Looks like someone enjoyed her time in jail

[Dannyalcatraz]

Yes, I did read the case, and no, I am not misrepresenting it.

From the Agonisti majority's opinion
( https://www.law.cornell.edu/supct/html/96-552.ZO.html ):

Although we examined in Witters and Zobrest the criteria by which an aid program identifies its beneficiaries, we did so solely to assess whether any use of that aid to indoctrinate religion could be attributed to the State. A number of our Establishment Clause cases have found that the criteria used for identifying beneficiaries are relevant in a second respect, apart from enabling a court to evaluate whether the program subsidizes religion. Specifically, the criteria might themselves have the effect of advancing religion by creating a financial incentive to undertake religious indoctrination.

Translation: in past cases, to see if the State was culpable, the Court examined programs' criteria to see if they used the aid to indoctrinate recipients. "Indoctrination" is the goal of the benefit provider, and not a characteristic of a beneficiary; IOW, the Court looked at distributors' motives. If and when the motive of indoctrination is present, the Court would then look to see to what degree- if any- the State's efforts enabled said indoctrination.

In addition, the criteria themselves may be examined to see if they inherently create incentives to conform to the religious principles of the service provider.

Applying this reasoning to New York City's Title I program, it is clear that Title I services are allocated on the basis of criteria that neither favor nor disfavor religion...The Board's program does not, therefore, give aid recipients any incentive to modify their religious beliefs or practices in order to obtain those services.

Here, the Court is saying it used the standard applied in the Witters and Zobrest cases- looking to see if the aid was distributed in a such way as to aid in indoctrination (again, examining the motives of the distributors)- to the case set before them in Agonisti. They didn't find it, so the plaintiffs lost on this fork of the test.

***

Mens rea IS a motivational concept. Intentional homicide- say, planned killing for insurance money- is different from negligent homicide- say, killing because you were speeding on rain-slicked streets- is different from justified intentional homicide- killing someone in the defense of another.

 

[tomBitonti]

First, this has been a great dialog to follow.

Second, in the following text, isn't indoctrination an outcome? If I indoctrinate a group to follow a particular religion, does it matter in particular why? Indoctrination can be imposed for non-religious motivations, and would still seem to be a problem.

From the Agonisti majority's opinion
( https://www.law.cornell.edu/supct/html/96-552.ZO.html ):

Translation: in past cases, to see if the State was culpable, the Court examined programs' criteria to see if they used the aid to indoctrinate recipients. "Indoctrination" is the goal of the benefit provider, and not a characteristic of a beneficiary; IOW, the Court looked at distributors' motives.

Thx!
TomB

 

[Ovinomancer]

Yes, I did read the case, and no, I am not misrepresenting it.

From the Agonisti majority's opinion
( https://www.law.cornell.edu/supct/html/96-552.ZO.html ):



Translation: in past cases, to see if the State was culpable, the Court examined programs' criteria to see if they used the aid to indoctrinate recipients. "Indoctrination" is the goal of the benefit provider, and not a characteristic of a beneficiary; IOW, the Court looked at distributors' motives. If and when the motive of indoctrination is present, the Court would then look to see to what degree- if any- the State's efforts enabled said indoctrination.

I don't see how you can possibly make the jump from examining the programs' criteria -- ie, the written method by which the law acts -- to thinking this is the same as the distributors motives. Criteria are not motives, they are criteria. Indoctrination is an effect, not a motivation. There's no way you can parse that case and come out with it being anything close to about the motives of the providers. Further, the actual providers is so vague here -- do you mean the lawmakers, the people running the program, the teachers in the program, who? -- that even that construct is nonsensical.

That ruling looks solely at the effects of the programs and not the intentions or motivations of the 'providers'.

In addition, the criteria themselves may be examined to see if they inherently create incentives to conform to the religious principles of the service provider.

Yes! Yes, they can, and should, as criteria are how the program operates -- how it applies it's effects. There's nothing there about motives.

Here, the Court is saying it used the standard applied in the Witters and Zobrest cases- looking to see if the aid was distributed in a such way as to aid in indoctrination (again, examining the motives of the distributors)- to the case set before them in Agonisti. They didn't find it, so the plaintiffs lost on this fork of the test.

Yes! But there's nothing there about motives. It's all based on effects -- what effect does following the criteria of the program have? That's it, there's no examination of the motives of those that set the criteria because that doesn't matter; only the application of the criteria and their effect matters.

***

Mens rea IS a motivational concept. Intentional homicide- say, planned killing for insurance money- is different from negligent homicide- say, killing because you were speeding on rain-slicked streets- is different from justified intentional homicide- killing someone in the defense of another.

GAH! I said that. Mens rea establishes only that you had intent to commit the crime. The motivation that fueled the intent isn't relevant. Motivation isn't relevant, intent is. Intent is relevant, motivation isn't. I cannot think of another way to say this. Maybe an example? If someone commits murder intentionally because they want the insurance money vs someone that commits intentional murder because the really hate the guy they kill, these crimes are treated exactly the same under the law, because the motivation of the murderers is not relevant, only the intent to murder.

But intent isn't even necessary for EC cases because they are not criminal cases so establishing a guilty party to punish isn't part of it. If intent isn't necessary, then the only thing that the court evaluations are the facts of the law and its effects. That's exactly what the court in Agostini.

 

[Dannyalcatraz]

Clearly, Ovinomancer, you and I are at a true "Internet impasse", so I'll politely disengage from this particular tangent.

 

[Dannyalcatraz]

First, this has been a great dialog to follow.

Second, in the following text, isn't indoctrination an outcome? If I indoctrinate a group to follow a particular religion, does it matter in particular why? Indoctrination can be imposed for non-religious motivations, and would still seem to be a problem.

Thx!
TomB

It is is difficult- but not impossible- to have indoctrination built into a program without it first being put there as an intentional goal of the program operator.

As for the issue of indoctrination for non-religious motivations...well, as long as the indoctrination in question is otherwise legal, that isn't barred by Constitutional law. IOW, you could have a perfectly legal Gov's subsidized program that indoctrinated people to become police officers or choir singers or athletes, but not one that did likewise for becoming a drug mule.

 

[tomBitonti]

It is is difficult- but not impossible- to have indoctrination built into a program without it first being put there as an intentional goal of the program operator.

As for the issue of indoctrination for non-religious motivations...well, as long as the indoctrination in question is otherwise legal, that isn't barred by Constitutional law. IOW, you could have a perfectly legal Gov's subsidized program that indoctrinated people to become police officers or choir singers or athletes, but not one that did likewise for becoming a drug mule.

Agreed that indoctrination which is enacted or enabled by the government is very probably deliberate. But, that the imposition of the indoctrination is deliberate or not is not the issue. The issue (as I gather from the preceding discussion) is whether the effect of the indoctrination is to interfere with the free practice of religion.

As a historical issue, I am thinking that interference was much more a political issue --to deprive a group a place in government, of simply to prevent association and the resulting political power that results from the association -- than it was out of a true desire to promote a particular religion.

Thx!
TomB

 

[Dannyalcatraz]

Agreed that indoctrination which is enacted or enabled by the government is very probably deliberate. But, that the imposition of the indoctrination is deliberate or not is not the issue. The issue (as I gather from the preceding discussion) is whether the effect of the indoctrination is to interfere with the free practice of religion.

Even the mere attempt at religious indoctrination in a Gov't sponsored program is illegal, even if no actual indoctrination occurred. A program structured in order to indoctrinate amounts to promotion of religion, which is forbidden.

As a historical issue, I am thinking that interference was much more a political issue --to deprive a group a place in government, of simply to prevent association and the resulting political power that results from the association -- than it was out of a true desire to promote a particular religion.

Thx!
TomB

Certainly the Founders were very much aware of the problems associated with the intertwining of political and religious power and doctrine, and worked hard to structure our gov't to minimize that possibility. Not only that, but they continued to stress their intent to keep form such entanglement in both their private writings and in subsequent documents issued by the federal government.

But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.
-Thomas Jefferson, Notes on Virginia, 1782

Treaty of Tripoli
Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen (Muslims); and as the said States never entered into any war or act of hostility against any Mahometan (Mohammedan) nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

 

[tomBitonti]

Even the mere attempt at religious indoctrination in a Gov't sponsored program is illegal, even if no actual indoctrination occurred. A program structured in order to indoctrinate amounts to promotion of religion, which is forbidden.

I would expect as much. The attempt would be an endorsement and very probably an intimidation.

Thx!
TomB

 

[calronmoonflower]

She has taken steps to make it impossible.

Actually, no she hasn't. After the judge ruled that the deputies could legally issue licenses, she had her name and job title removed from the forums and stated an opinion that the judges ruling was actually wrong.

But before the SCOTUS ruling she bothered to write a letter to he state legislators asking for the law to be changed so gay marriage license's could be issued, without her having to sign off on them.

http://www.westernjournalism.com/newly-uncovered-letters-from-kim-davis-could-change-the-entire-story/

...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.

An interesting note, in Kentucky that can actually be done legally as county clerks can exempt themselves from issuing hunting and fishing licenses.

 

[Silverblade The Ench]

Right??

Except those 4e people. Those sinner can burn!!!!

... Hehe.

Die heathen, 4th is glorious!