6 ms·

There is no constitutional principal of separation of math and state, so the analogy doesn't hold

by shmageggy 7y ago

brink 7y ago
These shelters aren't state.
- slg 7y ago
  Plenty of these shelters, including the faith-based ones, receive state funds.
  - kortilla 7y ago
    Plenty don’t. And in this example there was no mention of state funds.
- shmageggy 7y ago
  I was referring to the act of arresting and jailing someone, something carried out by the state
- FireBeyond 7y ago
  No, they're religious. And the City of Boise will threaten to put you in jail if you would rather sleep outside than listen to mandatory religious sermons and participate in mandatory religious activities to have access to the shelter. That was one of the keys - "the City said it wouldn't cite people when shelters weren't open", but the plaintiffs said that one of the religious shelters had an "always open" policy, even if they didn't actually have beds, and they did require religious participation, so the city's point was effectively moot.
rayiner 7y ago
There is no constitutional principle of separation of church and state either. The Constitution says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The "separation" concept was manufactured a century after the Bill of Rights was enacted: https://www.heritage.org/political-process/report/the-mythical-wall-separation-how-misused-metaphor-changed-church-state-law https://www.heritage.org/political-process/report/the-mythic.... At the time Massachusetts ratified the First Amendment, everyone was required to belong to a church and State tax money was used to support those churches: http://www.statelegalhistory.com/home/1-new-england-legal-history/1-2-new-england-1787-1833-the-early-national-era/1-2-1-new-england-1787-1833-the-end-of-state-supported-religion http://www.statelegalhistory.com/home/1-new-england-legal-hi.... Several New England states had government-supported churches well into the 1800s.
- pcwalton 7y ago
  > The "separation" concept was manufactured a century after the Bill of Rights was enacted: https://www.heritage.org/political-process/report/the-mythical-wall-separation-how-misused-metaphor-changed-church-state-law https://www.heritage.org/political-process/report/the-mythic... And the opposite view: https://www.theatlantic.com/national/archive/2011/06/constitutional-myth-4-the-constitution-doesnt-separate-church-and-state/240481/ https://www.theatlantic.com/national/archive/2011/06/constit...
  - rayiner 7y ago
    Yes, there is an opposite view. I will add a few observations about the opposite view: 1) It's full of invective and straw-man arguments. It accuses Christine O'Donnell of not having read the Establishment Clause, for example. And it makes a completely irrelevant reference to "old antebellum slave oligarchies," even though it was the free New England states that were the ones that had state-supported churches. 2) It makes tenuous arguments. The "words 'separation of church and state' are not in the text," the article concedes. But "the idea of separation is" present. Of course! In support of that view, it points to the fact that the Constitution prohibits religious tests for office. "If government can't require its officials to support a church," it reasons, "is there a serious argument that church and state are not separate?" Of course, the prohibition on religious tests is entirely consistent with the existence of a plurality of public religions. It also pulls a "??? Profit!" over the most significant issue: what does "no law respecting an establishment of religion" mean? The article states that it "mean[s] that not only no church but no 'religion' could be made the official faith of the United States." That reads the phrase as "no law establish[ing] [a] religion." But if that's what the Framers meant, they would have written that. That's how they wrote the rest of the first amendment "no law ... prohibiting ... or abridging ...." 3) As with the present Supreme Court precedent on the subject, the article rests almost entirely on the letter of Thomas Jefferson. But Jefferson (a) was not a Framer; and (b) was a radical wingnut. What he thought about things carries some weight, but not all that much. (I would add that almost everyone who invokes Jefferson's view to interpret the First Amendment would recoil in horror at invoking his views to interpret the Second.)
- gamblor956 7y ago

There is no constitutional principal of separation of math and state, so the analogy doesn't hold

brink 7y ago

These shelters aren't state.

slg 7y ago
Plenty of these shelters, including the faith-based ones, receive state funds.
- kortilla 7y ago
  Plenty don’t. And in this example there was no mention of state funds.
shmageggy 7y ago
I was referring to the act of arresting and jailing someone, something carried out by the state
FireBeyond 7y ago
No, they're religious. And the City of Boise will threaten to put you in jail if you would rather sleep outside than listen to mandatory religious sermons and participate in mandatory religious activities to have access to the shelter. That was one of the keys - "the City said it wouldn't cite people when shelters weren't open", but the plaintiffs said that one of the religious shelters had an "always open" policy, even if they didn't actually have beds, and they did require religious participation, so the city's point was effectively moot.

rayiner 7y ago

There is no constitutional principle of separation of church and state either. The Constitution says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The "separation" concept was manufactured a century after the Bill of Rights was enacted: https://www.heritage.org/political-process/report/the-mythical-wall-separation-how-misused-metaphor-changed-church-state-law https://www.heritage.org/political-process/report/the-mythic.... At the time Massachusetts ratified the First Amendment, everyone was required to belong to a church and State tax money was used to support those churches: http://www.statelegalhistory.com/home/1-new-england-legal-history/1-2-new-england-1787-1833-the-early-national-era/1-2-1-new-england-1787-1833-the-end-of-state-supported-religion http://www.statelegalhistory.com/home/1-new-england-legal-hi.... Several New England states had government-supported churches well into the 1800s.

pcwalton 7y ago
> The "separation" concept was manufactured a century after the Bill of Rights was enacted: https://www.heritage.org/political-process/report/the-mythical-wall-separation-how-misused-metaphor-changed-church-state-law https://www.heritage.org/political-process/report/the-mythic... And the opposite view: https://www.theatlantic.com/national/archive/2011/06/constitutional-myth-4-the-constitution-doesnt-separate-church-and-state/240481/ https://www.theatlantic.com/national/archive/2011/06/constit...
- rayiner 7y ago
  Yes, there is an opposite view. I will add a few observations about the opposite view: 1) It's full of invective and straw-man arguments. It accuses Christine O'Donnell of not having read the Establishment Clause, for example. And it makes a completely irrelevant reference to "old antebellum slave oligarchies," even though it was the free New England states that were the ones that had state-supported churches. 2) It makes tenuous arguments. The "words 'separation of church and state' are not in the text," the article concedes. But "the idea of separation is" present. Of course! In support of that view, it points to the fact that the Constitution prohibits religious tests for office. "If government can't require its officials to support a church," it reasons, "is there a serious argument that church and state are not separate?" Of course, the prohibition on religious tests is entirely consistent with the existence of a plurality of public religions. It also pulls a "??? Profit!" over the most significant issue: what does "no law respecting an establishment of religion" mean? The article states that it "mean[s] that not only no church but no 'religion' could be made the official faith of the United States." That reads the phrase as "no law establish[ing] [a] religion." But if that's what the Framers meant, they would have written that. That's how they wrote the rest of the first amendment "no law ... prohibiting ... or abridging ...." 3) As with the present Supreme Court precedent on the subject, the article rests almost entirely on the letter of Thomas Jefferson. But Jefferson (a) was not a Framer; and (b) was a radical wingnut. What he thought about things carries some weight, but not all that much. (I would add that almost everyone who invokes Jefferson's view to interpret the First Amendment would recoil in horror at invoking his views to interpret the Second.)
gamblor956 7y ago