US EEOC and DOJ Sues to Protect Pilgrimage to Mecca.

[GreyICE]

If I worded my post to absolutely, and stated that they "never" take sabbaticals, then I misspoke. Sabbaticals are possible, but not particularly common, and certainly not universally allowable to all teachers. They aren't required by law to be allowed.

*snip OT stuff*

One small problem - you just conceded the point. Sabbaticals do not cause undo disruption, or the schools would not be able to function with them. In fact there's a zillion ways to demonstrate this. Being a teacher does not excuse you from jury duty (no undue disruption), schools have been able to accommodate parental leave with no undue disruption, etc. etc. etc. So your idea that the state has a compelling interest in restricting this because of some lost educational quality is completely bogus. There's plenty of precedent for a three week leave, your idea that it is impossible is just silly.

[GreyICE]

All that really matters in this argument is that the code of practice in granting unpaid leave, whatever its details may be, should be 100% secular, in the sense that religious reasons for requesting leave not be privileged over non-religious reasons. As long as any rules involved in granting leave are applied universally, it would not be an issue to worry about.

Don't worry, the Supreme Court has ruled for a very broad definition of belief. If you have a sincerely held conviction that would cause you to seek leave, you would be granted similar rights to a religious person. They have very purposefully avoided narrowing the definition, and focusing on whether it's sincerely held. That avoids most of the nonsensical "I don't have to work whenever I don't want to" religions that people throw around.

[Coito ergo sum]

If I worded my post to absolutely, and stated that they "never" take sabbaticals, then I misspoke. Sabbaticals are possible, but not particularly common, and certainly not universally allowable to all teachers. They aren't required by law to be allowed.

*snip OT stuff*

One small problem - you just conceded the point. Sabbaticals do not cause undo disruption, or the schools would not be able to function with them.

No. Sabbaticals are not what we're talking about here. Sabbaticals are generally taking a year off to get education or do other professionally-related tasks. They are not related to taking 3 weeks off in the middle of a year. That's not a sabbatical. A teacher teaching from September to November, then taking 3 weeks off, does disrupt the school year for the students. Moreover, it's unfair to secular folks, who are not allowed to take time off to practice their secularism.

In fact there's a zillion ways to demonstrate this. Being a teacher does not excuse you from jury duty (no undue disruption),

Far from excusing one from jury duty, an employer, including a government employer, MUST - as a matter of law - allow an employee to attend jury duty. That, of course, is not what we're talking about here.

schools have been able to accommodate parental leave with no undue disruption, etc. etc. etc. So your idea that the state has a compelling interest in restricting this because of some lost educational quality is completely bogus. There's plenty of precedent for a three week leave, your idea that it is impossible is just silly.

I didn't say it was impossible. I said it's not the employer's (even a school employer's) obligation to accommodate someone's three week Hajj trip. It's "possible" for a school to allow anyone to take any time off they want. Maybe I want 3 months off unpaid from December 21 to March 21, maybe because I'm a nature worshiper and honor the god of winter by taking the winter off of work. They can always get someone to do my job for me while I'm gone. But, should they have to? Of course not.

The whole idea that teachers should just be able to announce their desire to take time off for some religious reason and it must be honored by the school is ludicrous. They get their sick days when they're sick. If the collective bargaining agreement allows personal days, then they can use their personal days for religious purposes. To give religious people additional days that they see fit to take, like three weeks on the Hajj is downright ridiculous. And, why 3 weeks? We have airplanes today - maybe she can do her pilgrimage in one week - travel there, spend a few days and fly back home. Is it the employee who decides how long she must spend there to fulfill her religious obligation? Moreover, the Hajj doesn't have to be fulfilled every year - and in fact only must be fulfilled once in a lifetime. Why must the school accommodate this when she can do it another year? The Hajj can be completed in 5 days - why does she get 3 weeks?

[Coito ergo sum]

All that really matters in this argument is that the code of practice in granting unpaid leave, whatever its details may be, should be 100% secular, in the sense that religious reasons for requesting leave not be privileged over non-religious reasons. As long as any rules involved in granting leave are applied universally, it would not be an issue to worry about.

Don't worry, the Supreme Court has ruled for a very broad definition of belief. If you have a sincerely held conviction that would cause you to seek leave, you would be granted similar rights to a religious person. They have very purposefully avoided narrowing the definition, and focusing on whether it's sincerely held. That avoids most of the nonsensical "I don't have to work whenever I don't want to" religions that people throw around.

That's not correct. The decision of a philosophical person that they want to visit Greece to learn more about Stoicism would not be sufficient. It's not something that requires one to be somewhere at a particular time. The Muslims can only go to the Hajj during the Hajj. There is no similar secular required activity.

[Warren Dew]

Don't worry, the Supreme Court has ruled for a very broad definition of belief. If you have a sincerely held conviction that would cause you to seek leave, you would be granted similar rights to a religious person.

And yet, you don't think leave would or should be granted for similar once in a lifetime occasions for the nonreligious when I mention that possibility.

[GreyICE]

*snip*

Well we've moved past your nonsense interpretation of the 1st amendment thankfully, and moved past the idea that it was unduly disruptive to grant this.

Now we're down to arguing duration. Would there be an issue if the school district inquired as to the duration, and then suggested that 2 weeks was more appropriate? Probably not, no. That's a reasonable accommodation (5-6 day pilgrimage, traditional visit to the tomb, and 2-3 days travel time, combined with lunar and Gregorian calendars not meshing perfectly). In that hypothetical situation... I agree with SCOTUS. There is almost no point in arguing a hypothetical, because everyone involved always has their own details they are mentally adding to the hypothetical. So you end up arguing based on assumptions not stated.

If that's where we're left, then I think we've reached an agreement. Her duration may or may not have been overly long, but the school district violated the 1st amendment, and that's just not allowed.

[GreyICE]

Don't worry, the Supreme Court has ruled for a very broad definition of belief. If you have a sincerely held conviction that would cause you to seek leave, you would be granted similar rights to a religious person.

And yet, you're against leave for similar once in a lifetime occasions for the nonreligious.

Any time you wish to cease lying, please do.

[Warren Dew]

Don't worry, the Supreme Court has ruled for a very broad definition of belief. If you have a sincerely held conviction that would cause you to seek leave, you would be granted similar rights to a religious person.

And yet, you're against leave for similar once in a lifetime occasions for the nonreligious.

Any time you wish to cease lying, please do.

Maybe you should reread the earlier posts where I suggested exactly such a possibility, and you said it was different because it wasn't religious.

[Coito ergo sum]

Technically, the "framers" of the Constitution were talking about the United States Congress in Washington DC, which has nothing at all to do with school boards in New York State. It was not until the 14th Amendment in about 1865-69 (approx) when the States were prohibited from depriving a person of "liberty" without due process of law. Over time, the Supreme Court held that fundamental liberties - like the liberty of and from religion embodied in the first amendment - were applicable to the States. The "framers" never intended that the First Amendment would prohibit anything other than federal Congressional action - hence their use of the term "Congress" (which refers to the federal Congress).

Presently, Constitutional law is built on an application of the fundamental freedoms embodied in the bill of rights, through the 14th Amendment, to state activities including the actions of school boards. Nothing in the first amendment, however, has ever been held to require government employers to give employees, whether state or federal, three weeks off for religious reasons. We shall see what the courts do with it.

If your interpretation prevails, then someone hired by the government who doesn't want to work Thursdays for religious reasons must be permitted that time off. I am quite sure none of "the framers" intended the First Amendment to require that.

Really? You want the interpretation of the Bill of Rights that the framers only intended it to effect the Federal Government, and that states were free to do as they wish?

Uh...yeah - that's why there was a state church in Connecticut until 1818 and an established religion in Massachusetts until 1833, until those states changed their own charters/constitutions. The Massachusetts system required every man to belong to some church, and pay taxes towards it.

You won't find a single Supreme Court decision applying the federal bill of rights to the states until well after the 14th Amendment was passed. The Fourteenth Amendment to the U.S. Constitution, ratified in 1868, makes no mention of religious establishment, but forbids the states to "abridge the privileges or immunities" of U.S. citizens, or to "deprive any person of life, liberty, or property, without due process of law". In the 1947 case of Everson v. Board of Education, the United States Supreme Court held that this later provision incorporates the First Amendment's Establishment Clause as applying to the States, and thereby prohibits state and local religious establishments. So, when the Supreme Court held that States could not establish a religion, it did so by applying the 14th Amendment - because otherwise the 1st Amendment would have no applicability to the States.

States were free to imprison people without trial for as long as they wish?

They weren't limited by the Sixth Amendment, if that's what you mean. They had their own charters and constitutions which provided protections for criminal defendants, and they all had the common law including the writ of habeas corpus which applied irrespective of the US Constitution. However, the 6th Amendment right to a speedy trial did not directly apply to the states. That's right. Parts of the 5th, 6th and 8th Amendments were held to apply to the States, through the 14th Amendment, in the 20th century.

Even today not all of the Sixth Amendment applies to the States because the Supreme Court found that things like "jury unanimity", while required in federal trials, is not required in state trials (unless the state constitution or laws require it). And, while there is a

The Eighth Amendment's rights against excessive bail and excessive fines has never been held to be applicable to the States, at least not yet.

The Fifth Amendment's right to indictment by a grand jury has never been held to be applicable to the States, and thus only States that have their own requirements for grand juries have such requirements.

That they intended States be free to force people to testify against themselves?

The right against self-incrimination was not incorporated to apply against the states until 1964. See Malloy v. Hogan, 378 U.S. 1 (1964). The 5th Amendment was held to not apply directly, but the right not to self-incriminate was applied to the states through the 14th Amendment.

That they wished for the States to be allowed to break into people's homes and take whatever they wanted whenever they wanted? That they sought to allow States the right to forgo Jury trials in favor of having a single Judge decide the verdict in any case? That they wanted States to have the right to torture prisoners, to stone them, to beat them to death? Just none of this could be done by the Federal Government?

The federal bill of rights is a bill of limitations on federal power. The "framers" jealously guarded the sovereignty of the states, and they were concerned about federal tyranny. So, it wasn't that they they wanted tyranny - the Virginians felt that Virginia would protect Virginians rights, and the federal constitution was not drafted as a limitation on State power. The States had their own constitutions and those constitutions, like Virginia's declarations regarding religious freedom, etc., did operate to protect against some of the same infringements on liberty embodied in the bill of rights. But, the bill of rights refers to "Congress" for a reason - the "framers" were not so stupid that they couldn't right "State and federal legislatures shall not..." - they wrote "Congress." Why do you think they did that?

You realize this insane position is not held by a single Supreme Court Judge, that you have to go digging deep into the theocracy wing of the lunatic right to find a single person calling themselves a Constitutional Scholar who adheres to this?

Of course they do. I'm correct. Have you even read the opinions like Everson and Malloy that I mentioned above. They specifically state that the right to freedom of religion - the rights embodied by the bill of rights - are incorporated against the states through the 14th Amendment. It's called the "incorporation doctrine" and EVERY constitutional scholar agrees with me and it's part of the rationale of EVERY Supreme Court case concerning allegations that a State government has violated some right embodied in the bill of rights like speech, religion, press, etc.

You're dead wrong, and you don't know what you're talking about.

In its first hundred years, the United States Supreme Court interpreted the Constitution's Bill of Rights as a limit on federal government, and considered the states bound only by those rights granted to its citizens by their own state constitutions. This did not change until after the passage of the 13th, 14th and 15th amendments. It took until the 1930s, when the Court began consistently reasoning that the Fourteenth Amendment guaranteed citizens First Amendment protections from even state and local governments, a process known as incorporation. The 1940 decision in Cantwell v. Connecticut was the first Supreme Court decision to apply the First Amendment's religious protections to the states, that case focusing on the so-called Free Exercise Clause. The decision Everson followed in 1947, the first incorporating the Establishment Clause.

You realize that the founders clearly used the Tenth Amendment of the Constitution to show that they were denying powers to the States, right?

It says that where powers are not denied to the states and not delegated to the federal government, they are reserved by the states and the people. That has nothing to do with the incorporation of the bill of rights through the 14th amendment to limit state power.

10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The First Amendment of the United States of America applies to everything at every level of government. Federal, State, County, Town, whatever.

It didn't in 1787, and you were talking about the intent of the "framers". The framers were alive in 1787. It wasn't until after the passage of the 14th Amendment and the Supreme Court development of the idea of the "incorporation doctrine" whereby most of the rights embodied in the bill of rights were incorporated as applicable to limit state power.

When a person files a lawsuit to claim that a State or local government has violated their right to freedom of speech, they have to allege specifically that the right at issue is freedom of speech and that the State or local government is bound by the 1st amendment as incorporated against the states by the 14th Amendment. It's the 14th Amendment that is key. That's because the first amendment was not found to be a limitation on state or local government power until 1925 - Gitlow v. New York, 268 U.S. 652 (1925) (freedom of speech), and Near v. Minnesota, 283 U.S. 697 (1931) (freedom of the press). Both of those seminal cases relied on the 14th Amendment to restrict the State's power to limit freedom of expression.

Quoting from Near v Minnesota: "For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause (b) of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment." See that - "liberty of the press guaranteed by the Fourteenth Amendment." Fourteenth - not the First - the Fourteenth. This is because the Fourteenth Amendment incorporates the First and makes it applicable to the States. As literally written, the First Amendment applies to the Congress of the federal government, not the States. Savvy?

This is not an 'interpretation.' This is what is. That was what was intended at the very first.

The Supreme Court case law says otherwise. You won't find one Supreme Court case in the first 100 years that applies any of the bill of rights to the states, and all of the Supreme Court decisions stating that the First Amendment and other rights in the bill of rights applies to limit state power do so by finding that the 14th amendment makes them applicable to the States.

[HomerJay]

All that really matters in this argument is that the code of practice in granting unpaid leave, whatever its details may be, should be 100% secular, in the sense that religious reasons for requesting leave not be privileged over non-religious reasons. As long as any rules involved in granting leave are applied universally, it would not be an issue to worry about.

yes, in this case if the 1st amendment is used to enforce a right for religion over secular rights then how does the separation of church n state work, where the state is dishing out favours to the faithful?

[Coito ergo sum]

*snip*

Well we've moved past your nonsense interpretation of the 1st amendment thankfully,

See above. You're dead wrong about the First Amendment. It's only applicable to the States THROUGH THE 14TH Amendment, under the "incorporation doctrine." Read a Supreme Court decision or two, and you'd know a little bit about what you're talking about. Nonsense, indeed - dude, you're embarrassing yourself.

and moved past the idea that it was unduly disruptive to grant this.

We've not moved past the idea that it would be unduly disruptive to grant this. Whether it's unduly disruptive is a matter of opinion. We'll see what the court says in this matter. The DOJ is taking one position, and the school system another. Just because YOU claim it's not unduly disruptive doesn't make it so. Three weeks is a long time.

Now we're down to arguing duration. Would there be an issue if the school district inquired as to the duration, and then suggested that 2 weeks was more appropriate? Probably not, no. That's a reasonable accommodation (5-6 day pilgrimage, traditional visit to the tomb, and 2-3 days travel time, combined with lunar and Gregorian calendars not meshing perfectly). In that hypothetical situation... I agree with SCOTUS.

SCOTUS hasn't chimed in on this particular issue, yet.

The school need not incur more than minimal costs in order to accommodate an employee’s religious practices. An employer need not incur anything more than ordinary administrative costs, and can deny an accommodation if it would diminish efficiency (as 3 weeks of the regular teacher being away would, in fact, do). They also need not infringe on other employees’ job rights or benefits, impair workplace safety, or causes coworkers to carry the accommodated employee’s share of work (and here, obviously, 3 weeks out means that coworkers and substitutes would have to carry on the employee's share of work). Three weeks is a long time, and any employer would consider that a hardship. So, you say it's not a hardship - it's seems lengthy to the point of ridiculousness to me. Let's see where the court goes with it.

There is almost no point in arguing a hypothetical, because everyone involved always has their own details they are mentally adding to the hypothetical. So you end up arguing based on assumptions not stated.

If that's where we're left, then I think we've reached an agreement. Her duration may or may not have been overly long, but the school district violated the 1st amendment, and that's just not allowed.

If the duration was overly long, than there was no violation, and the school can and will argue that any requested time off - even the week - was (a) not required by the religion because it only requires attendance once in the person's life (if they are able) and reasonable accommodation doesn't mean that they get to go anytime and every time they wan, and (b) that even a week or 10 days poses an undue burden because of its effect on classroom education and the cost to the school district - among other things. They will likely also argue that if this is a required reasonable accommodation of religion then any religious person must be given time off for any religious observance, even one that is not mandatory, and that would pose an undue administrative burden.

And, if there is a constitutional violation found that violation would be of the 14th Amendment, which INCORPORATES the freedoms of and from religion. The First Amendment does not apply directly to the school district. How much do you want to bet that in the Justice Department pleadings in the case, they will state exactly that?

[GreyICE]

Hey Coito, why do you feel the need to alter what I wrote? It's tantamount to lying about what I said.


Am I embarrassing myself? Only by continuing to talk to you as if it was an honest discussion. Playing this deep in the stupid is almost bound to get some on me, by association if nothing else, but I guess I shall persist though I'm rapidly losing any reason to hope that a little bit of honest discussion will arise here.

I notice you are altering the applicability of the Bill of Rights again, and you still haven't responded to my post on the last page. Do you really think the founding fathers intended any of the things you suggested? The Fourteenth amendment may clarify this and offer the protections to all citizens, yes. On the way abolishing slavery. But it seems insane to me to suggest that the founders really intended for the states to, as I said, have the right to torture people.

You are ignoring the fact that the employer in question isn't any employer - it's the government. The government is limited in ways that private employers are not, for reasons that should be obvious. I can elucidate if you really, really don't understand that. This is your last ditch long shot? Trying to say that the government is equal to a private employer, and thus anything a private employer can do the government can do? What a laugh. The Government has both rights and responsibilities that no private employer does or should. Argument failure, reality failure.

Until you find something else to draw inane parallels with, amuse me. Go back and answer my post on the Bill of Rights. Try doing it without altering what I said at all. I might even give you some more (this woman is like a Terrorist, because she's destroying the Children's Future by damaging their education! Why does the DOJ support terrorists!).

[Coito ergo sum]

Hey Coito, why do you feel the need to alter what I wrote? It's tantamount to lying about what I said.

I did not alter what you wrote. What was altered?

Am I embarrassing myself? Only by continuing to talk to you as if it was an honest discussion. Playing this deep in the stupid is almost bound to get some on me, by association if nothing else, but I guess I shall persist though I'm rapidly losing any reason to hope that a little bit of honest discussion will arise here.

I notice you are altering the applicability of the Bill of Rights again, and you still haven't responded to my post on the last page.

As far as I know, i responded to every post of yours.

Do you really think the founding fathers intended any of the things you suggested?

As far as the applicability of the Bill of Rights - what I wrote is absolutely true. It's exactly what the Supreme Court has held. Are you suggesting that prior to the 14th Amendment the First Amendment was in any way a restriction on State action? If you are making that claim - you're dead wrong, and I've already explained why.

The Fourteenth amendment may clarify this and offer the protections to all citizens, yes.

The 14th Amendment is the source of the "incorporation doctrine" whereby the Supreme Court found that most of the rights embodied in the Bill of Rights also applied to the States. The 14th amendment didn't just "clarify" - the 14th Amendment is the vehicle by which the First Amendment applies to the States. Without the 14th Amendment, the First simply does not and did not apply to the States. It's a fact. If you look up any First Amendment case against a State or Local Government - you will absolutely see that in EVERY case - not most - not some - EVERY case - the 14th Amendment is the basis for State and local liability, and there are ZERO cases prior to the 14th Amendment finding the States or Local Governments bound by the Bill of Rights. It's that clear.

On the way abolishing slavery. But it seems insane to me to suggest that the founders really intended for the states to, as I said, have the right to torture people.

The founders did not intend for the Bill of Rights to apply to the states. The founders intended that State governments would be bound by their own constitutions on the issue of criminal punishment, search and seizure, speech, etc. Yes, the founders intended that people would have freedom of speech in America. But, surely you can see how that's different than claiming that the Bill of Rights applied to the States in 1787 when the founders voted on it. John Adams did not intend that the First Amendment apply to the States. Massachusetts had its own Constitution which had its own version of the First Amendment. The founding fathers intended the States to be separate sovereign states, associated in a federal United States which was a government of limited powers delegated to the three branches of government. The Congress' power was delegated to them in Article I, Section 8 of the Constitution. The Federalist founding fathers were fine with that. Some of the founding fathers, though, thought a Bill of Rights was needed as a check on federal power, to specifically lay out what things the FEDERAL congress could not do. That's what was intended.

You are ignoring the fact that the employer in question isn't any employer - it's the government. The government is limited in ways that private employers are not, for reasons that should be obvious. I can elucidate if you really, really don't understand that.

We don't disagree that the government is limited. What we're talking about is what the founding fathers intended, and what the First Amendment does and did and why. Yes, the First Amendment Establishment Clause and Free Exercise Clause applies to the states now - but it only does so because the 14th Amendment incorporates those rights. The 14th Amendment was enacted in 1868, and the Supreme Court never held that the First Amendment applied to the States until it incorporated those rights as against the states in the 1920's and 1940's.

Surely you see that? I cited the cases. I pointed out that Massachusetts Established religion until 1833 - and required every man to be a member of a church and pay a tax to the church until 1833. John Adams, not an insubstantial founding father, was from Massachusetts and was alive at the time the Constitution was signed and ratified and lived for a fair bit thereafter. If he really intended that the First Amendment prohibited a public school from making Muslims work through the Hajj, do you think he might have objected to the required church membership and church tax?

This is your last ditch long shot? Trying to say that the government is equal to a private employer,

I've not tried to say that.

and thus anything a private employer can do the government can do? What a laugh. The Government has both rights and responsibilities that no private employer does or should. Argument failure, reality failure.

I never said that.

Until you find something else to draw inane parallels with, amuse me. Go back and answer my post on the Bill of Rights.

I did. Have you shown me one, single court case where the first amendment was applied to limit State power or State action, or local government power/action, directly - and not through the 14th Amendment?

Try doing it without altering what I said at all. I might even give you some more (this woman is like a Terrorist, because she's destroying the Children's Future by damaging their education! Why does the DOJ support terrorists!).

Please tell me what I altered.

[Warren Dew]

Hey Coito, why do you feel the need to alter what I wrote? It's tantamount to lying about what I said.

I don't see where he altered anything.

Am I embarrassing myself?

Yes.

[Trolldor]

All that really matters in this argument is that the code of practice in granting unpaid leave, whatever its details may be, should be 100% secular, in the sense that religious reasons for requesting leave not be privileged over non-religious reasons. As long as any rules involved in granting leave are applied universally, it would not be an issue to worry about.

yes, in this case if the 1st amendment is used to enforce a right for religion over secular rights then how does the separation of church n state work, where the state is dishing out favours to the faithful?

Secular rights?

Over secular rights?


Demonstrate it. Establish. Prove. Not your subjective rants about hypotheticals, I want an actual example.