Thursday, December 15, 2011

Mary Kochan doesn't understand constitutional law...

Today I want to provide a quick law lesson for Mary Kochan who recently wrote an article on the website Catholic lane.  Unfortunately, Ms. Kochan’s doesn’t understand constitutional law and thus she has wasted her time writing an article based on her misinterpretation of a lawsuit.  The article is entitled You Whiny Sniveling Little Atheists Are Pathetic a fairly provocative article I would say.

The problem?  Kochan's basis for this title is a flawed understanding of a lawsuit and constitutional law. So in the end her whole article makes her look foolish to someone who understands the law.  This is a good lesson anyone can learn from—make sure you understand the opponents argument before you criticize, otherwise you are the one who looks foolish.

So let’s begin with a little constitutional law lesson (I know not the most exciting subject, but necessary knoweldge)…

The Workings of Constitutional Law
The First Amendment of the Constitution of the United States tells us that "congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."  Originally, this restriction only applied to the federal government, but the fourteenth amendment extended this restriction to state and local governments.  See Gitlow v. New York, 268 US 652 (1925).

The constitution merely prohibits local governments from making laws respecting religion.  It is up to citizens to bring suit to enforce the constitution and this is where the important point Ms. Kochan is missing lies.  In order for a citizen to bring a lawsuit to prevent a constitutional violation that citizen must have what is called "standing."  In constitutional cases like this, standing requires proving some sort of injury.  Thus, even with an obvious constitutional violation a person cannot stop the violation unless they prove they were injured in some way.

This is the point that Ms. Kochan doesn't understand.  In order to bring a constitutional lawsuit you must explain how you were injured, otherwise the court won't listen to your claim even if you are absolutely right that the constitution was violated.

Kochan's Accusations
With that lesson being done lets look at the case Ms. Kochan is talking about.  The governor of Arizona, Janice Brewer, recently declared a day of prayer and this was challenged by the Freedom From Religion Foundation (FFRF).  Now on its face, this looks like an obvious violation of the constitution because the Governor is making a rule establishing prayer, a religious institution which the constitution forbids.  But remember, before the FFRF can stop this constitutional violation they must first show how their members were injured.

Now ask yourself, how do you show that you are injured by a day of prayer that only encourages people to pray but does not require them to do so?  Well, its pretty difficult (even though the constitution was violated) because you aren't directly affected since the government hasn't required you to do anything.  So the FFRF are limited in the way they can claim injury.  Thus they have to stretch for complaints like: feeling excluded, or having to turn off the TV to avoid the prayers.

Now note, the FFRF is really just trying to show that there was a legal harm in order to bring their case.  To say that they are complaining about feeling excluded or turning off the TV would be disingenuous, but that is exactly what Ms. Kochan has done in her article.

Ms. Kochan has argued that atheists are pathetic and sniveling because they are complaining about feeling excluded.  However, she fails to understand that the FFRF wasn't really complaining about those things, they were just showing a legally recognized harm.  Thus, her whole article is based on a false assumption that atheists really feel excluded.  The real problem is that the FFRF saw the constitution was violated and they were trying to fight this violation and thus they had to allege some sort of harm.

So, Ms. Kochan, before you accuse someone of being whiny and sniveling maybe you should stop to look at why they said what they said.  Otherwise, you make yourself look foolish for failing to understand what was going on.

There is actually a term for what Kochan is doing called a "straw man" argument.  A straw man argument is where you make up an imaginary and weak argument then claim your opponent supports this.  Next you proceed to rip apart this imaginary argument that you attribute to your opponent.

So how has Kochan made a straw man.  Well, the FFRF is complaining about the Governor of Arizona's constitutional violation. Kochan, however, is falsely claiming that the FFRF is complaining about feeling like outsiders and having to turn off their TVs.  But the FFRF is not complaining about that, they are just using that as an example of injury in order to have standing to attack the actual constitutional violation.

Ms. Kochan's article falls short on a number of other rhetorical levels as well, but I won't address them here (maybe in another post).  Instead you might take a look at pharyngula for another good criticism of Ms. Kochan's arguments.

In closing, I hope Kochan has a chance to read this and understand why her criticisms of atheists are unfounded.

--Nothing in this blogpost is intended to constitute or to be taken or used as legal advice and should not be relied upon in lieu of consultation with an appropriate legal advisor.

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