Homicidal_Squirrel
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Tee hee.
Looks like someone enjoyed her time in jail
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Ovinomancer
No flips for you!
No disagreements. Never meant to imply otherwise. This is often how complaints are conducted -- throw everything you can at it and take what sticks.
With the exception of not quite understanding how both works there, I'll agreeably stipulate that the violation was based on sexual identity and was religiously motivated. However, religious motivation is not a test under the Establishment clause. So you can consider it, but it won't pass muster.
No, that's not correct. You don't see those challenged because religious motivation is not covered under the Establishment clause. Effects are covered, motivations aren't. It's perfectly okay to have a religious motivation if you have a secular compelling interest. If you don't have a compelling secular interest, then the effect fails the last prong of the Lemon test because it does a religious thing only. In the current case, it would be hard to characterize sexual orientation discrimination as a religious thing only because it doesn't check for religion at all -- it doesn't punish non-believers, it doesn't require adherence to a religious tenant, it doesn't require membership in a religious organization. It's test and effect are entirely secular because sexual orientation is not a religious test. So having a religious motivation isn't sufficient to invoke the Establishment clause because there's no religious test or endorsement.
Yup, no disagreement. And, if discrimination based on sexual orientation was legal (like it was, oh, last year), then denying people with the wrong sexual orientation based on religious beliefs would similarly be okay. The only thing that changed here was that it became illegal to discriminate based on sexual orientation. That's it. So what she did is in violation of the 14th, yes and very much so, but not the 1st.
I don't know where you get this fixation on "tests", because that is not the end-all, be-all of the Establishment Clause.
In the example in the linked to law review article, there was no "test": the school established an explicitly Christian prayer practice which was deemed a violation of the EC.
In the RW case we're discussing, not only did the clerk PERSONALLY deny licenses to gays based on the tenets of her faith, she also prevented everyone in her office from doing so as long as her name was on the forms because of those same tenets AND declared that those licenses issued without her name were void. (KY law actually explicitly allows deputy clerks to issue valid forms.) IOW, a couple could only get a valid marriage license as long as they conformed to the strictures of of her faith, no exceptions. That's a prima facie case for an EC violation.
So we're all using the same terminology, here is Justice Black's clarification of the EC:
Neither a state nor the federal government can set up a church.
Neither can pass laws which aid one religion, aid all religions nor prefer one religion over another.
Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.
No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion.
Neither a state nor the federal government can openly or secretly participate in the affairs of any religious organizations or groups and vice versa.
This is the Lemon Test:
Does the challenged law, or other governmental action, have a bona fide secular (non-religious) or civic purpose?
Does the primary effect of the law or action neither advance nor inhibit religion? In other words, is it neutral?
Does the law or action avoid excessive entanglement of government with religion?
The Endorsement Test (O'Connor)
Government practices may not have the effect of communicating a message of government endorsement or disapproval of religion.
The Coercion Test (Kennedy)
The Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.
Since- as mentioned before- there ARE faiths that permit same-sex marriage, any denial of such (even before the recent SCOTUS decision) begs the question of an EC issue, since it interferes with the free practice of those faiths (Black, Lemon). It also arguably prioritizes the beliefs of certain faiths over others without any legal alternatives (Black, Endorsement, Coercion). This is why even respected conservative jurists like 7th Circuit appellate judge Richard Posner kept asking those various AGs tasked with the defense of denying marriage equality for a bona fide secular purpose for doing so (Lemon).
But, even if there were not faiths that recognized same-sex marriage, you still raise the identical issues, since the EC also precludes the establishment of edicts of faith over secular laws. That's why the Lemon test's key is the demand for a "bona fide secular (non-religious) or civic purpose". Quote whatever scripture you want to support your position- the Bible, the Torah, the Koran, the Vedas, etc.- all are immaterial if you can't prove a secular/civic justification.
Richard Posner would hammer that point each time- no lawyer succeeded in articulating a secular rationale for opposing same sex marriage that hadn't been shot down in prior constitutional marriage laws involving heterosexual marriage rights, like Loving.
Here are excerpts from a couple of exchanges he had with the AGs of Indiana & Wisconsin at Slate:
http://www.slate.com/blogs/outward/...r_destroy_arguments_against_gay_marriage.html
See above.
Ovinomancer
No flips for you!
I've mentioned the other prongs, but they're not relevant here.
No, that's prima facie evidence for a 14th violation. The gay members could have entirely conformed to the strictures of her faith, and would still have been denied. They weren't denied because of belief, or faith, or failures in either, they were denied because they were gay (or specifically, because they wanted to marry someone of the same sex). There was no religious belief they could profess that would have allowed them to get a license.
That such discrimination was religiously motivated isn't relevant to the EC, as we'll see below.
Excellent! Which one of those covers denying same sex marriage? Not the motivation for denying, because none of those speak to motivation, only to effect.
Again, excellent! For prong one, there is a secular purpose -- the discrimination based on sexual orientation. That's a secular reason because it has no religious basis -- motivation, yes, but not a basis. You could be any religion, but it's the state of being gay that causes the discrimination. Of course, this isn't a legal purpose under other laws, but that's not the test under this prong.
For the second, it neither advances nor inhibits religion. It is neutral to religion because it checks gayness, not faith.
Finally, it does not require government entanglement with religion because it takes no action for or against any religion.
O'Connor's suggestions aren't currently thought of as sound jurisprudence, being overly broad. However, it still works here because there is not religious message being endorsed or disapproved of, it's being gay that's being disapproved of.
Again, no one's being coerced into participation or avoidance of religion - it's being gay that's being discriminated against.
No it doesn't. How odd. If this is the case, then the approval of same sex marriage invites an EC challenge under the same judicial theory. It doesn't. Religious approval or disapproval of a secular matter (such as the issuing of marriage licenses to same sex persons, a clearly secular issue) have no bearing because the matter is secular. Only if it also implies endorsement or inhibition of one of the religions would that even be the case. The fact that many religions do permit, and that it's a matter of discussion in whats-her-name's religion (my memory doesn't want to hold onto her name for some reason) actually cuts against an EC challenge.
That's not the test under those theories. It's does the act explicitly endorse or coerce religious activities. Same sex marriage is not a religious activity (as far as the law is concerned, at least).
Posner was asking under the due process clause, which uses a similar compelling interest test to the Establishment clause. I can't find anywhere where he asked questions under the theory of an EC violation.
He might have, if the due process clause wasn't so much easier to use. Courts are like that -- they won't even address other issues if there's a quicker path to decision, sometimes even finding such a path that isn't argued by either side.
Discrimination based on sexual orientation is secular, because sexual orientation is not a religious belief. That's sufficient to make this case based on a secular purpose -- denial of same sex marriage licenses. Motivation for the denial doesn't come into it once you can establish a clear secular purpose. That discrimination of same sex marriage was found to be illegal under other law (and the EC didn't show up at all in those decisions), it's hard to say that it suddenly applies to the very same issue it's been absent from.
If the discrimination wasn't an EC violation prior to the recent ruling (it didn't find an EC violation), if the ruling wasn't an EC violation (it clearly wasn't), then continuing to illegally discriminate after the ruling isn't suddenly an EC violation because someone's doing it because of their religion. The discrimination is secular, not religious, because it discriminates on secular causes, not religious ones.
Posner used the word 'secular' once in his opinion, and it wasn't crucial to his decisions. He hammered the lawyers for a compelling government interest under due process, not the EC. The EC was absent from his decision entirely.
You realize that 'secular' doesn't appear anywhere in that article, yes? Nor does 'Establishment Clause'. 'Due Process' shows up, though.
Look, I get that it seems like this is an Establishment clause action because her religious beliefs are so front and center here. But it's not because the effect has nothing to do with religion or religious beliefs, not tested, not as the purpose, not as endorsement, not as entanglement, not as anything religious. Motivation isn't sufficient. Again, I reference Blue Laws, which are also clearly religiously motivated but still legal.
(No, since her faith does not permit same-sex marriage.)
(Yes they were, by the explicit testimony of the person denying their right to marry.)
...because she is expressly elevating her faith's tenets above the requirements of secular law. That is a clear EC violation, just as it would be if an Inuit denied Sarah Palin a hunting license because his faith prohibits women from being hunters.
Black's second point, third clause- elevating one faith above others)- IS about motivation, and here, it is the same as when that town backed off only opening with Christian prayers, same as why 10 Commandment Monuments get yanked, etc.
Wisconsin's lawyers tried that with Posner under "traditional definitions of marriage" and failed. As he noted, that was torpedoed under Loving. Thus, this is a non starter because of res judicata.
In addition, in 1997, Lemon got refined:
Note the reformulated second part: "defining the recipients of government benefits based on religion". By denying gays the right to marry because of her faith, the KY clerk runs afoul of SCOTUS' Agostini reformulation of the Lemon test. Her actions deny them everything in the bundle of legal rights the Federal, State and Civic governments have tied to the marital contract.
(Note: this did not create an "Agostini test". Agostini follows Lemon, and merely clarifies Lemon with its reformulation.)
It absolutely does- it prohibits faiths that recognize same sex marriage from performing them.
This goes back to Scalia's majority opinion in Employment Division v. Smith and the Federal RFPA that was passed in response to it. In Smith, the majority found that religious use of peyote was not protected because of the state's interest in controlling drug consumption in general (even though religious use of alcohol by Catholics WAS permitted during Prohibition, as former altar boy & arch-conservative Scalia well knew). The RFPA basically altered that, explicitly crafting a framework for creating limited exceptions.
What?
O'Connor's formulation is completely sound and in current use- from the First Amendment Center:
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Ovinomancer
No flips for you!
EDIT: there was a stray quote tag in the quoted text, and it broke the formatting when I quoted it. I have altered Danny's post about to remove that quote, but I have changed nothing else. /edit
I don't want to fisk this, as I think we're going around in circles, so...
...to try a different tack: the effect of the clerk's actions is to deny same sex couples access to marriage licenses. To restate: the effect is to discriminate on sexual orientation. That's the sum of the effect. That is what is looked at under the Establishment Clause. You have to review this effect without regard to motivation. Pretend that a completely bigoted atheist did this. Review all of the tests regarding the effect as if this atheist did exactly the same things. There is no religion supported or punished, no religion endorsed, no religious entanglements, no Establishment Clause violations whatsoever. Just a bigot violating some nice peoples' due process rights.
You have to dissociate the effect from the actor because the law is meant to be blind to individuals. If you treat this clerk with her religious motivations differently than you treat the atheist bigot, you are actually violating her 1st amendment rights to freedom of religion -- you are changing the way the law affects her solely based on her religious statements. The law i blind to motivations for this exact reason -- only the establishment of intent to break the law is necessary to convict, actual motivation is irrelevant until you get to sentencing. That this clerk's motivations are clearly religious shouldn't even be considered when evaluating if her actions violate the Establishment Clause. By the simple expedient of swapping the motivation for the actions it becomes crystal clear that the only reason anyone would think this a violation of the EC is the stated motivations of the actor, and that's not sufficient to cause a violation.
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I'm sorry, but that is simply incorrect under Agonisti.
To reiterate, Agonisti's reformulation & clarification of Lemon enumerated three primary criteria for determining whether a government action has a primary effect of advancing religion:
1) government indoctrination
2) defining the recipients of government benefits based on religion
3) excessive entanglement between government and religion.
By her own words, the clerk violates the second criterion. She denied fundamental rights & legal benefits ("government rights") of couples seeking marriage licenses based on the tenets of her faith ("based on religion"):
By Agonisti's reformulation, that's an EC violation, full stop, end of story.
No, you're not: if an atheist government worker denied his agency's services to all members of a particular religion because he felt that those people didn't deserve them due to their faith's tenets, that's every bit as much an EC violation.
Besides, she is completely fee to believe as she wishes, but her faith cannot be used to escape the duties of her position while simultaneously shielding her from the consequences of being unwilling or unable to perform those duties.
One of the religious accommodation cases I covered in law school involved men whose faith demanded they maintain their facial hair uncut. They sued their company because they were systematically and universally denied employment in one of the higher paying jobs in the manufacturing process. The company claimed that the portion of the required safety gear covering the face was defeated by beards...and proved it in court. The company won, and no accommodation was demanded.
Similarly, the USAF would not be forced to allow a pilot who converted to pacifism to continue flying combat missions in A-10s. They could reassign him or dismiss him from service without penalties.
Ovinomancer
No flips for you!
No, it's not, but okay, let's do this again.
Yes, all correct (enough).
Defining recipients of government benefits based on religion doesn't mean what you think it means. It means that you can't base receipt of benefits based on the recipients religion. Not that the motivation to deny benefits is couched in religious terms. The basis for denying benefits here was solely the recipients' sexual orientation, not religion or religious belief. Therefore, it doesn't make the second prong (or the first, or the third). The motivation behind it isn't relevant -- we want people to be able to have religious motivations for secular things. If your example is sufficient, then there is never the ability to have a religious motivation to improve, say, healthcare because the motivation is suspect. This isn't the case (one of the larger expansions of medicare was explicitly because of the bill sponsor's religious beliefs).
The US does not alter whether or not something is a crime based on the particulars of motivation. Establishment Clause violations follow this precept. They look at the effect only, not the motivation or the stated goal.
No, it's not an EC violation, either. But that wasn't my example, my example had a totally non-religious reason for denying benefits (general bigotry) and no religious entanglements whatsoever. It was there to illustrate that motive has no bearing on EC violations, because otherwise we treat offenders differently based on their motivation. That leads to punishing people for having religious convictions and not punishing people that don't, which is a 1st Amendment violation, both a freedom of religion violation and an, ironically, Establishment Clause violation (it's a law that punishes religious beliefs).
100% agreed, but because she's violating those people's due process rights, not because of the Establishment Clause. What the clerk is doing is wrong, and unconstitutional, and I strongly denounce it, but it's not an Establishment Clause violation.
An excellent result.
A further excellent result. While neither of these examples actually impinges on the Establishment Clause, they do show that religious discrimination can legally occur so long as the it's established that a compelling interest exists. I'm not sure what you think these examples help illuminate in this case.
This is factually incorrect- the test can be applied to both sides, recipient or provider.
In Agostini, the SCOTUS majority (O'Connor, Rehnquist, Scalia, Kennedy, and Thomas) were looking at government funding directed at parochial schools, and, among other things, considered all 3 prongs of the Lemon test (as they redefined it).
Specifically to this point, they looked at whether the government backed programs at these schools "defined beneficiaries with reference to religion"; whether the programs "favored or disfavored religion", or "provided incentives for prospective beneficiaries to modify their religious beliefs or practices" in accord with the faith underlying the parochial school in order to receive the services.
Which is to say, they looked at whether the faith of the government-funded programs' gatekeepers determined who received the benefits the government intended to be distributed neutrally. They looked at the benefits providers' motives in the decision making process.
Now, in Agostini, the plaintiffs failed to meet this burden (or any of the other Lemon test standards). In KY, though, the sole gatekeeper of the right in question has publicly admitted that she expects those seeking marriage modify their beliefs or practices to conform to the tenets of her faith, at least on these grounds.*
IOW, her words & actions raise a prima facie case of an EC violation under Agostini.
Again, this is incorrect.
The differences between 1st degree murder, negligent homicide, and justifiable homicide (a.k.a., not a crime at all) hinge on motive. Same goes with many other crimes, and in civil law, torts as well: intent can change culpability from 100% to zero.
And in a Constitutional case, being able to define a compelling state interest can turn a violation into no crime at all.
* When asked about denying marital licenses to other groups not in accord with her faith's teachings, like divorced people, she dodged the issue.
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Ovinomancer
No flips for you!
I don't follow. If you aren't checking the recipients religion, how does it work to deny benefits? If you can check only the provider's religion, you end up with denying people benefits because the provider has a religion? That's nonsensical. Maybe there's a construction wherein you can logically deny benefits to someone because the provider has religion that doesn't check the recipients religion, but I'm struggling to find one.
Okay, but Agostini is far removed from the facts here. I'll agree they used the Lemon test, and well.
I'm sorry, but have you actually read the decision in Agostini? Nowhere do they consider the provider's motives, but instead look at the effects to see what the law does.
No, misrepresenting the jurisprudence in a case that has nothing to do with the current situation, then reversing the logic misrepresented to try to show that the unrelated situation is a violation does not a prima facie case make.
No, then hinge on mens rea. The actual motivation is irrelevant, just the scope of the guilty mind. If you plan a murder intentionally, you have shown the mens rea to break the law and end a life wantonly, and so get a higher charge. If you are intentionally negligent, and that results in a death, you've knowingly allowed the conditions for a death to occur, and so get the charge of manslaughter. You haven't knowingly and willingly killed someone, so you do not have mens rea for murder.
In none of that is the actual motivation considered -- it doesn't matter if you plan the murder because you think the other people is a cat person and cat people are evil (regardless of evidence for), or it you did it because that person was worth more to you dead than alive, or if it was a hit because they crossed you and slept with your wife. Motivation doesn't matter, intent does. Intent to break the law, not motivation. The law is blind to the actual motivation until sentencing.
In sentencing, then motivation does matter, but that's after conviction, and motivation is used to determine the severity of punishment.
Yes, okay, I don't understand your point. It seems that you're saying that denying same sex couples marriage licenses isn't a compelling state interest -- to which I'd agree, it is not a compelling interest to violate peoples' due process rights under the 14th Amendment. It's illegal to do this under another law. That doesn't mean that because it's invalid under the 14th, that it's invalidity is transferable to the EC. Denying same sex marriages is a secular thing to do -- it doesn't check the religion of the recipients, it checks their sexual orientation. Why it would check it is irrelevant, it only matters that the check is of a secular matter. In the eyes of the Establishment Clause, there is no need to determine if the action violates other laws -- that's the business of other laws. So the secular checking of sexual orientation as a basis for providing benefits isn't the purview of the Establishment Clause.
I've repeatedly tried to show this by switching actors and showing that if you remove the religious motivation, the exact same action isn't a violation of the Establishment Clause. An action isn't illegal based on the reason a person did it, but only on the actual actions taken. Similarly, a law or action isn't an Establishment Clause violation solely because of the religious beliefs of the actor. The law or action has to have a religious impact, and this one doesn't; it's just straight up bigotry.
* When asked about denying marital licenses to other groups not in accord with her faith's teachings, like divorced people, she dodged the issue.[/QUOTE]
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