...it's not dark yet, but it's gettin' there...

February 16, 2004

Civil Disobedience?

Question: Is there any difference between what Mayor Gavin Newsom is doing and what Judge Roy Moore did?

Answer: Yes. One is pursuing a liberal goal and will be hailed as a hero, while the other pursued a conservative goal and has been condemned to a lifetime of obloquy.

Update: Does Rush Limbaugh read my blog? He'd never admit it if he did. But he made the above point almost word for word during his third hour today.

Update 2: It never fails. Just when i think i've had an original thought, within a day or two i find out some other blogger has thought of it first. Ouch, just when i was starting to think i was all that.

Looks like Rod Dreher at The Corner made the Moore/Newsom connection a few hours before i did. i guess this means Rush probably didn't steal the idea from me.



DAMN You to hell.

Posted by annika, Feb. 16, 2004 |
Rubric: annikapunditry


Too simple, Annika.

Christians in the south are not historically disenfranchised. They have not been denied the opportunity to participate in society's rituals; indeed, they (we, frankly) are the architects of those rituals. Roy Moore was not trying to extend freedom or liberty to a marginalized and oppressed sector of society, as Newsom is. Look, I am not an ACLU member any longer, larger because I am troubled by the ridiculous heights to which the so-called war of separation has climbed between church and state. I have no problem with the Ten Commandments in a courthouse. But to compare the "oppression" of southern evangelicals to that of gays and lesbians is a little too pat.

But I still dig ya.



Posted by: Hugo on Feb. 16, 2004

Oops, I meant largely, not larger.

Posted by: Hugo on Feb. 16, 2004

Whoa, it's not just southern evangelicals who are being oppressed by an overly secular culture. All religious people have had their First Amendment rights of free exercise trampled in the last thirty years by over-zealous promotion of the non-existent "separation" clause.

If Moore's methods were wrong, so are Newsom's, regardless of the validity of their respective goals. And if Newsom's methods are good, then so were Moore's.

Hugo, you know i'm supportive of Newsom's goals,just as i supported the point that Moore was trying to make. i find the inconsistency of reactions worth noting, though. It points out how so many people identify with their own political camps that they don't see thir own hipocracy.

Posted by: annika on Feb. 16, 2004

oops, (sp. error): hypocrisy

Posted by: annika! on Feb. 16, 2004

I, for one, can appreciate the irony of Annika's observation.

Hugo's remark that Annika's analysis is "too simple" reminds me of a canard, famously invoked by Mario Cuomo prior to the 2000 Presidential election, that "liberals write with fine points, conservatives write crayons." In that regard, Hugo writes in fine point and attributes to Annika a comparison she never makes, of "southern evangelicals" (which I suppose are a breed apart from, say, "Pacific Northwest evangelicals") to homosexuals.

Posted by: Daniel Lowenberg on Feb. 16, 2004

I don't understand what Hugo means when he comments that Christians in the South have not been historically disenfranchised. Gays and Lesbians in San Francisco also have not been historically disenfranchised, at least not in the last 35 years or so.
While I agree that Judge Moore had no right to defy the law by putting up a plaque of the 10 commandments, and ignoring court orders to remove it, I would argue that the damage to the rule of law (and these gay couples) done by Mayor Newsom and the SF County Clerk is much potentially much worse. SF is creating hundreds of marriages of doubtful validity each day. Imagine that five years from now, one of these gay marriages breaks up, perhaps while the couple is living in another State? Will both spouses have equal parental rights? Will community property division of earnings apply? Will one or the other putative spouse be able to remarry in other States without a divorce? If the California Supreme Court in the interim invalidates these marriages, will the couple be treated as subject to California's civil partnership statute, even though these couples have not registered under that statute? It would take a crystal ball to answer those serious legal questions.
But why worry about practical consequences of ignoring the rule of law? Long live anarchy, long live San Francisco!

Posted by: Ralph on Feb. 16, 2004

I am not denying that there are noticeable similarities.

When I mean "disenfranchised", I mean (broadly speaking) denied the same right to participate in society that others enjoy. Southern evangelicals (I am related to a few) have never had their right to worship freely seriously abridged. Even in SF, gays and lesbians have - or had, depending on the legitimacy of Gavin's actions -- no more legal standing than they do in Topeka or Ottumwa or my beloved Charlottesville. They have been denied what some of us (we can all disagree civilly, I am confident) consider to be a basic right -- to marry the person whom they love.

Newsom and Moore, like many others before them, are engaged in civil disobedience at a high level. I honor men and women who are willing to place moral principle ahead of the law (in the King/Gandhi/Mandela tradition), especially when they are willing to forego greater successes as a result. Newsom has perhaps irrevocably damaged his political hopes beyond SF; Moore has been removed as chief justice. They do have definite similarities -- but that does not make the issues for which they struggle interchangeable, and it does not make one a hypocrite for supporting the extension of a basic human right to an oppressed class on the one hand, while on the other being vaguely unimpressed by the desire to place a large stone monument in a public place. I don't see how they are comparable.

I'd like to think I am more often "hipocritical" anyway... a guy likes to feel he's "with it" in his inconsistencies!



Posted by: Hugo on Feb. 16, 2004

Actually the rule of law is not being broken in either case - at least not in the sense it was intended,

The concept of the Rule of Law is simply that the rulers are not permitted to do things that the masses aren't. I often hear people speak of the Rule of Law as if it were to encourage obedience by the individuals, but if such a concept were needed then governments wouldn't have so much force backing them, now would they?

Whether you agree with it in principle or not, I fail to see anything morally wrong about a government allowing or simply not interfering with a freedom or privilege of the people. Likewise I see nothing wrong about another government official defying his bosses because he feels their dictates conflict with the law.

But now here's something ot gnaw on for a while - for those of you who agree that civil disobedience is acceptable when faced with a law that conflicts with a higher law (& the conflict involves the Rights &/or freedoms of the people), then would you condemn someone who committed civil disobedience with a firearm? Not using it, but merely possessing it in defiance of a law that conflicts with a constitutional protection of the Right to Arms.

In other words, would you honestly look at me as someone engaged in civil disobedience if I carried an M1 garand on my shoulder as I walked through downtown San Fransico? Or if I carried concealed without a permit despite laws to the contrary? Or would that be different & I would merely be a criminal?

& I must point out that gun owners, especially absolutists such as myself, have been openly villified & persecuted much more than any religious group or group defined by sexual orientation - at least in this country within the last 20 years or so.

One last thing: it's been bothering me & I was hoping one of y'all could 'splain things...The Mayor of San fran is more or less allowing gays & lesbians to marry right? Well why would a gay man want to marry a lesbian? Is it some kind of reverse-reverse role thing? :)

Posted by: Publicola on Feb. 16, 2004

Hugo, which right has been denied to homosexuals but not to heterosexuals? Life, speech, religion, keeping and bearing arms, trial by jury, not being cruelly or unusually punished?

If you mean to claim marriage is a RIGHT, please point out WHERE is legally defined as such.

Posted by: Eric Sivula on Feb. 16, 2004

I suspect Hugo means the right to marry. What's the basis for that asserted right? The Supreme Court, of course: "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Loving v. Virginia, 381 U.S. 1, 11 (1967).

I'd add that I'm pretty much indifferent to the issue of gay marriage: the state's seal of approval on a "marriage" has nothing to do with its validity--by which I mean whether it is or is a valid sacrament. I tend to think the state should get out of the marriage business altogether, and leave it to contract law and personal religious belief.

That said, I don't think Annie's comparison is by any means too pat. One government official rejects the judgment of the legislature, while another rejects the judgment of the Supreme Court. Both may be "right" in some metaphysical sense, but in practical terms both are ultimately usurping what are traditionally understood to be the prerogatives of some other governmental institutiton. If you're an anarchist like Publicola, that's not a big deal; otherwise, though, it's a rather sticky problem. On the one hand, if we claim it's never legitimate for anyone to reject authority then the Declaration if Independence and the war that followed it become rather problematic. If we claim it's always legitimate for folks to reject authority whenever they feel like it, well . . . we're Publicola! The middle ground -- where the vast majority of Americans instinctively live -- is I think, a highly subjective place.

Posted by: Matt Rustler on Feb. 16, 2004

I’m confused with that gay–lesbian thing too, Publicola. But while absolutist anarchists are justifiably marginalized in high-density areas, relativists have been prevailing politically for over a generation based on superior organizational skills. Personally, I wouldn’t condemn anyone for carrying a firearm, but it just wouldn’t be a proper fashion statement on the Frisco “street” (unless maybe accompanied with a pink costume at a pride parade).

Posted by: d-rod on Feb. 17, 2004

Hugo did indeed mean to refer to Loving v. Virginia -- of course, most strict constructionists don't like the way that case "found" a right to marry anymore than they like the way that Roe, or Brown, or Planned Parenthood v. Casey, or even my beloved Lawrence v. Texas "found" rights.

Who, pray tell, is the evangelical equivalent in recent American history of Matthew Shephard? How often are young Christian men attacked on the streets for their faith? In Nigeria, yes. In the Sudan, yes. But not on the streets of the cities of America. I simply think folks need to draw more concrete distinctions.

Posted by: Hugo on Feb. 17, 2004

"Newsom and Moore, like many others before them, are engaged in civil disobedience at a high level. I honor men and women who are willing to place moral principle ahead of the law..."

Want to engage in civil disobedience? Do so as a private citizen, not using the coercive powers of your own public office and the taxpayers' money to fund your political agenda. Regardless of where one stands on the underlying issues, that way lies anarchy. If you're an anarchist, fine, but even most people who disagree on practically everything else are not.

The real point to be made--indeed, to shouted from the rafters in the hope that there might be some audience left willing to listen--is that Moore's and Newsom's methods are essentially the same, and the fact their respective supporters will, on the off-chance that they're ever confronted with this conundrum, deny it to the hilt, surely speaks volumes about the (lack of) any honesty or even critical thought at the far poles of the political spectrum. They are both engaged in the assertion of a Nietzschean will to power, in the face of which they regard the rule of law as, at best, just another rhetorical point to be used or discarded as appears convenient at any given moment.

Posted by: Dave J on Feb. 17, 2004

It's a pretty weak analogy, comparable only in that presumably the Mayor of SF takes an oath similar to the judicial oath of Judge Moore. Of course, Judge Moore is far more constrained in action than the Mayor, who is, I suppose, an executive and thus empowered with enforcing the law, rather than interpreting it.

I also suspect that the Mayor is not at present violating the order of a court of competent jurisdiction.

Posted by: Scipio on Feb. 17, 2004

Scipio, the Mayor of San Fransisco is not empowered to begin handing out marriage liscenses to people who do not fit the CA criteria. Period. Thus he is violating his oath to uphold the laws of CA. Not to mention, that by ordering city clerks to take money to issue marriage liscenses to gay couples, Mr. Newscom is engaging in fraud.

And no, Hugo, I do not believe in 'discovered' rights, especially considering that those who 'discover' them often then try to interpret explicit rights (religion, firearms) out of the Constitution. I am a strict Constitutionalist - if you want another right in the Bill, just get it past Congress and 38 states. The process amy not be easy, but it is simple.

Posted by: Eric Sivula on Feb. 17, 2004

I, on a slight tangent, would like to ask if Matt Rustler genuinely thinks Publicola's comment smacks of anarchy, or was this a inter-personal joke?
I have no cause to champion Publicola, as I'm certain he himself is perfectly capable of the task, and futher I know not his thoughts or intent.I, however, read nothing anarchical in his comment. I believe Publicola holds the U.S. Constitution in the highest regard, and the Constitution is, in fact, the supreme LAW of the U.S.. Lest someone forget, the Constitution is a charter between the people ( through their state legislature ) and the federal government. That charter outlines restrictions on the federal government's power and a narrow scope of tasks deligated to it. It represents the absolute maximum infringements, considered a sufferable expediant, the people would grant the feds. These hard boundaries were, and remain, a requisite for the people to submit themselves to a federal form of government. Any law: local, state or federal, which violates the charter represents a breach and need not be abided. This position has been affirmed by the courts. No person or authority has any legal grounds to violate the provisions of the Constitution. Therefore, Publicola has every right, in the context of legality and morality, to carry (bear) his Garand, peacably, in public. Those who attempt to abrogate his right are the anarchists, they seek to undermine the highest law in existence. If you wish to stop him (legally) simply ammend the Constitution then, if your successful, I'll tender no further protest.
Jasen W.

Posted by: Jasen W. on Feb. 17, 2004

Answer: Yes, there is a difference.

For you see, at the time of the writing of that article, Mayor Newsom had not been ordered by any agency to stop what he was doing. The injunction hadn't gone through, and he is at liberty to continue until ordered otherwise.

Roy Moore, on the other hand, ignored not one but several orders from federal courts to stop what he was doing.

Therein lies the primary difference. The other difference, of course, is that Newsom seems to understand that there are other things to worry about in this country than who is putting their dicks into whom, whereas Moore wants to rule over his penny-ante dictatorship with an iron fist, according to his antiquated and quite silly theology, allowing his personal convictions to interfere with his sworn duties - that of being an impartial judge of the law. A judge that disobeys the very foundation and highest law of the land, whenever it suits his own personal views, has no place to make judgements upon others' disregard for the law.

What was that his hero Jesus said? Let he who is without sin...? Fire away, Judge Moore, for clearly ignoring the law is perfectly okay for you, but not for anyone who steps into your courtroom.

Posted by: kitten on Feb. 18, 2004

Nothing really to add, here, but man on manischewitz do I love watching a good debate! Carry on, folks!

Posted by: victor on Feb. 18, 2004

I find Annies statement about the religious rights of people being trampled by the "over-zealous promotion of the non-existent "separation" clause somewhat funny. i suppose if it's YOUR religion that makes the rules, all is fine with allowing religion to comingle with the government. but alas, that same separation is really what PROTECTS you and YOUR religion of choice from the will of the OTHER religion. people on occasion point to the bible and say this or that should be the law. the bible itself can be interpreted SO MANY WAYS thats it would be impossible to reconsile each and every this or that. and we are not even considering other religious texts here. allowing one religion of take any sort of control of the government defies one the the most sacred concepts of the constitution, the ability to to practice the religion of choice without fear of persecution. here is one area where the framers of the constitution said to hell with majority rule, and by excluding the (any) church from the government they accomplish these two things.. separation of majority rule and religious choice; and the ability to guarantee that an even an individual can practice the religion of his or her choice. all this BS about gays should not be allowed to do this or that has it's base in religion.. someone somewhere has interpreted a book (that has been excluded from law of the land) and decided that they want to infringe of the rights of others by virtue of what is in this book.

tell me.. why is it that you care if homosexuals are allowed to be married?

think about that question for a few moments..

chances are your answer will have some religious component.. or "god forbid" you deem their behaviours "un-natural".

what does hurt to give gay people the right to be married?

think for a moment how you would feel if heterosexuals were the minority, or that the chuch of the sadomasochistic ass whoopin was the church trying to get their "version" of what god says written into the law of the land.

my point is:

separation of church and state protects YOUR right to believe however you choose, it does so by making sure that you cannot force your beliefs no matter how "right" you think they may be on another person.

/off soapbox


Posted by: coyote on Feb. 18, 2004

Can we just get on our knees and pray that the lawyers making millions from legal actions and disputes arising from this case get paid in monopoly money?

Posted by: d-rod on Feb. 18, 2004

well said d-rod



Posted by: coyote on Feb. 18, 2004

A noble speech, coyote. But it doesn't change the fact that the phrase "separation of church and state" is not in the constitution.

And ask anyone from Sweden or Great Britain, e.g., if they feel their rights have been trampled by their own state religions. For god's sakes, the head of state in GB is also the head of their official state religion.

i believe the dangers that separatist adherents point to are completely exagerrated. Maybe 100 years ago there was reason to think that the 10 Commandments in a public courthouse might infringe on the rights of non-believers. But back then, there were far more examples of the type of lack of separation that the ACLU & others are up in arms about today. And we survived. So much so that the 9th Cir. has outlawed the Pledge of Allegiance.

Yes, the establishment clause should be followed. But i don't believe that means that we should exclude all religious expression from public life. To do so would violate the free exercise clause. Nothing in the constitution says that one clause trumps the other.

i'm just arguing that the pendulum has swung too far in the direction of the establishment clause and we need to regain some sort of balance. The next logical step for the ACLU types is to remove "In God We Trust" from our money. It's inevitable, but really, what harm has that phrase caused in the last 200 years?

And just in case you misunderstood me up above: i am and have always been, in favor of gay marriage, as are many religious people. i tend to confuse people when i say that, because they automatically think that a religious conservative must necessarily be against such a thing.

Posted by: annika! on Feb. 18, 2004

nicely put Annie,

i'd like to respond to a couple of points you make;

i see establishment as prohibiting the "enabling" of religion and free exercise as the prohibition of "restricting" an indivdual's religious rights.

Both of the primary authors of the bill of rights, Jefferson and Madison advocated the "wall of separation" and while i must agree with you that there is no indication that establishment trumps free exercise, i will suggest that in the landmark cases of Everson v Board of Education and Engel v Vitale, the courts have held that indeed establishment trumps exercise. even the seemingly detrimental case of Zorach v Clauson actually only allows for free exercise only outside of a public schools context.

i'd also like to add that when free exercise begins to impeed another person's right to their own faith, it's an obvious choice as to which might prevail.

as for the ACLU's position, i agree that sometimes they tend to "get medevil" on short notice, i believe that some of this reactionary behaviour may well come from a solid distrust of the current administration. while the idea of making the pledge illegal seems even to me to be a waste of time, i'm certain that the aclu is terrified (as am i) that the president will use any precedent he can to manipulate the faithful into supporting him. that means making promises to begin federal funding of faith based initiative (obvious establishment issues) to doing all he can to stir up a proposed amendment that would allow the comingling of religious views and the law of the land. this is a slippery slope that could very quickly destroy the united states as we know it. by allowing christianity (or any religion) to gain a foothold in the government, we would unleash a jeanie who would never return to it's bottle.

i do not think that establishment and free exercise are mutually exclusive, but rather impart a "double whammy" of sorts where one pick up where the other leaves off. all of our basic rights are tempered by that thin line of where they actually cause harm to someone else.

could it be that when it really comes down to the brass tacks of it all, ones religious rights should cease outside of their own personal space?

and would that not satisfy the truely faithful?

points to ponder


Posted by: coyote on Feb. 18, 2004


let's do a little check on the protestants and the catholics over in merry old england and ireland.

i'm not sure that fire has yet gone out..




Posted by: coyote on Feb. 18, 2004

Well, if we're going to drag the constitution into the scuffle, I have a question. The 1A states CONGRESS shall make no law respecting an establishment of religion. Does this leave the state and local governments the necessary latitude, to officially sanction any, all or no religion? If government must be entangled in business of marriage, I'd prefer it occur at the state or local level. It seems clear the constitution was constructed to allow most legislative activity to happen at these lower levels. Leaving the power near the base provides the most freedom and reduces the risk of wide spread obuse. If some states wish to permit homosexual marriage, legalize weed or narcotics, or declare religious allegiance to Minerva, let it be so. People who object, could move to a political region were such acts are forbidden. And, likewise, if Cedric and Bob get hitched in New York they should be free to enjoy all the benefits granted by their respective government, but if they decide to pack up their armoire and doilies, and head to Utah they should be prepared to alter their arrangement accordingly. This allows us all to have a choice, and the competing microcosms will produce systems which fail or succeed according to the virtues they espouse. Wait, this sounds a little to much like capitalism and individual liberty, this wouldn't work.

Posted by: J.W. on Feb. 18, 2004

As usual, Coyote, we probably agree on about 50% of the things we disagree about. (if that makes sense) My hasty response to some of your points:

If i'm not mistaken, Jefferson was in Paris at the time of the Constitution and BofR's drafting and his influence on those documents was minimal. You are correct about his involvement in the origin of the separation of church and state idea. It was one of TJ's most cherished ideals. But again, it's not in the Const. Maybe if TJ had been around, it would have been.

i don't know anything about the cases you cite, so i can't comment on them.

You said, "i see establishment as prohibiting the 'enabling' of religion and free exercise as the prohibition of 'restricting' an indivdual's religious rights."

i think a plain reading of the 1st Amd is a better way to look at it. Thus i would say (somewhat obviously):

"i see establishment as prohibiting the 'establishment' of religion and free exercise as the prohibition of 'restrictions' on an indivdual's 'free exercise' of his or her religion."

Enabling and establishing are two different actions.

i, too, am wary of the faith based initiative. i actually do think it runs afoul of the establishment clause, even as a free exercise hawk. Also, why would a religious institution want government money and all the strings that are attached to it. Government money has already messed up many a Jesuit college.

i do not view the troubles in northern ireland as religious, so much as "tribal." The parties are defined by their religions (and history and geography) but neither sides' religion advocates the type of violence we've seen there until lately.

Posted by: annika! on Feb. 18, 2004

Sorry folks, I meant to say, "reduces the chance of wide spread abuse." Not obtuse, obuse or whatever. Damn it, stupid, stupid..... I'm sofa king wee todd did, so sofa-king wee-todd-did. I'm sure there are more, but alas I'm tired of proofing my own drivel. Perhaps I'll read it again, later, and fisk it myself. A thousand apologies to the gracious hostess and her estemeed guests.

Posted by: J.W. on Feb. 18, 2004

Two comments, J.W.

First, i believe that you would have been correct about the establishment clause only restricting the federal government, up until the 14th Amendment was ratified. It is true that the B of R did not apply to the states until after the adoption of the 14th and then certain Supreme Court cases which incorporated some (though not all) of those rights and made them applicable to the states. It's been a while since i took Constitutional History, so i don't recall whether the religion clauses were included in those rights that were incorporated to the states through the 14th Amd.

Second, the "Full Faith and Credit" clause of the constitution requires that acts by one state be recognized in all states. That's why gay marriage only has to pass in one state for it to be legal in all. The constitution requires it. So if Cedric and Bob get hitched in NY, Utah has to recognize them as legally married.

Posted by: annika! on Feb. 18, 2004

Annie darrling-

you are correct in that TJ was in Paris at the the time of the writing of the BoR. He wrote Madison, stressing that there needed to be amendments made to include individual liberties. his missive "Natural Rights" was the basis of the document mostly penned by James Madison.

as a native virginian and a graduate of TJ's fine university, i must know these things..



Posted by: coyote on Feb. 18, 2004

The University of Virginia. i totally wanted to go there.

Posted by: annika! on Feb. 18, 2004

You're, no doubt, correct in your response to my question.
Could anyone bother to tell me from which section of the 14th the S.C.O.T.U.S. can derive an opinion demanding blanket recognition, between states, of certain state laws. If it's the clause pertaining to the abrogation of privileges or imunities, I would be forced to argue that the abscence of a law that sanctions a type of marriage or religion in Nevada fails to conflict with the presence of such law Florida. The conditions aren't the same.If Iowa initiates a living wage statute setting the lowest scale at 26.50/h, is a guy in Idaho making 23.75/h being deprived of a privilege,or denied equal protection. If such an interpretation is taken, we have thousands of conflicting codes, ordinances, and statutes; additionally we've lost all semblances of a federation.
I've read the 14th several times, and although I'm certainly no jurist, given the context of it's ratification, I assume it implied states had no power to ignore or subvert federal laws (which were to be applied in a universal manner). Futher states had to inforce their own laws equally among it's residents (to preempt, unsuccessfully, disenfranchisement of the negro populace). Any expanded interpretations seem to undermine the entire structure and intent of the federal system.
With much humility,

Posted by: J.W. on Feb. 18, 2004

TJ was in Paris. But Madison did not write the bill of Rights out of benevolence. It was the anti-federalists who insisted on that as a condition of ratifiction. If you glance at the federalist papers you'll see madison & hamilton arguing against a bill of rights. If TJ would have been around odds are he'd have been arguing against the constitution. & considering the way it's been used I can't say I wouldn't be on his side. wasn't it Lee (that'd be Richard Henry) who said of the constitution, "I smell a rat"?

But as for the BOR, in most instances it was only seen as applying to the feds. I know of at least one case (Nunn v Georgia if I recall) where a state court held the BOR as applicable to the states as well. But probably the majority of court cases held the opposite view.

The 14th applied the BOR to the states, but the courts, through their BS called incorporation, repealed the 14th in part by claiming that only the rights they chose would be applicable to the states. I could go on for weeks, but let's just say I think they were out to lunch for the intitial decision & we've all been out to lunch by even giving it serious thought.

as for the 1rst amendment, ya see the idea was to keep government from endorsing or condoning a religion. By religion they meant a sect or subset of christainity, but the wording plainly makes no differences between any religion.

& this is proper. Government should nto endorse any religion. But neither should it oppose any religion, as has been the arguments of late. Now w/o fully embracing my anarchist leaning (I'll have to chat with Matt about that) I will say that any action which forces the government to decide between individual & group must be resolved in favor of the individual. But then again a resolvable action should not merely be someone taking offense at a sign or a person's appearance. It must cause actually harm - not merely psychological harm that could be avoided by merely ignoring the offending item or person.
( yes I'm in a rush & know that's a very broad statement).

So what it comes down to is that government may not, according to the first amendment force or require someone to hold a particular religious view. But neither can it restrain someone's exercise of their religious view so long as the practice does not interfere with the equal Rights of another. & since there is no right to be free from offense, I would have to say that the ten commandments, or the torah, or the bible, or the epic of gilgamesh cannot be abrred from a public building because someone might glance its way & take offense. Neither can the state force people to read any of the aforementioned or even look upon them, but there's a distinction between something being at a certain, prominent place & forcing someone to stare at it.

So Moore's situation is comparable to Newsom in that both are fighting their next highest level of authority because of something they view as being forbidden for government to prohibit.
Where they differ is that Newsom's situation not specifically enumerated, nor is their a question of whether or not the state of cali has authority over him, as Moore could easily argue that SCOTUS has no jurisdiction over a state supreme court - only federal courts.
Also Newsom's case is one where the free act of individuals causes offense to others, whereas with Moose his act has causes offense in others. No material harm has been done in either case.

& coyote,

first lesson of reading case law is that while it may establish a binding precedent on lower courts, that does not make it logical, just or even constitutional. look at the 9th's view of the 2nd amendment for a good example of a binding precedent that's conflicting w/ the constitution.

Posted by: Publicola on Feb. 18, 2004

Okay, one last question Annika.
Is it true the entire BofR originally only applied to the federal government? I just assumed this to be true of the 1st, because it addresses the Congress directly. The rest seem deliberately general and intent upon protecting the rights of the citizens. I beleive the document was drafted to be anything, save ambiguos. If it identifies a specific entity, to the exclusion of another; that was a calculated act. Years of cumulative effort produced those few articles. We've probably exceeded it's word count in evening. The framers chose their words far more carefully than I, so I try to take them literally. I guess the courts don't always see it in that light.

Posted by: J.W. on Feb. 18, 2004

Jasen, i found this encyclopedia discussion on the Fourteenth which confirms that the religion clauses were indeed incorporated to apply to the states through the fourteenth amendment.

i re-read the BofR and i see what you mean that only the 1st seems to mention congress. i'm only going off of what i remember from my Con History classes, but i think i am correct in saying that the BofR did not apply to the states until after the 14th Amd, and then only partially.

You asked: "from which section of the 14th the S.C.O.T.U.S. can derive an opinion demanding blanket recognition, between states, of certain state laws." This is actually from the aforementioned Full Faith and Credit clause, which is found in the original constitution at Article IV, Section I:

"Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

Thus, the FF&C clause does not require other states to enact the laws of other states, such as the living wage example you gave. It only requires each state to recognize as valid the "public acts, records, and judicial proceedings" of another state, such as marriage, criminal convictions, titles to property, etc.

Posted by: annika! on Feb. 19, 2004

Annika, thanks for doing my homework; I read the Bartleby page. It should have been obvious, to me, that the public acts portion of the FF&C clause applied to marriage.
I'm not well read in these areas, yet I thought I had a basic understanding of the intent of the framers. I truely can't reconcile many of the courts decisions, they often appear to undermine the very core of a federal system. It may seem complicated, but I feel many divisive issues would be better dealt with at the state level. On these topics, many of the opposing sides harbor potentially violent passions, both sides feel as though the other is foisting their beliefs upon them. Although I'm somewhat ambivilent on the gay marriage issue, it does seem the group attempting to change established definitions (man & a woman, to woman & a woman, man & a man, men & men, or whatever) shouldn't expect society to spin on a whim or on a few clever protest placards. Polygamist had an established historical point of standing, and they lost the debate convincingly.
I'm finished with this, thanks again

Posted by: J.W. on Feb. 19, 2004