Monday, March 30, 2015
Jon Perr — American religious freedom is a shield, not a sword Jon Perr
When does "liberalism" become illiberal? When conservative masquerade as liberals and use a political majority to impose authoritarianism because freedom.
No, democracy left to itself doesn't work as advertised. That's why it is important to have a bill of rights and an impartial judicial system to protect minority rights.
Daily Kos
American religious freedom is a shield, not a sword
Jon Perr
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26 comments:
The Bill of Rights HAD at its conception absolutely zero to do with private acts between people. It only applied to acts of the Federal government. States were exempt from the BOR until the due process clause of the 14th Amendment was interpreted to encompass acts of the state against the people.
And the Indiana law is not a sword. That's interest group propaganda. Few will gain judicial standing based on this law. The burden of proof regarding First Amendment religious protections is significant to demonstrate injury. And not all gays are getting their g-strings knotted up over the law either, contrary to corporate media whoring on the matter..
Right. The Fourteenth Amendment was passed during Reconstruction in 1968 to protect the right of the newly freed slaves within the former slave states. The Bill of Right likely would not have passed if it were originally inclusive of the states, which were supposed to be sovereign.
But the BOR was passed in 1868, and that was a good thing from the POV of minority rights in a democracy in which the majority rules.
(Of course is the minority happens to be the powerful then their only recourse is to prevent the majority from voting, which is eventually what happened in the South, and it's now a political strategy again.)
The notion that anti-discrimination laws, regulations and and judicial decisions violate the rights of those by depriving them of the "freedom" to discriminate is just sophistry, mostly propagated these days by Libertarians.
As far as legalizing abortion, "gay" marriage, birth control and other matters that certain religious people object to as being an imposition on their freedom of religion, that's just sophistry, too.
No one said that pluralism is easy. and that's what the issue of minority rights is about.
Tom,
Courts gave us legalized abortion and gay marriage, not democracy. That's part of the problem with lack of consensus on the issues too.
And the courts do not agree with you regarding freedom to discriminate. They wouldn't even label it that way.
Like it or not we have a Constitution, which largely applies to acts of government not private individuals. You might despise religious people, but they are protected constitutionally regarding their religious practices, however it's not a blanket protection. At any rate the Indiana law has virtually zero impact on anyone's private business choices, whether one is gay or devoutly religious. There will be few instance where legal standing might be granted to an injured party. Just because someone claims religious liberty infringement does not mean they have a legal leg to stand on, even in Indiana.
And pluralism AND TOLERANCE cuts both ways too. And like it or not, Tom, there is such an animal as religious freedom here in the US. That freedom has already been codified in case law, constitutional law, but only on a very limited basis where religious rights prevent compelling one to not violate their conscience in a reasonable sense of the term.
And I have little problem with individual discrimination. It's as normal as breathing. I practice it daily with who I married, who I associate with, where I choose to shop, and where I choose to live.
Equal protection clause of the 14th Amendment
Due Process Clause of the 5th and 14th Amendments
Eighth Amendment
In all of these there is a development of judicial precedent defining justice and fairness, often extending the breadth and depth of the law.
History has a liberal bias, although a precedent-based system tends to favor custom and tradition in order to preserve continuity.
The tendency has been, however, to extend freedom from imposition by the state, whether acting through federal, state or local jurisdictions.
These rights apply to governments relative to the governed. In this way a political majority (that is not necessary a popular majority) can't use government to impose its preferences collectively.
Not all legal scholars agree with how the 14th Amendment evolved beyond its initial intent and or proscribed legislative meaning, thus the controversy over judicial activism regarding it. However, most legal experts accept the evolution of the 14th as settled law. And it's not simply the development of judicial precedent defining justice and fairness, often extending the breadth and depth of the law. It's plain and simple judicial activism. Even Laurence Tribe admits that much. It sure as hell isn't Democracy the left yammers endlessly on as being sacrosanct, that's for sure.
"Judicial activism" is basically a pejorative of originalists that wish to assume that the context remains the same over centuries and there is no development of a culture in the direction of civilization.
That is pretty much the position of religious fundamentalists and it's probably no accident that originalism is correlated with religious fundamentalism.
The opposing view is not "judicial activism" but that the Constitution is a "living document" whose interpretation must adapt to emerging context.
Originalism is the Wahhabism of constitutional law.
Tom,
Come on. You only say this because you got your preferred judicial results. The "living document" view is complete legal drivel. Those opposing this wax nose view of constitutional law are not, as you claim, religious fundamentalists. But nice try on the invective. Even the Tribes of the world wouldn't go as far as to label Originalism as the Wahhabism of constitutional law.
But, again, this just proves that the so called democracy lovers are generally full of hot air.
Who is the chief originalist now? Let's see. Oh, it's Justice Scalia, who has confused canon law with constitutional law.
Scalia Defends Originalism as Best Methodology for Judging Law
BTW, a principal objection to originalism is the fact that the founding father were slavers and slavery remains a blot on the original Constitution.
I personally see zero value in enquiring what these moral derelicts thought.
Here, for once, is an informed article on the Indiana law by gay attorney, Gabriel Malor. Excerpt:
"This legislation sets the same minimum standard for burdening the exercise of religion. Under the various RFRAs, a state or the federal government—by law or other action—may not substantially burden an individual’s exercise of religion unless the burden is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest. Twenty states, including Indiana, and the federal government have RFRAs."
In the article he answers a series of questions about Indiana's law, making clear that it does not codify discrimination whatsoever, nor does it even mention gays or same-sex marriage. (Separately, Mollie Hemingway profiles a number of Americans whose rights have been protected by RFRA-style laws, including Muslims, Jews, Sikhs, Native Americans, and "spiritists" -- none of these cases pertained to gay rights in any way).
"This big gay freak-out is purely notional. No RFRA has ever been used successfully to defend anti-gay discrimination, not in twenty years of RFRAs nationwide. Why Is Everyone So Mad about Indiana’s RFRA, Then? The fear is that it could be used to deny service to gay people in places of public accommodation like businesses and restaurants. But, as discussed above, no RFRA has ever been used that way before. Also, Indiana does not have a public accommodation law that protects against anti-gay discrimination, meaning there’s no state law in Indiana preventing anti-gay discrimination in businesses even before the state RFRA was enacted. Notably, despite the lack of such a law, nobody can point to any Indiana businesses that were discriminating against gays...It is entirely consistent to favor broad religious freedom protections and also favor gay rights. Many gays are religious, and so themselves benefit from religious freedom protections like RFRA. But even where gay Americans and religious Americans find themselves in conflict, there is ample room in communities to peaceably coexist. That’s the point of a RFRA. No side gets an automatic-victory card. The interests of all sides gets weighed."
http://thefederalist.com/2015/03/30/your-questions-on-indianas-religious-freedom-bill-answered/
Mollie Hemingway link:
http://thefederalist.com/2015/03/30/meet-10-americans-helped-by-religious-freedom-bills-like-indianas/
Tom,
I, like you, like where the court has gone in most instances. Where we differ is in the legitimacy of the practice of mining something out of the Constitution that doesn't remotely exist, you know like penumbras. I'm just not a big fan of, in the words of Raoul Berger, government by judiciary. In the long pull it will be a double edged sword.
What exactly is the purpose of RFRA's. How is the state burdening the practice of religion?
Well, by preventing pharmacies and pharmacists from refusing to dispense items, e.g., to sell birth control, based on religious grounds.
By not allowing states to put obstacles in the way of a woman's right to control her own body and health based on the religious beliefs of providers.
By preventing the state from requiring medical practitioners to depart from best practice in advising and treating patients.
There's a lot more to RFRA's an LGBT.
What we are seeing is that LGBT groups are being more activist than other groups affected by RFRA's.
RFRA is a balancing act between competing rights. Sorry, but can't get away from the 1st Amendment, even post federalism. It isn't a blank check to discriminate. It's never been used that way. Never. Just become someone claims a religious exemption does not at all mean they will gain standing. It's on a case by case basis, and is rarely employed. The left's grandstanding on the issue is ill informed alarmism. Not an atypical act from the American left unfortunately.
BTW, we already dealt with this the US in the case of polygamy where religious (Mormonism, Islam) permit it, although religions were able to prevent government from banning substances for religious use in the case of communion wine during prohibition and the use of peyote as a sacrament in the Native American Church.
Then there are the state laws being proposed to ban the application of Sharia law.
The problem is that the implicit purpose of RFRA's is not to protect the practice of religion as such but the practice of only some religions. Because "everyone knows" that the US was founded as "Christian country."
Tom,
With all due respect, from me an atheist, I have little to no fear of Christians. But me aside, like it or not they are hundreds of millions strong and aren't going away any time soon. They are also a very diverse lot. In other words they are quite scattered ideologically, and the fundamentalists are dying off by the day. At any rate, religious freedom is constitutionally protected, and not just for Christians. Labeling it that way is simply not correct. Like I said above, tolerance is a two way street. The left would do well to practice what they preach.
I don't see it as the left being intolerant. A pluralistic liberal society accommodates all comers on a secular basis. If some groups are offended by others, then they need to deal with it. The law is designed to differentiate between legal and illegal rather than moral and immoral or ethical and unethical, although lawmaking is done with reference to both the moral and ethical, of course. This results in disagreements in applying pluralism in a liberal fashion, to be sure. But the principle needs to be maximum accommodation even at the expense of some people feeling "put upon" since their norms are not being recognized and established legally.
This is not only an issue in the US, but it's a big issue in globalization on a liberal basis. It's not going to be a smooth ride and will take hundreds of years to iron out and probably some major conflicts.
"But the principle needs to be maximum accommodation even at the expense of some people feeling "put upon" since their norms are not being recognized and established legally."
Sure. But that's why all the hysteria over RFRA is ill informed and misguided overreaction. Just because someone feels "put upon" means little legally, and explains why RFRA laws have had virtually no impact in flooding the courts with lawsuits. The minority here are the few folks who've sought legal standing regarding freedom of religious expression (and they are to a person not in respect to gay issues, and are a very diverse lot to boot). There has been and will not be a floodgate of legal claims, whatever floodgate even means. Quoting Guy Benson:
"Almost all of this hyperventilating is rooted in some brew of abject ignorance, mindless alarmism, and ostentatious moral preening. The latter, anti-intellectual phenomenon is especially widespread: "Look at me, I'm a good person because I'm outraged about this terrible law, about which I know very little. Those who disagree with me are exposing themselves as bad people who support discrimination against gay people, which offends my tolerant and progressive sensibilities, of which I'm reminding everyone right now."
You still haven't told me why RFRA's are needed. Laws ostensibly have some purpose.
Religious Freedom Restoration Act
Can of worms.
Tom,
If you read my initial link you'd have the answer. It was an evolutionary process of case law commencing in 1990 in which over time the 19 states RFRA laws mirrored the Federal law that was enacted in 1993 with liberal blessings. Where federal law failed jurisdiction wise state law filled the void and clarified applicability. It's not rocket science. It's simply procedural common practice.
...and so far your so called "can of worms" hasn't come to pass in some 25 years, and won't over the next 25 years. That's not how these laws work, contrary to the hysterical fear mongering.
So I assume you are OK with using an RFRA to argue, e.g., for Muslim polygamy and Rastafarian use of sacramental cannabis.
Yes I am. If there's no compelling government interest offered to prevent these examples as decided in court then fine.
Right, but they never would be and in fact, polygamy has already been rejected even though it is core religious belief of Muslims and Mormons and is also customary in other regions.
Polygamy
Similarly, Rastas don't get a religious exemption from cannabis prohibition in the US.
I don't have a problem with religious freedom laws if they are applied equally and equitably, but experience shows that they are not.
Tom,
I lean far towards legal positivism rather than natural law. I think the law eventually gets it right or as right as possible. I get it that our law favors Christians over other religious groups...for now. With our shifting demographics I suspect our laws will in due course reflect the body politic as it unfolds. We are fast approaching a post Christian society. In many ways that will be a good development. In some ways not so good, especially on how the change affects Christians themselves. Probably will lead to even less consensus and greater cultural fragmentation. Consequences could be very nasty indeed.
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