Should Govt Protect Religious Liberty?

By rima on April 2, 2015 No Comments

Why the Sudden Rush to Pass Religion Protection Laws?
 Why the Sudden Propaganda Against the Independence of Churches?
Why the Assault on Vaccine Religious Exemptions?

“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” – Th. Jefferson, 1781

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Bits and pieces from the recent news about the interaction of government and religion… courts hold that small family-run businesses can refuse to provide insurance coverage that affronts the religious sensibilities of the owners… other courts force small business owners to serve persons in violation of their religious beliefs (the case in question arising from making same-sex wedding cakes)… same sex marriage is now becoming lawful while polygamy and polyandry remain forbidden religion… tens of thousands of pastors are recruited by FEMA and Homeland Security to work with government during “national emergencies” — preaching cooperation with authority, even when being relocated at gun point… several states start to adopt laws to protect religiously motivated discrimination …other states seek to restrict long-recognized religious exemptions from forced vaccinations[1]… and on it goes. Government becomes more and more intrusive in matters of private conscience.
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Even some who claim to be “libertarians” complain about “religious privilege” confusing church private association exemptions from government impositions (such as taxation) as grants of government privilege. An exemption from coercive authority is not an exercise of coercion!

All this storm and controversy in a country where the national government has no power to make any law –

“…respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

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There already is a federal law protecting religious liberty, against federal government actions, at least. It is important to note that the federal law operates only to protect religious belief from federal government interference. The state laws are being interpreted to allow private discrimination. There is a strong distinction in law between purely private activities and commercial activities in the public.
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The Congress of the United States adopted the RFRA, the Religious Freedom Restoration Act of 1993 (P.L. 103-141). In this enactment Congress determined that “governments should not substantially burden religious exercise without compelling justification…” and that “laws ‘neutral’ toward religion may burden religious exercise…” Therefore Congress determined to protect the free exercise of religion as follows:

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“Sect. 3. Free Exercise of Religion Protected. (a) In General. — Government shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability, except as provided in subsection (b). (b) Exception. — Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) is in the furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. (c) Judicial Relief. — A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government…”

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This enactment is a departure from the tradition of non-involvement in religious matters and recognizes that religion should be protected, in this era of Big Government, from even “neutral” laws which burden religious exercise. Congress has thereby issued a significant statement of Public Policy and has put the Courts at the disposal of those who suffer burdens upon the free exercise of religion at the hands of government. This Act will have a major impact, further securing religious liberty, over the coming decades. In the earliest legal tests of the Act animal sacrifice was permitted under certain circumstances. This Statute has been held partially “unconstitutional” by the US Supreme Court, only as applied to States and localities, as a violation of the “separation of powers” by Congress — which implies that the Courts will determine the limits of religious rights protection and will apply standard civil rights analysis, permitting interference where a “significant” government “interest” is involved.

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On May 28, 2002, the 9th Circuit Appeals Court discussed the current state of the law, while discussing the RFRA,

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“If the law does create a substantial burden, we may still uphold it if it serves a compelling government interest in the least restrictive manner possible. 42 U.S.C. § 2000bb-1(b). *** A statute burdens the free exercise of religion if it “put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs,” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981), including when, if enforced, it “results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution.” Braunfeld v. Brown, 366 U.S. 599, 605 (1961). A substantial burden must be more than an “inconvenience.” Worldwide Church, 227 F.3d at 1121.” Guam v Guerrero, Docket No. 00-71247 at 7712-13.

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On June 27, 2004, the Utah Supreme Court determined, in the case of Utah v Mooney, that non-American Indian members of the Native American Church can use peyote in religious ceremonies. In 2000 officers confiscated about 12,000 peyote buttons from the six-acre complex  that serves as home to the Oklevueha Earthwalks Native American Church. The Mooneys’ church is affiliated with the Native American Church, though they are not members of a federally recognized tribe. The State argued there is no exception in state law for the use of peyote by Indians and said that even if the court ruled there was such an exception, it could not be extended to cover non-Indians. The high court ruled that state law incorporates the federal regulation but does not specify a restriction on peyote use only by members of federally recognized tribes. Use of the hallucinogenic drug is limited to bona fide religious ceremonies as part of the Native American Church, Justice Jill Parrish wrote. The court also said that permitting the exemption for some church members and not others would violate the equal-protection clause in the United States Constitution. *

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The Supreme Court, in 2006, under the leadership of its then new Chief Justice Roberts, reaffirmed the efficacy of the statute, stating, the “Restoration Act of 1993 (RFRA), 107 Stat. 1488, as amended, 42 U. S. C. §2000bb et seq., … adopts a statutory rule …. Under RFRA, the Federal Government may not, as a statutory matter, substantially burden a person’s exercise of religion, “even if the burden results from a rule of general applicability.” §2000bb–1(a). The only exception recognized by the statute requires the Government to satisfy the compelling interest test—to “demonstrat[e] that application of the burden to the person—(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” §2000bb–1(b). A person whose religious practices are burdened in violation of RFRA “may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief.” §2000bb–1(c).”  Gonzales v O Centro, No. 04–1084. Argued November 1, 2005—Decided February 21, 2006.

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The most important recent Supreme Court development in the area of First Amendment Freedom is the well-known Boy Scout case – (Boy Scouts v Dale, No. 99-699, Decided June 28, 2000).  The Court reiterated that Freedom of Speech and Freedom of Association together give rise to what the Court calls “Expressive Association” which is the expression of the association’s beliefs through its internal decisions and activities.  These are protected by Constitutional Right,

“While the law may promote all sorts of conduct in place of harmful behavior, it may not interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may seem…  The record reveals… the Boy Scouts is a private association…”

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Here is what one legal scholar had to say about that:

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The right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution. In Boy Scouts of America v. Dale, the United States Supreme Court found that the Boy Scouts of America had a First Amendment expressive association right to exclude a homosexual adult volunteer. Dale is likely to prove to be one of the most important First Amendment cases of recent years, because the Court enforced a broad right of expressive association against the competing claims of an antidiscrimination law.**

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In a free society, any person or group of persons has the right to associate with any other person or group of persons willing to associate with him or it on the basis of any standard and for any reason. And likewise, any person or group of persons has the right not to associate with any other person or group of persons on the basis of any standard and for any reason.It doesn’t matter whether a government bureaucrat or a person who was refused association believes that the actions of the refusing person or group are illogical, unreasonable, irrational, hateful, discriminatory, bigoted, or racist. What matters is freedom.The freedom of association is just as important as any of the “First Amendment freedoms.” Neither government nor society has the authority to force a person or group to associate with another person or group that they don’t want to associate with. In a free society, it can’t be any other way.***

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With this clearly settled law, why the controversy? Let’s remember what Congress determined in 1993: “governments should not substantially burden religious exercise without compelling justification…” and that even “laws ‘neutral’ toward religion may burden religious exercise…”
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How will the current controversy work out? If Americans remain committed to protecting each other’s liberty, private expressive association will not be burdened by government intervention, even when pretending to be “neutral.” With the extraordinary growth in especially federal government regulation of all aspects of our lives, it is important that legal barriers be erected against government interference with basic religious rights, including the right to religious conscientious objection to forced medical interventions, such as mandated vaccines.
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* http://www.utcourts.gov/opinions/supopin/mooney062204.htm.
** http://www.law.gmu.edu/pubs/papers/05-17
*** http://fff.org/explore-freedom/article/does-the-first-amendment-protect-the-freedom-of-association/
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