Wednesday, April 1, 2015

Making Discrimination Legal in the U.S. — How Did We Fall Into This Abyss

Erasing Common Sense Lines
(re: Making discrimination legal)

A Brand New Uniform
(long overdue)

I spent extensive time and effort for this post ... it's long, but I hope is serves as a basis for your further research on this timely topic: Gay rights in America. Two quotes to introduce this post both worth remembering:

Thomas Jefferson:Whenever the people are well-informed, they can be trusted with their own government.”  

Marcus Aurelius:The opinion of 10,000 men is of no value if none of them know anything about the subject.”

Introduction and Background: The question is often asked is the proper used in Declaration of Independence unalienable or is it inalienable? The final version of the Declaration uses the word unalienable. Some earlier drafts used the word inalienable, which is the term our modern dictionaries prefer.

FYI: The two words mean precisely the same thing. The unalienable rights that are mentioned in the Declaration of Independence could just as well have been inalienable, which means the same thing. Inalienable or unalienable refers to that which cannot be given away or taken away.

The First Amendment states that governments cannot interfere with the free expression of religion, a position that sounds fairly straightforward but has been the subject of ongoing debate from inception.

Over the years, for example, the Supreme Court instituted laws that restrict a religion's expression like human sacrifice is not permissible even if it were arguably related to a person’s religious beliefs.

The compelling interest test helps determine where to draw the line at the government’s ability to restrict or not restrict free expression of religion. It is one test with four parts:

The compelling interest test emerged in 1963, during the Supreme Court case Sherbert v. Verner.

* Adeil Sherbert, was member of the Seventh-day Adventist Church. She was fired from her job after she refused to work on Saturday, the Sabbath Day of her faith. The South Carolina Employment Security Commission denied her benefits, finding unacceptable her religious justification for refusing Saturday work.

The Question Before USSC was:  Did the denial of unemployment compensation violate the First and Fourteenth Amendments? 

Yes: the 7-2 Ruling Written by Justice Brennan for the Majority: The Court held that the state's eligibility restrictions for unemployment compensation imposed a significant burden on Sherbert's ability to freely exercise her faith. Furthermore, there was no compelling state interest which justified such a substantial burden on this basic First Amendment right.  

The test contains four parts. Each part helps determine whether the government can intervene to restrict the free expression of religion. 

  1. The first step includes determining whether a person has a claim involving “a sincere religious belief.”
  2. The second element of the test includes determining whether government action would place a “substantial burden” on that person’s ability to act on his religious beliefs.
  3. Third, the government must prove that it is acting on “compelling state interest” in intervening.
  4. Last, the fourth, government must prove that it is acting in a manner that is “least burdening” or “least restrictive” in terms of impacting the person’s religious beliefs and actions.
Over the years, the Supreme Court has intervened in various situations which were determined to have “compelling interest” for the state. For example, Eugene Volokh, Professor of Law at UCLA, notes that “maintaining a stable political system, preventing racial or sexual discrimination, and preserving the integrity of the tax system” have been used to justify intervention. In these instances, freedom of religious expression was curtailed or restricted to prioritize the aforementioned interests of the state.

The federal government passed the Religious Freedom Restoration Act in 1993 (RFRA). It was authored by Sen. Charles Schumer (D-NY). It passed with nearly unanimous support from both parties, and signed by President Bill Clinton. The legislation was needed after a Supreme Court ruling delivered by Antonin Scalia limited religious freedom for Native Americans who smoke peyote as part of their religion. A later Supreme Court ruling ruled that the RFRA didn't apply to state or local governments. Since then, states have rushed to pass their own laws (map and list provided at the end of this page for you to see your state).

Professor Volokh added this: “The conflicts over gay rights and contraception are polarizing the country and endangering religious liberty more generally with neither side in these fights seeming to have any respect for the liberty of the other side.”

And yet here we are now today with the newest law in Indiana.  They passed legislation that the entire media characterizes as nothing more than a bigoted anti-gay bill along with celebrities and activists and a whole bunch of other calling for a boycott against the state, including the NCAA. Is it or not. A lot of tap dancing and backpedaling now ongoing there with Gov. Pence and others scrabbling to undo the damage.

What do RFRA laws do anyway? They simply allow religious people to challenge government activities that encroach on their beliefs. They must show that the government action substantially burdens a religious belief that they sincerely hold, and if they prove all that, it falls to the government to show that the challenged action is justified as the least restrictive means of furthering a compelling governmental interest (see 4-part test mentioned above). Having a RFRA doesn't mean that you know which side wins, it just sets the terms of the debate.

A lot of people are asking: “If Indiana’s law is not some newfangled invention designed to hurt gay people, then what is it about?” There is no better way to learn than by looking at some recent RFRA cases at the state and federal level, and ask, “… if you oppose RFRA’s, then these are real people you are hurting along the way (8 examples):

(1)  Most recent RFRA winner Lipan Apache religious leader Robert Soto:  Just a few weeks ago, on March 10, 2015, the federal government returned the eagle feathers it had seized nine years ago from a Native American religious leader and famed feather dancer Robert Soto. He had appealed the seizure of the eagle feathers, items central to his religion, for which he faced 15 years in a federal penitentiary and a $250,000 fine, on Religious Freedom Restoration Act grounds. The federal government prohibits possession of eagle feathers without a permit and only grants permits to museums, scientists, zoos, farmers, large power companies and federally recognized tribes. Even though the Lipan Apaches are recognized by Texas, historians and sociologists, they're not recognized by the feds.

(2)  An arbitrary ban: Sikh federal employee Kawal Tagore:  After being baptized in the Sikh faith, Kawal Tagore began carrying a kirpan, “an emblem resembling a small knife with a blunt, curved blade.” It's one of five articles of faith baptized Sikhs are supposed to carry.
She was told to go home from her job with the IRS in a federal building in Houston and not to return. The building allowed scissors, knives, box cutters and other items with sharper blades. After working from home for nine months, she was fired. She sought protection under the Religious Freedom Restoration Act and on November 4, 2014, the government agreed to settle the case.

(3)  A necessary goat sacrifice: José Merced, Santeria priest:  José Merced moved to Euless, Texas, in 1990. A Santeria Oba Oriate, or priest, Merced had performed certain animal sacrifices essential to Santeria for 16 years. But in 2006, Euless said he had to stop. This practice is in conflict with all sorts of generally accepted city codes in Texas.  There are only a couple Santeria temples in the world and none of them are in the United States, so worship takes place in the home. On special occasions such as ordination the worship calls for sacrifice of four-legged animals such as a goat. Merced sued and won his case in 2009.

(4)  When the ACLU supported state RFRAs: Adriel Arocha, long-haired Native American kindergartner:  In order to enter kindergarten in the Needville, Texas, schools, Adriel Arocha, the son of Kenney Arocha and Michelle Bettenbaugh, was told he'd have to cut his hair. The school had general grooming policies, including that “boys' hair shall not cover any part of the ear or touch the top of the standard collar in back.” The policy's stated design is “to teach hygiene, instill discipline, prevent disruption, avoid safety hazards, and assert authority.” The parents applied for an exemption but because their religious practices were handed down orally, they couldn't provide the necessary written documentation of their religious practice. The boy and his parents won their case.  

(5)  A halfway house: Richard Barr and Philemon Homes:  Philemon Homes is a Christian non-profit in Sinton, TX. It provides housing and religious instruction to petty offenders released from state prisons. Richard Barr ran the non-profit, which was located across the street from Grace Christian Fellowship, the church he also attended.  Sinton had no restrictions on such an operation when it first began but in 1999, the city council enacted an ordinance that banned the organization from existing within the city limits. According to the group that represented Barr and Philemon, “the Texas Religious Freedom Restoration Act (TRFRA), passed in 1999, which provides much needed protection for people of faith, churches, and faith-based organizations” was an important part of that victory.

(6)  Muslim prisoner fights to wear short beard: Abdul Muhammad:   Abdul Muhammad is a Muslim incarcerated in Arkansas. He was not allowed to grow the 1/2 inch beard his religion commands even though Arkansas permits beards for other reasons.
And the same beard would have been allowed in 44 state and federal prison systems in the country. In 2011, he filed suit. He won the suit using the “RFRA for prisoners” — the Religious Land Use and Institutionalized Persons Act (RLUIPA). That bill was also signed by Bill Clinton.  Earlier this year, Muhammad won his case unanimously at the United States Supreme Court. They held that he'd shown the restriction was a substantial burden on his religious exercise.

(7)  The right to drink hallucinogenic sacramental tea: União do Vegetal:  O Centro Espírita Beneficente União do Vegetal (UDV) is a Christian Spiritist sect with origins in the Amazon Rain forest, which had at the time of its case about 130 members in the United States.
The group receives a sacrament by drinking ayahuasca, a hallucinogenic tea banned by the federal government. The government seized 30 gallons of the tea when it was shipped to a Santa Fe congregation. The group sued to block this enforcement on the grounds it violated their rights under the Religious Freedom Restoration Act. Remember, the government isn't to substantially burden a person's exercise of religion unless it can demonstrate applying the burden represents the least restrictive means of advancing a compelling interest.
One thing that's interesting about this case is that everyone agreed that the ban was a substantial burden on the congregation. But that didn't mean that the congregation necessarily won their case. As Professor Volokh also explained: “…finding of substantial burden on sincere religious beliefs simply shifts the burden to the government: The government may still justify the burden by showing that applying the law to the objectors is the least restrictive means of serving a compelling government interest.” The Feds argued it must uniformly apply this law with no accommodations for the Brazilian church to advance its drug prohibition interest but the Supreme Court disagreed. União do Vegetal won.

(8)  Florida denies prisoners kosher meals: Bruce Rich: Bruce Rich is an Orthodox Jewish prisoner in Florida, one of the last remaining states in the country that doesn't provide kosher food for Jewish prisoners. He argued this violates the Religious Land Use and Institutionalized Persons Act of 2000, RFRA for prisoners. Florida claimed it limited food options to control costs and maintain security. The Becket Fund for Religious Liberty, which took Rich's case, noted that 35 states and the federal government provided kosher meals without it posing a problem. During the appeals process and after his appeals court victory, Rich withdrew his case once Florida began providing the necessary meals.

ENDA Myths (ENDA: Employment Non-Discrimination Act) BTW: Still not law due top harsh and well-planned GOP resistance:

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