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Staks v. Lemon

In 1971, the Supreme Court ruled on the case of Lemon v. Kurtzman. The court ruled that public school money could not fund private religious school text books and salaries. But more importantly than that, this case created what has been called the “Lemon Test.”

The Lemon Test was supposed to have settled the issue of Church/State Separation once and for all. This of course did not happen. The way the Lemon Test functions is by setting up three criteria and if any of the proposed action violates any one of the three criteria, that action is to be considered unconstitutional.

The three criteria are as follows:
1. The government’s action must have a secular legislative purpose.
2. The government’s action must not have the primary effect of either advancing or inhibiting religion.
3. The government’s action must not result in an “excessive government entanglement” with religion.

This Lemon Test has now become established law in America and yet fundamentalist Christian legislatures and interest groups still don’t seem to understand how this test works. Continually, fundamentalist Christians are trying to put their God on everything including the US Capitol… literally. When Michael Newdow challenged the motto of “In God We Trust” on the dollar bill, he argued that it violated the Lemon Test and of course it does.

It certainly seems to me that the Lemon Test is too complicated for small fundamentalist Christian minds. So I have come up with a new test for Separation of Church/State issues. I’ll call it the “Staks Test” because that is how I roll. I know I wasn’t the first to say this, but I am the first to my knowledge to suggest it to be a legitimate legal test. My test has only one criteria because in Christianity God plus Jesus plus the Holy Ghost equals one (clearly Christians can’t count).

The one criteria is as follows:
1. The government’s action must be able to be substituted with another religious belief and still not offend the people proposing the action.

For example, if we were to replace “One Nation Under God” with “One Nation Under Allah” would those who support the motto still be in favor of it? Of course not, so the motto fails the Staks Test and must be ruled unconstitutional. If the government proposed to put a plaque in the US Capitol which said “In Satan We Trust,” would South Carolina’s Republican Senator Jim DeMint still think it was a good idea? Somehow I doubt it, so it too would fail the Staks Test.

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  • Tomkinson

    This test would have no influence on problematic cases that involve the government with multiple religions e.g. Faith Based Initiatives. It also would violate many other historic precedents.

    On a related issue, how would it apply to the current case Murray v Geithner? http://michiganmessenger.com/10395/michigan-man-files-suit-against-bailout-on-religious-grounds

    • http://www.dangeroustalk.net Staks

      Wow, First of all Faith Based initiatives would fail under that Staks Test because Christian would not be happy knowing that Islamic Charities are getting government money (note your posted article from the Michigan Rag). Second, what “other historic precedents” would the Staks Test violate exactly? It is pretty much in line with the Lemon Test, but simpler. Third, Murray v. Geithner is a retarded case. If AIG was using bailout money to fund Islamic Charities then there might be a case, but the fact that it is coming from the Thomas More Law Center speaks volumes. Isn’t that the pot calling the kettle black?

      • Tomkinson

        “First of all Faith Based initiatives would fail under that Staks Test because Christian would not be happy knowing that Islamic Charities are getting government money”

        But they ARE eligible under the provisions of F-B-I. They were that way even under Bush although I recall reading that little to nothing had gone to non-Christian charities at the time. I doubt Obama’s expansion of the program would discriminate more than Bush’s. So your test fails in its inability to prohibit government sponsorship of ALL faiths.

        Two “In Allah we trust” would make no sense just as “In Gott we trust” would make no sense. Allah is simply the Arabic word for God, requiring all government sponsored text be translatable is impractical. And what would you substitute for Buddhism? I don’t care if our money says “In God we trust” its there with the Jewish star and a bunch of masonic symbols. “Under God” in the pledge is problematic but the best way to deal with that is to not say the pledge at all. Pledging allegiance to anything is stupid especially for children.

        Oh and by the way “clearly Christians can’t count” is another example of your bigotry.

    • Mr. X

      The AIG case is mainly complicated by the question, “Is AIG still considered a private corporation, or is it now nationally owned?”

      Seems nobody, anywhere, feels like tackling THAT one.

      If AIG is a purely public institution, then “Takaful” insurance (seems to be the insurance-equivalent of Halal foods, etc.) may pose a problem.

      But if it’s still a “free enterprise,” following “market forces,” then offering “Takaful insurance” doesn’t matter.

      Either way, the religious question is only a small aspect of a much bigger issue.

    • Mr. X

      Like the predominantly conservative Pro-Life movement, I’m no great fan of “historic legal precedents.” I realize there’s a need for consistent standards; but at the same time, it’s always possible that they got it wrong, the last time around.

      As for faith-based initiatives…

      Please, Tommy, or whoever, correct me if I’m wrong – but the general rationale seems to be that “the government should be able to subsidize charities, regardless of whether they’re religious, as long as they do so in a non-discriminatory manner.”

      That’s relatively acceptable (insofar as the government should be subsidizing ANY private activity), as long as they follow clear, unequivocal guidelines on what constitutes a “charitable activity” and what doesn’t; the focus should be on that question, and not religious affiliation. But there’d have to be adequate oversight regarding how they spend that money. Which they always have…you know, like with AIG, and all the other “bailout” dollars…

      So it’s only a question of when and if the government should be handing out tax dollars; religious affiliation is irrelevant, as long as the charity itself is non-discriminatory in the assistance it provides.

      I agree that the Pledge of Allegiance shouldn’t be recited in compulsory public schools, etc. …I don’t draw much distinction between nationalism and religion; just more arbitrary, artificial divisions that our species has created within itself. “Under God” should never have been added, but I doubt it’ll be taken out again, in the forseeable future.

      In general…the government shouldn’t be encouraging, condoning, or recognizing religion in general. NOBODY should encourage people to identify with religions – or cultures, ethnicities, nations, etc.; but least of all should the government do that. It should be as secular as possible.

      I would go even further than Staks, and eliminate all religious/”spiritual”/supernatural referrences from public property, including currency. If you want to say prayers, you can do it on your own time; and if you want to display the “10 Commandments,” you can do it on your own lawn.

  • Chris

    mmm.. in flying-speghetti-monster we trust or In illusion-probably-brought-on-by-bad-grain-man we trust

  • http://www.myspace.com/rothtalltales Tralf

    Yes, the Allah swap says it all. They aren’t in favor of religion in the abstract, but a specific religion or religions. Ergo that is an overt government endorsement of religion. I have an 1867 nickel with “In God We Trust” on the reverse, one of the earlier examples of this phrase on US mintage. So I wouldn’t expect the government to snap to it and remove it from our currency any time soon.


  • http://BitchSpot.JadeDragonOnline.com Cephus

    While I think there is some value in keeping the majority of sexual activity within a marital union, I have never advocated anyone to get married without at least taking the dog around the block. I had two ultra-religious Catholic friends many years back who were engaged and neither had ever been with anyone. He came to me and asked my advice on it and I told him that a large number of divorces come from sexual incompatibility, it’s only natural to find out if that will be a problem before you walk down the aisle. Secondly, it’s going to make the wedding night a whole hell of a lot better and will take a lot of stress out of the relationship, especially at a time that there’s a lot of stress anyhow. They talked about it and agreed and thanked me later for the advice. They’ve been happily married for 25 years now.

    • http://www.facebook.com/peter.moritz.351 Peter Moritz

      “While I think there is some value in keeping the majority of sexual activity within a marital union’

      like, what?
      Had sex before marriage, and after. No difference. Still married after 40 years – to the same wife I had sex with before marriage.

  • Choco

    Marriage let you do all after marriage stuff.
    Unmarriage let you do all before marriage stuff.

    What master Zen try to tell is all about how focus will you do about it, not how the others tell you what will you do about it.