Archive for the ‘1st Amendment’ category

Religious Freedom

April 22, 2017

In a recent issue of the New Yorker, there is an article on Leonard Leo. Mr Leo is not a household name although maybe he should be. Mr Leo’s most recent claim to fame is his successful “shepherding” of Judge Neil Gorsuch through the Senate approval process. Mr. Leo, however, is not one to thirst for the spot light, preferring instead to operate at the periphery of public discussion.

And operate Mr. Leo does.

As the Executive Director of the Federalist Society, Mr Leo has spearheaded conservative interests in most matters of government but with a clear focus upon the courts, especially the Supreme Court. As an “originalist”, Mr Leo supports Constitutional interpretations which purport to represent the “founding fathers” views. Hmmm.

The Federalists speak, not for wild and crazy people, but for reasoned, conservative, traditionalists. Within these ranks, however, hide moneyed interests who see “originalist” views as conducive to their personal business and financial well being. Nothing like the braggadocio associated with a high minded principle which conveniently puts money in your pocket too.

From the New Yorker article, Mr Leo’s hands appear clean although someone must be paying his lawyering bills. Rather Mr. Leo is presented as a congenial, non-confrontational person who seeks and befriends up and coming conservative legal minds. The article claim Mr. Leo was a close friend of the late Justice Antonin Scalia.

So where is this post going?

Mr. Leo is also a conservative Catholic who is strongly pro-life. Mr. Leo was an early supporter of Chief Justice Roberts and Justice Alito, both pro-life advocates. The prospect of over turning Roe v Wade (long established law) suddenly does not seem that impossible.

Mr. Leo says that the Constitution was silent over specific rights to abortion and therefore to his reasoning, the US Supreme Court has no rightful place making a woman’s right to an abortion the law of the land.

At this point, one could argue contrarily that in fact the freedoms expressed in the Constitution as well as the Amendments recognize the rights of a woman to make her own reproductive decisions.

Within the thought, why not point out what seems even more obvious. The first Amendment speaks to “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”, and that should be enough.

Mr. Leo, Chief Justice Roberts, and Justice Alito are more than free to hold sincere “pro-life” religious beliefs. They are all free to practice such views in their own lives but the Constitution does not provide them the right to foist their personal religious views on anyone else. (Admittedly, someone who is against all forms of life ending acts, including the death penalty, wars, and suicides has a moral argument which rises above religion dogma but in the end, addresses only their own behavior.

Justice Kennedy is thought to be the deciding Justice should the current John Roberts Court consider another Roe v Wade challenge. If Justice Kennedy should decide to retire while a Republican President is in office, another Gorsuch/Alito/Roberts Justice is almost assured. In such a situation, the true color of these jurists will be seen.

Will these Jurists over turn Roe v Wade in favor of States self determination, or will they become religious zealots and side with some future Congressional law which outlaws all abortions and denies States the right to decide?

The irony of this Roe v Wade debate is that the real “federalists” were extremely concerned about the excesses of organized religion. The closest most of the founding fathers came to religion was some recognition of a higher spirit. Consequently, if the Supreme Court should overturn Roe v Wade, we should recognize the “originalist” principle is purely a crutch designed to deny some Americans individual freedom.

Pandering To “Deeply” Held Religious Views

April 16, 2016

The Constitution’s first amendment guarantees that Government will not restrict expression of religion. But what is included in this presumed freedom? Can mothers prevent their children from being vaccinated to guard against a communicable disease if their brand of religion believes god will safe guard their child? Or, what if ones religion rules out blood transfusions? Could an individual refuse a transfusion? Could that individual refuse a life saving transfusion for his spouse or child? Hmmm.

Many religion are associated with certain wearing apparel. In America, there is fairly wide acceptance or probably better daid, an indifference) to religious dress such as Jewish Kippah, Muslim Hijab, or Amish traditional dress. And underlying this acceptance (or indifference) is that no one else is forced to wear these items.

The operating principle over the years has been religious freedom means that an individual can believe what they want providing their beliefs do not hurt others.

The secular world is another place altogether. Here is where the economy and daily living takes place. One would nowadays never expect to see a door at Walmart which said “Christians Entrance”, or another which said “Blacks Only”. Over the years, secular laws have evolved to provide a commercial world open to all.

The rub arises when religious worlds cross paths with the secular world. Christians normally have religious services on Sunday while Jews hold services Friday evening. In the recent past, there existed a set of laws restricting commercial activity on Sundays. These so-called “blue laws” attempted to discourage most commercial activity on Sundays.

Today there are no laws requiring a commercial establishment to operate on Sunday but more importantantly there are no laws preventing them from being open. Commercial businesses, even those associated with specific religious groups have a choice. No one is required to shop on Sunday and no business is required to be open.

Now a new conflict has arisen testing freedom of religion.

Over the past few years as the Country’s social conscience has evolved to where a majority of Americans accept the LBGT community and recognize same sex marriage.Unfortunately many religious organizations have brought forward objections under the headline, homosexuality, changing gender identity, and same sex marriage violate “deeply held religious views”.

While the law of the land might be that same sex marriage is legal in all 50 States, certain individuals holding “deeply held religious views” believe they possess a right (from the first amendment) to withhold service (during their work) from those who are in some way in violation of their “deeply held religious views”.

There is a cartoon circulating which shows a number of grocery store check-out lanes. In the first lane, the employee tells the customer that due to his “deeply held catholic beliefs” the condoms the customers wishes to purchase must be taken to another lane. In the next lane, a Muslim tells the customer that due to his “deeply held religious beliefs” he can not ring up the bacon and that the customer must take the product to another lane. Sound ridiculous?

Consider then the recent move by some Republican majority States to pass laws nibble away at rulings by the Supreme Court.  These individual instances are not isolated but reflect a broader effort by evangelical and fundamentalist religious groups to have it both ways. They want freedom of religion and they want the right to take certain freedoms from others. Hmmm.

These religious groups want the right to deny service to others whose life style they deem an offense to their “deeply held religious beliefs”. As private organizations, one might understand rules excluding others who can not meet religious tests but when members of these religious organizations are working in the public sector, this seems way over the line. What ever happened to “love thy neighbor as thy self”?

As disappointing as these religious groups behavior, even more disappointing, yet not that surprising, are the political leaders who are pandering to these evangelicals and fundamentalists.

So it should be no surprise that States like Indiana, North Carolina, Georgia, Mississippi, and Alabama have all proposed or implemented State laws which in some way attempt to “guarantee” religious freedom and protect individuals who discriminate from civil suits…  anyone, that is, who withholds services due to “deeply held religious views”.

For these religious groups, it takes very small people to think and act in a mean and discriminatory way.

For these political officials, the bar is even lower. Politicians only seek enough votes to remain in power while feeding off the public trough.  Votes are just votes.  Et tu Ted Cruz.

Playing With Dynamite – The Religious Exemption

October 17, 2015

The Sisters of the Poor and number of public servants like Kentucky County Clerk Kim Davis claim their religious beliefs are protected by the Constitution and consequently they should be able to ignore any laws they feel violate their religious beliefs.  Hmmm.

The “good” Sisters don’t want to provide birth control measures, as required by the Affordable Care Act, to employees regardless of the employees’ religious affiliation or desires. Kim Davis refuses to issue marriage licenses to same sex couples despite knowing when she ran for office that it would be her duty to do so if elected.

The Sisters and Davis feel their strongly held religious beliefs trump a secular government’s laws. Hmmm.

The death of a young man in New Hartford, New York again brings this claim forward. A deeply religious family took part in an “intervention” at their local church. The intervention’s object were two sons of a church member and physical action seemed necessary. Unfortunately, things went terribly wrong.

Church members pummeled both boys and one suffered fatal injuries. The “spiritual counseling” apparently had gone wrong.

No one can question that these were highly religious people but should there be any question that religious beliefs allow beatings at all and certainly not those which result in death.

You would think it should be clear that religious freedom means one is free to hold a set of beliefs, but the beliefs are clearly limited to each individual and do not apply to others. If ones beliefs do not include birth control practices, then these believers do not need to use birth control, nor similarly should they be forced to marry others of the same sex if that is their belief.

And for sure in the age of modernity, a person’s love of their god and her perceived commandments, should not feel authorized to take another’s life in the name of these beliefs.

Dignity, Hmmm

June 27, 2015

The Supreme Court announced yesterday a 5-4 decision allowing same sex marriages in all 50 States. Writing for the majority, Justice Anthony Kennedy said the decision was about “dignity”. Hmmm.

The Court’s hard core opposition, Allito, Thomas, and Scallia, joined by Chief Justice Roberts tried to hide their religiously grounded views by claiming that no where in the Constitution is their guidance on what constitutes marriage. Alliot wondered whether the Country had now entered a slippery slope where religious views would be exiled to the privacy of ones home. Hmmm (where else should they be?).

To the extent that marriage is never mentioned in the Constitution, the minority is correct that the Federal Government has no Constitutional right to define “marriage”. The Constitution does have a 14th Amendment, however, which provides due process and equal protection under the law to all citizens. Herein lies the clue of why the minority got it wrong.

In the past the Court has heard arguments that marriage between a black and a white were, based upon Biblical interpretations, improper and should be banned “if States so chose”. This supposed religious insight is also not mentioned in the Constitution but is inferred, according to supporters of these views, in the first Amendment’s “freedom of religion” words. These religious crusaders are sure the Constitution supports their scientifically unsupported views. In Loving v Virginia, the Court decided interracial marriage was Constitutional.

Religious groups, particular well organized ones, have traditionally used various techniques to assure followers that “god was on their side”. This reassurance made followers a little more committed (especially in donating money to the cause). And, throughout history, no better technique to bind a group together has been than define an enemy or groups who were “not like them”.

Race is the easiest because you can see it. Other religious groups sometimes are easy too especially if they chose dress that differentiates. But right in there has also be sexual orientation. “Those people are different”.

With the Supreme Court decision a large number of Conservative religious groups are openly worried. These groups have long held that they could deny employment or withhold services from certain groups their religion did not accept. They claimed this was a matter of conscience. Now they fear will be required to treat LGBTs as if they were “regular people”. These groups are speaking out that the 14th Amendment is now trumping the 1st. Hmmm.

Justice Kennedy in his majority opinion honed in on “dignity” as the theme. Dignity stemming from the Constitution’s preamble and flowing though to both partners and any children they might have. In essence, Kennedy’a argument was marriage “was the right thing to do”.

The Court’s decision may also become to be seen as the right balancing of the 1st and 14th amendments.

Secularists read the first Amendment literally. There should be no State religion and all religious traditions should be welcome… providing that none interfere with anyone else’s pursuit of happiness (under the law).

So, if any church wishes to bless the marriage of only heterosexual couples, then that is their right. The church is a private organization and it has the prerogative to establish its own rules… providing these rules do not prevent same sex couples from also getting married (someplace else) and enjoying the same State/Government provided legal benefits.

An Oklahoma religious university has spoken out quite elegantly about its fear of losing tax exemption because of its long standing policy of not employing gays. In a radio interview, the University President said they had nothing against gays but their policies had long denied employment. Now the University was worried it would be forced to close because it would not change.

This quandary raises further legal questions. Should this tax exempt University be required to admit and treat as equal members of the LGBT community despite past practices? Should this University be prevented from firing an employee if that employee chooses to take on a same sex partner?

Both of these questions would be easy to decide if the only issue was “dignity”. But they seem to fall in that gray area of religious expression that does not create great harm for those denied admission or employment. On the other hand, tell me again why they should receive an tax advantages?

The Supreme Court’s dignity argument is certain well based. Church-State matters will eventually lead Americans to realize that due process is not opposed to the first Amendment, rather it helps define the limits of irrational beliefs. Religious groups can certainly continue to believe what they want about LBGT members, and as private organizations can serve whomever they please. In the greater secular United States, however, the negative reach of certain religions and religious beliefs has limits.

It is a shame that Anthony Kennedy did not have this revelation during the Hobby Lobby deliberations.