Prayer in Schools

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Actually, DMC, there's no established procedure for the overlaps. Those are handled on a case-by-case basis. For example, I mentioned cases where students were punished for prayer or mentioning God durring official school events. The courts upheld the students' rights and banned the schools from restricting them.

Freedom of religion is restricted where the general welfare of people or society is at stake (such as other people's freedom of religion), so your Congress example is correct, but it's not a general rule. A teacher praying quietly in the Cafeteria in no way threatens anyone else's religious freedom.

 

This is an easy one. Why no Religion in schools you ask? Because the Right of Freedom of Religion is yours, for you to practice only and to an extent to YOUR children. The right does NOT grant you the power to force/shove it down their throats/demonstrate to or otherwise try to influence the children of others. Period. Knowingly taking a job in a non-religious affiliated school, requires the teacher to not act on the above. By doing so, you will be breaking the law, as in the case this thread was originally referring to. Hence, the legal action taken against them.

 

Yes, there is a difference. The teacher has the ability to enforce their beliefs and act as a government representative. The student doesn't. That being said, though, the teacher doesn't automatically act that way. As for court precedence, there are cases where schools tried to ban religious student organizations using their facilities after school. Now, since student organizations using facilities after school need teacher oversight, that would amount to a teacher being involved in religious activities on campus. Again, the courts have defended this repeatedly. Schools cannot ban such, even under the guise of not allowing teachers to express their religion on school grounds. If a teacher is willing to oversee it, and the body meets all the regulations for a student-body organization, they have to allow it.

Blades, your reasoning is faulty. A teacher praying quietly over their meal in the cafeteria is not "forcing/shoving it down their throats", and, since religious teachers are allowed to oversee religious student body organizations on school grounds, it seems there's nothing wrong with "demonstrating" religion to students, either.

 

You keep saying this, and I think most people here have conceded that point. What you seem to overlook (repeatedly, to the point that it seems deliberate), is that this case does not concern a teacher privately praying over thier meal in a cafeteria. If that's all that had been done, I doubt this would even have required court action.

 

Aldeth, I'm not talking about this case, I'm talking about this order, which DOES ban exactly that! Now, sure, that may be an extreme usage of the order, but that's the order nonetheless. It was poorly worded and, as a result, is unconstitutional.

 

That's a very extreme usage of it. It's difficult to see the prosecution or judge going along with it. Even if an extreme atheist were to complain I can't see it being followed through.

More to the point though, the behaviour of this school is clearly way out of whack compared to what it should be and the staff seem to be fighting tooth and nail over any attempts to bring them into line. The local paper gave the example of one teacher bringing her husband along to give what should have been her speech in her stead so that he could offer a prayer. She was given a warning rather than brought to court but I can't imagine such a thin stunt would have protected her legally if they had. Given the circumstances I'm not surprised the court granted such a nuclear option. If they're not prepared to act reasonably then they shouldn't be surprised if the court decides it needs to make sure they've no wriggle room to evade the order.

 

Deise, I agree that that would be an extreme use, but a use nonetheless. That means the order covers unconstitutional matters, which makes the order unconstitutional.

 

OK, NOG, maybe I'm the one who is confused - are you saying that they actually took court action because someone said a prayer to themselves before they ate? Do we have thought police at schools? If that's the case then I agree with you completely. If you are just speaking theoretically, and have no evidence that such action would actually be taken, then I'm not sure where you're going with this argument.

 

Aldeth,
... well, in that case we need to point out to ourselves that this is about evangelical lore that holds that such things happened, and ultimately a persecution complex.

 

No, not has happened, rather is legal under this order. Remember, constitutionality is not about how a law or order is or has been enforced, but how it's written, how it can be enforced.

 

It should also be remembered that unconstitutionality isn't normally determined until the line in question has been crossed. In other words, if they were to carry the court order to that ridiculous extreme, it can and would be shot down on appeal. On the flip side, I strongly doubt that things would ever get carried so far, since a quiet prayer said to oneself is not only protected speech, but it would be damn hard to prove it even happened. Unless one makes a show of it, most prayers go unnoticed.

 

Well, I would remind you the ACLU is also pursuing a case against another teacher (based on the same order) for praying (I don't know the nature of the prayer) at a private function where no students were attending and which she did not perform any official duty in.

Now, that's entirely outside the scope of the order, and I expect them to loose badly, but the sheer fact that they'd pursue it tells me they'd be willing to arrest a teacher for a quietly muttered prayer in the lunch room.

EDIT:
And, for the lawyers, is that true about the constitutionality only being challengable on actions taken, not on the writing of the law? I seem to remember hearing some challenges to the Patriot Act that didn't go on how it was enforced, but how it was written, but I may have been mistaken.

 

NOG, dmc,
challenging only the enforcement does make sense. In Germany you essentially only have standing if your rights (may) have been violated, and when you are personally affected. That means: We don't have popular action (with some narrow exceptions that don't belong here).

The basic argument against popular action is that every whacko out there would run to court and challenge every law because it is nothing less than (subjectively) totally, totally unconstitutional. There are those litigious individuals, we call them 'Prozesshansel' in Germany, or people with a persecution complex (that then are being aggravated by every consecutive loss in court, turning the initially merely confused or paranoid eventually into full grown 'Prozesshansels'). It would send about every piece of legislation to constitutional court first, and that would in a nutshell mean giving the judiciary a de facto role in legislation (thinking of it ... activist judges ). Trying a law in constitutional court takes time. Essentially, the argument says that popular action would have the effect of making swift legislation to react to current events near impossible. Everyone could stall every law by challenging it.

The legislative and executive branches remaining capable of action is deemed more important. That priority isn't harmful, as pretty much every unconstitutional law regulates something in a way that it will violate someone's rights fairly quickly. Unconstitutional tax can be attacked once it is being demanded and so forth. Those unconstitutional laws that don't violate a citizen's rights may be unconstitutional but do no harm. An example for that: The German states Bavaria and Hessen had the death penalty on the book for 50 years even though the death penalty is unconstitutional in Germany proper. It is irrelevant because Germany's federal constitution overrides it. Thus it didn't matter, and these unconstitutional laws would remain in law unenforced until removed in Bavaria some fifty years later. Iirc Hessen still has it on the book.

Also think of the reservation that the parliament, not the courts, make law (separation of powers). Matters of constitutionality are to be discussed in parliament by elected representatives. After all, in most western countries elected politicians are sworn to uphold and protect the constitution if I recall rightly. Also, the executive branch, also bound to uphold the constitution, may and should see itself obliged to not enforce unconstitutional laws with the effect that they, as in Hessen and Bavaria, become dead law.

That said, we do have popular action in Bavaria, but the problem described above hasn't manifested itself there. However, it is also so that most of the popular action claims have been dismissed as nonsense. A decent legal system can do without, though giving the option of popular action has a nice touch.

 

Ragusa, those are some very good points I hadn't considered, but I do have some issues:
1.) I imagine challenging anything in court takes money. That means Paranoid Joe couldn't challenge the local No Stalking law without a case, because he couldn't afford a lawyer to try it. You do have a point for those with money, though.
2.) As for the role of the Judiciary in passing law, in the US, there is one. I'm not sure about Germany, but in the US, it is the Judiciary's job to determine if a law is unconstitutional (through cases). That's not activist judges. Activist judges are the ones who say "Not only is X unconstitutional, but should be Y in the first place, and henceforth it is! *Bang* *Bang*" The judiciary's job in this case is simply to kill one law, not pass another in it's place.

 

NOG,
1. Don't know about the US, but in my country claims to the constitutional court are free from fees. You're well advised to have a lawyer, but you don't need to have one there. In accordance with § 34 BVerfGG grossly abusive or frivolous claims will be met with fees to deter the 'Prozesshansels'. By 2005 that has happened for some 0,26 % of all claims.

2. Argue carefully: Even in the US the judiciary has no role in passing law. As far as legality i.e. constitutionality of law is concerned their job is determining the legality i.e. constitutionality of government actions. Think of it and you'll see a big difference between the two.

 

1.) I have no idea if there are any fees for the Supreme Court, but I do know that they don't take many cases to begin with, and if you don't have a lawyer firmly versed in legalese, your opponent most certaily will, and will thrash you. That last bit is more common sense than learning, but I'll bet money it's true.
2.) Ok, let me rephrase that: The Supreme Court has a role in the shaping of law. You're correct that it's Congress that writes and passes laws, but the Court potentially has the power to completely kill anything passed by Congress.

 

The SC only has a role in shaping law only when the legislative branch doesn't get it right.

 

It's the role of a censor. Censors have a role in the creation of products, be it video games, movies, books, or laws, by shear threat of their power. I'll bet someone in the legislature, at some point, for most major bills, stops and things "Now, what would the Supreme Court do with this bill?"