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"The Connecticut Legislature's Preposterously Unconstitutional Attack on Catholicism":

Prof. Rick Hills (PrawfsBlawg) has more on the bill, and on why it's unconstitutional.

My friend Prof. Rick Garnett has also posted an open letter drafted by Doug Laycock -- one of the leading Religion Clauses experts in the nation -- which I had the pleasure of signing, together with several other professors. I'm pretty sure that the signatories disagree on a great deal about Religion Clauses law, but we certainly agree on this. And my Mayer Brown colleague Philip Lacovara has published a letter with his own legal analysis, with which I also agree. (I learned of the letter from a religion-and-the-law discussion list, entirely outside my Mayer work.)

The proposal seems to have been tabled by the legislature for now. Let's hope it stays that way.

Pro Natura (mail):
In the Boston archdiocese there have been several confrontations between the archdiocese, which wishes to close down certain parishes and sell their property, in part to pay for legal claims against the archdiocese from past incidents of clerical sexual abuse, and members of the involved parishes, who want to keep their community churches, parochial schools, etc. The parishioners do not have any real legal recourse. Perhaps this was the CN legislature's ham-fisted attempt to mitigate such potential affrays should they occur in Connecticut.
3.10.2009 6:24pm
Joe Kowalski (mail):

In the Boston archdiocese there have been several confrontations between the archdiocese, which wishes to close down certain parishes and sell their property, in part to pay for legal claims against the archdiocese from past incidents of clerical sexual abuse, and members of the involved parishes, who want to keep their community churches, parochial schools, etc.

Here in Oregon (and in Washington for that matter) the dioceses convinced the courts that the parishes were their own independent corporate entities, and thus when the parent dioceses filed for chapter 11 bankruptcy, the parishes and their schools weren't subject to liquidation. This upset a lot of the abuse victims as it drastically limited the damages they could recover, but kept the Church from completely going out of business.
3.10.2009 6:36pm
Desiderius:
Perhaps our Connecticut Yankee grew weary of King Arthur's court and has been visiting Jean Calvin's.
3.10.2009 6:46pm
BZ (mail):
Though this bill is remarkably ham-handed, states and the feds have long held power over the purely-secular aspects of church corporations. E.g., I recently represented a mosque against dissidents allied with the Muslim Brotherhood. Key questions in court involved the degree to which the court would actually enforce the mosque's charter, which was internally contradictory. You might think that this could involve religious aspects (especially in a mosque, where everything, including the charter, expressly refers to and draws from the Qu'ran). But the court jumped on in, defining away the religious aspects and opining that so long as the structure involved money and property, the court could treat it under general laws. Ultimately the case settled after a religious arbitrator was brought in, so the religious liberty aspects were never appealed.
3.10.2009 6:47pm
Oren:
PN, why should parishioners have any legal recourse or say? As I understand it, they voluntarily joined an organization that insists that the its decrees come straight from the mouth of god himself -- they knew that they had no voice or recourse from the beginning.

If they wanted to be Presbyterians they should have been.
3.10.2009 7:06pm
DangerMouse:
Nominally, this specific issue arose because of a priest who used Church funds for his own illicit purposes.

But in reality, if this had passed, it would've been the first step in de-linking control of Church property and Church teachings. That is incredibly important because supporters of abortion want to force Catholic hospitals to perform abortions, which the Church will never allow. So if they can separate the Church's property from its teachings, they can get their hands on the hospitals.

Catholic hospitals are a huge influence in health care and if the FOCA act passes forcing them to perform abortions, those hospitals will be shut down.
3.10.2009 7:25pm
Waldo (mail):
DM:
Agree that this is a very awkward way of preventing Catholic bishops from following church teachings on abortion. It would also likely preclude bishops from having Catholic adoption agencies withdraw if required to provide those services to gay couples, as happened in Massachusetts.
3.10.2009 8:28pm
J. Aldridge:

The great exponent of First Amendment religious liberty, Justice William Brennan, explained in one of the leading examples of the Supreme Court's enforcement of religious autonomy against State intrusion...

Lacovara's credibility just left the building.
3.10.2009 9:20pm
Cornellian (mail):
Calling it an "attack" seems a bit hysterical considering it's a pretty bland requirement for a certain number of directors on the board of a corporation. If it were just a general corporate law or a general law for non-profit corporations I wouldn't see a problem with it applying to a religious order that wanted to incorporate but it's a mystery to me why they would have singled out the Catholic Church by name. That seems clearly to be crossing the Free Exercise line.
3.10.2009 9:34pm
J. Aldridge:
What was this legislature thinking? Had they read the Constitution they would had found under the U.S. Constitution the words: "Connecticut shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
3.10.2009 9:45pm
Sarcastro (www):
J. Aldridge, riding in from the 19th century to save America!
3.10.2009 9:47pm
Michael B (mail):
Good thing the bill is preposterously unconstitutional, otherwise the same type of imbalance and "caring" prejudices reflected in sexual abuse cases may have gained more traction.
3.10.2009 10:04pm
Desiderius:
In other news, Conn. lawmakers declare: "This family is too a democracy!" - Power of Dad, Mom severely curtailed - Kidz given share of Rule... developing...
3.10.2009 10:40pm
That guy:
Loathe as I am to have the govt. intrude into private affairs of any kind, can someone please explain how the bill "prevents" the "free exercise" of "religion"? If the legislature was mandating one doxology over the other, maybe I'd understand the hysterics a little bit more.

Presumably churches have to file paperwork as relates to their tax-exempt status, etc. and are subject to govt. laws in these and other areas, like zoning. Presumably these govt. regulations do not prevent the "free exercise" of "religion," though they do dictate some actions which can/cannot be taken by said church.

This is a legitimate question.
3.10.2009 11:19pm
David M. Nieporent (www):
What was this legislature thinking? Had they read the Constitution they would had found under the U.S. Constitution the words: "Connecticut shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
If only they hadn't amended the Constitution to apply the Bill of Rights to the states...
3.10.2009 11:35pm
David M. Nieporent (www):
Loathe as I am to have the govt. intrude into private affairs of any kind, can someone please explain how the bill "prevents" the "free exercise" of "religion"? If the legislature was mandating one doxology over the other, maybe I'd understand the hysterics a little bit more.
Who controls a church is as much a function of religious exercise as what the contents of a service are.
3.10.2009 11:36pm
David Schwartz (mail):
Bingo! Who decides what the contents of a service are determines what the contents of a service are. Who hires the people who decide what the contents of a service are determines what the contents of a service are. And so on.

There is a long list of Supreme Court cases addressing this very point. The letters cite many of them.
3.10.2009 11:38pm
Eli Rabett (www):
shall we recycle the postings on breakaway Episcopal churches??
3.10.2009 11:41pm
J. Aldridge:
David M. Nieporent said: "If only they hadn't amended the Constitution to apply the Bill of Rights to the states..."

There were five attempts to apply the Establishment Clause in one form or another against the states between 1875-1890: Are you telling me congress and two-thirds of the states were eventually successful?
3.10.2009 11:52pm
ReaderY:
Connecticut, like many states, had private corporate bills for each church organization in years past before the legislature passed a general ecclesiastical corporate law. Although these bills do single out individual denominations, the form of organization each private bill established was the one chosen by the church. So there was no conflict, and hence no case or controversy that might give rise to a suit.

Presumably if a church changed its basic organization into a form different from the one contemplated by the old private bills, any special language in the private bills would be voidable. I honestly doubt private-bill language mandating any specific form of organization could have any force under the First Amendment. One would have to look to church sources, not the language of state law, to determine the current form of organization.

Churches' internal organization/decision freedoms arise under the Free Exercise Clause. The Free Exercise Clause is regarded as referring to individual rights even among people who think the Establishment Clause refers primarily to a state's right, and hence applies to the states even for people who opine that the Establishment Clause was intended to bind only the federal government.
3.11.2009 12:30am
Desiderius:
Connecticut leaders decide Winthrop was right after all, vote to rejoin Massachusetts Bay Colony...
3.11.2009 12:59am
TokyoTom (mail):
Comments at PrawfsBlawg indicate that this may have been a response to parshioners who were recently defrauded by their parish priest to the tune of $1 million+.

It seems to me that the best solution is for parishioners to start taking and managing their own collections.

Part of the difficulty here is that it i impossible to step around how the state is already involved in religious affairs through granting them corporate charters, limiting their speech via tax rules, etc.
3.11.2009 1:06am
David M. Nieporent (www):
There were five attempts to apply the Establishment Clause in one form or another against the states between 1875-1890: Are you telling me congress and two-thirds of the states were eventually successful?
I thought we were talking about the Free Exercise clause. And yes. No matter how many times you pretend that the 14th amendment didn't apply the BoR to the states, that's exactly what it did.
3.11.2009 2:06am
J. Aldridge:
David M. Nieporent said: "No matter how many times you pretend that the 14th amendment didn't apply the BoR to the states, that's exactly what it did."

So Bingham wasted his time in attempting to add the Takings Clause did he? The entire House Judiciary Committee wasted their time in 1871 describing the Fourteenth Amendment's language as adding nothing new to what already had existed under the original constitution?
3.11.2009 3:49am
wfjag:
In his letter to the Dansbury Catholics, Jefferson said that the Constitution mandated a complete seperation of Church and it's property.
3.11.2009 5:07am
Desiderius:
Conn. Legislature: Don't worry - we're small "k" Know Nothings...
3.11.2009 7:24am
http://volokh.com/?exclude=davidb :

What was this legislature thinking? Had they read the Constitution they would had found under the U.S. Constitution the words: "Connecticut shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Dude, that ship has sailed.
3.11.2009 10:14am
Joe T Guest:
Calling it an "attack" seems a bit hysterical considering it's a pretty bland requirement for a certain number of directors on the board of a corporation.

No it's not. The Church has a slightly better institutional memory than the average Gen Y kid. This kind of thing has been seen before, repeatedly, and it is an attack. There have been wars over whether states may substitute their judgment for the Church's in matters of faith, and whether local parish counsels have the right to control the operation of their parish by vote. The Church has answered with an emphatic "No" for roughly 1800 years and we have had wars over these two questions. An uneasy truce on these questions was reached after millions of Europeans were killed trying to settle it. Though laws of general applicability can be used to prohibit the Church (and all other people) from engaging in some practices not central to the faith - e.g. no burning candles in buildings with more than 100 occupants or something - compelling action against a major Church doctrine is different. Compelling the Church to provide abortions through its charitable operations would be odious to the faithful. This bill has to be viewed as part and parcel of that broader effort, especially in light of the US Conference of Catholic Bishops' statement that if Catholic hospitals are forced to perform abortions, they will shut the hospitals. I'm cool if the Democrats decide they need to destroy the Catholic Church in order to advance their agenda; a lot of people have had the same goal. Somehow, it never seems to work out quite like they had planned.
3.11.2009 10:47am
David M. Nieporent (www):
So Bingham wasted his time in attempting to add the Takings Clause did he?
So Bingham lied when he explicitly said that the 14th amendment applied the Bill of Rights to the states?
The entire House Judiciary Committee wasted their time in 1871 describing the Fourteenth Amendment's language as adding nothing new to what already had existed under the original constitution?
Well, if the 14th amendment "added nothing new," then it would indeed have been a complete waste of time, since the purpose of an amendment is to do just that. So perhaps you misunderstand what they said? Or perhaps your only source for constitutional interpretation, some guy who isn't a lawyer or a historian named "PA Madison," misled you?
3.11.2009 10:59am
Nutmegger:
Here in CT, this is playing as an attempted slap down of the church for rallying support for a constitutional convention in November. The main agenda item at a convention would have been direct initiatives, and what the church saw as a democratic way to defeat the Kerrigan decision legalizing gay marriage in the state. The raised bill gave the AG power to seemingly audit churches at the drop of a hat (read, if they take an unpopular political position). The whole thing smells, from the quiet introduction of the bill on a Thursday, to the rush treatment it was getting with a hearing six days later. This amid a huge budget deficit and about 1,000 items higher on the agenda in that state than creating a legislative remedy to avoid some knucklehead priest from embezzling money from some rich folks in fairfield county.
3.11.2009 3:07pm
J. Aldridge:
David M. Nieporent: "So Bingham lied when he explicitly said that the 14th amendment applied the Bill of Rights to the states?"

Pay attention to what he said: "privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State." And, "This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States."

Nutcases get the weird idea he was talking about citizens under their own State constitutions and laws.

David M. Nieporent: "Well, if the 14th amendment 'added nothing new,' then it would indeed have been a complete waste of time, since the purpose of an amendment is to do just that."

No, no. The entire purpose was identical to the purpose of the civil rights bill of 1866. Lincoln made freed slaves citizens of the United States but not citizens of any state. Congress had no power to enforce the P&I's of United States citizesn under the civil rights bill. That is why Howard defined who are citizens of the US so no state or court could refuse to recognize US citizenship of these slaves. Under the old constitution a citizen of the US had to first be a citizen of some state. The 14th enabled everyone to be a citizen of the US without having to first be a citizen of a state. This allowed the freedmen to go into former slave states and be treated under the law as white citizens.

So yeah, the 14th amendment served a great purpose for new citizens of the US, but not so much for citizens under their own state of domicile, and this was made clear by Bingham from day one.
3.11.2009 3:13pm
Oren:

The entire House Judiciary Committee wasted their time in 1871 describing the Fourteenth Amendment's language as adding nothing new to what already had existed under the original constitution?

Such an interpretation is impossible under the normal rules of construction, as it is presumed that legislatures do not waste time writing redundant or meaningless provisions.
3.11.2009 3:19pm
David M. Nieporent (www):
Aldridge, pay a little more attention:

"the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States."

For some reason, you stopped the quote halfway through.

Work the syllogism:

1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
2. The privileges and immunities of citizens of the United States are chiefly defined in the first eight amendments to the constitution.
THEREFORE, no state may make or enforce any law which shall abridge the first eight amendments to the constitution.


The 14th enabled everyone to be a citizen of the US without having to first be a citizen of a state. This allowed the freedmen to go into former slave states and be treated under the law as white citizens.
No. The very first sentence of the 14th amendment did that. They could have stopped there if that's all they wanted to do. But they didn't. They added another sentence, which you repeatedly ignore.
3.11.2009 3:36pm
zuch (mail) (www):
I really don't see -- absent any invidious but unstated intent (which the courts generally ignore unless so patently obvious its silly to ignore) -- why CT can't set nominally neutral rules for corporations under its laws. The churches there are free to operate w/o incorporation by the state. If they want to avail themselves of such, they should play by the rules, just as any association seeking incorporation must.

Cheers,
3.11.2009 4:00pm
David M. Nieporent (www):
Zuch, assuming for the sake of argument that CT can do this, CT did not, in fact, do this; this law explicitly pertained to the Catholic Church.

That having been said, it would be hard to see how this sort of law could ever be "nominally neutral." Would you require all non-profit organizations to appoint laypersons to run the organizations? (But how would you define "layperson" in relation to, e.g., the Sierra Club?)
3.11.2009 4:10pm
Oren:
Moreover, Zuch, stakeholders in normal corporations can avail of the courts to resolve internal disputes where there is a charter or bylaws that are being ignored. In a religious context, the SCOTUS has ruled that courts may not decide theological matters even if those matters are required to adjudicate a lay dispute.
3.11.2009 4:18pm
J. Aldridge:
David M. Nieporent, from Paul Madison, supreme court archivists and historian with the library of congress:


Bingham made a seemingly confusing statement several years after the adoption of the amendment which in recent times has gathered much attention in supporting the theory the Fourteenth Amendment made the entire first Eight Amendments a limitation upon the States in regards to their own citizens. He is often quoted as saying in an highly partisan speech on March 31, 1871:
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, Fourteenth Amendment of the constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first Eight Amendments to the Constitution of the United States... These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. [6]

Note that Bingham makes a distinction between United States citizens and citizens of a State in his above remarks, which is exactly what one would expect when one speaks of the privileges or immunities under Article IV. If Rep. Bingham really was addressing citizens under their own State constitutions and laws it is unlikely he would had declared the many times he had that the amendment takes from "no State any right which hitherto pertained to the several States of the Union." (See Cincinnati Commercial, August 27, 1866. Pg. 1.)

Additionally, Bingham goes on to say in this same speech that it had always been "decided, and rightfully, that these amendments, defining and protecting the rights of men and citizens, were only limits on the power of Congress, not on the power of the States." [7]

These remarks by Bingham create an enormous contradiction with his official House Judiciary Committee supported statements issued two months earlier over the proper interpretation of the privileges and immunities under the Fourteenth Amendment. He personally wrote in a House Report that the Fourteenth Amendment "did not add to the privileges or immunities" of U.S. citizens. [8]

The question begs then, if the Fourteenth Amendment had not added anything new to the privileges or immunities of United States citizens -- and the federal bill of rights rightfully never applied to the States to begin with -- how then did the first Eight Amendments suddenly become a limit against the power of the States through the privileges or immunities of United States citizens on March 31, 1871?

The answer is simple: Nothing ever changed that would had made any of the first Eight Amendments a privilege or immunity of United States citizens. The only thing Bingham said above that can be confirmed is "privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State" is not a limitation on the power of the States in terms of their own resident citizens.

Whether this is another one of those Bingham slip of the tongue mishaps is irrelevant because we would arrive with the same result under any revision: Privileges or immunities of United States citizens has no application toward resident citizens within the limits of their own State - just as Bingham had confirmed over and over.
3.11.2009 5:06pm
J. Aldridge:
David M. Nieporent, some more from Madison:

"In fact, Bingham attempted to amend his amendment in committee by inserting the words "nor take private property for public use without just compensation" This was rejected by a vote of 5 to 7 with Sen. Jacob Howard voting against. This makes clear Bingham never viewed any of the first Eight Amendments as being a Privilege or Immunity of United States citizens during the drafting stage, else, there would have been no purpose in incorporating the Fifth's due process or attempting to incorporate the Takings Clause."

And:

"Bingham addressing Rep. Robert S. Hale (NY): 'I respectfully ask him to inform us whence he derives the authority for supposing, if he does suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States.' (See Cong. Globe, 39th, 1st Sess., 1089 (1866))"
3.11.2009 5:13pm
David M. Nieporent (www):
David M. Nieporent, from Paul Madison, supreme court archivists and historian with the library of congress:
Those appear to be fictional titles.

Bingham made a seemingly confusing statement
I'm not confused by it; it's only "confusing" if one insists on believing the opposite to be true. You'd think that his later statement, if for some reason one didn't understand it, would make it even clearer: "These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment." He expressly says (*) that the fourteenth amendment does what you claim it doesn't do.

Additionally, Bingham goes on to say in this same speech that it had always been "decided, and rightfully, that these amendments, defining and protecting the rights of men and citizens, were only limits on the power of Congress, not on the power of the States." [7]
Yes, indeed. That was always decided. BEFORE the 14th amendment. Which it's abundantly clear he's talking about, if one reads the actual speech rather than Paul Madison's quotes out of context.

The question begs then, if the Fourteenth Amendment had not added anything new to the privileges or immunities of United States citizens -- and the federal bill of rights rightfully never applied to the States to begin with -- how then did the first Eight Amendments suddenly become a limit against the power of the States through the privileges or immunities of United States citizens on March 31, 1871?
That's easy: like tax protesters, you're misinterpreting a quote out of context. It didn't "add to the privileges or immunities"; instead it applied those same privileges or immunities against the states. See? If you interpret a quote sensibly, then there's no "contradiction."


(*) Now, I certainly don't argue that John Bingham had the power to authoritatively interpret the Constitution. But to the extent one wants to rely upon his views, he couldn't be clearer.
3.11.2009 5:52pm
David M. Nieporent (www):
David M. Nieporent, some more from Madison:

"In fact, Bingham attempted to amend his amendment in committee by inserting the words "nor take private property for public use without just compensation" This was rejected by a vote of 5 to 7 with Sen. Jacob Howard voting against. This makes clear Bingham never viewed any of the first Eight Amendments as being a Privilege or Immunity of United States citizens during the drafting stage, else, there would have been no purpose in incorporating the Fifth's due process or attempting to incorporate the Takings Clause."
And yes, it's more dishonesty from Madison. If he's not a tax protester, he sure uses tax protester techniques.

Bingham attempted to add those words to an earlier version of the amendment that never mentioned privileges or immunities. Those words came later.
3.11.2009 5:55pm
J. Aldridge:
David M. Nieporent: "Bingham attempted to add those words to an earlier version of the amendment that never mentioned privileges or immunities. Those words came later."

Nope, the privileges or immunities of citizens of the U.S under article IV remained the same since under both versions of his bill. So when will you start offering facts to back up your charge the 14th amendment by design incorporates all the federal bill of rights for the protection of resident citizens within their own state?

So far the evidence has been strongly against you.
3.11.2009 6:24pm
J. Aldridge:
David M. Nieporent said: "That's easy: like tax protesters, you're misinterpreting a quote out of context. It didn't "add to the privileges or immunities"; instead it applied those same privileges or immunities against the states. See? If you interpret a quote sensibly, then there's no 'contradiction.'"

OK then, please point to any supreme court ruling or scholar that had ever said the privileges or immunities of United States citizens includes the entire first eight amendments and that the P&I's of citizens of the U.S protects resident state citizens against the actions of their own state!

Don't keep us waiting!
3.11.2009 6:29pm
David Chesler (mail) (www):
Thanks ReaderY for the context.

As I've asked when this came up on TheAgitator and in the comments on Secular Right to which he linked, what do you think of Massachusetts General Laws, Chapter 67, section 44:
"The Roman Catholic archbishop or bishop of the diocese in which a Roman Catholic church is erected or intended to be erected, the vicar-general of such diocese and the pastor of such church, for the time being, or a majority of them, may associate with themselves two laymen, communicants of said church, and may, with such laymen, sign a certificate in duplicate, showing the name or title by which they and their successors shall be known as a body corporate, which certificate shall be acknowledged in the same manner as conveyances of land. One copy of such certificate shall be filed in the office of the state secretary, and the other recorded in the registry of deeds in the county where such church is erected or intended to be erected; and thereupon such church shall be a body corporate by the name expressed in such certificate, and the persons so signing the same shall be the trustees thereof." (Section 55 is for Orthodox churches, earlier sections deal with various Protestant churches. These seem to be very old sections, and deal with the corporate end of the churches, and how they may own and convey property. Chapter 207 section 38 maps various clergy from various religions for the purposes of who may solemnize marriages.)
3.11.2009 7:31pm
zuch (mail) (www):
David Nieporent:
Zuch, assuming for the sake of argument that CT can do this, CT did not, in fact, do this; this law explicitly pertained to the Catholic Church.
I clicked to one of the links, and assuming the facts stated there are correct -- that the Catholic Church is specifically named -- I agree with you 100%.

But my comment on a general provision (lacking such obvious infirmities) stands.

Cheers,
3.11.2009 8:04pm
zuch (mail) (www):
Oren:
Moreover, Zuch, stakeholders in normal corporations can avail of the courts to resolve internal disputes where there is a charter or bylaws that are being ignored. In a religious context, the SCOTUS has ruled that courts may not decide theological matters even if those matters are required to adjudicate a lay dispute.
That may be for certain isolated specific disputes absent controlling civil law, but the involvement of "theological matters" doesn't preclude state action; for instance, claims that polygamy is legal in a church are insufficient to invalidate state prohibitions on such; when a church belief is stacked up against a state interest or law, the state (generally) wins. Even if the the court is directly refuting, rejecting or ignoring established church doctrine, that is is little import to the court. Courts are not permitted to say what church doctrine is; but they most certainly can reject it as applicable to a civil dispute.

Cheers,
3.11.2009 8:12pm
David Chesler (mail) (www):
for instance, claims that polygamy is legal in a church are insufficient to invalidate state prohibitions on such

On the other hand, claims that consumption of pork is legal under a state's laws does not make it kosher or halal.

Where it might get interesting is clergy are allowed to solemnize marriages ex officio, which is already problematic because it puts the state in the position of determining who is clergy, but even moreso I understand that states will take away the right to solemnize (civil) marriages from, or otherwise punish, clergy who solemnize marriages without authority or certificate. I'd have tested that but my late wife already couldn't distinguish libertarians and anarchists, and my life is so messy now that I'll be needing full documentation that I'm married (to the degree that the FedGov recognizes marriages entered into here in the Commonwealth.)
3.11.2009 9:09pm
David M. Nieporent (www):
Nope, the privileges or immunities of citizens of the U.S under article IV remained the same since under both versions of his bill. So when will you start offering facts to back up your charge the 14th amendment by design incorporates all the federal bill of rights for the protection of resident citizens within their own state?
I have no idea what "both versions" you mean, as if there were exactly two, but the phrase "privileges or immunities" was not in the first version of the amendment, which was just about equal protection, and it was that version of the amendment to which Bingham attempted to add the Takings language.

I've already offered "facts to back up your charge the 14th amendment by design incorporates all the federal bill of rights for the protection of resident citizens within their own state," such as the statement by Bingham that the 14th amendment by design incorporates all the federal bill of rights for the protection of resident citizens within their own state.

OK then, please point to any supreme court ruling or scholar that had ever said the privileges or immunities of United States citizens includes the entire first eight amendments and that the P&I's of citizens of the U.S protects resident state citizens against the actions of their own state!
The Supreme Court hasn't said so; it decided in the Slaughterhouse Cases that the P&I clause didn't do anything at all. But you're the one who keeps trying to hang your silly arguments on Bingham, and it's Bingham who said that the PI of US citizens includes the entire first eight amendments. The Supreme Court instead incorporated the first eight amendments via the due process clause, but you keep ignoring that in favor of citing Bingham.
3.11.2009 10:53pm
J. Aldridge:
David M. Nieporentsaid: "I have no idea what "both versions" you mean, as if there were exactly two, but the phrase "privileges or immunities" was not in the first version of the amendment, which was just about equal protection, and it was that version of the amendment to which Bingham attempted to add the Takings language."

I am talking about Bingham's version that was adopted by the committee and found under the 14th amendment today. Bingham wanted to amend his amendment one on April 22, 1866, the same amendment that had the privileges or immunities, due process and equal protection that you see today. He wanted it to read: "nor shall any state deny to any person within its jurisdiction the equal protection of the laws, nor take private property for public use without just compensation."


David M. Nieporentsaid said: "I've already offered "facts to back up your charge the 14th amendment by design incorporates all the federal bill of rights for the protection of resident citizens within their own state," such as the statement by Bingham that the 14th amendment by design incorporates all the federal bill of rights for the protection of resident citizens within their own state."

Uh no. You only have offered spin. Mean while documented history continues to refute you.

David M. Nieporentsaid said: "The Supreme Court hasn't said so; it decided in the Slaughterhouse Cases that the P&I clause didn't do anything at all. But you're the one who keeps trying to hang your silly arguments on Bingham, and it's Bingham who said that the PI of US citizens includes the entire first eight amendments."

Wait a minute: You were the one who insisted Bingham's March 1871 comments supported the view the 14th amendment intended to incorporate the entire the first eight amendments against citizens of the states!!!!!!!!!

Now...

Let's go back before slaughterhouse, and stick with legal thinking prior to 1868. Had any court, or scholar ever suggested the first eight amendments were part of the privileges or immunities of citizens of the US under the original constitution?

Bingham said the P&I's under the 14th were identical import of article IV, section II. Until then, you cannot make the leap that it was understood by anyone that the P&I's of US citizens included the entire first eight amendments and these could be extended against states and their own citizens.
3.12.2009 11:42am

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