, but he read the articles, which are hearsay. Based on that hearsay, he formed a belief, a state of mind that Dover Area School District was advancing religion. Based on that hearsay in his state of mind, his state of mind is now being offered with the support of these articles to prove the fact he believes that Dover Area School District was advancing religion.

For the reasons I've stated, I believe that that cannot happen under the Federal Rules of Evidence. But on Friday, Judge, you asked me a good question that I've thought about. It is this. You said, Mr. Gillen, I think you set the bar too high. I think that he doesn't have to attend the board meetings to be apprised of the effect."

and

"The test that you're asked to apply in this case, if you believe the endorsement test applies -- we say it doesn't. We say it doesn't get outside the classroom. But if you so hold, then the test asks you to find what a reasonable observer would believe. Now, Judge, when the law asks you to make that determination, there is no necessary connection between the actual knowledge of a given Plaintiff and the knowledge that the law imputes to the objective reasonably informed observer for the purpose of the test."

For starters.

Thursday, July 17, 2008 12:12:00 PM  
Blogger Larry Fafarman said...

>>>>>>So? Why can't an introductory paragraph be the basis of a test?

Because it's nothing more than a quick gloss on what topics will be discussed in the body of the opinion; in this case, clarifying how the various parts of the Lemon Test are supposed to work. <<<<<<<

But the opinion is just a concurring opinion -- as you would say, it is not binding precedent. A court using the Endorsement Test would not be required to accept anything in the opinion except of course Section 1's opening paragraph (quoted in my article), which is the basic definition of the Endorsement Test. That opening paragraph can stand alone as a complete statement. The opening paragraph can be used alone even if it is a quote mine of the concurring opinion when used alone (I do not mean to imply that it is a quote mine of the concurring opinion). And as I pointed out, the Endorsement Test can be treated as being completely independent of the Lemon Test.

>>>>> Larry wrote: I assert that this introductory paragraph (of Section I) that I cited is generally regarded as the official statement of the Endorsement Test -- I challenge you to find me a reference that says otherwise.

A clear reading of the paragraph you've cited says otherwise: <<<<<<<

The paragraph does not say or imply that it should not be quoted in isolation.

>>>>>> You can't just arbitrarily clip off the entire section expanding on what she means by "endorsement" and the two subsections describing the purpose and effect prongs because they're inconvenient for your case. <<<<<<

And you can't just arbitrarily add an entire section that is not necessary to explain the paragraph that describes the Endorsement Test.

>>>>>> Larry wrote: The Endorsement Test can be treated as being completely independent of the Lemon Test. A court decision can use the Endorsement Test without using the Lemon Test.

Non sequitir. Your thesis was that "the two tests are incompatible because the Lemon Test requires consideration of religious motivations whereas the Endorsement Test when correctly interpreted prohibits such consideration." Whether the Endorsement Test is sometimes applied independently of the Lemon Test is irrelevant. <<<<<<

How can the question of applying the Endorsement Test independently of the Lemon Test be irrelevant if the latter test requires consideration of religious motivations while the former test does not? BTW, I now hold that the Lemon Test is often interpreted as requiring consideration of religious motivations, not that the test necessarily requires such consideration.

>>>>> That's the point; your whole thesis is based on a serious misinterpretation of that one sentence, <<<<<<

I did not misinterpret that one sentence.

>>>>>> -- while ignoring even the parts of the concurring opinion that you agree are part of the Endorsement Test. <<<<<<

No, I did not agree that the Endorsement Test is defined by anything in the concurring opinion other than Section 1's opening paragraph.

>>>>>Larry said: I take back what I said about the Lemon Test requiring consideration of religious motivations -- IMO the Lemon Test neither explicitly requires nor explicitly prohibits such consideration, but IMO the Lemon Test is often interpreted as requiring such consideration.

Then you yourself are arguing that your thesis ("the two tests are incompatible because the Lemon Test requires consideration of religious motivations whereas the Endorsement Test when correctly interpreted prohibits such consideration") is in error. <<<<<<

No, what I said was that my original thesis was partly right -- the Lemon Test does not explicitly require consideration of religious motivations but is often interpreted as requiring such consideration.

>>>>>>> From her concurring opinion in County of Allegheny v. American Civil Liberties Union:

"In Lynch, I concluded that the city's display of a creche in its larger holiday exhibit in a private park in the commercial district had neither the purpose nor the effect of conveying a message of government endorsement of Christianity or disapproval of other religions. The purpose of including the creche in the larger display was to celebrate the public holiday through its traditional symbols, not to promote the religious content of the creche. Id. at 691. Nor, in my view, did Pawtucket's display of the creche along with secular symbols of the Christmas holiday objectively convey a message of endorsement of Christianity. Id. at 692."

There you have it, Larry; the justice who wrote the very sentence you're quibbling over does not agree that it forbids inquiries into religious motives. <<<<<<<

Her above statement says absolutely nothing about religious motives. There is a difference between religious "purpose" (or "intent") and religious "motives." A government official can have a religious "purpose" to express a government endorsement of religion without having religious "motives" -- for example, the government official might have no religious beliefs but could just be responding to the wishes of constituents. Also, an appearance of government endorsement of religion can be unintentional.

>>>>> Including the "dumb judge" that wrote the concurring opinion in the first place? <<<<<<

OK, maybe he just made an honest mistake.

>>>>>> Larry wrote: That is just bibliography bluffing -- you don't quote the transcript's statements that you think support your position.

"The test that you're asked to apply in this case, if you believe the endorsement test applies -- we say it doesn't. We say it doesn't get outside the classroom. But if you so hold, then the test asks you to find what a reasonable observer would believe. Now, Judge, when the law asks you to make that determination, there is no necessary connection between the actual knowledge of a given Plaintiff and the knowledge that the law imputes to the objective reasonably informed observer for the purpose of the test."

For starters. <<<<<<

My original point was that IMO the defendants made a mistake by accepting the Lemon Test and opposing the Endorsement Test, and the reason why it was IMO a mistake was that there were fundies on the school board and religious motivations are often considered under the Lemon Test while such consideration is IMO prohibited by the Endorsement Test.

The defense attorney's above objection to the Endorsement Test seems to be that this test is based on the imagined perceptions of a "reasonable" or "objective" observer. But the Lemon Test also uses the idea of a "reasonable" or "objective" observer, so there is no difference between the Lemon Test and the Endorsement Test in that regard. Also, that was not the reason that the Dover opinion gave for the defendants' objection to the Endorsement Test -- the reason given by the Dover opinion is, as I noted in my original article, "Defendants maintain that this Court should not apply the endorsement test to the challenged ID Policy because the Supreme Court did not apply the test to the creationism statutes at issue in Epperson and Edwards," which seems to me to be a silly reason.

Thursday, July 17, 2008 4:29:00 PM  
Anonymous Venusian Buddy said...

Larry doesn't like "prongs" because they tend to snag his BVDs.

(BTW, Martian Buddy, perhaps they don't use Latin on Mars, but it's "sequitur" with a 'u'.)

Thursday, July 17, 2008 5:11:00 PM  
Anonymous Martian Buddy said...

Larry wrote: But the opinion is just a concurring opinion -- as you would say, it is not binding precedent. A court using the Endorsement Test would not be required to accept anything in the opinion except of course Section 1's opening paragraph (quoted in my article), which is the basic definition of the Endorsement Test. That opening paragraph can stand alone as a complete statement.

That's breathtakingly inane. It's an introductory paragraph that mentions concepts discussed at length in the later sections of the concurring opinion - sections that I've already shown you are used in applying the Endorsement Test.

Larry wrote: The opening paragraph can be used alone even if it is a quote mine of the concurring opinion when used alone (I do not mean to imply that it is a quote mine of the concurring opinion).

Do you even understand what a quote mine is? It means quoting only the one snippet that appears to support your claim while leaving out the bulk of the text that contradicts it. It's a dishonest argument.

Larry wrote: And as I pointed out, the Endorsement Test can be treated as being completely independent of the Lemon Test.

And as I pointed out, this is utterly irrelevent. It tells us nothing about whether or not the two tests are incompatible, as you assert.

Larry wrote: And you can't just arbitrarily add an entire section that is not necessary to explain the paragraph that describes the Endorsement Test.

Once again, let's look at how Justice O'Connor applies the test in County of Allegheny v. American Civil Liberties Union:

"In Lynch, I concluded that the city's display of a creche in its larger holiday exhibit in a private park in the commercial district had neither the purpose nor the effect of conveying a message of government endorsement of Christianity or disapproval of other religions. The purpose of including the creche in the larger display was to celebrate the public holiday through its traditional symbols, not to promote the religious content of the creche. Id. at 691. Nor, in my view, did Pawtucket's display of the creche along with secular symbols of the Christmas holiday objectively convey a message of endorsement of Christianity. Id. at 692."

(bolded emphasis added)

Are you seriously trying to tell me that she didn't understand the concurring opinion that she wrote?

Larry wrote: I did not misinterpret that one sentence.

You're still misinterpreting it.

Larry wrote: No, I did not agree that the Endorsement Test is defined by anything in the concurring opinion other than Section 1's opening paragraph.

You just agreed again. The paragraph you cling to like a security blanket explictly mentions entanglement and endorsement.

Larry wrote: Her above statement says absolutely nothing about religious motives. There is a difference between religious "purpose" (or "intent") and religious "motives." A government official can have a religious "purpose" to express a government endorsement of religion without having religious "motives" -- for example, the government official might have no religious beliefs but could just be responding to the wishes of constituents. Also, an appearance of government endorsement of religion can be unintentional.

The Supreme Court has used the terms interchangeably. For example, Wallace v. Jaffree:

"It is the first of these three criteria that is most plainly implicated by this case. As the District Court correctly recognized, no consideration of the second or third criteria is necessary if a statute does not have a clearly secular purpose. [Footnote 40] For even though a statute that is motivated in part by a religious purpose may satisfy the first criterion, see, e.g., Abington School District v. Schempp, 374 U. S. 203, 374 U. S. 296-303 (1963) (BRENNAN, J., concurring), the First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion. [Footnote 41]

In applying the purpose test, it is appropriate to ask "whether government's actual purpose is to endorse or disapprove of religion." [Footnote 42] In this case, the answer to that question is dispositive. For the record not only provides us with an unambiguous affirmative answer, but it also reveals that the enactment of ยง 16-1-20.1 was not motivated by any clearly secular purpose indeed, the statute had no secular purpose."

Venusian Buddy wrote:
(BTW, Martian Buddy, perhaps they don't use Latin on Mars, but it's "sequitur" with a 'u'.)


Oops. That's what I get for taking Spanish instead.

Thursday, July 17, 2008 7:25:00 PM  
Blogger Larry Fafarman said...

>>>>>>That's breathtakingly inane. It's an introductory paragraph that mentions concepts discussed at length in the later sections of the concurring opinion - sections that I've already shown you are used in applying the Endorsement Test. <<<<<<

You have shown me nothing. I asked you for some authority that says that the first paragraph of section 1 is not considered to be a complete statement of the Endorsement Test. Your quote of Justice O'Connor from County of Allegheny v. American Civil Liberties Union makes no mention of the Endorsement Test or any of the concepts of that test that are presented in that first paragraph, e.g., the "political insider/outsider" concept or the idea that "the Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community."

>>>>>> Once again, let's look at how Justice O'Connor applies the test in County of Allegheny v. American Civil Liberties Union: <<<<<<

No, let's not look at how she applies the test, because she's not applying it -- as I said, your quote makes no mention of the Endorsement Test or any of the concepts of that test that are defined in Section 1's 1st paragraph.

>>>>> Larry wrote: I did not misinterpret that one sentence.

You're still misinterpreting it. <<<<<<

Sigh. Here is the sentence again,

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community.

I interpret that as meaning that a court may not consider religious motives, because such consideration would make "adherence to religion relevant . . . to a person's standing in the political community." Such consideration of religious motives by a court would also make a person feel like what the latter part of the paragraph calls a "political outsider." If there is anything in O'Connor's concurring opinion in Lynch that requires consideration of religious motives, then the opinion is not consistent.

>>>>>> Larry wrote: No, I did not agree that the Endorsement Test is defined by anything in the concurring opinion other than Section 1's opening paragraph.

You just agreed again. The paragraph you cling to like a security blanket explictly mentions entanglement and endorsement. <<<<<<

Stop putting words in my mouth, bozo, I did not agree again, nor did I agree the first time. The occurrence of the paragraph's words elsewhere in the opinion does not mean that the paragraph cannot be treated as a stand-alone statement of the Endorsement Test.

>>>>>> The Supreme Court has used the terms interchangeably. <<<<<<

OK, I need to better define the terms I am using. I need to distinguish between actions motivated by religious "belief," where the public officials are motivated by their own personal religious beliefs, and actions motivated by religious "intent," where public officials are not necessarily motivated by their own religious beliefs but might just be catering to the religious beliefs of constituents.

Thursday, July 17, 2008 8:54:00 PM  
Anonymous Martian Buddy said...

Larry wrote: You have shown me nothing. I asked you for some authority that says that the first paragraph of section 1 is not considered to be a complete statement of the Endorsement Test. Your quote of Justice O'Connor from County of Allegheny v. American Civil Liberties Union makes no mention of the Endorsement Test or any of the concepts of that test that are presented in that first paragraph, e.g., the "political insider/outsider" concept or the idea that "the Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community."

"In my concurrence in Lynch, I suggested a clarification of our Establishment Clause doctrine to reinforce the concept that the Establishment Clause "prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community." Id. at 687. The government violates this prohibition if it endorses or disapproves of religion. Id. at 688."

and:

"For the reasons stated in Part IV of the Court's opinion in these cases, I agree that the creche displayed on the Grand Staircase of the Allegheny County Courthouse, the seat of county government, conveys a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the political community. In contrast to the creche in Lynch, which was displayed in a private park in the city's commercial district as part of a broader display of traditional secular symbols of the holiday season, this creche stands alone in the county courthouse. The display of religious symbols in public areas of core government buildings runs a special risk of "mak[ing] religion relevant, in reality or public perception, to status in the political community." Lynch, supra, at 692 (concurring opinion). See also American Jewish Congress v. Chicago, 827 F.2d 120, 128 (CA7 1987) ("Because City Hall is so plainly under government ownership and control, every display and activity in the building is implicitly marked with the stamp of government approval. The presence of a nativity scene in the lobby, therefore, inevitably creates a clear and strong impression that the local government tacitly endorses [p627] Christianity"). The Court correctly concludes that placement of the central religious symbol of the Christmas holiday season at the Allegheny County Courthouse has the unconstitutional effect of conveying a government endorsement of Christianity."

and to forestall any claims of "but that just proves my point!" here's the original citation again:

"In Lynch, I concluded that the city's display of a creche in its larger holiday exhibit in a private park in the commercial district had neither the purpose nor the effect of conveying a message of government endorsement of Christianity or disapproval of other religions. The purpose of including the creche in the larger display was to celebrate the public holiday through its traditional symbols, not to promote the religious content of the creche. Id. at 691. Nor, in my view, did Pawtucket's display of the creche along with secular symbols of the Christmas holiday objectively convey a message of endorsement of Christianity. Id. at 692."

Larry wrote: No, let's not look at how she applies the test, because she's not applying it -- as I said, your quote makes no mention of the Endorsement Test or any of the concepts of that test that are defined in Section 1's 1st paragraph.

The above citations make this claim look painfully silly. Perhaps you should have read the ruling; that's the reason I post these links, after all.

Larry wrote: OK, I need to better define the terms I am using. I need to distinguish between actions motivated by religious "belief," where the public officials are motivated by their own personal religious beliefs, and actions motivated by religious "intent," where public officials are not necessarily motivated by their own religious beliefs but might just be catering to the religious beliefs of constituents.

Pressure from the public to favor their religious beliefs has been cited before in rulings as evidence that a practice was unconstitutional (in "moment of silence" cases,) so the distinction is meaningless. Either way, the motivation for passing the law would be an impermissible endorsement of religion.

Friday, July 18, 2008 9:03:00 AM  

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