Re: [asa] 7th Circuit Decision

The fact that the law is unsettled means that *no* position on it is
firm. I could easily see how atheism could in fact be considered a
"religion" for first amendment purposes. *Kaufman *certainly supports that
proposition, and the Seventh Circuit's reading of the Supreme Court tea
leaves on this is as good a guess as anyone's. The Seventh Circuit, BTW,
generally is highly regarded among the various federal circuit courts of
appeals.

The position of the *Kaufman *court is a sticky wicket, however, because it
would suggest that atheists and other non-believers are entitled to the
protections of the free exercise clause. It seems to me that would entirely
gut the free exercise clause and simply collapse it into the first
amendment's general free speech provisions. I think the fact that we have a
free exercise clause, as well as the history behind that clause, suggest
strongly that the framers had something else in mind: preserving the
importance of traditional religions to our democratic social structure. I
don't believe by any stretch of the imagination that the framers designed
the free exercise clause to protect atheists.

As to the EC working document: I have a problem taking seriously a
political document that casually throws around phrases such as
"fundamentalist" and "pathetic." I spent the past week and a half near
Brussels hearing lectures from various EC officials (on competition law).
The EU is a fascinating experiment which has done lots of good, IMHO, but we
might want to be careful about using it as a model. The Council and the
Commission are unaccountable, unelected bodies, which make most of the
policy for the EU without any real democratic control by the European people
and without accountability to any real constitutional documents. I'm no
jingoistic American, but I do value my freedoms of speech, association, and
religion, my right to vote (diluted though it is by special interest
politics), and the principle of constitutional governance, very dearly.

On 6/17/07, David Clounch <david.clounch@gmail.com> wrote:
>
> Dave,
> Thanks for your feedback.
> Well, I am out of posts for today.
>
> You are correct. It is unsettled. But consider that Dover isn't even
> settled at a circuit level. Thats why I haven't read it. Its too far down
> the food chain.
> Kaufman was too low before it went to appeal too. And maybe still is.
> I wouldnt have read Kaufman except for a fluke. I feel I need to read
> various US Supreme Court cases first in order to derive principles of
> interpretation.
>
> Please note Pim demonstrated only that he doesnt like my opinion.
>
> He hasn't even seen any argument I might possibly make.
>
> I would like to try to post pieces that are as complete as possible. Or at
> least referenced pieces instead of non-referenced proof-text quotes. Does
> that make sense? I think it is important to follow the trail of the cases
> referenced. I'm not sure how to do that in this media especially when
> trolls inject so much noise.
>
> Pim seems almost obsessed with disproving anything I say. Just because I
> said it.
> It just seems sort of personal. If he has a comphrehensive view on all
> this I dont see why he doesnt present a fully documented case (like I am
> trying to do in the thread???). Instead he focuses on preventing me from
> doing so. The idea obviously is to keep me so busy answering nonsense that
> I cannot post real material.
>
> I find the atmosphere difficult if not spoiled. For example, if we had
> Clarence Thomas as a guest and someone asked him "Could you give us the
> black position on that" I think it would be rather offensive and at a level
> of low dignity. So being asked to "give the position from an ID
> perspective" is actually an attempt to assign me a hated (ok, cant say
> that...will replace it with extremely disliked people group" category.
> Considering I intend to argue against the ID movement it is irritating to
> have to potentially defend them and to have everything I say as being an ID
> position.
>
> Did you notice that Pim actually agreed with Dembski on design? And took
> my original actual position? He did it at a time when he wasn't so invested
> in arguing against what he fantasizes my beliefs to be. I cannot point this
> out though 'cause I'd just be feeding the trolling.
>
> As you discover parts of these cases please share them.
>
> Best Regards,
> David Clounch
>
>
>
>
>
>
>
>
> On 6/17/07, David Opderbeck <dopderbeck@gmail.com> wrote:
> >
> > Establishment clause jurisprudence is notoriously difficult. While
> > cases like *Kaufman *hold that atheism is a "religion" under the first
> > amendment, another line of cases suggests that a "religion" must involve at
> > least some practices that are traditional indicia of "religion," such as
> > ceremonies and prayer. See *Malnak v. Yogi*, 592 F.2d 197 (3d Cir.
> > 1979) (Adams, J., concurring). *Altman v. Bedford Cent. School Dist. *,
> > 245 F.3d 49 (2d Cir. 2001); *Wiggins v. Sargent*, 753 F.2d 663 (8th Cir.
> > 2000); *Carpenter v. Wilkinson*, 946 F. Supp. 552 (6th Cir. 1996); *Alvarado
> > v. City of San Jose *, 94 F.2d 1223 (9th Cir. 1996); *U.S. v. Meyers*,
> > 847 F.2d 1408 (10th Cir. 1991); *Dettmer v. Landon*, 799 F.2d 929 (4th
> > Cir. 1986); *Africa v. Pennsylvania *, 662 F.2d 1025 (3d Cir. 1981); *
> > U.S. v. Dykema*, 666 F.2d 1096 (7th Cir. 1981); *Udey v. Kastner*, 644
> > F. Supp. 1441 (E.D. Tex. 1986).
> >
> > For a brief but thorough paper criticizing the *Kaufman* holding, see: http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=sara_ruff
> >
> >
> > Thus, the issue of whether atheism is a "religion" under the first
> > amendment is unsettled. It seems that courts are sometimes willing to
> > consider atheism or "non-belief" a sort of "religion" for purposes of
> > "protecting" atheists against intrusions into the public square by theists,
> > but are usually less willing to consider atheism a "religion" when theists
> > argue that removing theistic speech from the public square creates a vacuum
> > that gets filled with the "religion" of atheism. (On this, see Richard John
> > Neuhaus, *The Naked Public Square*).
> >
> >
> >
> > On 6/17/07, David Clounch <david.clounch@gmail.com > wrote:
> > >
> > > I apologize for originally posting in the wrong place. I intended to
> > > start a new thread. Gmail didn't make it obvious what the subject line was
> > > and I clicked send too soon. Gmail didn't challenge sending because the
> > > subject was already set, just not displayed.
> > >
> > > Dave C
> > >
> > > This is a short sequence of the original 7th Circuit decision in the
> > > Kaufman case.
> > > I will post only the parts about the establishment clause claim. And
> > > break these into pieces in sequence. The sequence may get lengthy but the
> > > pieces hopefully will be short.
> > > Lets start with the reference to the case:
> > >
> > >
> > >
> > > In the
> > > United States Court of Appeals
> > > For the Seventh Circuit
> > >
> > > ____________
> > > No. 04-1914
> > > JAMES J. KAUFMAN,
> > > Plaintiff-Appellant,
> > > v.
> > > GARY R. MCCAUGHTRY, et al.,
> > > Defendants-Appellees.
> > > ____________
> > > Appeal from the United States District Court
> > > for the Western District of Wisconsin.
> > > No. 03-C-027-C—Barbara B. Crabb, Chief Judge.
> > > ____________
> > > SUBMITTED OCTOBER 26, 2004OE—DECIDED AUGUST 19, 2005
> > > ____________
> > > Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
> > > WOOD, Circuit Judge. Wisconsin inmate James Kaufman
> > > filed this suit under 42 U.S.C. § 1983, claiming as relevant
> > > here that prison officials violated his First Amendment
> > > rights. He raises three unrelated issues. Of the three, the
> > > one that has prompted the issuance of this opinion is his
> > > claim that the defendants infringed on his right to practice
> > > his religion when they refused to allow him to create an
> > >
> > >
> > > ------------------------------
> > >
> > > 2 No.
> > > 04-1914
> > >
> > > inmate group to study and discuss atheism. Kaufman also
> > > argues that the defendants used an overly broad definition
> > > of "pornography" when they prevented him from receiving
> > > several publications containing sexual content and photographs
> > > of nude men and that they improperly opened
> > > outside of his presence several letters that he claimed were
> > > "legal" mail. The district court dismissed the pornography
> > > claim at screening, see 28 U.S.C. § 1915A, and granted
> > > summary judgment in favor of the defendants on the other
> > > two. On appeal, Kaufman contests the merits of those
> > > decisions, argues that he should have been allowed to
> > > amend his complaint to add another claim, and claims that
> > > he should have been permitted to conduct additional
> > > discovery. We affirm in part and vacate and remand in part.
> > >
> >
> >
>

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Received on Sun Jun 17 17:39:49 2007