Smith, RFRA and the First Amendment - Questions for Chris

[_sock puppet]

No offense, but you haven't read the book. Hammond isn't arguing that the Court is bad, or that Congress and the Executive Branch should slap it down. He's simply arguing that the Court should return to the stricter interpretation of the First Amendment outlined in Sherbert v. Warner and US v. Seeger, which took "religion" to mean "conscience" (including secular conscience) and held that the government couldn't violate conscience unless it had a "compelling interest".

No offense, and you are correct that I have not read the book. But given its title, and how you described it in an earlier post, it is obvious he thinks that the governmental restraint needs to be taken at the judicial level. I think that is the back end, and that governmental restraint needs to be taken at the front end (legislature in enacting statutes) and the middle (executive branch implementing those statutes). I think in our society we too often expect all of the restraint to come via judicial slap-downs of the legislation or regulation. Ironically, RFRA is not Congress exercising restraint itself in not impinging on the free exercise of religion through legislation it passes, but is legislation telling the courts what standard they should apply to reject enactments. It's sort of like Congress saying, we can't trust ourselves to exercise restraint, so here, courts, is a bigger stick to whack us (Congress) next time we don't show self-control.

[_CaliforniaKid]

sock, If the executive and legislative branches could be trusted to exercise restraint at the front end, that would be great. Since they can't, I'm glad for checks and balances.

[_sock puppet]

I should also add here that I see RFRA as offending the establishment clause. I am very glad it was ruled unconstitutional, at least to states, and I hope to see it disappear one day altogether.

gramps, I can fathom arguments and reasons that the RFRA is a law that establishes religion. But I think it is incidental only, to the greater and more primary purpose of Congress in enacting it to better ensure the free exercise of religion. I would like to have you expound on how you see the RFRA as offending the establishment clause, and if you would, address whether you think that any Congressional enactment could be made to buttress the free exercise clause without incidentally offending the establishment clause. Do you see it as a constitutional Catch-22 for any attempt by Congress to enact any law that is focused on religion?

Do you think that the Court's incidentally establish religion when ardently and jealously guarding the free exercise clause? (I realize that the 1st Amendment is a limitation on actions of Congress (the legislative) and not the judicial, but my question about the Court in this regard is more a theoretical.)

Well, sock, I would use the same argument as Stevens in his opinion (concurring) in Boerne. RFRA simply provides a legal weapon that neither atheists nor agnostics can obtain.

I'm not so sure. If Congress attempted a statute that required me to declare an affiliation with some/any religion or to practice some/any religion, I think that statute would face strict scrutiny under RFRA.

This privileging of religious concerns over equally valid concerns, such as "parental obligation, philosophical conviction, or lifelong cultural practice" (Eisgruber and Sager) is where the line was crossed.

No question about it--the US Constitution identifies and gives greater legal protections to individuals in some regards, but not others. For example, the right of free speech is specifically so protected. 'Parental obligations' were not.

Next, Congress has to be somewhat "sneaky" to enact any laws concerning religion. I don't find under the enumerated powers granted Congress in Article I any direct mandate to pass such laws.

No, but if in exercising its right to regulate interstate commerce, Congress passed a bill that made it impractical for Quakers to freely exercise their religion, the 1st Amendment would kick in and the bill would be struck down as a violation of the 1st Amendment.

Of course, I know my enumerated powers argument doesn't fly now, but I still think the original plan in setting up the federal constitution was for Congress to keep its hands off religion completely.

Yes, but since a statute passed under one enumerated power, like the Commerce Clause, might 'touch' upon the free exercise of religion, this 'intersection' has to be handled, otherwise any 'nexus' imaginable between a regulation of the size of tires on trucks somehow impinging on anyone's exercise of religion would make regulating interstate commerce near impossible--limited only by the imagination of lawyers to come up with some 'nexus' argument. It's a balancing act, and scrutiny of whatever level by the courts is used to determine if the touch on free exercise of religion is too much, so as to require invalidation of the truck tire size statute.

So, I was actually quite disappointed and surprised that it was upheld at all.

The problem with an absolute approach to any one notion to be protected makes all others subservient to it. Many journalists would like free press to be guarded as such, and it may be the closest to being so treated.

Do you think that the Court's incidentally establish religion when ardently and jealously guarding the free exercise clause?

If you mean by "jealously guarding the free exercise clause" a situation like Sherbert by forcing a state to grant exemptions to unemployment benefits statutes for religious believers (assuming the state can't show a compelling state interest), yes, that would be an example of an establishment concerning religion.

I'm okay with accommodating believers as to practices for which there is evidence that the practice is not merely a ruse to get around a legal requirement, like paying income taxes. Religions that, for example, do not believe in blood transfusions should not be required to comply with regulations that would require. I think this is necessary if I want Congress prevented from passing a statute that would require me to join and practice a religion. No doubt, the RFRA has a disparate impact, as all laws do, here between those who affirmatively believe/practice a religion and those of us who do not, but that disparate impact simply drives what level of scrutiny the Court will require, not prevent all enactments.

Now, I do believe that there may be, as Rehnquist says in Locke, some constitutional room for a little play in the joints between the two clauses. I guess I would have to take that case by case.

[_sock puppet]

sock, If the executive and legislative branches could be trusted to exercise restraint at the front end, that would be great. Since they can't, I'm glad for checks and balances.

Is that because through voting, the executive and legislative branches are reflections of the will of the people as expressed by having voted for those representatives, senators and president?

So, do you really like the idea of unelected, nearly exempt from impeachment federal judges protecting us from ourselves?

[_sock puppet]

sock, If the executive and legislative branches could be trusted to exercise restraint at the front end, that would be great. Since they can't, I'm glad for checks and balances.

I too am glad that the courts are there for when things get way out whack. But do you think that the courts should give the presumption of the constitutional validity of an enactment, regulation, or policy, since they emanated from 'equal' branches of government?

Do you think that the courts have abdicated their role with, for example, the Commerce Clause in the Wickard v Filburn (1941) case that was recently argued as part of the ObamaCare oral arguments before the Court?

Do you think that the right of free assembly includes the right not to associate with anyone that you choose not to? (How does that square with laws that require an employee in certain states to join a union if a company wants to employ that person? After all, the company and the employee want to associate one with the other (free association being exercised) but to do so the employee must join the union in that closed shop state? Doesn't so requiring the employee to join the union when he does not want to impinge on his right to associate freely with the company?)

Having studied and practiced the law for 30+ years, I have no more faith in the restraint of judges than I do in the restraint of Congress and the executive branch.

[_bcspace]

The courts should certainly step in when necessary, but an observer like Hammond should keep in mind that if it were not for the voracious appetites of Congress and the President/executive for governance (impinging on individual rights), the courts would not become involved at all.

That is, until the court turns Left in which case they will merely rubber stamp such appetites and impingement. Don't have to wait for a new justice, it could happen as early as Obamacare if upheld.

[_sock puppet]

Congress has yet to figure out a direct, blatant means to control our thoughts. It does prevent me from hearing commentary on the NYC TV news stations by my satellite provider not being allowed to pipe those channels to me since I have local alternatives that I get the signal--but that is not so content based. In 2009-2010, the Fairness doctrine was going to be resurrected to distort the marketplace of ideas, by requiring talk radio to have as much liberal babble as it does conservative babble. But there is yet no electrodes with signals developed to force me to believe that the system is good, or that I ought to believe this or that on any given issue. So the aspect of believing certain religious beliefs has not, as a practical matter, been the topic for the free 'exercise' clause regarding religion.

The real question is, as already touched upon by you (gramps and Chris Smith), is how far can your conduct go in the name of religion and be protected under the 'free exercise' clause?

You both seem to agree that if the exercised act might hurt another person, it ought not be allowed under the free exercise clause. How impactful must that hurt be? Just the fact that people are praying in a public park might offend an uber atheist. Of course, Abraham going to kill his son as a religious sacrifice is something we'd pretty much all say is crossing the line. (I hope even bcspace, Will Schryver, Wade Englund and DCP would see it that way.)

But what was the problem in Reynolds? Did polygamy adversely impact the children (non-consenting adults), the neighborhood, etc. to a degree that the man and women engaged in plural marriage in the name of religious practice (free exercise) should have been stopped?

Is it different when underlying the case is interaction with government is involved, such as the benefits at issue from the state in Sherbert?

Peyote buttons were criminalized in Oregon, but yet protected free exercise. So criminality is not the sine qua non of when the line has been crossed.

[_CaliforniaKid]

Is that because through voting, the executive and legislative branches are reflections of the will of the people as expressed by having voted for those representatives, senators and president?

Yes. The basic idea is to prevent majoritarian tyranny.

So, do you really like the idea of unelected, nearly exempt from impeachment federal judges protecting us from ourselves?

Yes. In the words of Alexander Hamilton, "as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security."

Historically, this system has worked surprisingly well.

[_sock puppet]

Is that because through voting, the executive and legislative branches are reflections of the will of the people as expressed by having voted for those representatives, senators and president?

Yes. The basic idea is to prevent majoritarian tyranny.

So, do you really like the idea of unelected, nearly exempt from impeachment federal judges protecting us from ourselves?

Yes. In the words of Alexander Hamilton, "as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security."

Historically, this system has worked surprisingly well.

I would agree, for the first 75 years.

But by the time many states were being established and three branches of state government being formed, the notion of a judiciary that did not have to answer to the people was rejected. Elected state judiciaries have not given into the temptation of becoming a super legislature as has the U.S. Supreme Court.

[_Buffalo]

The courts should certainly step in when necessary, but an observer like Hammond should keep in mind that if it were not for the voracious appetites of Congress and the President/executive for governance (impinging on individual rights), the courts would not become involved at all.

That is, until the court turns Left in which case they will merely rubber stamp such appetites and impingement. Don't have to wait for a new justice, it could happen as early as Obamacare if upheld.

The conservatives in Supreme Court have played merry hell with civil liberties. How do you feel about that?