Followup to "President Obama, Apologize to Iran!": pt 1

Comment

Comment by themaskedanalyst on July 16, 2009 at 7:51pm

This is a followup to my video in which I presented a peace offeri intended as part of an apology for our role in overthrowing Mossadegh and putting the Shah back on the thrown. However, this offer comes with a twist that turns it from a rose of appeasement into a dagger aimed at the heart of the Iranian regime.

http://www.youtube.com/watch?v=N-sL63xBZo8

Lamont v. Woods (Second Circuit Court of Appeals, 1991)

http://openjurist.org/948/f2d/825

Here are the key passages from Lamont v. Wood that address this issue (citations omitted):

In our view, domestic Establishment Clause jurisprudence has more than enough flexibility to accommodate any special circumstances created by the foreign situs of the expenditures, although the international dimension does, we believe, enter into the analysis.

Whether governmental action violates the Establishment Clause depends on whether it has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive government entanglement with religion.. As Judge Sand observed, the ASHA program has the legitimate secular purpose of assisting foreign schools that teach American ideas and practices. The focus of the debate in this case is therefore on the primary-effect and excessive-entanglement questions. Because the former question will likely be critical on remand, we offer the following guidance for the district court.

. . .While the analytical shortcut provided by the pervasively sectarian test may generally be appropriate, it should not be mechanically applied in every case. As the Supreme Court cautioned . . . every Establishment Clause challenge calls for "line-drawing," and "no fixed, per se rule can be framed":

The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application.... The line between permissible relationships and those barred by the Clause can no more be straight and unwavering than due process can be defined in a single stroke or phrase or test. The Clause erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."

Given the possible foreign policy ramifications of invalidating grants under the ASHA program, it would be particularly inappropriate to adopt a mechanical approach in this case . Therefore, in our view, once it has been determined that a particular ASHA grantee is pervasively sectarian, the government should be permitted to demonstrate some compelling reason why the usually unacceptable risk attendant on funding such an institution should, in the particular case, be borne. For example, the fact that a particular grantee is, as a practical matter, the only channel for aid, or that a given country has no secular educational system at all, may warrant overriding the usual Establishment Clause presumption. The court would then scrutinize the manner in which the institution may use its grant in an attempt to ascertain whether, in reality, the grant would have the principal or primary effect of advancing religion.

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Mullahs on a Bus: The Establishment Clause and U.S. Foreign Aid, JESSICA POWLEY HAYDEN

http://www.georgetownlawjournal.com/issues/pdf/95-1/hayden.pdf%5B1%...

The key point from Hayden’s paper:

“If the court finds that the use of U.S. funds to promote a certain program infringes the Establishment Clause and would be unconstitutional within the United States, this need not mean it would automatically find the program unconstitutional. Instead, the court could employ a balancing analysis (much like that suggested in Lamont) to determine if the program should be upheld. First, the court should determine if there is a compelling national security interest. Second, assuming that the national security interest is compelling, the program should be narrowly tailored to serve that compelling government interest.”