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Scoutfish

1st Amendment and BSA

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The 1st Amendment of the United States Constituitin

 

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

 

Merlyn, this is for you.

 

Okay, so reading the above , please point out where - by public schools chartering BSA units- the governemnt has broken any laws.

 

By allowing a school to charter a BSA unit, please show proof of the government establishing a religion on the people of the United States.

 

By allowing a school to charter a BSA unit, show me where the government is (A) respecting an establishment of religion and (B) which religion it is.

 

And please, in the name of reading comprehension, do not give me your opinions of religion, your neighbors opinion, what any biased organazation ( for or agaisnt BSA ) or what SCOTUS thinks.

 

A

I am specifically asking you to point out where in the 1st Amendment , that it is stated that government cannot have anything to do with religion other than (as said)_ establishing or respecting any one religion.

 

 

But since it's brought up, I can show you why the government cannot discriminate agaisnt religion:

 

"...or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,"

 

So that means ( as written) I can practice my religion publicly, gather with other like minded floks and practice it.

 

No, the government cannot start a religiojn of officially designate one as superior, but it can't stop mine or hold back service to it either.

 

 

Now, what religion is BSA endorsing? Which one?

Where does the government actually endorse or respect THAT religion on the public of the United States?

 

It doesn't.

 

But it does allow citizens of the United States to peacefully meet and assemble under that religion.

 

 

But the moment that the government says : "No,. we cannot allow you to meet, and will not provide equal services to you because you have religion"

 

Then the government is breaking the law and going agaisnt our ( mine and yours) 1st Amendment and Constitutional rights

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Scoutfish: While I agree with your interpretation of the Constitution, the Supreme Court doesn't. Over the last half of the 20th Century, the Court increasingly expanded the Establishment Clause to include all the things you mentioned. Clearly, this wasn't the intent of the Founders, but that's what the Court has done.

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

 

Please point out in that sentence where the word "a" is in it. The first amendment prevents Congress from making laws respecting an establishment of religion - not establishment of A religion. Without the "a" - that sentence meaning becomes any and/or all religion. And that is how SCOTUS has been interpreting it from the beginning (and what SCOTUS says is important, whether you want to accept that or not). In other words, government cannot have anything to do with religion - any and all religions.

 

When government sponsors a religious organization (and by the BSA's own admission in the Dale case, they are a religious organization) that denies memebership based on a religious qualification (whether that qualification is narrow to a specific religious denomination or broadly to any religion), then they are respecting the establishment of religion.

 

By the same token they aren't denying anyone the right to free exercise of that religion as you still have the right to go elsewhere. If you want to have a prayer ceremony around the flagpole at school, you're allowed, provided the school isn't organizing it. If you want to pray in school, you're allowed, provided the school isn't leading it or providing officially sanctioned time for it (thereby forcing other people to listen to your prayers when they may not want to). Denying the free exercise thereof would be the Government passing a law saying that the Catholic Church cannot exist in this country or that you can't pray to whatever god or goddess you choose to pray to anywhere, not even your own home.

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Okay, so reading the above , please point out where - by public schools chartering BSA units- the governemnt has broken any laws.

 

"bill of rights" incorporated against the states via the 18th amendment:

http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights#Amendment_I

 

1st amendment specifically incorporated against the states:

http://en.wikipedia.org/wiki/Everson_v._Board_of_Education

 

From Everson:

No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.

 

If a public school operates a club that excludes students based solely on their religious beliefs or disbeliefs, those students are being punished by having a school benefit denied them on those grounds.

 

Oh, by the way:

But the moment that the government says : "No,. we cannot allow you to meet, and will not provide equal services to you because you have religion"

 

Where is that happening? I hope you aren't trying to imply that a public school is guilty of doing the above by refusing to charter a discriminatory BSA unit. But I really can't tell unless you come up with an example.(This message has been edited by Merlyn_LeRoy)

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If a public school operates a club that excludes students based solely on their religious beliefs or disbeliefs, those students are being punished by having a school benefit denied them on those grounds.

 

How are they being punished? Are kids who have no musical talent being punished because they can't join the band?

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Ed, they're being punished exactly the way I already said. As for your band example, there is no first amendment protection for musical ability like there is for religion. I also think that school bands exist at least partly for bad musicians to improve their skills, so it wouldn't make sense to exclude bad players.

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I didn't say bad musicians. I said kids with no musical talent.

 

So because they can't join they are being punished? I didn't know they had a right to join.

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This issue generates a lot of debate in this forum, but it seems pretty clear to me. If a government owns and operates a program, it can't say, "To participate in this program, you must believe in God (or some other higher power(s)." That would clearly be an establishment of religion. (Aside to Merlyn, it seems to be that it would even more clearly be a violation of the 14th amendment equal protection clause, since religion is a "strict scrutiny" classification. I wonder why this isn't the main argument, since it avoids some of the trickiness involved in interpreting the 1st amendment religion clauses.) And yet, when an organization (whether governmental or non-governmental) charters a BSA unit, and agrees to abide by its membership policies (including the exclusion of non-higher-power-believers), it is saying exactly that. As we all know, a CO owns and operates its Scouting units. The unit really becomes a "program" of the CO. So a public school (which is part of "the government") simply cannot charter a BSA organization without violating the 1st (and unless I'm wrong, the 14th) amendments to the Constitution. Allowing Scout units to meet in a public school (such as my son's old Cub pack, and about half the other units in the area) is an entirely different story, as long as the school itself is not the CO, because in those cases someone else is the owner-operator.

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I didn't say bad musicians. I said kids with no musical talent.

 

Ed, like I said, musical ability isn't protected by the constitution. Religion is.

 

NJCubScouter, I'm not sure that I'm saying much that's different. Everson was the case that stated that the 14th equal protection clause applied to the 1st amendment, so treating people differently based on religion violated equal protection ("No person can be punished for entertaining or professing religious beliefs or disbeliefs" etc etc)

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Merlyn: Ok. I guess it just puzzles me that whenever this issue is debated on here, it always seems to turn into a debate over what "establishment of religion" means, when the 14th amendment equal protection clause would seem to be a more direct route to the same result. It seems to me that you are agreeing with me, and that the "establishment" issue is really kind of beside the point.

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("No person can be punished for entertaining or professing religious beliefs or disbeliefs" etc etc)

 

 

So wouldn't you agree that by government not being able to charter a BSA unit.. then people who would be in that unit are not being treated equally BECAUSE OF their religion are - in fact having their equal protection violated? They are being discriminated against because they believe a higher form exists.

 

 

Merlyn, you don't have to answer.

 

Actually, it doesn't matter. The way that amendment is worded, the government is in a catch 22 situation when any sort of personal rights are based on belief( belief meaning belief in or against religion).

 

The government sides with you...My rights are violated.

 

The government sides with me, your rights are violted.

 

The government ignores both of us, then both our rights are violated....which ironically, affords us both equal treatment and protection ( or lack of) in the process!

 

That would almost be funny if it wasn't so sad!

 

 

That particular amendment has to choose one violation over another violation.

 

 

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NJ - I imagine it's because most people are much more familiar with the 1st amendment than they are with the 14th amendment.

 

Merlyn - punished was perhaps the wrong choice of words - it left an opening for a nonsensical exchange. A more appropriate word would have been "excluded" - then when someone tried to compare religious exclusion versus musical talent exclusion, then one could point out they are apples to oranges comparisons as one exclusion (religion) is illegal and one exclusion (musical talent) is legal, not that the person trying to make that comparison would admit to the difference, if they indeed aren't being disingenuous by pretending not to understand such a difference.

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"So wouldn't you agree that by government not being able to charter a BSA unit.. then people who would be in that unit are not being treated equally BECAUSE OF their religion are - in fact having their equal protection violated? They are being discriminated against because they believe a higher form exists."

 

Nope - because the government doesn't have a duty to charter Boy Scout units. They only have a duty to ensure that the BSA is allowed to exist under the same rules that everyone else must abide by. If the rule is that a government agency can't sponsor an organization that discriminates on the basis of religion, then as long as that government agency does not sponsor any organization on the basis of religion, then by not sponsoring a BSA unit, they are providing equal protection.

 

Non-equal protection would be denying the BSA the ability to rent a gymnasium at a school for a fee if the gymnasium is offered to rent to other, non-school sponsored organizations. Non-equal protection would be to rent the gym at $200 per hour to the BSA and $25 per hour to the Girl Scouts. If the school sponsors a Girl Scout unit that doesn't discriminate based on religion and doesn't sponsor a Boy Scout unit that does discriminate based on religion, it doesn't volate equal protection because the organizations themselves aren't equal. However, if both the Girl Scouts and the Boy Scouts discriminated in membership based on religion and the school sponsors the Girl Scouts and not the Boy Scouts - then there is an equal protection claim as two equal organizations are being treated differently.

 

 

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So wouldn't you agree that by government not being able to charter a BSA unit.. then people who would be in that unit are not being treated equally BECAUSE OF their religion are - in fact having their equal protection violated

 

No, because the government likewise won't (and can't) charter groups that exclude other people, such as a group that only allows atheists to join.

 

They are being discriminated against because they believe a higher form exists.

 

No, the group they want to form is being discriminated against because that group practices religious discrimination. Any other group that practices religious discrimination would be treated identically.

 

If they really WERE "being discriminated against because they believe a higher form exists," then even if they tried to form a group that allowed everyone to join, they would be discriminated against because they (the people trying to form the group) still believe a higher form exists, regardless of whether the group they want to form excludes people or not.

 

But that isn't the reason. The reason is the exclusionary policies of the group, not the religious views of the people trying to start the group.

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Scoutfish, I suppose you are entitled to your own interpretation of our Constitution, but you need to be aware that in our system, the interpretation of the Constitution is done by Courts. You don't have to agree with their interpretation, and you don't even have to agree that they get to do the interpreting, but it is their interpretation that is authoritative.

 

I am not aware of any Court decision, at least not one that is considered currently valid, that would agree with the interpretation stated in your last post. More specifically, the First Amendment does not require the government to run any program, it merely prohibits the government from doing certain things (which would include running a program that discriminates on the basis of religion.) In fact, without re-reading the entire Constitution, I can only think of one "program" that the government is required to carry out, other than the operations of the three branches of government themselves, and that is... anyone want to guess? It is actually going on right now. And actually it is contained in one of the sections of the Constitution which prescribes the composition of one of the branches of government.

 

The Constitution does not even require the U.S. Government to have a defense program, to print money, to regulate commerce or any of those things that it has the power to do. It does those things simply because a majority of Congress votes for those things to happen. So to say that the government must run a club or violate the Constitution... it just doesn't work.

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