Looks like someone enjoyed her time in jail

[Ryujin]

No, teaching intelligent design is teaching a religious belief, and so falls under the Establishment clause (although that's not cut and dried as schools are allowed to present intelligent design alongside other theories/beliefs of how life exists). You can argue this, but it's not correct, nor is it a good metric. Let me try another counterfactual and see if I can illustrate.

A governor of a state, with the assistance of that state's legislature, puts into place a welfare program for needy kids. Throughout it's passage, the governor and the leaders of the legislature continually and loudly cite their religious belief that children need help as the motivation for enacting the law. This is not a violation of the Establishment clause, because the end result doesn't touch religion even as the motivation is entirely religious in nature.

As with this -- discrimination against homosexuals is not religious in nature, even if it's motivation is. Therefore the Establishment clause doesn't apply, as the Establishment clause is about outcomes, not motivations. The Establishment clause is not proof against thought crime.

It also isn't denying people their rights based on a religious belief. The thing about these "counterfactuals" is that they don't provide a true mirror.

 

[calronmoonflower]

ROUND 3!
*ding*

http://news.yahoo.com/kentucky-clerk-davis-rejects-marriage-licenses-invalid-abc-125551704.html

I'm predicting a certain judge will be issuing orders for her re-arrest soon.

Let's try quoting what she actually said, "They're not valid in God's eyes, for one," she said of licenses her staff has begun issuing. "I have given no authority to write a marriage license. They did not have my permission, they did not have my authorization."

Now lets look at what she actually did, rather than focus on a out-of-context quote.
http://www.nbcnews.com/news/us-news...-altering-marriage-licenses-aclu-says-n431336
http://www.cnn.com/2015/09/19/us/kim-davis-same-sex-marriage-licenses-kentu[URL="http://www.cnn.com/2015/09/19/us/kim-davis-same-sex-marriage-licenses-kentucky/"]cky/[/URL] with Video
http://www.washingtonpost.com/news/...s-is-meddling-with-countys-marriage-licenses/


The question is really if the altered versions of the licenses are valid, If so there is not a problem. However, it strikes me as strange that people actually want her to stamp her own name on the licenses and give her own personal stamp of approval rather than allow licenses issued with out that. It was OK's by a judge that licenses issued by others without her name are OK.

People should be allowed to get licenses as that falls under equal treatment, but wanting someone to violate their religious beliefs when an alternative that preserves the rights of homosexuals to marry and allow her to follow the dictates of her own personal beliefs smacks of requiring a religious test in order to hold her position and thus would prohibiting the free exercise of her own religion.

On a side note, I was surprised to find out she was a democrat until recently, http://www.cnn.com/2015/09/26/politics/kim-davis-no-longer-democrat/

 

[Ovinomancer]

It also isn't denying people their rights based on a religious belief. The thing about these "counterfactuals" is that they don't provide a true mirror.

So, thought crime?

 

[Ryujin]

So, thought crime?

At the risk of starting this merry-go-round ride again, no, as we have someone in government using religion as the barometer for when to grant people the rights that they have been assured.

 

[Umbran]

So, thought crime?

No. Actual crime. An action was undertaken, so it is no longer just in the realm of thought.

 

[Ovinomancer]

No. Actual crime. An action was undertaken, so it is no longer just in the realm of thought.

Yes, but the crime is discrimination based on sexual identity, not based on religion. The Establishment clause doesn't care why you discriminate, it cares what the basis of discrimination is (it did far more than discrimination, that's just the angle here). If the test is religious, it's a violation whether the rational for the test is religious or not. If the test isn't religious, is not a violation regardless of whether it not the motivation was religious.

No crime exists based on specifics of motivation; why it was done doesn't matter outside of mens rea. This doesn't become a violation of the Establishment clause because someone had a religious motivation. You can have religious motivations so long as the result doesn't test on religion.

And by test on religion, that means that the actual action looks at the religion of those it's applied to, not the intent or desire of those executing it.

At the risk of starting this merry-go-round ride again, no, as we have someone in government using religion as the barometer for when to grant people the rights that they have been assured.

Your characterization here is flawed. Again, the basis for discrimination was sexual identity, not religious identity. That alone makes this not a violation of the Establishment clause. The religious motivation doesn't enter, it else many, many laws and actions that have do many good things would also be violations.

But, specifically, this isn't a violation of the Establishment clause because no law was passed. It's a violation of the civil rights of the petitioners not because there was a religious motivation involved, but because it violated the civil rights as established by law and jurisprudence. You don't even need to reach for the Establishment clause to get to a Constitutional violation, not to mention that doing so is incorrect.

 

[Deset Gled]

Just out of curiosity, Ovinomancer, where did you learn about law? You use a lot of terminology properly and reference a lot of relevant base material. But you seem to have no experience with modern case law, and some of the fundamental concepts you try and apply are so completely incongruent with the way American law is actually practiced that it's quite confusing. Are you originally from another country?

 

[billd91]

Yes, but the crime is discrimination based on sexual identity, not based on religion. The Establishment clause doesn't care why you discriminate, it cares what the basis of discrimination is (it did far more than discrimination, that's just the angle here). If the test is religious, it's a violation whether the rational for the test is religious or not. If the test isn't religious, is not a violation regardless of whether it not the motivation was religious.

No crime exists based on specifics of motivation; why it was done doesn't matter outside of mens rea. This doesn't become a violation of the Establishment clause because someone had a religious motivation. You can have religious motivations so long as the result doesn't test on religion.

And by test on religion, that means that the actual action looks at the religion of those it's applied to, not the intent or desire of those executing it.

The discrimination may be primarily based on sexual identity, it is nevertheless driven by religion. It's based on Davis subordinating the law to her religion, in effect, establishing her religious beliefs as a state church. While the law itself is clear of anything crossing the Establishment clause, the government's actions, via Kim Davis, are religiously motivated and, I think, could be argued as violating at least the spirit of the Establishment clause. The question may arise whether or not the Establishment clause has clearly been applied to government action in carrying out the law rather than making the law, but ultimately, I think that's a pretty fine hair to split.

 

[Ovinomancer]

Just out of curiosity, Ovinomancer, where did you learn about law? You use a lot of terminology properly and reference a lot of relevant base material. But you seem to have no experience with modern case law, and some of the fundamental concepts you try and apply are so completely incongruent with the way American law is actually practiced that it's quite confusing. Are you originally from another country?

I'd appreciate a pointer to where I'm offbase. I've touched on a bunch of topics and you aren't very specific as to where I'm wrong. I'm aware that there's some difference of opinion and differing legal scholarship surrounding some of the things I've talked about, but can tell where you disagree.

As for where I've studied, I try to not include identifiable personal information in my posts. Let's just say that I've had some coursework, but don't practice.

 

[Ovinomancer]

The discrimination may be primarily based on sexual identity, it is nevertheless driven by religion. It's based on Davis subordinating the law to her religion, in effect, establishing her religious beliefs as a state church. While the law itself is clear of anything crossing the Establishment clause, the government's actions, via Kim Davis, are religiously motivated and, I think, could be argued as violating at least the spirit of the Establishment clause. The question may arise whether or not the Establishment clause has clearly been applied to government action in carrying out the law rather than making the law, but ultimately, I think that's a pretty fine hair to split.

Religious motivation is not sufficient for invocation of the Establishment clause. It could even be argued to even be unnecessary, but I can't see a situation where a religious test occurs without religious motivation without doing some very unrealistic logical limbo dancing.

If having religious motivation for doing something is sufficient, get ready for Establishment clause challenges to such things as Medicare.

I get that people would really like to see the use of the 1st via the Establishment clause used to show that this person's use of the 1st is invalid because it would be a fantastically ironic twist, but it's not a case you can win on.