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Author Topic: Gen Con is threatening to leave Indiana over a religious "protection" law.  (Read 4105 times)

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Offline consortium11

The legislation is patently unconstitutional.

It's really, really not. There are virtually identical laws in at least 20 states following  City of Boerne v. Flores and both they and the federal version have been challenged for being unconstitutional; every time that claim has failed. RFRA type laws are basically the free exercise clause of the consitution in action.

I mean... just replace 'gays' with 'blacks' and the whole thing falls apart.  Or... put it another way and ask:

1) can a business deny service to Christians because they simply don't like Christians

2) can a business deny service to Christians because they have a religious obligation to not serve Christians

3) can a business deny service to blacks because they have a religious obligation to not serve blacks.

Does having a religious obligation make it correct versus not having one at all.  Does targeting a group based on belief differ from targeting a group based on race.  And for the record orientation is not a belief or a choice, which I think (?) is something pretty well underscored by all the court cases against the defense of marriage act.

Let's say, for the sake of argument, that there was someone out there who could demonstrate a genuinely held religious belief that required them to discriminate against black people.

Do RFRA type laws mean they are unconditionally free to do so?

No, they do not. The government can quite easily argue that there is a compelling governmental interest in preventing discrimination in offered services on the basis of race/skin colour. And that there is no less restrictive way of fulfilling that governmental interest then by preventing discrimination. This isn't radical legislation of a type that has never been seen before. The federal version has been on the books for 20+ years. State versions have been around for over a decade. Rhode Island... one of the most left-leaning, democrat-voting states with one of the better record on LGBT issues has it on the books.

Bear in mind that the Federal law was passed over 20 years ago.  Now, consider how social attitudes have changed over that amount of time.  Some things tolerated or even encouraged back then are not so acceptable today.  Hence, the difference in public response.

I don't follow.

The RFRA was signed as a response to the war on drugs and weak sacred land rights; the cases that kicked it into action and brought support from groups as diverse as the ACLU and the Traditional Values Coalition were one of two Native Americans who were fired from their jobs and denied unemployment benefits because they tested positive for mescaline/peyote and one consisting of a road being built across land sacred to Native Americans. I'm unaware of there being a change in social attitudes being more negative about drug use or more hostile to Native American/First Peoples rights.

Offline Cycle

I don't follow.

Quote
I'm unaware of there being a change in social attitudes being more negative about drug use or more hostile to Native American/First Peoples rights.

The second quote explains the first.

Your comments are myopic and presented skewed view of the public response.  They also demonstrate a misunderstanding of what issues were considered by Congress in enacting the RFRA.  The people responding to the Indiana law are not driven by their feelings about payote.  Nor was Congress, actually, in passing the RFRA.

« Last Edit: March 28, 2015, 07:51:54 PM by Cycle »

Offline Kythia

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I think what has changed is Hobby Lobby.  A lot of people got a whole load of sand in their vaginas about that, and seeing this law come in post-HL reawakens old antagonism.  I struggled at the time to see entirely what the objection to Hobby Lobby was and following consortium's explanation (thanks!) have the same problems seeing what the problem with this is.  I'll accept, cheerfully, that the thinking behind the law is to allow Christians to refuse service to LGBT people but that doesn't make it a bad law, it makes people who want to use it that way bad people.

Offline Joel

@CONSORTIUM -- I'm so not a lawyer, so bear with my mumbojumbo terms.

If I get you right... you are saying that the central argument of the legislation is that it protects the freedom of expression of religious business owners in Indiana.  This is okay under the RFRA.  However, if the government can show that there's "compelling governmental interest in preventing discrimination in offered services"... then would that have precedence over the stipulations in the RFRA?

@KYTHIA & CONSORTIUM

"I'll accept, cheerfully, that the thinking behind the law is to allow Christians to refuse service to LGBT people but that doesn't make it a bad law, it makes people who want to use it that way bad people."

-- Is it legal to discriminate?

@KYTHIA

"I struggled at the time to see entirely what the objection to Hobby Lobby"

-- I don't think this law is the same as HL.  Because HL was about them choosing what sort of benefits to offer people that choose to work for them.  If they denied employment to a group of people then that'd be unconstitutional right?  Or is that a State's thing.

Offline kylie

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     For what it's worth, here's at least one Christian outfit, the Christian Church (Disciples of Christ), upset enough to officially consider leaving:

Quote

“Purportedly a matter of religious freedom, we find RFRA contrary to the values of our faith — as well as to our national and Hoosier values,” stated the letter, which was signed by Sharon E. Watkins, the church’s general minister and president, as well as the leaders of its overseas and domestic missions.

“As a Christian church, we are particularly sensitive to the values of the One we follow — one who sat at table with people from all walks of life, and loved them all.”

The General Assembly will bring more than 6,000 church members to whatever U.S. city the church decides upon and is expected to generate about $5 million in tourism dollars. After Pence signed the law, ministry leaders said they are weighing the costs of moving not only the General Assembly, but smaller meetings — such as the more frequent gatherings of the 125-member board of directors — which most often meets in Indianapolis.

Associate General Minister and Vice President Todd Adams said the church’s board will decide whether to yank the General Assembly from Indianapolis at its next meeting, which begins on April 10.


Offline Kythia

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-- Is it legal to discriminate?

In general, yes.  There are certain factors its not legal to discriminate on the basis of, but as a general rule - yes it is. 

Quote
-- I don't think this law is the same as HL.  Because HL was about them choosing what sort of benefits to offer people that choose to work for them.  If they denied employment to a group of people then that'd be unconstitutional right?  Or is that a State's thing.

Hobby Lobby was a case under the RFRA which - per Consortium, I don't know - is basically the same as this law.  What I meant was that the aftertase of Hobby Lobby has got people complaining about this particular law when they haven't cared about other, similar, ones passed before that.

Offline kylie

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     I wonder if some of that discussion re: Native American stuff may be in reference to more or less this sort of view:  Here's one Catholic News Agency article claiming this is all 'nothing new' and more about liberal causes than discrimination.  Or so they say.  I feel like it's more like a subtle "We're all under the thumb of big governments so let us do anything we want or they'll come for you next" sort of Trojan horse argument, personally.

Quote
Fiedorek pointed to numerous examples of Religious Freedom Restoration Acts in place. In one case, a Texas Native American boy appealed to a similar law when his school dress code barred him from wearing his hair longer than the other students.

       People are trying to dress this up as being the same as 1993, and arguing that "freedom of religion" can be used to defend all sorts of charitable initiatives and liberal goals...  The problem is this is 2015 and not 1993 (though I'm not sure 1993 was really any nicer -- but people are more organized to respond to it now I suppose).  We clearly have lots of people using that banner in an attempt to allow outright discrimination in employment, customer service, and more.  There is an obvious interest in putting up something new to circumvent roadblocks to discrimination: Such as the often-mentioned Elaine Photography in New Mexico, where same-sex couples were denied service and the state courts called foul.   

       This article from a given Catholic side also suggests that what these additional "freedom" laws should be placed to do, is to demand that religious freedom be given a stronger level of judicial consideration.  That's a level that others would argue is a misreading of prior law and national procedures.  It flies in the face of the civil rights movement, too.  It's more handy for expressly creating a multitude of the very conflicts that the new bills claim to settle, when previously many of these conflicts would have been presumed to have more predictable outcomes.  Except this time religion would be right up there in the running with things like freedom of speech and right to pursuit of life and happiness (one might read: to have a livelihood, i.e. do business without impediment due to others' religion) and thus there would be vast areas of new conflict. I'm still highly skeptical that it's useful to go there.

     P.S. Next we'll have the "gun rights" lobby selling an amendment that every house may have full automatic weapons cause hey, the second amendment must be "protected" from everything else equally.  Actually, I think they've already attempted some bills in this general direction, though maybe not quite specifying full automatic.
« Last Edit: March 28, 2015, 07:56:38 PM by kylie »

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This has all made me think of an old favorite quote of mine.

Quote
First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

When people are given the ability to discriminate against others and not be punished or chastised for it they will use it to their hearts content and it will only grow like a cancer.

I wish I could add more but I'm not as smrt as you all.  :P
« Last Edit: March 28, 2015, 08:12:59 PM by Lustful Bride »

Offline Kythia

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I always figured the moral of that story was "Join them or otherwise, at some point, they'll come for you"

This is why I'm no longer in charge of after school specials. 

Offline consortium11

@CONSORTIUM -- I'm so not a lawyer, so bear with my mumbojumbo terms.

If I get you right... you are saying that the central argument of the legislation is that it protects the freedom of expression of religious business owners in Indiana.  This is okay under the RFRA.  However, if the government can show that there's "compelling governmental interest in preventing discrimination in offered services"... then would that have precedence over the stipulations in the RFRA?

To quote the Indiana RFRA:

Quote
A state action, or an action taken by an individual based on state action, may not substantially burden a person's right to the exercise of religion, even if the burden results from a law or policy of general applicability, unless the state or political subdivision of the state demonstrates that applying the burden to the person's exercise of religion is: (1) essential to further a compelling governmental interest; and 30 the least restrictive means of furthering the compelling governmental interest.

Burden is defined as:

Quote
an action that directly or indirectly:
(1) constrains, inhibits, curtails, or denies the exercise of religion by a person; or
(2) compels a person to take an action that is contrary to the person's exercise of religion.
(b) The term includes:
(1) withholding a benefit from a person;
 (2) assessing a criminal, a civil, or an administrative penalty against a person; or
(3) excluding a person from a governmental program or 16 denying a person access to a governmental facility

So if, for example, the state made a law saying people would be fined for wearing turbans then a Sikh man (who is required to wear a Dastaar due to his religion) could assert the RFRA as a reason to block that law. The state would then have to show that there was some compelling governmental interest for preventing people wearing turbans and that there was no less restrictive way to achieve that interest then banning all turbans.

To give an example on a federal level, a Quaker tried to assert the RFRA when it came to taxes on the basis that her taxes were going towards military spending and that, as her faith required strict pacifism, paying taxes that went towards military expenditure was a burden on her exercising her religion. The court agreed that it was a burden on her religion but asserted that there was a compelling governmental interest and no less restrictive way of doing it then general taxation. In general the law is also only applied when whatever law it is requires the person to actively do (or not do) something; cases where someone asserted their RFRA rights in relation to DNA samples being stored failed.

So to apply the "a store owned by fundamentalist Christians refuses to serve LGBT people" example, I think there is an obvious compelling governmental interest in preventing discrimination on the basis of sexuality/gender status when it comes to access to offered services. I can think of no less restrictive way of doing so then preventing discrimination against LGBT people. Hence an RFRA assertion against a law against discrimination of LGBT people would likely fail; while the anti-discrimination law might constitute a burden on exercising religion, it fulfills a compelling governmental interest and is the least restrictive way of doing so.

-- Is it legal to discriminate?

Outside of protected classes (generally race, colour, religion, national origin, age (40 and over), sex etc) yes. If I run a bar and refuse to serve anyone who professes to be a Manchester United fan then it may be horrible PR but I'm unlikely to have broken any laws. It's also on that basis that dress codes work; an establishment is entitled to discriminate against wearing certain clothes if it wants to (although it should be noted that there have been cases where dress codes that disallowed "thug" style clothing have been challenged on the basis that they are really discriminating on the basis of race).

-- I don't think this law is the same as HL.  Because HL was about them choosing what sort of benefits to offer people that choose to work for them.  If they denied employment to a group of people then that'd be unconstitutional right?  Or is that a State's thing.

To step in for Kythia here, the Hobby Lobby case related to the federal version of this exact law; Hobby Lobby (and the other companies involved) asserted that requiring them to fund certain types of birth control or face significant fines was a burden on their exercise of religion. The Supreme Court agreed it was and while there was a compelling governmental interest in birth control being funded as the government had already offered a less restricted method which it argued came with no additional expenses Hobby Lobby succeeded.

Your comments are myopic and presented skewed view of the public response.  They also demonstrate a misunderstanding of what issues were considered by Congress in enacting the RFRA.  The people responding to the Indiana law are not drive by their feelings about payote.  Nor was Congress, actually, in passing the RFRA.

The RFRA was brought about because Employment Division v. Smith and Lyng v. Northwest Indian Cemetery Protective Association absolutely butchered the free exercise of religion. Both cases related to Native Americans; one their rituals (and the drugs used) and one their sacred ground. One of the strongest proponents of it was the ACLU... not exactly the biggest friend to fundamentalist and evangelical Christians in the US. On a federal level it has tended to find against Christians who have brought cases (the Quaker example I mentioned above, the university students who objected to their fees being used to supply abortion services) while supporting the rights of other religions. It is used disproportionately by Jewish, Muslim, and followers  of Native American religions compared to Christians. It (along with the similar Religious Land Use and Institutionalized Persons Act) have been one of the greatest protections that Native Americans have had to the federal government interfering with their religion and in general has repeatedly and reliably been used by religious minorities to protect against the state burdening or preventing them from following their religion.

However much people want to spin the RFRA as some pro-Christian act, it isn't. It's pro-religion in general, pro-the things that come with religion and has consistently been driven both in theory and practice by other religions wanting to protect their ability to worship. The RFRA is the reason that Sikhs are allowed to wear their Kirpans when working for the federal government... although they had to go to court to assert it. The above mentioned similar bill is why Muslim prisoners are allowed to grow small beards.

Offline Cycle

The RFRA was brought about because Employment Division v. Smith and Lyng v. Northwest Indian Cemetery Protective Association absolutely butchered the free exercise of religion.

No, the driving force behind the RFRA extends beyond those two cases.  Here's the legislative history.  Those cases are just two of the pieces, not all of the pieces, that went into building the RFRA.  Congress was considering the application of the "right to religious freedom" in many contexts beyond peyote, including things such as paying taxes, participating in public education, and unmarried women cohabitating with their fiancées.

But this is straying from the point I was originally trying to make:  i.e., social views have changed in the past 20 years.  Congress was nearly unanimous in passing the RFRA.  Today?  Not a chance that would happen.  This should hopefully help some folks see why the argument that "the Indiana law is just like the RFRA" is not terribly persuasive.  That is, just because they passed a law 20 years ago that doesn't mean they should pass that same law today.


Offline Joel

@CYCLE
" i.e., social views have changed in the past 20 years.  Congress was nearly unanimous in passing the RFRA.  Today?  Not a chance that would happen.  This should hopefully help some folks see why the argument that "the Indiana law is just like the RFRA" is not terribly persuasive.  That is, just because they passed a law 20 years ago that doesn't mean they should pass that same law today."

-- Even if the public opinion were against RFRA... that does not mean that the Indiana legislation cannot draw precedence from RFRA.  Atop of that, I think there are plenty of laws that were passed many decades ago that people would be vehemently against now.  For example, the Clean Water Act and The Endangered Species Act -- which are cornerstones to the government's environmental protection apparatus.

@CONSORTIUM
"Burden is defined as:.... "

-- Oh, the darned thing doesn't even explicitly say that business owners can deny service does it?  If it's a total c/p of the RFRA then what new precedence would the Indiana legislation introduce anyway?  Couldn't the RFRA have hypothetically been employed in such a way to 'protect' business owners in Indiana as it is?

If so then it sounds like the Indiana law would be up to interpretation by the courts if and when a customer sues a business and it goes to the courts.  The judge might very well rule in favor of the customer even with the Indiana law right?  If nothing has changed in the books and previous cases have ruled in favor of the customer, then the Indiana law might just be a paper tiger?


"Outside of protected classes (generally race, colour, religion, national origin, age (40 and over), sex etc)"

"Hence an RFRA assertion against a law against discrimination of LGBT people would likely fail; while the anti-discrimination law might constitute a burden on exercising religion, it fulfills a compelling governmental interest and is the least restrictive way of doing so."

-- I'm just going to go out on a limb here and assume that Indiana does not have an anti-discrimination law protecting LGBT people.  I realize the Bill of Rights is separate from the Constitution, but the federal government has stepped in and changed state laws on civil rights grounds before.  Would this first require an anti-discrimination law at the federal level (is there one for LGBT)?

Offline kylie

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     The Employment Non-Discrimination Act or somewhat similar bills have been batted around for quite some time (some say generations).  [Yes, the link is a Wiki but for once at least it's pretty developed with general coverage.]  But these are a narrower category of protective proposals concerned mainly with employment terms, and they have recently run aground on precisely this issue of religious exemptions. 

      It's pretty to think the courts should be consistent with some more functionally direct rules of law like those found in say, interstate commerce provisions intended to keep the market open, consistently regulated, and basically accessible for everyone...  And also not go rehashing many precedents of inclusiveness generally to deal with umpteen variations of excuses to exclude people from the market (echoes of Southern schools and water fountains here).  Pass this stuff and no matter what the outcome after years of court cases, it'll be more "Protect my religious expression" or when people can't get that on the basis of strict "religion", "No my religious ideal IS freedom of speech which means denial of service."  On and on.  That is actually the sort of slippage from one amendment to another that Elaine Photography attempted to sell the Supreme Court already.  Without knowing whatever "religion" entails, we can see it being revisited all over the place with again, the goal to exclude in the name of 'protecting' whatever all one dreams up. 

      But then when we've had rulings like Citizens United and arguably, even the RFRA itself and now Hobby Lobby, there are plenty of reasons to suspect it wouldn't always be a paper tiger.  And regardless of the outcome:  In the time all these things were being argued and sorted out again in court, whoever is on the wrong end of the religious right would be getting denied service for months and years at however many local providers care to wave that paper around and say, "Nuh-uh, my particular religious conscience says don't deal with those folks."

       Once upon a time, we had to call out the National Guard to deal with schools that felt that way about Black people.  Oh but yes now they wanna do it again with orientation, which you can't even readily observe much of the time, cause those lovely founding fathers didn't bother to expressly write that one in.  Even worse?  Those lovely founding fathers were complicit in slavery -- so obviously we can't use the Constitution now, can we.  Somewhere in all this, there must be an "original intent" excuse to just disband the union already.  A very vocal fraction of Texas would probably be relieved.  ::)
« Last Edit: March 30, 2015, 04:22:07 AM by kylie »

Offline kylie

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This has all made me think of an old favorite quote of mine.


When people are given the ability to discriminate against others and not be punished or chastised for it they will use it to their hearts content and it will only grow like a cancer.


I wish I could add more but I'm not as smrt as you all.  :P

       Judging by the sorts of contorted logic being offered in that column I cited earlier?  I'd say just being able to remember the original quote in context is pretty smart these days! 

 :-)

Offline consortium11

No, the driving force behind the RFRA extends beyond those two cases.  Here's the legislative history.  Those cases are just two of the pieces, not all of the pieces, that went into building the RFRA.

I don't want to sound petty or trite here, but have you read your own sources?

Smith was decided on April 17, 1990. The first introduction of the RFRA came in July that year from the democrat New York congressman Stephen J. Solarz. In the sub-committee hearing on it he (and pretty much everyone else) expressly mentioned how it was as a result of Smith. When he reintroduced the bill a year later he expressly stated how it was a response to Smith. When congress reported on it in 1993 they expressly mentioned how it was created as a response to Smith.

Without Smith and Lyng there would be no RFRA. Those cases aren't just the driving force behind the act, they're the only reason the act was ever contemplated. They're the very reason it exists. If Native American peyote rituals and sacred land rights hadn't been infringed by the federal government then those cases would have never occurred and there would be no RFRA.


But this is straying from the point I was originally trying to make:  i.e., social views have changed in the past 20 years.  Congress was nearly unanimous in passing the RFRA.  Today?  Not a chance that would happen.  This should hopefully help some folks see why the argument that "the Indiana law is just like the RFRA" is not terribly persuasive.  That is, just because they passed a law 20 years ago that doesn't mean they should pass that same law today.

And I still don't follow you. Let's say there was no Smith case and thus no RFRA. If the Smith case happened today and the free exercise clause was butchered, meaning that Native Americans couldn't assert their religious rights when it came to peyote usage in rituals, are you suggesting that people would oppose reintroducing the free exercise clause?

-- Oh, the darned thing doesn't even explicitly say that business owners can deny service does it?

No... and I'm not sure why anyone would think it would (unless they've gone purely by media hype). RFRA type laws have always been about preventing burdens on exercising religions.

If it's a total c/p of the RFRA then what new precedence would the Indiana legislation introduce anyway?  Couldn't the RFRA have hypothetically been employed in such a way to 'protect' business owners in Indiana as it is?

The Federal RFRA only applies on a federal level, originally as a result of City of Boerne v. Flores and subsequently due to an amendment. That's the reason that 20 odd states already had a version of it on their own state books prior to Indiana.

If so then it sounds like the Indiana law would be up to interpretation by the courts if and when a customer sues a business and it goes to the courts.  The judge might very well rule in favor of the customer even with the Indiana law right?  If nothing has changed in the books and previous cases have ruled in favor of the customer, then the Indiana law might just be a paper tiger?

Previously there was no RFRA type defence available at a state level. Now there is. That doesn't mean the courts will always rule in favour of a business using an RFRA defence; as I mentioned previously the state can argue there's a compelling governmental interest and the method they took was the least restrictive way of achieving it.

-- I'm just going to go out on a limb here and assume that Indiana does not have an anti-discrimination law protecting LGBT people.

As far as I'm aware there isn't a unifying state-wide one but state employers and services have one as do several counties and cities.

Offline Cycle

Your original assertion:

The RFRA was signed as a response to the war on drugs and weak sacred land rights ... I'm unaware of there being a change in social attitudes being more negative about drug use or more hostile to Native American/First Peoples rights.

I pointed out this assertion is false.  The RFRA was not signed solely in response to any war or drugs or sacred land rights.  Anyone can see this is true simply by reviewing the Legislative History.

Your new(?) assertion:

Without Smith and Lyng there would be no RFRA. Those cases aren't just the driving force behind the act, they're the only reason the act was ever contemplated. They're the very reason it exists. If Native American peyote rituals and sacred land rights hadn't been infringed by the federal government then those cases would have never occurred and there would be no RFRA.

This is still incorrect.  Smith and Lyng provided an opening for a Legislator to introduce a bill.  But the issue addressed by the RFRA--the extent the government can or should limit one's "right to religious freedom"--were under debate, analysis, and scrutiny long before Smith and Lyng came along.

The numerous issues the Legislature was debating and seeking to address as summarized conveniently by the Congressional Research Service in a report that is on the Legislative Histories site I posted earlier:


Read that Summary of Smith section.  See how it clearly states the issues addressed by the RFRA are broader than the specific issues raised by Smith?  And there were other factors and issues in play.  The Report provides a nice convenient list:


The United States Congress, for all its flaws, does try to look at the larger picture when it passes laws.  The RFRA is not just about peyote, drug wars, Smith or Lyng


And I still don't follow you. ... If the Smith case happened today and the free exercise clause was butchered, meaning that Native Americans couldn't assert their religious rights when it came to peyote usage in rituals, are you suggesting that people would oppose reintroducing the free exercise clause?

Well, I won't accept your premise that the RFRA would not exist without Smith.  But that's a tangential issue. 

What I am saying is that if Congress tried to pass the RFRA today, it would not likely receive the same level of support it received 20 years ago.  In the U.S., public opinion of numerous issues have changed.  This should be self evident.  Just look at how people feel about the Indiana law that was just passed. 

Offline Kythia

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Off topic a little, but your second image (#3 in the second numbered list) mentions a guy arrested for fortune telling.  I looked in that a little more - Ballard v Walker 1991 and yeah, turns out that's totally a crime in New York.  Whaddya know.

Offline consortium11

I pointed out this assertion is false.  The RFRA was not signed solely in response to any war or drugs or sacred land rights.  Anyone can see this is true simply by reviewing the Legislative History.

The war on drugs meant that where previously no-one had taken a strict and harsh view on Native American peyote usage the state no longer felt it could no longer find any wiggle room. (The lack of) Sacred Land rights meant that the Native Americans had to call upon free exercise in an attempt to protect them. These two cases are expressly cited as the reason the RFRA was created. Without Smith and Lyng there's no RFRA. Without the war on drugs and a lack of respect for Sacred Land rights there's no Smith or Lyng.

This is still incorrect.  Smith and Lyng provided an opening for a Legislator to introduce a bill.  But the issue addressed by the RFRA--the extent the government can or should limit one's "right to religious freedom"--were under debate, analysis, and scrutiny long before Smith and Lyng came along.

The numerous issues the Legislature was debating and seeking to address as summarized conveniently by the Congressional Research Service in a report that is on the Legislative Histories site I posted earlier:

Have you linked to the wrong pictures/sections?

There's no discussion about legislative debate or consideration there. It's how the courts prior to Smith interpreted the free exercise clause. You may also notice how the language the courts use is almost identical to what was eventually included in the RFRA ("least restrictive means of achieving some compelling state interest" in Thomas). That's deliberate. The intention of the RFRA was to restore the status-quo prior to Smith, although some jurists suggest they (possibly unintentionally) went further. Which goes back to my point. Prior to Smith there was no call for an RFRA style act as the free exercise clause was seen as sufficient. It was only when Smith butchered the free exercise clause that any called for an RFRA type act in an attempt to replicate legislatively what had once been the case judicially. Without Smith (and Lyng) there's no RFRA because there's no need for an RFRA.

Read that Summary of Smith section.  See how it clearly states the issues addressed by the RFRA are broader than the specific issues raised by Smith?  And there were other factors and issues in play.  The Report provides a nice convenient list:

They're examples of the lower courts following Smith when later cases came before them. Without Smith those issues and cases don't exist; the courts' prior interpretation of the free enterprise clause would apply.

The United States Congress, for all its flaws, does try to look at the larger picture when it passes laws.  The RFRA is not just about peyote, drug wars, Smith or Lyng

Well, I won't accept your premise that the RFRA would not exist without Smith.

So when Don Edwards said "The bill responds to Employment Division v. Smith, a recent Supreme Court ruling that weakened the long-held standard of review for religious freedom cases. H.R. 5377 restores the prior legal standard" at the sub-committee hearing for the original 1990 introduction of the bill, he was lying? Was William Dannemeyer lying at the same hearing when he said "But, Mr. Chairman, this is not a normal piece of legislation and the Supreme Court decision that brings us together today was not your normal piece of reasoned jurisprudence. The embarrassment known as Employment Division v. Smith will undoubtedly go down in legal history as a case study in intellectual rigidity."? Or when Jim Sensenbrenner said "The purpose of this bill is to reinstate the "compelling state interest" test for free exercise claims that was eviscerated by the Supreme Court in Unemployment Division v. Smith."? Or Steve Solarez, the author of the bill, when he said "I see it has now taken Mr. Justice Scalia, in his opinion in Oregon Employment Division v. Smith, to bring us together on the question of religious freedom."? Or when he later said "Mr. Speaker, yesterday I re-introduced the Religious Freedom Restoration Act of 1991. This legislation will reverse the disastrous effects of a dastardly and unprovoked attack on our first freedom by the Supreme Court of the United States. On April 17 1990, the Supreme Court dealt a devastating blow to religious freedom in the United States. In the case of Oregon Employment Division versus Smith, a majority of the Justices virtually eliminated the first amendment's requirement that Government accommodate the religious practices of all Americans unless it can demonstrate that the burden imposed is the least restrictive means available to achieve a compelling state interest."? Or when the report on the bill stated "H.R. 1308, the Religious Freedom Restoration Act of 1993, responds to the Supreme Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith by creating a statutory right requiring that the compelling governmental interest test be applied in cases in which the free exercise of religion has been burdened by a rule of general applicability."?

Every single discussion relating to the RFRA when it was conceived and eventually passed related to Smith, because Smith (and Lyng) are the reason there was ever considered a need for it. The point of the RFRA was to return to a pre-Smith state when it came to the free exercise clause. Without Smith there's no RFRA because without Smith there's no need for an RFRA; the judicial view was virtually identical to the RFRA.

I'll simplify.

Prior to Smith the courts held that the government couldn't burden the exercise of religion unless there was a compelling governmental interest and it was the least restrictive way of achieving that interest.

Smith removed that; there was no longer a need for the government to prove a compelling interest, let alone that it was the least restrictive.

The RFRA made it so the government once again couldn't burden the exercise of religion unless there was a compelling governmental interest and it was the least restrictive way of achieving that interest.

Smith is the reason there is the federal RFRA (and in turn the state RFRAs).

But that's a tangential issue.

It's not. We're discussing whether people would support a law or not. The reason the law came into being and the "issue" (for lack of a better term) it sought to correct are pretty vital to working out whether it would be supported or not.

What I am saying is that if Congress tried to pass the RFRA today, it would not likely receive the same level of support it received 20 years ago.  In the U.S., public opinion of numerous issues have changed.  This should be self evident.  Just look at how people feel about the Indiana law that was just passed.

So lets say there's no RFRA. The federal government passes a law banning the wearing of all head coverings within federal buildings. Do you not think that a coalition of Jews (yarmulkes and other head coverings), Muslims (taqiyahs), Sikhs (dastars), Catholic nuns (parts of their habit/coif) etc etc objecting to this would have pretty much mass support?

Or hell, repeat the Smith and Lyng cases; two Native Americans are fired and denied unemployment rights for engaging in their traditional religious ceremonies while the state also plans to concrete over Native American sacred ground. If that happened today do you not think people would support the Native Americans?

You keep saying that people wouldn't support a RFRA type law. Yet you present no evidence of this beyond pointing to Indiana. And how many people disagreeing with the Indiana situation really understand RFRA type acts compared to simply going by what the media (on both sides) are presenting it as; something to be used to attack LGBT people and that will allow any business to discriminate against them in any circumstances.

Offline Cycle

Prior to Smith there was no call for an RFRA style act as the free exercise clause was seen as sufficient.

And this is where you and I disagree.  The issue was raised before Smith and after SmithSmith was a hook that the Legislature used in pushing forth the RFRA.  The whole issue of freedom of religion was already being tested and challenged and analyzed separate and apart from Smith.  The lists show this.  Smith is just one of many.  It isn't the be all and end all of the RFRA as you insist.  The Report literally says this:


You insist on taking a myopic view of Smith.  You insist there was no other reason for the RFRA to come into being.  It's like saying Roe v. Wade is the only reason women have the right to choose.  No, Roe is just a part of it.  An important part, but still just a part.  It's obvious you disagree.  I'll just have to accept that you and I view this situation differently.

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It's not. We're discussing whether people would support a law or not.

We are?  That's not what I'm getting from you.

Quote
So lets say there's no RFRA. The federal government passes a law banning the wearing of all head coverings within federal buildings. Do you not think that a coalition of Jews (yarmulkes and other head coverings), Muslims (taqiyahs), Sikhs (dastars), Catholic nuns (parts of their habit/coif) etc etc objecting to this would have pretty much mass support?

Or hell, repeat the Smith and Lyng cases; two Native Americans are fired and denied unemployment rights for engaging in their traditional religious ceremonies while the state also plans to concrete over Native American sacred ground. If that happened today do you not think people would support the Native Americans?

What makes you think the discussion, when it took place, would be limited to head coverings or peyote?  What makes you think people won't analyze the law and consider all of the potential ramifications?

Quote
You keep saying that people wouldn't support a RFRA type law. Yet you present no evidence of this beyond pointing to Indiana. And how many people disagreeing with the Indiana situation really understand RFRA type acts compared to simply going by what the media (on both sides) are presenting it as; something to be used to attack LGBT people and that will allow any business to discriminate against them in any circumstances.

Do you honestly believe social attitudes today are the same as it was 20 years ago?

« Last Edit: March 29, 2015, 09:03:45 PM by Cycle »

Offline consortium11

And this is where you and I disagree.  The issue was raised before Smith and after SmithSmith was simply the hook that the Legislature used in pushing forth the RFRA.  The whole issue of freedom of religion was already being tested and challenged and analyzed separate and apart from Smith.  The lists show this.  Smith is just one of many.  It isn't the be all and end all of the RFRA as you insist.

You insist on taking a myopic view of Smith.  You insist there was no other reason for the RFRA to come into being.  It's like saying Roe v. Wade is the only reason women have the right to choose.  No, Roe is just a part of it.  An important part, but still just a part.  It's obvious you disagree.  I'll just have to accept that you and I view this situation differently.

Because there was no other reason for the RFRA to come into being. The express purpose of the RFRA, the purpose that every person supporting or debating the bill mentioned, was to undo Smith. Without Smith there's no RFRA because there's no need for the RFRA because there's nothing to undo. I'm genuinely not sure if you're debating in good faith here. The author of the bill says the reason for the RFRA is Smith. The co-signers of the bill say the reason for the RFRA is Smith. Congress' official report on the bill says the reason for the RFRA is Smith.

Yet you... and pretty much you alone... insist it isn't. You're saying that all of those people were lying when they said the reason behind it was Smith. You're saying you know more about the reasons for the bill being contemplated, written, signed and enacted then the people who wrote, debated, discussed and voted on it. I mean, I'm not sure what better source I can give you then the very author of the bill repeatedly saying "I came up with this bill because of Smith".

Had religious freedom been debated before Smith? Yes. And the position the courts had settled on was that the government couldn't burden the exercise of religion unless there was a compelling governmental interest and it was the least restrictive way of achieving that interest. There was no legislative demand or pressure for an RFRA type bill because the language used was pretty much identical to what was eventually included in the RFRA. Then along came Smith and wiped away the compelling government interest test. Then... and only then... was an the RFRA contemplated, debated and enacted. And the express purpose... as said by everyone involved... was to undo Smith, to put the law back to the way it was before, reintroducing the compelling governmental interest and least restrictive test. Which is why it copies the wording of those previous court decisions.

The RFRA was an attempt to put things back to the way they were before Smith. That becomes nonsensical if Smith didn't occur. Without Smith (and Lyng) there's no RFRA because the entire purpose of the RFRA was to put things back to the way they were before Smith (and Lyng).

We are?  That's not what I'm getting from you.

Everything I've written has been why people supported the RFRA to begin with. People supported the RFRA because they opposed the decision in Smith. If you don't have Smith you don't have any support for the RFRA.

What makes you think the discussion, when it took place, would be limited to head coverings or peyote?  What makes you think people won't analyze the law and consider all of the potential ramifications?

So, let's be clear; you think that if the federal government wanted to concrete over Native American sacred ground today the majority of people would support the government? That if it wanted to ban head coverings in federal buildings you think people would oppose the Jews, Sikhs and Muslims who argued against it and instead support the government?

Do you honestly believe social attitudes today are the same as it was 20 years ago?

No, I think they've changed. I think people are more accepting of drug use in general, let alone in religious ceremonies. I think people are more respectful of other faith's sacred lands. I think people are more aware of the abuse minority religions can suffer and more willing to protect them. I think people have seen the efforts a minority make to demonize Muslims and have rejected it.

Offline Cycle

I'm genuinely not sure if you're debating in good faith here.

First, calm down please.  There's no need to get angry here.  At this rate I can see a Staff-imposed cool down coming.

Second, yes, I am debating in good faith.  I am just perplexed as you over your apparently inability to see something that seems obvious to me.

Again, recall your original premise was that the RFRA was about the war on drugs and peyote.  This was proven false. 

Since then, you have changed your position and retreated from this initial, flawed premise.  Now you're clinging to the notion that Smith is the one and only reason the RFRA could ever have come into existence.  Yet you admit the freedom of religion issue was being debated and litigated in cases other than Smith.  Is it really that hard to see the connection?

You agree that religious freedom was debated before and after Smith.  But you insist that Smith is the one and only reason for the RFRA to exist.  What makes you think that one of the other cases involving religious freedom wouldn't have raised to the Supreme Court?  What makes you think that that Court would have came to a different conclusion concerning the application of religious freedom?  See?  The forces at work were manifest in more than just SmithSmith was a symptom, not the cause.

The Legislative History all comment on how Smith was the starting point.  No disagreement there.  But the debate then went wider and covered issues not raised by Smith.  (See the image above.)  Thus, the final version of the RFRA cannot be just the result of Smith and only Smith and nothing else.

Quote
So, let's be clear; you think that if the federal government wanted to concrete over Native American sacred ground today the majority of people would support the government? That if it wanted to ban head coverings in federal buildings you think people would oppose the Jews, Sikhs and Muslims who argued against it and instead support the government?

Again, what makes you think that if the U.S. Federal Government tried to passed a law to govern a Native American tribe's access to its sacred burial grounds, on the basis that it was not a proper exercise of religion, that people will not see how such a law would touch on broader issues and begin discussing its ramifications?

Quote
No, I think they've changed. I think people are more accepting of drug use in general, let alone in religious ceremonies. I think people are more respectful of other faith's sacred lands. I think people are more aware of the abuse minority religions can suffer and more willing to protect them. I think people have seen the efforts a minority make to demonize Muslims and have rejected it.

Good.  Then I present you as evidence that people will respond differently to the RFRA if Congress attempted to pass it as new legislation today.


Offline consortium11

First, calm down please.  There's no need to get angry here.  At this rate I can see a Staff-imposed cool down coming.

Second, yes, I am debating in good faith.  I am just perplexed as you over your apparently inability to see something that seems obvious to me.

It's not anger, it's exasperation... possibly similar to what you feel... that we seem to be arguing in circles. Especially considering that your position is that the people who wrote, debated, voted on and signed the bill were lying when they said that it was about Smith. It's hard to continue a debate about the reasons behind a bill when I post the exact reasons the people who came up with the bill gave (repeatedly) and you simply dismiss them.

Again, recall your original premise was that the RFRA was about the war on drugs and peyote.  This was proven false.

No, it hasn't been proven false. Without the war on drugs and a lack of respect for Sacred Land rights there's no Smith or Lyng. Without Smith or Lyng there's no RFRA. Again, I don't know how to make this any simpler. The people behind the RFRA make explicitly clear time after time after time that the point of the RFRA is to undo what Smith and Lyng did. Without Smith and Lyng there's nothing to undo. Without the war on drugs and a lack of respect for Sacred Land rights there's no Smith and Lyng thus nothing to undo thus no RFRA.

Since then, you have changed your position and retreated from this initial, flawed premise.

No, I haven't. My position is exactly the same.  The RFRA is a result of Smith and Lyng. Without Smith and Lyng there's no RFRA. Without the war on drugs and a lack of respect for Sacred Land rights there's no Smith and Lyng. Thus there's no RFRA.

Now you're clinging to the notion that Smith is the one and only reason the RFRA could ever have come into existence.

Smith and Lyng is the only reason that the RFRA came into being. You may want to argue fantasy worlds where the RFRA came to someone in a dream or was inspired by a particularly entertaining rendition of Vivaldi's Four Seasons but the reality of the situation is that the RFRA came about because of Smith and Lyng. Everyone involved with the RFRA agrees on that fact. They state that fact repeatedly.

Yet you admit the freedom of religion issue was being debated and litigated in cases other than Smith.  Is it really that hard to see the connection?

What connection? The cases that came to the Supreme Court prior to Smith and Lyng came to the same solution that the RFRA eventually did. That's why the RFRA was an attempt to return things to how they were pre-Smith.

You agree that religious freedom was debated before and after Smith.

It was; the courts held a position which largely matched the eventual RFRA.

But you insist that Smith is the one and only reason for the RFRA to exist.

It is the one and only reason that the RFRA exists. That's why everyone involved in the RFRA says it's the one and only reason it exists. Quite a few of the legislators involved make clear that they would normally be deeply suspicious and hesitant about agreeing with other legislators on a matter like this but Smith was enough to tip them over the edge.

What makes you think that one of the other cases involving religious freedom wouldn't have raised to the Supreme Court?

Other cases involving free exercise were raised to the Supreme Court; Sherbert v. Verner, Wisconsin v. Yoder, Trans World Airlines v. Hardison, Widmar v. Vincent, McDaniel v. Paty, Thomas v. Review Board, Goldman v. Weinberger and Bowen v. Roy to name a few. In none of those cases was the free exercise clause butchered in the way it was with Smith. Hence no RFRA.

What makes you think that that Court would have came to a different conclusion concerning the application of religious freedom?

Because it didn't. Only in Smith did it come to the conclusion it did.

I think I'm beginning to see your argument here, although it's not entirely clear. What you're saying is that if we removed all context from the RFRA being created, removed all the judicial history that went before it, removed all the discussion about what the free exercise clause was and meant, then perhaps people wouldn't be as willing to support it if appeared today. I'm not even going to engage with the argument because it's intellectual slight of hand. The RFRA wasn't created out of thin air. It was created for the reason. The reason was the context and the judicial history that went before it, including the discussion about what the free exercise clause was and what it meant, which largely concluded with Smith. If you want to argue that the RFRA would be less accepted if it was created today due to changing social attitudes then you have to apply the same context that led to it being created and supported in the first place; the free exercise clause being gutted in cases that related to the war on drugs and a lack of respect for Sacred Land rights.

Discussing this in the matter you want to is akin to arguing that the War Powers Act of 1941 would be opposed if brought in today. Yes, probably if you remove all context from the original and said it was being created out of the blue today at a time where the US is largely at peace. But if you add the context that led to the War Powers Act being signed (a literal world war going on in the rest of the world and the US being attacked at Pearl Harbor by Japan, thus entering the war itself) suddenly it would likely become rather more supported. If you want to remove or change the context of things you can say that pretty much anything would be supported or opposed just by jigging the context.

See?  The forces at work were manifest in more than just SmithSmith was a symptom, not the cause.

No, again, Smith was the cause. The fact that everyone involved said it was the cause (I can post all the quotes again if you want) makes it pretty clear what the cause was. You can't remove the context of something just because it doesn't suit your argument. The RFRA was brought about because of Smith. Without Smith there's no RFRA.

The Legislative History all comment on how Smith was the starting point.  No disagreement there.  But the debate then went wider and covered issues not raised by Smith.  (See the image above.)  Thus, the final version of the RFRA cannot be just the result of Smith and only Smith and nothing else.

It was a result of Smith and nothing else. That's why Smith was the cause of it. It's why the people involved said that Smith was the reason. It's why they made clear that it was only because of Smith that the act was contemplated, let alone agreed. Again, you can't just remove context you don't like.

Again, what makes you think that if the U.S. Federal Government tried to passed a law to govern a Native American tribe's access to its sacred burial grounds, on the basis that it was not a proper exercise of religion, that people will not see how such a law would touch on broader issues and begin discussing its ramifications?

I'm not sure what the purpose of this example is; it doesn't relate to either Smith or Lyng or the "issue" that the RFRA was intended to solve. Neither cases related to whether something was a proper exercise of religion or not, they related to what care the government had to take when dealing with an exercise of religion. The RFRA wasn't designed or intended to correct some issue with the courts interpretation of what constituted the "proper exercise of religion", it was designed and intended to correct some issue with the courts view on how the government had to consider and react to proper exercises of religion. Once more, you're changing the context.

Good.  Then I present you as evidence that people will respond differently to the RFRA if Congress attempted to pass it as new legislation today.

But I think that those changes in attitudes would make people more supportive of an RFRA type act. You've said they'd be more negative... but you've yet to present any evidence that it wouldn't other than Indiana, which... as I've previously mentioned... is presented in a different context to the RFRA.

Offline Kythia

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Offline Cycle

I think I'm beginning to see your argument here, although it's not entirely clear. What you're saying is that if we removed all context from the RFRA being created, removed all the judicial history that went before it, removed all the discussion about what the free exercise clause was and meant, then perhaps people wouldn't be as willing to support it if appeared today. I'm not even going to engage with the argument because it's intellectual slight of hand. The RFRA wasn't created out of thin air. It was created for the reason. The reason was the context and the judicial history that went before it, including the discussion about what the free exercise clause was and what it meant, which largely concluded with Smith. If you want to argue that the RFRA would be less accepted if it was created today due to changing social attitudes then you have to apply the same context that led to it being created and supported in the first place; the free exercise clause being gutted in cases that related to the war on drugs and a lack of respect for Sacred Land rights.

Actually, I am arguing the exact opposite.  From my perspective, you're the one missing the context, being too focused on peyote and the drug war as the basis for the RFRA. 

Your posts are displaying an increasing level of hostility and willingness to vilify me because I disagree with you.  Accordingly, I won't engage with you further.  I'll go play with Kythia's kitty instead.


Offline Joel

Actually, I am arguing the exact opposite.  From my perspective, you're the one missing the context, being too focused on peyote and the drug war as the basis for the RFRA. 

Your posts are displaying an increasing level of hostility and willingness to vilify me because I disagree with you.  Accordingly, I won't engage with you further.  I'll go play with Kythia's kitty instead.

-- Cycle I'm just going to note for Consortium's sake that you did start using words like 'myopic' fairly early in the conversation.