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Question for self-proclaimed HROT Constitutional experts . . .

AuroraHawk

HR Heisman
Dec 18, 2004
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In particular I'm interested in hearing from those who proclaim themselves to be "strict constructionists" and "state's rights" advocates. To those people, I ask: are you offended by the majority's opinion in Espinoza v. Montana Dept. of Revenue released earlier this morning?

Here is the text of the First Amendment to the US Constitution:

Amendment I

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.

I'll look forward to your responses.



 
I'm no expert, but I support the Constitution.

Why would I be offended by the decision? It's consistent with the Constitution.

First, on the question of States Rights - 1A is an enumerated right to the people, and has been incorporated. Neither the Federal Government nor a State can take that away.

While church based schools certainly promote religion, and there's no question about that, it's a choice of the parents to send their children there.

The Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.”

https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf


Whether I agree with the decision, or not, I always read the opinion, because the opinion is often different from how the media portrays the opinion.

 
Montana didn't "establish" a religion here. However, they were attempting to discriminate on that basis.
 
I'm no expert, but I support the Constitution.

Why would I be offended by the decision? It's consistent with the Constitution.

First, on the question of States Rights - 1A is an enumerated right to the people, and has been incorporated. Neither the Federal Government nor a State can take that away.

While church based schools certainly promote religion, and there's no question about that, it's a choice of the parents to send their children there.

The Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.”

https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf


Whether I agree with the decision, or not, I always read the opinion, because the opinion is often different from how the media portrays the opinion.

First, I offered no opinion regarding where I "come down" on the opinion.

Second, I posed the question to the self-proclaimed "strict constructionists" who demand that judges not look beyond the words of the constitution. Also, to those who demand that federal judges leave states alone.

Where does the text of the Constitution provide that it "protects against unequal treatment?" Where does the text of the Constitution provide that it precludes "laws that impose special disabilities on the bases of religious status?" Why is the word "prohibit" not strictly construed? "Prohibit" isn't hard to define. Why aren't the "strict constructionists" on this board offended by a blatant act of judicial activism (i.e. failing to interpret the consitution "as written")?

You (and I'm not referring specifically to Finance85) want to self identify as a "strict constructionist?" You want to identify as someone who wants judges to merely look at words and apply only those words as written? You want to be offended when judges go beyond those words and decry supposed "judicial activism?" If you fit into that category, today's opinion should offend you greatly. Otherwise, you are simply engaging in means-ends analysis.
 
Montana didn't "establish" a religion here. However, they were attempting to discriminate on that basis.

First, the Montana Supreme Court struck down the law in its entirety. Thus, there was no discrimination taking place.

Second, the actual text of the First Amendment reads "Congress shall make no law . . . "prohibiting" the free exercise of [religion]." What religion was "prohibited" under Montana's scholarship scheme? Who was "prohibited" from freely exercising their chosen religious beliefs?
 
First, the Montana Supreme Court struck down the law in its entirety. Thus, there was no discrimination taking place.

Second, the actual text of the First Amendment reads "Congress shall make no law . . . "prohibiting" the free exercise of [religion]." What religion was "prohibited" under Montana's scholarship scheme? Who was "prohibited" from freely exercising their chosen religious beliefs?

Obviously, the program would have created a financial disincentive to sending children to a religious school.
 
First, I offered no opinion regarding where I "come down" on the opinion.

Second, I posed the question to the self-proclaimed "strict constructionists" who demand that judges not look beyond the words of the constitution. Also, to those who demand that federal judges leave states alone.

Where does the text of the Constitution provide that it "protects against unequal treatment?" Where does the text of the Constitution provide that it precludes "laws that impose special disabilities on the bases of religious status?" Why is the word "prohibit" not strictly construed? "Prohibit" isn't hard to define. Why aren't the "strict constructionists" on this board offended by a blatant act of judicial activism (i.e. failing to interpret the consitution "as written")?

You (and I'm not referring specifically to Finance85) want to self identify as a "strict constructionist?" You want to identify as someone who wants judges to merely look at words and apply only those words as written? You want to be offended when judges go beyond those words and decry supposed "judicial activism?" If you fit into that category, today's opinion should offend you greatly. Otherwise, you are simply engaging in means-ends analysis.

The 14th Amendment offers equal protection. If you didn't know that then you need to start there.

As far as judicial activism, that's a loaded term. I take that to mean creation of law where none exists.

In this case, I don't see any law being created. I see Constitutional rights being protected against a conflicting law.
 
The 14th Amendment offers equal protection. If you didn't know that then you need to start there.

As far as judicial activism, that's a loaded term. I take that to mean creation of law where none exists.

In this case, I don't see any law being created. I see Constitutional rights being protected against a conflicting law.

14th Amendment to the Constitution:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Who in Montana was being denied "equal protection of the laws?"
 
14th Amendment to the Constitution:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Who in Montana was being denied "equal protection of the laws?"

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The whole paragraph is relevant. You failed to highlight the part of the paragraph that is most relevant.
 
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The whole paragraph is relevant. You failed to highlight the part of the paragraph that is most relevant.

Who in Montana had their "privileges" or "immunities" abridged? Who in Montana was "deprived" of "life, liberty or property?" And, again, who in Montana was being denied "equal protection under the laws?"
 
In particular I'm interested in hearing from those who proclaim themselves to be "strict constructionists" and "state's rights" advocates. To those people, I ask: are you offended by the majority's opinion in Espinoza v. Montana Dept. of Revenue released earlier this morning?

Here is the text of the First Amendment to the US Constitution:

Amendment I

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.

I'll look forward to your responses.



Why not include a link to the opinion?

https://d2qwohl8lx5mh1.cloudfront.net/0ed62_tOrBjGfMuM04WccQ/content
 
Who in Montana had their "privileges" or "immunities" abridged? Who in Montana was "deprived" of "life, liberty or property?" And, again, who in Montana was being denied "equal protection under the laws?"

Read the opinion.
 
While church based schools certainly promote religion, and there's no question about that, it's a choice of the parents to send their children there.
And that's fine as long as public funds do not support it.

Religious schools already get a lot of public support. They get to benefit from public roads, the power grid, water, police, and so on. Those are OK because they are public services/benefits intended to benefit everyone.

But money or vouchers to pay for religious training or to support religious organizations crosses the line.

By all means send your kids to be brainwashed in religion. It's child abuse, but it's societally-approved child abuse. Some day we may be civilized enough to end this practice. Until then we accept it. But that doesn't mean we (the public) should promote it by paying for it.

Promoting religion is prohibited. This decision violates that prohibition.
 
From the majority opinion:

"The Free Exercise Clause protects against even “indirect coercion,” and a State “punishing the free exercise of religion” by disqualifying the religious from government aid as Montana did here."

I'll quote the text of the Free Exercise Clause again for the benefit of those who promote themselves as "strict constructionists" who decry "activist" judges who interpret the U.S. Constitution beyond the actual words used.


Amendment I

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.

Where in the specific language of the Free Exercise Clause does it protect against "indirect coercion" or "punishing the free exercise of religion?"

The point is simple. There is no such language in the Free Exercise Clause. The concepts of "indirect coercion" or "punishing the free exercise of religion" involve judicially created interpretations. If a governmental body provides $1,000 scholarships to qualified high school students going to a private secular high school but won't provide $1,000 scholarships to qualified high school students going to a private religious high school, does that "prohibit" high school students from freely exercising their religion or attending a private religious high school? Absolutely not. Might it be coercive? Assuming all other things being equal, it could very well incentivize the student to attend the secular school.

But . . . the point remains . . . it does not "prohibit" the free exercise of that person's religion.

If you approve of the Court's opinion in this case, so be it. If so, just be aware that you aren't a "strict constructionist" and you have no problem with judges being "activist" and engaging in broad interpretation of words used in the Constitution.
 
From the majority opinion:

"The Free Exercise Clause protects against even “indirect coercion,” and a State “punishing the free exercise of religion” by disqualifying the religious from government aid as Montana did here."

I'll quote the text of the Free Exercise Clause again for the benefit of those who promote themselves as "strict constructionists" who decry "activist" judges who interpret the U.S. Constitution beyond the actual words used.


Amendment I

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.

Where in the specific language of the Free Exercise Clause does it protect against "indirect coercion" or "punishing the free exercise of religion?"

The point is simple. There is no such language in the Free Exercise Clause. The concepts of "indirect coercion" or "punishing the free exercise of religion" involve judicially created interpretations. If a governmental body provides $1,000 scholarships to qualified high school students going to a private secular high school but won't provide $1,000 scholarships to qualified high school students going to a private religious high school, does that "prohibit" high school students from freely exercising their religion or attending a private religious high school? Absolutely not. Might it be coercive? Assuming all other things being equal, it could very well incentivize the student to attend the secular school.

But . . . the point remains . . . it does not "prohibit" the free exercise of that person's religion.

If you approve of the Court's opinion in this case, so be it. If so, just be aware that you aren't a "strict constructionist" and you have no problem with judges being "activist" and engaging in broad interpretation of words used in the Constitution.

You had your mind made up before you read the opinion. Nothing was going to change your mind, and you are interpreting the opinion the way you already decided you would interpret the opinion. It's pointless to try and reason with you.
 
You had your mind made up before you read the opinion. Nothing was going to change your mind, and you are interpreting the opinion the way you already decided you would interpret the opinion. It's pointless to try and reason with you.

Translation: “I have no response so I’ll feign an excuse.”

BTW, I’m yet to offer any opinion regarding whether I think that the opinion is consistent with prior court precedent.

My point goes solely to supposed judicial philosophies.

I quite often find that those being the most boisterous about “judicial activism” and “the need for strict constructionists” when they don’t like the Court’s opinion are just fine with such a philosophy when the opinion happens to fit their personal belief.
 
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