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Religious Freedoms Restoration Act

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MadArchitect

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Religious Freedoms Restoration Act

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This is a tangent carried over from last quarter's Freethinker book selection: check booktalk.org > Religious Expression and the American Constitution - by Franklyn Haiman > Snowbowl and the Sacred Mountains for the original thread.I'm branching the discussion off not because it isn't pertinent to the discussion in that thread, but because the official term for that reading has lapsed, and I think that this discussion is likely to attract more notice if it's not attached to the book discussion.With this post I intend to summarize my understanding and reactions to the RFRA as it's presented here (thanks go out to Rose for providing the link and pointing me to the topic in the first place). Since what we're shooting for here is a discussion of the actual aims, terms and methods of the RFRA, you may want to read through the act itself before jumping in on discussion.The sensible place to start is
MadArchitect

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Religious Freedoms Restoration Act

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In the interim, Rose, do you think you could provide some background on, or links relevant to, the subject of compelling interest?
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Re: Religious Freedoms Restoration Act

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Mad: In the interim, Rose, do you think you could provide some background on, or links relevant to, the subject of compelling interest?The following is a definition of "compelling state interest" from Black's Law Dictionary, Fifth Edition:Quote:Term used to uphold state action in the face of attack grounded on Equal Protection or First Amendment rights because of serious need for such state action. Also employed to justify state action under police power of state.As far as I know, it's a general use term and relies on the court to make determinations on whether or not the state's interest in a matter is compelling. For instance, in Roe v. Wade, though the Fourteenth Amendment protects against state interference on a woman's right to have an abortion (privacy), the Court determined that the state has a legitimate interest both in the "health" of the pregnant woman and the "potentiality of human life" in the unborn fetus
irishrosem

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Re: Religious Freedoms Restoration Act

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Mad, not to throw another thing on your plate, but are you familiar with the Religious Land Use and Institutionalized Persons Act ("RLUIPA")? If you're going to examine RFRA, you might want to take a look at RLUIPA, as well.
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George Ricker

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Re: Religious Freedoms Restoration Act

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Yes, if memory serves me correctly, the RLUIPA was passed by Congress after the Boerne decision declared the Congress had overstepped its bounds with RFRA. George http://www.godlessinamerica.com"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
MadArchitect

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Re: Religious Freedoms Restoration Act

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It's going to take me a while to catch up, but I'll definitely look into it. Thanks for the recommendation and link.
MadArchitect

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Re: Religious Freedoms Restoration Act

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Just a quick note so you don't think I've forgotten: I've downloaded RLUIPA and the two main decisions related to compelling interest, and plan to read through them over the next several days. Expect some notes towards the end of the week. In the meantime, I'd appreciate any comments you guys might make in regards to what I wrote about RFRA.
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Re: Religious Freedoms Restoration Act

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Mad: In the meantime, I'd appreciate any comments you guys might make in regards to what I wrote about RFRA. To be honest, Mad, I'm not exactly sure how you want this conversation to progress, which is why I have held off commenting. I pretty well understand RFRA and how it came into being. I also have a pretty good understanding of how it has been and will continue to be manipulated to grant special accommodation for believers. I think you and I are in line on some issues: "To summarize, it seems unlikely to me that there is any way to legislate with an eye towards every religious tradition, and even if it were theoretically possible to do so, the actual process would be require so many consideration and involve so many complications as to make it an extraordinarily cumbersome burden on the legislative and judicial branches of government." And I would take this one step further, that even if it were "theoretically possible" to do so, that is not the intended purpose of the religion clauses. Additionally, I've reached a similar conclusion as you have here: "But RFRA is barking up the wrong tree if it thinks it can mediate exceptions every time a religious tradition conflicts with an existing law, and if the act continues to persue that methodology, the result will be another heavy burden on American jurisprudence, one that it can ill afford." I think where our difference might lie is in whether accommodation is warranted, whether or not it is practicable. You seem to think, and correct me if I'm wrong, that the conclusions we both reach
MadArchitect

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Re: Religious Freedoms Restoration Act

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Well, I think that as a practical matter, government does have to accomodate for religious practice in some ways, if only for the simple fact that its laws effect a population that is, by and large, religious. If you could ensure that legislation effected only an atheist-humanist population, then it probably wouldn't matter. But there are, for the foreseeable future, at least, always going to be a large contingent of religious believers in this country, and legislation that restricts the exercise of their religion, even if incidentally rather than intentionally, is going to create some serious conflicts of interest.So the question is, how do you legislate for a mixed population? And the answer that I offered in the previous thread was, you probably have to pick and choose. I don't think that solution is particularly ideal, and I don't like the idea of our government saying, "We'll pass laws that might restrict the religious exercise of Buddhism and Haitian Voodoo, but not laws the would restrict Christianity and Judiasm." But I think that's probably the best solution afforded by the practical concerns.Where all of that gets really problematic is at the point where religious expression begins to conflict with the prerogatives of people who don't belong to that religion. But I don't interpret that as the conflict between some basic, primal state of secular prerogatives and religion as an additive to that state. Secular culture is itself made up of elements that drawn on a background of conceptions about the way the world is and the way it should be, and (to harp back on the Snowbowl example) even an idea as seemingly ingrained as ownership of land is built on a cultural background that is ultimately mutable. To that end, I don't think accomodating a religious tradition is all that different from accomodating certain supposedly "secular" concepts and practices --defending a ski resorts claim to own a particular patch of land, and to use and dispose of it as it sees fit, is also a form of accomodation.More later.
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Re: Religious Freedoms Restoration Act

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Mad: Well, I think that as a practical matter, government does have to accomodate for religious practice in some ways, if only for the simple fact that its laws effect a population that is, by and large, religious. Well government laws also effect a population that is, "by and large," drug users, at least recreationally, speeders, under-age drinkers, smokers. Many are illegal immigrants. Some are, or use the services of, prostitutes. The list can go on and on. And yet no accommodation is made for those who are inconvenienced by these laws made in the state's interest. So why the accommodation for religion? Also, how is that accommodation constitutional in light of the establishment clause? If the state makes laws that serve the state's interest, then why would those laws not apply to believers? And, in not applying those laws to believers, aren't we then privileging believers over non-believers? The religion clauses were not written to accommodate religion within a secular government. They were meant to ensure that the secular government did not violate free religious exercise; but, free religious exercise should be held to the same standards of all generally applicable laws.
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