Smith, RFRA and the First Amendment - Questions for Chris

[Guest]

I think that in the notions of federalism, the Court has appropriately held that federal legislation may not dictate how states recognize and respect freedom of religion.

Of course. I don't fault the limitation of RFRA to the federal level.

I think it interesting that Hammond would place the threat to freedom of conscience at the doorstep of the Supreme Court. ... 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.

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".

[Guest]

I am not sure what it means to say one standard of review is superior to another? What do you mean by that.

Anyway, I am just wondering something. Do you agree then that a court should except sincere religious believers from generally applicable laws, for example, criminal laws, because those laws burden religious practice? That was the big argument (at least one of them) in Smith and I would love to know what you think about that.

Because of RFRA, we have a strange situation out there. On the one hand, if I join the O Centro church in the states, I can legally trip my balls off with DMT brew (ayahuasca), share it even with my kids and parents (assuming they are members too), and never worry about the law coming down on me. This despite the fact that DMT is a Schedule I drug.

Here's the thing: religious minorities don't get exempted if the government can demonstrate that it has a "compelling interest" in enforcing the law against them. So for example, someone whose religion tells them to kill people isn't gonna get a pass. Neither is someone whose religion tells them not to let their kid get a blood transfusion. There are compelling reasons for the government to impose itself on conscience in those cases. But what happened with peyote is that the Court looked at the scientific evidence and found that peyote poses no real health risks, and therefore the government's supposed basis for the ban against peyote was specious. In that case, the Court found that the criminal law was violating people's conscience for no good reason.

This is actually a good example of the difference between the "rational basis" and "compelling interest" standards. Under "rational basis," the Court would have to just accept the government's health concerns about peyote, because they are rational. Under "compelling interest," the Court gets to look closely at those concerns and decide whether they're legitimate or just some specious BS. In other words, "rational basis" asks whether the government has a reason for violating conscience. "Compelling interest" asks whether it has a good reason.

The danger of the weaker standard is that whenever you want to impose your religious views, you can just invent "rational" reasons for them. Want to ban gay marriage? No one cares if your science is fabricated, as long as you have some "scientific" reasons.

[_gramps]

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. 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.

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

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.

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.

[_CaliforniaKid]

RFRA simply provides a legal weapon that neither atheists nor agnostics can obtain.

Under US v. Seeger, they can obtain it.

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.

Insofar as those concerns are "compelling" state interests, they're not supposed to get railroaded by free exercise. The Courts have been especially protective of children in establishment clause cases, as you can see from the decisions on school prayer and Bible reading.

Anyway, it sounds to me like your problem is with the Constitution, not the RFRA. "Free exercise" does, indeed, "establish" a certain protected public space for religion. (As one scholar recently wrote, the religious marketplace is America's last, purest, and best protected free market space.) But as for me, I actually prefer it that way. We bribe religious groups with that free market space to keep them from trying to co-opt government. I just wish we could come up with an equally effective modus vivendi with corporations. Unfortunately, there's no "establishment clause" for big business.

[_gramps]

I am not sure what it means to say one standard of review is superior to another? What do you mean by that.

Anyway, I am just wondering something. Do you agree then that a court should except sincere religious believers from generally applicable laws, for example, criminal laws, because those laws burden religious practice? That was the big argument (at least one of them) in Smith and I would love to know what you think about that.

Because of RFRA, we have a strange situation out there. On the one hand, if I join the O Centro church in the states, I can legally trip my balls off with DMT brew (ayahuasca), share it even with my kids and parents (assuming they are members too), and never worry about the law coming down on me. This despite the fact that DMT is a Schedule I drug.

Here's the thing: religious minorities don't get exempted if the government can demonstrate that it has a "compelling interest" in enforcing the law against them. So for example, someone whose religion tells them to kill people isn't gonna get a pass. Neither is someone whose religion tells them not to let their kid get a blood transfusion. There are compelling reasons for the government to impose itself on conscience in those cases. But what happened with peyote is that the Court looked at the scientific evidence and found that peyote poses no real health risks, and therefore the government's supposed basis for the ban against peyote was specious. In that case, the Court found that the criminal law was violating people's conscience for no good reason.

This is actually a good example of the difference between the "rational basis" and "compelling interest" standards. Under "rational basis," the Court would have to just accept the government's health concerns about peyote, because they are rational. Under "compelling interest," the Court gets to look closely at those concerns and decide whether they're legitimate or just some specious b***s***. In other words, "rational basis" asks whether the government has a reason for violating conscience. "Compelling interest" asks whether it has a good reason.

The danger of the weaker standard is that whenever you want to impose your religious views, you can just invent "rational" reasons for them. Want to teach creationism in public schools? As long as you have some "scientific" reasons for it, it doesn't matter if you pulled those reasons out of your rear. Want to ban gay marriage? No one cares if your statistics are fabricated, as long as you have some statistics.

Hey, this is fun. Thanks for this discussion.

I can't quite tell: do you separate belief (conscience) from conduct in your analysis here? Or was that a mistake the court has been dealing with since Reynolds?

There are compelling reasons for the government to impose itself on conscience in those cases. But what happened with peyote is that the Court looked at the scientific evidence and found that peyote poses no real health risks, and therefore the government's supposed basis for the ban against peyote was specious. In that case, the Court found that the criminal law was violating people's conscience for no good reason.

What case are you referring to? Smith or O Centro? The Native Americans lost in Smith. The DMT brew drinkers in O Centro won on that type of argument you are making here. You must mean O Centro?

[_gramps]

Chris wrote:

Anyway, it sounds to me like your problem is with the Constitution, not the RFRA. "Free exercise" does, indeed, "establish" a certain protected public space for religion. (As one scholar recently wrote, the religious marketplace is America's last, purest, and best protected free market space.) But as for me, I actually prefer it that way. We bribe religious groups with that free market space to keep them from trying to co-opt government. I just wish we could come up with an equally effective modus vivendi with corporations. Unfortunately, there's no "establishment clause" for big business.

I have no problem with the Constitution, if it is read as a whole piece. I have no problem with the marketplace of ideas including religious ideas. I believe conscience should be protected 100%. It is when the religious conscience leads one to act in violation of generally applicable laws, especially criminal laws, that "free exercise" should be restricted, including sometimes complete blanket prohibitions, as in Reynolds. Free means one thing in the state of nature, another thing in a society governed by the rule of law.

RFRA is where I have a problem.

[_CaliforniaKid]

Smith was pre-RFRA, whereas O Centro was post-RFRA. I was thinking O Centro applied to peyote as well as DMT, but maybe that hasn't been decided yet.

[_CaliforniaKid]

I have no problem with the Constitution, if it is read as a whole piece. I have no problem with the marketplace of ideas including religious ideas. I believe conscience should be protected 100%. It is when the religious conscience leads one to act in violation of generally applicable laws, especially criminal laws, that "free exercise" should be restricted, including sometimes complete blanket prohibitions, as in Reynolds. Free means one thing in the state of nature, another thing in a society governed by the rule of law.

RFRA is where I have a problem.

"Criminal law" is pretty broad, and can be abused. You could criminalize whatever you please.

[_gramps]

Smith was pre-RFRA, whereas O Centro was post-RFRA. I was thinking O Centro applied to peyote as well as DMT, but maybe that hasn't been decided yet.

Native Americans had already received through legislation an exemption from criminal laws for the use of peyote. This was one of the reasons the government lost in O Centro, because they argued they had a compelling state interest (under RFRA) to not grant an exemption. The Court asked the government to explain how they could exempt Native Americans, but not now exempt the O Centro brew drinkers. The government couldn't come up with any good reason.

[_gramps]

I have no problem with the Constitution, if it is read as a whole piece. I have no problem with the marketplace of ideas including religious ideas. I believe conscience should be protected 100%. It is when the religious conscience leads one to act in violation of generally applicable laws, especially criminal laws, that "free exercise" should be restricted, including sometimes complete blanket prohibitions, as in Reynolds. Free means one thing in the state of nature, another thing in a society governed by the rule of law.

RFRA is where I have a problem.

"Criminal law" is pretty broad, and can be abused. You could criminalize whatever you please.

Yes, but such a statute would be found discriminatory (targeting a religion with animus) and then the compelling state interest standard would apply, not the rational basis standard. All Smith did was make the free exercise clause a non-discriminatory statute, in effect. If the law is generally applicable and neutral, and not targeting a specific religion, then rational basis would apply. If on its face or application a statute discriminates against any certain religious practice, then Sherbert would apply and such a law as you suggest would be struck down. See the Lukumi case, decided just before RFRA was enacted I believe. That is the classic case of a criminal statute that was actually on its face and in its application, a discriminatory attack on the Lukumi religion. You would enjoy reading that one. It is really fascinating.