United States Constitution. Article VI, Clause 3

[mahatmakanejeeves]

http://www.house.gov/Constitution/Constitution.html

... no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

[Phoebe Loosinhouse]

1. I get it! Big, big problem.

I guess Harriet Miers has passed this illegal test with flying colors.

[Tennessee Gal]

2. Lower the boom!

* has failed again!

[LiviaOlivia]

3. One high crime and two misdemeanors

http://www.pnionline.com/dnblog/attytood/archives/002409.html

~snip~

"People are interested to know why I picked Harriet Miers," Bush told reporters at the White House. "Part of Harriet Miers' life is her religion."

Misdemeanor No. 1: In using religion as a key basis for offering Miers a job, the president would appear to have violated the spirit, if not the letter, of the Civil Rights Act of 1964. According to the federal Equal Employment Opportunity Commission, Title VII of the law "prohibits employment discrimination based on race, color, religion, sex, or national origin."

Misdemeanor No. 2: More specifically, one could make the case that Bush's actions are also in violation of the Civil Service Reform Act of 1978, which specifically covers federal employees. According to the same EEOC primer: "The CSRA prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on the bases of race, color, national origin, religion, sex, age or disability."

High crime: As you might expect, the "high crime" here is more serious, and is also the area where it's hardest to argue that the president did not cross the line. We are referring to Article VI, Clause 3 of the U.S. Constitution, which states that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

~snip~

[afdip]

4. book 'em, dano

[happyslug]

8. So how did Bush discriminate against Miers for her Religion?

The Civil Rights Acts are NOT criminal acts, they are Civil in Nature and are design to protect people from discrimination. If you want to use the Civil Rights acts you have to show how Miers was HARMED by Bush do to her religion. Obviously she was NOT harmed, she received the nomination.

Now if a third party can show that he or she LOST the chance to be nominated by Bush to to their Religion or lack of Religion and do to that act of discrimination Miers instead of him or her would have had the nomination, than that third party has a case of Religious discrimination under the 1964 Civil Rights Acts. The problem is that any such person "harmed" do to Bush's discrimination do to Religion has to show Bush would have nominated them instead of Miers except for the issue of Religion. Given the limits of the nominating system the "Victim" would have to be someone in Bush's inner circle and most if not all are of the same or similar religious bent and thus NO DISCRIMINATION BASED ON RELIGION under the Civil Rights Acts of 1964.

You have an even weaker case with Article VI, Clause 3 of the U.S. Constitution. Now Clause three forbids a "Religious tests" what that meant in 1787 was that Congress could not require any person elected or appointed to be of a certain religion (including being an atheist). Bush is NOT requiring Miers to be of any Religion but religion is one of the reason he is appointing her. That is NOT a religious test as understood in 1787. As understood in 1787 what a person believed or did not believed was less important than what one church one went to. Religion and what church you go to (or not go to) are often related but are NOT the same thing. In pre-revolutionary America a Religious test was to make sure certain government position (and generally that meant all of them) went to people who went to a church tied in with the Government. While Fundamentalist are tied in with this Administration this Administration has NOT said it will only promote Fundamentalist to any and all positions, nor has Bush claim only people of certain religions apply. Thus no religious test is being imposed. If Miers should change religion while on the Supreme Court she would NOT have to resign from the Court (Another characteristics of the religious Test, was that you had to stay that religion). Miers could become an atheist (Or return to being Catholic, become a follower of Islam etc) while on the court and keep her Judgeship. The religious test is NOT a ban on considering someone's religion but that Bush can NOT forbid someone being elected or appointed because he or she is of the Wrong Religion.

I went into details for Bush is doing enough problems that we do NOT need people bring up wide-eyed concept out of parts of the Constitution that have long be understood NOT to support such concepts. The No Religious tests is just that one can NOT lose his or her job do to her or his religion but that is all, if someone decided he does not want to appoint you because you are of a particular set of belief that has always been viewed as legal under this section. Catholics were banned for decades as chaplains in the US Army for their religion (Catholics and later Jewish Rabbis were first admitted into the Service during the Civil War when it was found NOT to be effective to appoint Protestant chaplains to Irish Catholic Units). Thus the Religious test would forbid a law that says "One must be an Atheist (or a non-atheist) to be appointed to any office" but does NOT prohibit the President from considering someone's religion when making that appointment.

[Psephos]

9. Good post - I'm glad you went into the details

I completely agree with your reason for doing so, too. There are plenty of actual * problems for us to target; it's foolish to give the constitutional "scholars" in the RW ammo to shoot back with.

That said, I do admire the motivation behind the O.P. :-)

Peace.

[Phoebe Loosinhouse]

10. Discrimination my be FOR or AGAINST

the argument is being made that discrimination was being made FOR Mier's religious association. The following quote is from the link
in post 3.


"Misdemeanor No. 2: More specifically, one could make the case that Bush's actions are also in violation of the Civil Service Reform Act of 1978, which specifically covers federal employees. According to the same EEOC primer: "The CSRA prohibits any employee who has authority to take certain personnel actions from discriminating for or against employees or applicants for employment on the bases of race, color, national origin, religion, sex, age or disability."

[happyslug]

12. Good, who was harmed by his Action?

The Civil Rights acts are NOT CRIMINAL, thus a violation of them is NOT EVEN A SUMMARY OFFENSE LET ALONE A MISDEMEANOR. Civil Rights laws must be invoked by someone harmed by the illegal use of religion. Miers was NOT harmed so she can not sue Bush over the alleged discrimination. Gonzalez was supposedly on the list and he is NOT filing a Complaint withe EEOC. I have not heard of anyone who Bush might have appointed claiming that they were denied the nomination do to Bush's religious beliefs. That is the KEY, who was HARMED.

Anyway I did notice you are citing the Civil Service Reform Act of 1978 NOT the Civil Rights Act of 1964. The problem is Civil Service Reform Acts only covers employees in the Civil Service of the United States NOT the Appointed or elected members of our Government. The US Constitution differentiates between "Officers" and "Inferior Officers". "Inferior Officers" are appointed to their positions by the President, Judges or other people authorized by Congress to appoint such Inferior Officers WITHOUT Senate Confirmation based on laws passed by Congress(Including Civil Service Laws since the 1880s). Most (but not all) "Inferior Officers" are subject to Civil Service rules since the 1880s and most (but not all) are the subject of Civil Service Reform Act of 1978 (The biggest exceptions are Military NCOs, some law enforcement officers who are "Inferior Officers" but NOT subject to Civil Service).

Judges, Cabinet Officials, Commissioned Military Officers are NOT Civil Services, for they are Judges and other Officers" NOT "Inferior Officers" in the US Constitution. As "Officers" they are subject to Senate ratification and thus NOT subject to Civil Service Requirements. Thus Civil Service Reform Act of 1978 does NOT apply to Miers or any other political appointee of the President of the US.

The Civil Service Reform Act of 1978:
http://www.eeoc.gov/abouteeoc/35th/thelaw/civil_service_reform-1978.html

Article II. Section 2, Paragraph 2 of the US Constitution
http://www.law.cornell.edu/constitution/constitution.overview.html

Text of Article II, Section 2, Paragraph 2 of the US Constitution on the appointment power of the US President:
"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

[mahatmakanejeeves]

11. happyslug

Thanks for the explanation.

[ChairmanAgnostic]

5. c o n s t i - ? how do you spell it? didn't we shread it earlier?

I am still pissed as hell at how these shrubistas managed to scare us into losing our hard fought rights.

Thank you for remining me of this clause.

[LoZoccolo]

6. I would agree; however...

...a bunch of people got this read to them last week when they were saying that Meiers shouldn't be nominated due to her religious beliefs. People could make an easy case against her due to lack of experience, just as they could have made an easy case against Ashcroft in 2001 based on his actions and his comments to Southern Partisan magazine, but of course some of our more vocal activists have to keep playing into the right-wing strategy (which they picked as one that would allow them to win out of all possible strategies) of dividing people along religious lines...just the opposite ones that the Republicans court. Why allow them to fight according to plan by getting into the position they pick for us?

[ChairmanAgnostic]

7. should we not SEND this to all MSM outlets ASAP?

with a note to start asking questions?

this is precisely what the constitution tried to prevent.