12:48 AM -:- Posted by Allen    

Points of Clarification

Hopefully, my last on Moore (???)

One

In my view, it is not possible for a public official to commit a private act in a public area of a public building.

Everything Judge Moore does inside the Alabama State Supreme Court building is a public act, committed as Chief Justice Moore and not as just plain ole Roy Moore.

This opinion is supported by innumerable court rulings that clearly state that one of the consequences of public life is a diminshing of certain rights, most notably privacy, and that one of the consequences of employment is the right of the employer to make rules about the type of conversations you can start or engage in while in your capacity as an employeee, or while using company resources. That would be a legitimate restriction of speech. There's a sense running through those rulings to the effect that you make certain trade-offs when you ask for privilege.

Therefore, Judge Moore has not been asserting his individual rights, because in his actions as an official of the state, he can only act vis a vis the goup, the citizens of the state. A consequence of his having been given the privilege of the position he asked for.

One could try to argue that he was acting in an individual capacity when he brought his rock into the building after hours. Not that after hours is a bad idea, the thing being big and heavy and there being possibly legitimate public safety considerations. However, if he entered the building after hours as a private citizen, then he was trespassing. Would the guards open the doors after hours so a rabbi could install a menorah? Do any Buddhists or Hopis have their own keys, so that they might come in and create a sand thingie on the floor? And then refuse to remove it?

No. Either judge Moore was acting illegally as a private citizen using a public building to promote his particular faith, or he was improperly allocating a public resource to make a religious statement.

Two

It is irrelevant that past officials at various levels have committed whatever religious acts, statements and proclamations as may have been done from their official positions. All such were unconstitutional.

American jurisprudence says two things about this point. First, an unconstitutional act or law is unconstitutional from inception, not just from the moment it is so declared. So the fact that all these past acts occurred and no one contested them "back then" is not evidence of correctness. People get away with things all the time. Crass as it may sound, getting away with rape because the victim never filed a complaint does not make rape legal.

Second, despite the fact that there is a common law function known as the Doctrine of Acceptance, which says generally that customs long standing should not be disturbed simply because an unenforced law could be revived, the US Supreme Court has long since ruled that this doctrine does not apply to issues of constitutional question.

You put these two legal facts together and you find that it is not true that it is okay to do an unconstitutional thing today simply because it was done in the past and nobody challenged it. Indeed, we must instead say that what was done in the past was as unconstitutional then as the current action is now.

Three

Keeping religious artifacts off public property does not deprive anyone of their religious rights, while putting particular religious artifacts where they cannot be avoided by people doing necessary business with the government does infringe on some people's religious rights.

Freedom of speech includes the freedom to be quiet, to not speak. And freedom of religion includes freedom from religion. What has been said about the freedom of speech applies equally to the freedom of religion.

What is not understood by Christians is that non-Christians experience unavoidable public displays of religion as religious tests. In my own experience, far too many Christians think nothing of offending the religious sensibilities of non-Christians in any number of subtle ways.

For example, a Christian pastor and I went out to lunch at a patriot confab a little over a year ago. Where I waited to begin eating so as to allow him his profession of grace before his meal, he insisted that I say grace despite the fact that he knew me to be a Deist. He doesn't believe Deism is a religion, so he disrespected me. And when I declined, he took offense. A religious test, the punishment for the failing of which is that I am now shunned by him. Good riddance, I say. Though I do grieve the loss in me of the tremendous respect I'd built up for the man over the past 25 years.

For example, Christians having us over for dinner and demanding that we hold hands and bow our heads while they say grace. It wasn't enough that we would wait and be silent while they performed their ritual. They had to make a big deal out of it and embarrass their kids. Again, we get shunned, and again I say, good riddance.

For example, one of my own brothers, answering the telephone with "Praise the Lord!", and then taking offense because I hung up. And when I went over to his house to discuss some family business, kept punctuating the conversation with "Amen!" and "Hallelujah!", and then getting indignant when I called off the meeting and later took the business up with other siblings instead.

I think I've made the point. But just in case anyone refuses to take it gently, here it is, bluntly.

Declaring the United States to be a Christian nation is offensive behavior in disrespect to all the rest of us. Putting Judeo-Christian artifacts in public buildings creates a potential religious test that might be administered at any moment by any nutcase who thinks we haven't been deferential enough as we passed by.

Putting a sculpture of Quetzalcoatl in one of San Jose's downtown parks and then defending it by calling it merely cultural while all encyclopedias clearly state that Q was an Aztec god, is offensive. (I get my secret revengne on this one, though, in my delight that from behind the sculpture looks exactly like a huge pile of dog shit.)

Anyway. Nobody wants the city's budget director to sit in the back row at Sunday Service and work his calculator and shuffle papers. Not even if he's a member of the congregation. More than a few people, from the pastor on down, would feel quite free to remind him that this is not the place for that.

And they'd be right, of course. Just as right and for all the same reasons that a person in a government building to take care of secular business might say to a clerk hanging a picture of Jesus over his window so thet you see it before you see the clerk, "This is not the place for that."

Are you listening, Roy? You're not Roy when you're Judge Moore. And the rotunda? This is not the place for that.

Four

Here's a little religious test for all you Christians who think I'm making a big deal out of nothing.

If you walked through a government building, and there on the wall above the pictures of the officials who work in that building, you noticed a depiction of Jesus, would your heart be warmed? Would you feel gratified? Would you feel at home, knowing that the people who work in this building profess your savior?

Of course you would. Admit it. You wouldn't be able to help yourself.

And then, admit that all of the opposite feelings are stirred up in everyone who does not profess Jesus, when they see that same thing. And stop dismissing their reactions, in light of the fact that you cannot control your own, either. Just because yours are gratificational and their are negative, doesn't make them wrong. It makes the hanger of the picture wrong.

Government must give us equal treatment and equal access. It cannot do that if its objective space is slanted by a demostrated preference for one point of view over another. When you get right down to it, that's where the dissent lies. And that's where it will win the argument.