Skip to comments.Told You So (20 year SCOTUS ruling haunts religious freedom)
Posted on 11/23/2010 8:28:20 AM PST by truthandlife
Twenty years ago, the Supreme Court ruled that state laws that interfered with the free exercise of religion were constitutional provided their requirements applied equally to everyone.
At the time, I and others warned that the Courts ruling was a blow from which religious freedom might never recover.
Twenty years later, Im sad to say, we were right.
The decision, Employment Division v. Smith, involved two Oregon drug counselors who were fired for using peyote during a Native American religious ceremony. While it makes intuitive sense that drug counselors should be fired for using illegal drugs, the majority decision, written by Justice Scalia, was overly broad.
Scalia wrote that in cases involving a neutral law of general applicability, what he deemed incidental interference didnt violate the First Amendment. So as long as the government doesnt specifically target the free exercise of religion, it can abridge it.
In a recent issue of the Weekly Standard, Allen D. Hertzke pointed out the irony that the Courts conservative leader facilitated the ongoing judicial onslaught against the free exercise of faith.
Prior to Smith, any abridgment of religious freedom could only be justified by a compelling state interest. Not a legitimate interest, or even and important interest, but a compelling interest. As you can imagine, there arent many such interests.
After Smith, any governmental interest will do, as long as the law in question applies to everybody. States are free to carve out exceptions for religious groups, but they arent obliged to.
Now, the neutrality of a given law or regulation can be contested, but that rarely, if ever, works.
Case in point: last terms case involving the Hastings College of Law. Hastings claimed that the Christian Legal Society discriminated against gays because voting members had to uphold Christian teaching about sexuality. Well, the law school won on the prevailing standard, and the Christian Legal Society and religious freedom lost.
This was only a warm-up for what Hertzke calls the looming train wreck between gay marriage and religious freedom. Laws prohibiting discrimination on the basis of sexual orientation are, by definition, generally applicable. As for exceptions, in a world were disapproval of same-sex unions is increasingly regarded as bigotry, thats not likely to happen.
Its not just homosexuality: virtually every instance where Christians are being told to choose between their beliefs and the law involves a law of generally applicability.
The world created by Smith is why the Manhattan Declaration is so important. If the Supreme Court upholds the district court ruling involving overturning Californias ban against so-called gay marriage, the train wreck will be upon us. Religious freedom effectively will become a dead letter. Whether we want to or not, we will have to choose whom we serveCaesar or God.
It will be a tragic outcome made all the more tragic by the fact that it didnt have to be this way: Caesar once had to justify encroaching on Gods domain. Not anymore. Well, Congress hopefully will deal with this. Or maybe Scalia will see the error of his ways and correct it. But in the mean time, we stand our ground.
In the case of Christianity the agents usually rely on the modern Christian tradition of not murdering the opposition.
I suggest a return to the Medieval Christian tradition.
Needless to say, our Constitution is being destroyed by these Progressive/Marxists. It started with the redefining of religion to mean anything....Wicca is a recognized religion?????? This absurdity to classify anything as a religion, was the beginning of destroying religious freedom. It makes religion (the word) meaningless.
Cultural Marxism created multiculturalism to destroy the two pillars of Western Civilization: Christianity and the Natural family. Do that and then there can be a one world government because people will be ruled by their passions and need a master.
The Founders recognized only a few “religions”, not every ridiculous belief. The reasoned Christian ideas were by far the dominant worldview of the US which served her perfectly. Not all religions create a free and civil society so we have to deny them approval for this country. Our Founders were not timid in proclaiming that there is a true religion and at the very least, some are far better for society than others. There was only one God and it was the Judeo-Christian God.
So, the error is destroying logic and reason and science, to deny Natural Law Theory, which this country was founded on and Christianity embraced. The Founders knew that any laws that go against Natural Law are unjust and will destroy all freedom. Homosexuality can never be classified as “natural” and can never be condoned by any religion as a “good”.
Marxists want to destroy the family unit and Christianity—make it weak and worthless, so that nanny state can take care of all the lost and meaningless masses that will have nowhere to turn except their new god, the state.
Scalia. It was Antonin Scalia who chose to rule this way.
They agreed that the federal government should be TOTALLY impartial ~ and did that with language that strongly suggests that the federal government is simply not empowered to say something is or is not religious in nature.
The mistake is believe the Founders "classified religions" ~ they may well have done that in their spare time, but they didn't do it in the Constitution.
To mention religion in a document having legal force means that the question of what is religion is going to come up sooner or later. There’s no escaping the question. It’s not like asking what is the sun or what is the moon.
Those who didn't want those hippie Native Americans taking peyote, despite it being part of their religious expression, have given to the government a club that will be used to beat over the head any religious objections to total State control and subjugation of religious beliefs to political correctness.
freedom of religion does not extend to receiving funding and/or support from the state. The Hasting case was decided correctly seeing how the legal society in question was receiving state support. Furthermore, the college is well within their rights to deny official recognition of any group that they don’t feel is living up to the college values.
If you don’t want to be subject to regulation, don’t relay on state funding or an outside group assistance.
I’m quite prone to IGNORE any reference to “religion” by the government. Frankly it’s none of their business.
That's what Jefferson thought of the matter as he wrote the check.
1) the rules of the Hasting in the relevant case were applied with strict neutrality. Hasting was quite clear that they would have denied student org status to a black student group not allowing KKK members to be leaders. (this is silly but it’s a separate matter)
2) Christian Legal Society was in no way “evaluated” because of their religious beliefs. a sports team that banned homosexuals would also have been denied student org status.
3) regardless, if you want to have complete freedom to do what you want, you should not go after federal or public money; If you accept public money you are already limiting what you can do.
I have no idea what historical event you are referring too. link?
Strict neutrality applies to the guv'mnt, not to the group. They get to be what they are when they deal with the guv'mnt, not something the guv'mnt wants but what they want.
You can look it up yourself. Try google.com and just search for catholic missionaries indians northwest jefferson. Should take you right to it.
The college has a non-discrimination policy in places that barred discrimination based on “sexual orientation” among other things, including race, gender and religious belief This is a rule that every single student group has to obey. Hastings went so far as to say they they would not allowed a black student group to explicitly ban KKK members from attending and all groups must accept all comers. In short, the rule was applied in a viewpoint neutral way. The Christian Legal Society even stipulated as much at the district level. (they went on to say that their viewpoint is unduly burdened)
The crux of the argument is that the Christian Legal Society was seeking to use: first official status as a RSO, second, funds that are derived from mandatory student fees and state funding, and three school property. It is perfectly reasonable that the college can regulate conduct that that goes with this official status as long as it does so in a viewpoint neutral way. the CLS was, in essence, asking for a special exemptions from the rules because of their religious beliefs. the freedom of religion does not extend to be given state sponsored status without any sort of regulation of conduct. If any group wants to be part Hasting RSO program the they must abide by the regulations.
This would mean a homosexual group would have to accept Christians as well.
Hastings did not prohibit the Christian Legal Society from enacting selective policies that governed members; CLS was free to form as a group that had whatever bylaws they wanted. Nor did Hastings order CLS to accept all comers. What Hastings did was say “If you want to be a RSO, you must obey X,Y and Z, where x, y and z applied to everyone.”
It should further be noted that after Hastings denied RSO status to CLS they still allowed the group to use campus facilities (but not RSO funds, nor the Hastings Logo) and they met as an unofficial student group for about a year prior to the court case. I don’t think Hastings’ non-discrimination policy is very wise, nor do I think the all comers requirement is the best way to adjudicate the issues. But I do not see how the 1st amendment is being violated when a public university refused to give a group a state subsidy in light of them refusing to obey the rules governoring said state subsidy.
Do you think a homosexual group that explicitly forbids Christians, and those that believe in traditional marriage, from joining it should be allowed to have access to a state subsidy in the form of RSO status?
furthermore, there are clearly reasonable requirements that a university can demand that students groups obey. For example a student group needs to consists mostly of students that attend that university. So no, the gov’t can dictate what groups are for funding along certain parameters.
I believe that Ben Franklin crafted 5 fundamental “religious” ideas that he considered universal and that could be used in all public functions....like No. 1. There is one God....Two: That the ten commandments were valid for the fundamentals of our laws.....(that is why you find carvings of Moses and the ten Commandments on Federal buildings). That a day needed to be set aside for worship. I am not home so can’t find the quote of Franklin’s but I have read it and he applied it so there would be no religious arguments. The Founders understood the need for religious freedom in the public square.
He was underlying the religious foundations of this country, because this culture was based on Christian philosophy which was aligned with Natural Law Theory (John Locke)—Christianity is the only reasoned and logical religion according to Dinesh D’Souza and he makes a great argument for it in his book What makes Christianity so Great..
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.