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eisely

Editorial Support for BSA

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Ed,

 

How many units do you think will shut down if the military isn't allowed to be their charter? Do you honestly think that none of the civic organizations (operated by the parents of the scouts) on military bases will pick up the slack and keep them going without missing a beat?

 

I have never gotten bent out of shape over no prayer in school or saying "under God" in the pledge. The reason I don't get bent out of shape is because it is MY responsibility and the church of our choice to teach my child about our faith.....not his school's. I send him to school to get an education. I take him to church and use my life as an example to him to teach him about God and our faith. They do say under God at his school and they do observe a moment of silence each morning. Know what he told me he does when they observe the silence? He thanks God and asks for his forgiveness. Know where he learned that? At home and at church. Even if they took under God out of the pledge (which they have not) and didn't observe a moment of silence in his school, it wouldn't affect his knowledge of or faith in God. I don't want the school teaching him about sex and I don't want them teaching him about religion. They are not suited for it. I want him to learn the three R's.

 

Ed, if you were back in school and they didn't observe a prayer time, would you lose your faith in God?

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The First Amendment doesn't say "a religion." It says "religion." When a military unit sets up a group that requires religious belief for membership, I think the Supreme Court would find that this is establishing "religion." I don't understand where free speech comes into it--the individual military people are free to form private groups and sponsor all the units they want, and they can even meet on military bases, as long as other groups can meet too. The government doesn't have free speech rights the same way individuals do--thus, the government, acting as the government, can't say that one religious view is right and another is wrong--although the people working for the government can do so in their private capacity.

What this really boils down to, Ed, is that you wish U.S. law had developed a different way. It's OK for you to feel that way. You can even work to change the law, by trying to get the Constitution amended, for example. I suppose you could push for Supreme Court Justices to be appointed who would overturn well-established precedents. But in a real sense, the Supreme Court can't be "wrong" about what the law is, because the Court has the supreme power to say what the law is, barring only amendment of the Constitution.

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Hunt, I just wanted you to know I am not ignoring you, you have raised several good issues (both in response to me and Ed) that I wanted to address, but they are complicated and I probably will not have time until the weekend, if ever. I think a whole book could be written on your comment that "ceremonial deism" is "baloney" and your related comments. The book, after presenting both sides of the argument, would probably eventually conclude that it's sort of a grey-area situation. For right now, I will say that in my opinion the theory of "ceremonial deism" is based about half on law and half on politics. The Supreme Court (or at least a majority of it) does NOT want to eradicate all references to God, Providence, In God We Trust, "under God," etc. from the "official record," but at the same time the majority recognizes that such things as organized prayers in public schools or a nativity scene (or menorah) standing alone on the courthouse square (not as part of a group of symbols) are unconstitutional. (I can see Ed's keyboard revving up all the way from here.) A prayer delivered by a Congressional chaplain in the Senate chamber falls somewhere, uncomfortably, in the middle.

 

I think it also needs to be understood that when we talk about the "Supreme Court" or the "majority," the Court really has been "all over the place" on Establishment Clause issues. I have read several of these cases that don't even have a majority opinion, with 4 justices saying one thing, 3 saying something else and 2 saying still something else, with the 2 in the middle deciding the result but not the reasoning. I don't think a majority of the Court has ever accepted "ceremonial deism" as the reasoning that decided the case, in fact to my knowledge a majority has never accepted the theory at all. What has happened is that Justice O'Connor, among very few others, has adopted it and has run with it and developed it in a series of concurring opinions (some of which are cited in the opinion I linked-to earlier.) Because she has quite often been the deciding vote in these cases, when she has found a practice constitutional, "ceremonial deism" in effect becomes the reason why the practice was found constitutional, even though only one or two justices cited it as their justification.

 

There is a reason why I try not to get into extensive legal discussions in this forum, and the above paragraph is an example. I don't hold out much hope that many people will understand it, and that is not a knock on anybody, I'm not sure anybody fully understands it. With the possible exception of Justice O'Connor, but even some of her opinions on the subject don't always make complete sense to me. I'd have to say this is the one area of the law where the Supreme Court has been the most fragmented, and confusing, and probably confused themselves.

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OK Merlyn then by your own explanation, the "military" can't violate the Constitution since it isn't a person! It is a government agency! Thanks for making my point that much stronger!

 

Ed Mori

Troop 1

1 Peter 4:10

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Ed says:

 

OK Merlyn then by your own explanation, the "military" can't violate the Constitution since it isn't a person! It is a government agency!

 

Ed, please tell me that statement is some sort of joke that I don't get, and that you are not serious in saying that a government agency cannot violate the constitution. I could find you the citations for several thousand cases in which the governments (state and federal) and their agencies were successfully sued for violating peoples' constitutional rights. I won't, but I could.

 

On the issue of whether governments and their agencies have "constitutional rights," Merlyn is correct. Governments have certain "rights" as against each other, for example there are certain things the federal government can't do because it would infringe on the "powers" of the states, and vice versa, and certain things the states can't do to each other. But when we are talking about First Amendment rights -- free speech, free press, free exercise of religion, no governmental establishments of religion, freedom of assembly as well as the rights that have been "found" in the First Amendment by the courts (like "expressive association") -- the government itself does not have these rights. "The people" have them, as against the government, and "the people" includes not only individuals, but also corporations and organizations depending on the particular situation involved.

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