+40

Continuing from the preceding post:

It seems like I missed a big thing in the preceding post which I am going to point out here instead of deleting that post:

What I did there is that I jumped the level of pre assignment of marriage rights based on gender which was the root of the issue. The same argument I made there can be made about other gender discrimination issues if one can ignore that pre assignment level.

Last night I wondered how could it be that I found the answer here this easily even though I cannot see any identity connection making others perform in a handicapped way only to find out today that I did not.    

+39

Reading in the oral argument for that cake shop in Colorado brought to my mind the gender discrimination argument for same sex marriage. At the time I was shocked by how I could not find an answer to that argument and changed my position because of that. However the feeling that I missed something persisted and I think I have probably just found the answer.

The argument goes like this:

John was refused a marriage licence because he applied for it with Jim as his partner. Had John come with Jane instead of Jim he would have been granted that licence. That is a gender discrimination and therefore does not fit the legal precedence of the court.

The answer is:

No it is not gender discrimination unless you can find an example where both the reason for the discrimination and who suffers that discrimination do not exist in the same person. Here, the gender of Jim is the reason for discriminating against John and vice versa. It is like if a person entered a shop and the owner, who generally serves everybody else, told that person that he (the owner) would serve him (the person) if, for example, he (the owner) sees a man through the window or in the TV and will not serve that person if he (the owner) sees a woman. Would you call that gender discrimination against that person who entered that shop?     

     

+38

I think that laws to protect minorities like the public accommodations law of Colorado could have been designed  with less unnecessary encroachment on the rights of the other side by assigning to the executive branch the authority to apply those anti discrimination laws contingent on some level of hardship that affect the minority in question from the specific discrimination in question. For example, applying this process when the executive authority receives a complaint about one grocery shop refuses to serve one minority group means measuring things like the availability of other grocery shops that accept serving that minority. If the executive authority finds a hardship it then would apply the anti discrimination law for that minority on every grocery store at least for some period until testing the environment again. This actually can be used for any discrimination and using the word "minority" here was unnecessary. 
Of course there should be a path for suing the executive branch on this issue if it miss carry this duty.        

  

+37

The test I made in post +35 is wrong. 

+36

Continuing from post +34 

While people err like suddenly loosing control and slipping, the Supreme Court errs more like sleep walking and carrying out an entire process of its own toward what it desire without noticing that. The tool and process given in the establishment clause were taken, with hardly any reason, as an end result, in order to make the clause permit tagging the self with minor religious things for identity, and even though the original process was much easier to follow than the circus currently employed to deal with related cases. There is a huge problem when a judge allows himself to go that path without noticing. With errors like this one feels struggling not to see a fraud.

Also if it is not enough to think of the issue of dealing internally with such interpretation for the clause, you have this published for the entire nation to see.

+35

continuing from the preceding post

If a law does not look respecting an establishment of religion by just reading it without measuring its effect, or to put that differently, if it is possible to imagine at pure theoretical level that no effect of respect reaches an establishment of religion through that law then that law is not violating the establishment clause, because it is not respecting an establishment of religion, regardless of how much it would cause an establishment of religion to be respected. On the other hand, if by just reading a law without measuring its effect it looks respecting an establishment of religion then it would be  violating the establishment clause regardless of how little the respect it would add to an establishment of religion (I am writing this assuming there is no problem with the "Congress shall make no law" as implying Congress shall not present a bill because I am not comfortably at that stage yet).        

+34: Establishment Clause Fun With The Supreme Court

Here is a quote from Lemon v. Kurtzman

The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be "no law respecting an establishment of religion." A law may be one "respecting" the forbidden objective while falling short of its total realization. A law "respecting" the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion, but nevertheless be one "respecting" that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.

Seriously? The language of the "Religion Clauses" of the First Amendment seems to me much more acceptable than this. Is it avoidable seeing this like somebody trying to confuse himself because of psychological motive?

"an establishment of religion" refers to what is established by religion or established as an extension of it. It is not a reference to the result or consequences of the law in question in themselves . If they wanted the latter they could have said "establishment of religion" or "establishing religion". They also did not say "an establishment for religion".  The singularity form used, the "of" suggesting belonging and how the action of respect does not fit being directed at what is being created at the same time, all points to this meaning. 

Based on the last part in the quote above, it seems that even things like giving to the poor or taking care of people in general could be in violation of the establishment clause if they lead to significantly inspiring people to be more religious because religion calls for that. No wonder the court talks about difficulty in taking the establishment clause in absolute sense. It first traps itself with a wrong understanding leading to such generalization then justify violating the real meaning through the difficulty of following that. Based on the correct understanding, one do not need to seek an exception to see that Congress laws in the directions above do not violate the clause because those things themselves are not establishments of religion. The resulted respect to establishment of religions because of the increased following do not make the actions in the mentioned examples violations to the establishment clause because they were not directed toward the affected  establishments of religion. 

You think the establishment clause is insufficient for the purpose of preventing the government from establishing religion? Then you can add your own Amendment. But a law wouldn't be respecting an establishment of religion just because it result in establishing religion. That is because, unlike a word like "honoring" for example, "respecting" imply a difference in the state of the affecting thing (the law) in that direction and that is the measure that was used here regardless of the change that happens to the status of the affected establishment.