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Ch. 6: Historical Issues of Religious Exp.Vs Competing... 
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Post Ch. 6: Historical Issues of Religious Exp.Vs Competing...
Chapter 6: Historical Issues of Religious Expression Versus Competing Social Interests


Use this thread for talking about Chapter 6: Historical Issues of Religious Expression Versus Competing Social Interests or create your own threads. ::124

Edited by: Chris OConnor  at: 4/12/07 11:17 am



Thu Apr 12, 2007 10:12 am
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Post Re: Ch. 6: Historical Issues of Religious Exp.Vs Competing..
This chapter was interesting because it covered issues that I hadn't heard much about, mainly because they're no being contested in the courts.

Haiman claims that
Quote:
...we have also come to understanding about equal rights for women that make polygamy appear to be in even more serious conflict with enlightened public policy than in the nineteenth century.
However, Sarah Hrdy argues in her book Mother Nature that women sometimes benefited from polygamy, since being the second wife of a rich man could be better than being the only wife of a poor man. This Wikipedia article has useful background info about polygamy, as practiced by Mormons and others.

The "Sacraments" section brought up some important and subtle legal issues. What happens when legal restrictions, such as those against consuming peyote or animal sacrifice, keep people from practicing a religious ritual? I didn't understand why the Supreme Court struck down the RFRA in the City of Boerne decision.

Edited by: JulianTheApostate at: 6/11/07 9:20 pm



Mon Jun 11, 2007 8:18 pm
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Post "Sacraments" specifically RFRA
JtA: I didn't understand why the Supreme Court struck down the RFRA in the City of Boerne decision.

Well the short answer is, the SCOTUS found that Congress overreached from its authority in passing RFRA. Specifically, the majority Opinion found:

Quote:
RFRA is not a proper exercise of Congress'



Wed Jun 13, 2007 9:44 pm
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Post Re: J. Scalia and judicial integrity
Just as a quick aside, Julian. When you first joined in this discussion you noted an interest in judges allowing personal issues to persuade their decisions. I found it remarkable that J. Scalia, in writing the majority Opinion in Employment Division v. Smith, does not recognize a need to protect religious actions under the free religious expression clause. In fact, Scalia writes in his Opinion "the government may not compel affirmation of religious belief," citing Torcaso v. Watkins. However, two years later, in a dissenting Opinion in Lee v. Weisman, Scalia takes quite a different view of government compulsion to the affirmation of religious belief. Here, hiding in the guise of tradition, Scalia asserts that students who attend their public school graduation should not have constitutional protections to prevent compulsive prayer at the graduation. Scalia feels that this religious tradition is so necessary to a public high school graduation that it should be the responsibility of the student, who does not wish to participate in prayer, to either sit in "respectful silence" or choose not to attend her own graduation. In Lee v. Weisman, religion holds such a valuable place to Scalia that he feels it is better that a student miss such an important milestone in her life rather than the tradition of prayer be eliminated. Yet, when it comes to granting unemployment benefits, Scalia seems not so willing to bend the law to accommodate the religious use of peyote.

Someone, either here or elsewhere, once said that conservative justices are appointed for their judicial decisions in favor of business; their religious bend is usually just an added bonus. Here, where Scalia's tendencies towards religious infringement in government and business are at odds, Scalia seems to stick with business. I'm not sure if that is a fair assessment, I'm not that familiar with Scalia's decisions. But from what I've read of him thus far, I'm unimpressed. I figured I would throw that out there for you in case you wanted to look into it.




Wed Jun 13, 2007 10:27 pm
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Post Re: J. Scalia and judicial integrity
I especially like Justice Stevens' brief concurring opinion in Boerne. He noted the effect of RFRA was to create an establishment of religion and stated: If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. Jaffree, 472 U.S. 38, 52



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Post Boerne
Oh yes, Garicker. I forgot that quote from Stevens' Opinion. There was just so much involved with these decisions, I found it difficult to organize it all into a concise statement. Boerne was such a ridiculous case. It's almost as if it was used to highlight the inanity of RFRA. How could a church possibly be exempt from zoning that would affect any other organization?




Thu Jun 14, 2007 11:56 am
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Post Re: J. Scalia and judicial integrity
Rose, thanks for explaining all that.

The Boerne case involves an area I'm not familiar: whether the Congress is allowed to pass a particular law, based on separate-of-power issues. The Boerne decision deals with federal vs. state and legislative vs. judicial factors. From my perspective, constitutional protections of individual rights seem much more relevant and intuitive.

Regarding those Scalia opinions, there's another consideration that you didn't focus on. Lee v. Weisman dealt with mainstream religious practice: clergymen leading prayers at high-school graduations. In contrast, a tiny minority of Americans use peyote in their religious rituals. Perhaps Scalia has a different viewpoint of Christian practice than he does of less common religions.




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Post Re: J. Scalia and judicial integrity
Scalia is a devout Roman Catholic (or so I have read). I haven't done an analysis, but my impression of the positions he takes on church-state issues is that he is more likely to rule for mainline religions and less likely to find on behalf of minority religions. However, that's just an opinion based on observation. I don't have any hard data to back it up, and it's entirely possible I am mistaken.

George

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker




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Post Re: J. Scalia and judicial integrity
JtA: Perhaps Scalia has a different viewpoint of Christian practice than he does of less common religions.

Yeah...that was kind of the point of my post, though I don't blame you for not getting it, I never really spelled it out. My mind has been off in Neverland recently, I swear. The first paragraph was meant to spell out where Scalia valued religion to the point that he thought it should interfere with a high school graduation



Mon Jun 18, 2007 9:57 am
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Post President James Madison - Separation extremist
The chapter starts off with:
Quote:
If President James Madison were alive today he no doubt would be seen as a wild-eyed extremist about the separation of church and state. Devoted believer that he was in Christianity and in a vigorous free exercise of religion, he viewed the slightest establishment of religion by Government as entirely incompatible with the ability to exercise that freedom without inhibition.

It's refreshing to be reminded about this attitude of Godfather of the Constitution. I keep running into folks who claim the Constitution says nothing about the wall of separation between church and state...




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