Ch. 6: Historical Issues of Religious Exp.Vs Competing...

Chris OConnor

Chapter 6: Historical Issues of Religious Expression Versus Competing Social Interests

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

JulianTheApostate · Sophomore Joined: 23 Jul 2005 Posts: 289 Gender:

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

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...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

irishrosem · Doctorate Joined: 19 Oct 2006 Posts: 536 Gender:

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:

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RFRA is not a proper exercise of Congress’ §5 enforcement power because it contradicts vital principles necessary to maintain separation of powers and the federal-state balance.

All told, RFRA is a considerable congressional intrusion into the States’ traditional prerogative and general authority to regulate for the health and welfare of their citizens, and is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion.

Why RFRA was found to be unconstitutional is a longer answer involving a bit of history on other cases that Haiman mentions. In 1990, SCOTUS ruled on Employment Division v. Smith, denying relief to Respondents who sued for unemployment compensation. Respondents were fired for ingesting peyote, and were denied unemployment compensation under Oregon law that disqualifies employees discharged for work-related “misconduct.” The constitutional question before SCOTUS was whether the free exercise clause of the First Amendment protects Respondents’ religiously motivated use of peyote from the reach of Oregon’s general application of criminal law. Judicial precedent applied what is generally known as the Sherbert test which requires that any “governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest.” The majority held that Sherbert did not apply to a generally applicable law that had no intent to inhibit free religious expression, and on the contrary merely served the intent of regulating the state against the use and abuse of a controlled substance.

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Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.

And again

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To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” -- permitting him, by virtue of his beliefs, “to become a law unto himself,” Reynolds v. United States, 98 U.S. at 167 -- contradicts both constitutional tradition and common sense.

In this same case, O’Connor wrote a compelling concurring Opinion where she agreed with the majority’s final ruling but dissented from their process. She thought the Sherbert test applied and that the State’s compelling interest had been met, arguing that judicial precedent requires “the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.”:

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The compelling interest test effectuates the First Amendment’s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests.

Essentially, O’Connor, and Brennan, Marshall and Blackmun who in dissenting joined in this portion of O’Connor’s Opinion, found that though the infringement of Respondents’ religious practice was merely an indirect affect of a generally applied law, the state still had to provide compelling interest to justify the restriction of free religious expression. The majority found otherwise and the Respondents lost their case.

In response to this finding there was an unprecedented outcry among civil rights and religious groups, and the likes of the ACLU and the Traditional Values Coalition joined hands and pushed through RFRA, which overwhelmingly passed in the House and Senate--if memory serves, one was unanimous. The stated purpose of RFRA was “to restore the compelling interest test as set forth in Sherbert v. Verner…”; and “to provide a claim or defense to persons whose religious exercise is substantially burdened by government.” The onus then was placed on the government, demanding that the government must demonstrate any burden on a person’s free religious expression:

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(1) is in furtherance of a compelling government interest;
and

(2) is the least restrictive means of furthering that compelling governmental interest.

Boerne was the first time SCOTUS addressed RFRA. A Catholic Archbishop applied for a building permit to enlarge a church. The city denied the permit because of a “historic preservation” zoning governing the area, including the church. The Archbishop sued for relief citing RFRA. In its Opinion SCOTUS found that Congress, in enacting RFRA as a direct response to the finding in Employment Division v. Smith, had exceeded their power as granted in §5 of the Fourteenth Amendment. That though Congress has the power to “enforce, by appropriate legislation,” the provisions of the Fourteenth Amendment, their power did not extend to interpreting the Constitution, which is solely under the purview of the judiciary. Because RFRA was enacted in response to, and to address, a decision already made by SCOTUS; and because RFRA places such a “heavy litigation burden on the States and terms of curtailing their traditional regulatory power,” the majority found that “RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.”

This is a very short, not exhaustively inclusive, summary of three major cases--Sherbert, Smith and Boerne. There is an array of concurring and dissenting Opinions creating a vast expanse of gray that I hardly touched upon. It is interesting reading, but to try to describe it all here would be pretty much impossible.

(On a side note George. After spending about fifteen hours reading through caselaw, and really only just scratching the surface of all that RFRA involves, I am more certain than ever that Dawkins had absolutely no idea what he was talking about when he referenced Gonzales v. O Centro... in The God Delusion and should have just stayed away from it.)

irishrosem · Doctorate Joined: 19 Oct 2006 Posts: 536 Gender:

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.

George Ricker

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, 52ï¿½55 (1985).

I think that frames the issue nicely.

(Rosemary, I think you are absolutely right about Dawkins comments in The God Delusion. I'm inclined to think the mistake was due to his own ignorance of the legal system on this side of the pond, but he would have been better served to have simply stayed away from the subject altogether.)

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

irishrosem · Doctorate Joined: 19 Oct 2006 Posts: 536 Gender:

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?

JulianTheApostate · Sophomore Joined: 23 Jul 2005 Posts: 289 Gender:

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.

George Ricker

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

irishrosem · Doctorate Joined: 19 Oct 2006 Posts: 536 Gender:

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—requiring student nonbelievers to either shut-up or disappear, but doesn’t think any consideration should be given to American Indian religious rituals. I think this may be a case of Scalia valuing his own set of beliefs (allowances for Christian prayer) over a general approach to jurisprudence (legal consideration for all religious sects). As I said, I could be reading the cases and his decisions wrong, but that was supposed to be the thrust of my original post.

The references to the business aspect was a side thought that popped up as I was typing up the rest, but then ended up being the focus and conclusion of the post. Maybe I've been taking too much peyote.

Sorry for the confusion.

LanDroid

The chapter starts off with:

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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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