The Future of Religious Liberty

April 24, 2009 | 84 comments
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Does it have a future? Some people view religious liberty as a civil and constitutional right; increasingly, others see it as a problem to be dealt with. The Mirror of Justice post “Securing Religious Liberty in an Age of Growing Intolerance” is a short reflection on what this means for the future of religious liberty.

The central point from the article is the notion that civil society, the social space in which free citizens interact socially, economically, and religiously, and do so largely free of the (heavy) guiding hand of government, is disappearing. Government is quickly growing into that formerly free civil space at an alarming rate, the most visible sign of which was the recent firing of the CEO of General Motors by President Obama … with hardly a peep or tweet from the media. The post notes that as government displaces civil society (think “regulates” if you prefer), religious liberty — one of those “civil liberties” that govern the autonomy we enjoy as free participants in civil society — is at risk of being squeezed out. The argument seems to be that as government displaces civil sociey, the effective operation of civil liberties will inexorably be replaced by government directives about proper conduct in what one might call “governed society.” It’s happening already.

The policy advice in the post that emerges from this analysis is that maybe we should stop focusing on opposing gay marriage, which increasingly appears to be a battle that cannot be won in the long term, and start putting more effort into defending religious liberty. In more concrete terms, that means working toward things like putting in legislative safeguards protecting the right of private religious institutions to make their own hiring decisions (think GM CEO here) free of governmental direction or the President Obama seal of approval. Or protecting the right of private religious institutions to make their own membership decisions (who gets to join and who can be dropped from membership) and to decide who can receive its religious sacraments (including marriage).

I realize, of course, that the membership of the Church has no input when it comes to the public policies pursued by the LDS Church. Little or no information is made available about who it is that actually prepares policy analysis memorandums (consultants? attorneys? CES staff? stake presidents?) that are made available to the senior committees of the Church that actually make the policy decisions. But, whoever you are writing those policy memorandums, it is time to start considering alternative courses of action. We don’t want to win the Prop 8 battle but lose the religious liberty war. In an age of growing intolerance we may need to pick our battles more carefully.

84 Responses to The Future of Religious Liberty

  1. Dan on April 24, 2009 at 12:06 pm

    Dave,

    Government is quickly growing into that formerly free civil space at an alarming rate, the most visible sign of which was the recent firing of the CEO of General Motors by President Obama

    Um, what does that have to do with the price of tea in China? Obama didn’t fire Wagoner. Wagoner was not forced out against his will. It was a part of the deal that GM got from the government. The government set the terms, like any bank would do when you ask them for a loan. If GM and Wagoner didn’t like those terms, they were perfectly within their rights to not take the offer. Of course, they would then go bankrupt. But it was still their choice. Please, this is not a sign of governmental intervention in that “civil space.”

    The policy advice in the post that emerges from this analysis is that maybe we should stop focusing on opposing gay marriage, which increasingly appears to be a battle that cannot be won in the long term, and start putting more effort into defending religious liberty.

    But our religious liberties are not at threat, not at all by gay marriage (as the one example used). You are perfectly free to act and believe as you want in this country. What you and many religionists desire is no accountability for your actions if they happen to insult or harm another individual. And this is what is reprehensible. In that “civil space” you and others who think like you think it is perfectly fine to discriminate against others who don’t accept your morals without any consequence against you for that discrimination. For example, the tax exempt issue. Non-religionists think attacking a religion’s tax exempt status is a good way to punish that religion for being discriminatory in the “civil space.” And somehow you and others like you think that is an attack on your “religious liberty.” But what you really want is that “civil space” to continue to stay in status quo, where religionists are free to discriminate against others with impunity. It’s okay for a religion to denounce homosexuality. That’s called “religious liberty.” But for homosexually inclined people to denounce religions for that bigotry, it is called an attack on “religious liberty.”

    I think Christian religions are losing their way, losing the core values upon which they were founded. And perhaps it will require them to lose their status as the majority in this country for them to come out of this stupor.

    In more concrete terms, that means working toward things like putting in legislative safeguards protecting the right of private religious institutions to make their own hiring decisions (think GM CEO here) free of governmental direction or the President Obama seal of approval

    Dude, that has absolutely nothing at all to do with the point of religious freedom (unless GM is a religion). Let go of that point dude.

    Or protecting the right of private religious institutions to make their own membership decisions (who gets to join and who can be dropped from membership)

    When has that ever been threatened? Please, show examples.

    and to decide who can receive its religious sacraments (including marriage).

    once again, when has that ever been threatened. Please, show examples.

    In an age of growing intolerance we may need to pick our battles more carefully.

    Or stop fighting and start living the Gospel of Jesus Christ.

  2. Julie M. Smith on April 24, 2009 at 12:46 pm

    “the most visible sign of which was the recent firing of the CEO of General Motors by President Obama … with hardly a peep or tweet from the media”

    What?!? This was huge news for days.

    ‘legislative safeguards protecting the right of private religious institutions to make their own hiring decisions (think GM CEO here) free of governmental direction or the President Obama seal of approval”

    Interesting that you would call for “legislative safeguards” here. An easier solution: don’t sink your company and then take government funds. Then I can guarantee you won’t hear a peep from Obama about who your CEO should be.

    I’m really surprised by this post.

  3. Chad too on April 24, 2009 at 12:50 pm

    I’m on record as saying that I thought the Church’s efforts re: gay marriage, etc. would have been better spent on shoring up our right to believe as we wish than in using majority-rules force to stop that which we don’t believe in because the latter is too much of a moving target.

    The Church may have things going its way for now in California, but Vermont and soon New York and Iowa show the way this issue is trending and the discussion of the overarcing issues postponed by Prop. 8 are right back on the table. Now we still have to go forward in those states and fight for our 1st Amendment right to be able to not endorse what we institutionally consider immoral.

    Jefferson understood that a high, strong wall between religion and government protects religion as well as government. I hope that’s the direction we start heading.

  4. Chad too on April 24, 2009 at 12:53 pm

    to clarify: I’m not saying that what we believe in is a moving target, but that what the majority is willing to accept is the moving target. I realize now that the way I phrased that above is ambigious and just want to be clear.

  5. Tim on April 24, 2009 at 1:09 pm

    What I’m most worried about is what could happen with religious rights, considering the Supreme Court decision in “Employment Division v. Smith.” Basically, I’m worried that our religious freedoms will be subject to the whims of the legislature, and won’t be protected by the Constitution. During the Prohibition, the Catholic church was allowed to continue to use wine in their ceremonies. They had a Constitutional right to do so. Now, thanks to the conservatives on the Supreme Court, that type of right no longer exists, at least not according to the new interpretation of the Constitution.

  6. Dan on April 24, 2009 at 1:10 pm

    Tim,

    What religious rights are threatened?

  7. Tim on April 24, 2009 at 1:32 pm

    Post-14th amendment interpretation of religious rights in the First Amendment seemed to say that the government had to have a good reason to make a law that outlawed a religious practice, even if the law wasn’t aimed at the religious practice (example: can’t outlaw peyote used in Native American religious ceremonies because there’s no real need to outlaw peyote in the first place–it’s not exactly the most pleasant drug to take, and it doesn’t get a lot of recreational use). Smith changed things. Now, only laws that, on their face, specifically outlaw a religious practice, are unconstitutional. If the language of the statute appears to be neutral towards religion (even if it’s really not) the law is found constitutional.
    I’m not sure how that would affect us (I haven’t had the chance to think about it much) but I think that it will probably eventually be a problem for any minority church, including, perhaps, the LDS church.

  8. Dan on April 24, 2009 at 1:36 pm

    Tim,

    So really, nothing is threatening religious rights right now, but maybe someday they will be threatened? Am I getting it right?

  9. Tim on April 24, 2009 at 1:45 pm

    Dan–kind of.
    The Constitution no longer protects religious freedoms as much as it used to.
    So, in that sense, our religious freedom is threatened.
    Have any laws been passed that limit the religious rights of the LDS people? None that I know of, at least not recently.
    But there’s certainly the risk of that happening.

  10. Dan on April 24, 2009 at 1:52 pm

    Tim,

    Dave’s very first sentence is “Does it have a future?” When talking about “religious liberty.” You admit that nothing right now actually threatens religious liberty in this country.

    Do you see the disconnect in the language from those who fear a contraction of their religious liberties?

  11. Marc Bohn on April 24, 2009 at 1:52 pm

    An odd post on numerous grounds. I don’t think the metaphor you try to push works. The auto industry came in seeking a government assistance to avert a meltdown. Obama actually held a relatively hard line in light of industry demands, but stipulated that if the government was going to step in and help a change of leadership was needed. I don’t think this represents what you claim is a sign that “Government is quickly growing into that formerly free civil space at an alarming rate.” And, as Julie has pointed out, GM’s chairman stepping down drove the news cycle for some time. Ultimately, even Mitt Romney praised Obama’s handling of the situation.

    This post strikes me as nothing more than blatant fearmongering. Nothing you’ve pointed to in any way points toward government (or “Obama”) infringing on “the right of private religious institutions to make their own hiring decisions free of governmental direction or the President Obama seal of approval. Or protecting the right of private religious institutions to make their own membership decisions (who gets to join and who can be dropped from membership) and to decide who can receive its religious sacraments (including marriage).” Those safeguards are already in place (see, e.g., the First Amendment).

  12. Tim on April 24, 2009 at 1:55 pm

    What is particularly ironic is that it is the conservatives on the Supreme Court that have weakened what freedom of religion means.
    The more liberal members of the Supreme Court support a wall of separation between church and state–they don’t want government to control religion any more than they want religion to control government.

  13. Brent Hartman on April 24, 2009 at 1:56 pm

    Joseph Smith would still not be able to legally live the gospel he restored, and yet some still put forth the idea that we have religious liberty in this country.

  14. self on April 24, 2009 at 1:57 pm

    Tim,

    I agree that there are good reasons to be critical of the Court’s opinion in Employment Division v. Smith — however, I don’t think I agree with your characterization that, as a consequence of Smith, religious liberties will necessarily “be subject to the whims of the legislature, and won’t be protected by the Constitution.”

    It’s true that the Court in Smith essentially eliminated mandatory accommodations of religious practices, but it does not follow that, therefore, religious practices (a) aren’t protected by the Constitution, or (b) subject to the whims of the legislature. At least some Constitutional protection exists against legislatures that – on a whim? – target religious conduct for disfavored treatment. See Church of the Lukumi v. Babalu. So at the very least, the Constitution still protects us from disfavored treatment of religious practices.

    And I am not entirely sure that, under the Smith regime, favored treatment of religious liberties is entirely subject to the ‘whims’ of the legislature. True, the Court in Smith essentially said that accommodations are permissive only.

    But religious accommodations have NOT been prohibited — which is not unheard of in other governments (see, e.g. France). And, where the state carves out exceptions for other, non-religious conduct, there are compelling legal arguments that the state must craft exemptions for religious conduct, as well. And of course, the legislature cannot, on a whim, treat one religion favorably but not another — another harm that I am glad to be protected from.

    In short, for better or worse, the Court’s religion clause jurisprudence really just treats religion as a ‘suspect class’ subject whose favor/disfavor is subject to heightened scrutiny. But that is not synonomous with leaving religious liberty unprotected.

  15. Tim on April 24, 2009 at 2:03 pm

    Dan,
    The Smith case I mentioned threatened the religious liberties of certain Native Americans.
    That decision is still good law.
    As long as that decision is good law, and as long as the government meddles with religious freedoms without a very good reason for doing so, our religious liberties are threatened.
    But I’m putting the blame on this on Justice Scalia and his ilk, who put law above our Constitutional rights to religious freedom.
    I’m not sure if some liberals will use that to push gay marriage or not, but I’d say the very conservative Justice Scalia has definitely made it possible, especially if discrimination laws against homosexuals are changed.

  16. self on April 24, 2009 at 2:03 pm

    Tim @ 9: Could you clarify what you mean when you say,

    “The Constitution no longer protects religious freedoms as much as it used to.” To what period in American history are you referring?

    Certainly not to post-Revolution America, when many states prohibited Jews from citizenship?

    Perhaps to the mid-19th century, when the First Amendment was not read to apply to the states and therefore, did not protect Mormons from persecution by the likes of Gov. Boggs?

    Or maybe the late 19th century, when the First Amendment did, in fact, apply to the federal Utah territory — but did not protect the Mormon practice of polygamy?

    I suspect that you are referring to a brief window of time when the Free Exercise Clause was at its zenith, during the so-called “Sherbert” era. Even then, I am not entirely convinced that the Constitution afforded the level of religious liberty that you seem to infer…

  17. self on April 24, 2009 at 2:11 pm

    Marc @11.

    I wonder if Dave’s analogy works (at least a little bit) – but not vis-a-vis religious liberty in the U.S.?

    Rather, it could apply to religious liberty issues in Germany.

    Many Americans might, at first blush, prefer the German approach to religious liberties. After all, the American Supreme Court explicitly prohibited prayer in public schools, and the German high court explicitly allowed prayer in public schools.

    But upon closer examination, we might not like the ‘cooperative’ German model so much. Other German legal precedent clearly favors Christianity (as defined by the state – and likely not to include Mormonism) over other religions.

    Some Americans might like to have many of the other perks that the German state affords to religions that, like the auto companies in the U.S., coming to the state asking for assistance. For example, registered religious corporations can have the state collect their tithes and offerings for them, by salary deductions (the state gets a cut). However, in exchange for the state’s assistance, religions have to subject themselves to certain rules, defined by the state, regarding their conduct… Much like the GM CEOs ceded at least some authority to the American government in exchange for the bailout loans.

    Anyway, haven’t really worked it out all the way, but that’s a thought for your consideration…

  18. Dan on April 24, 2009 at 2:12 pm

    Tim,

    You say that the Smith case “threatened the religious liberties of certain Native Americans.” Can you be more specific? How is it “threatening” their religious liberties? Does it in any way actually encroach on their religious liberties?

    Furthermore, if I were to create a religion that believed smoking pot was an essential part of that religion, would that be acceptable in this “civil space” Dave is talking about?

    Furthermore, there were some religions in the past that performed animal sacrifices and even human sacrifices. Should those practices be constitutionally protected?

  19. self on April 24, 2009 at 2:13 pm

    Dan @ 18: There are some religions, in the present, that perform animal sacrifices. And those practices have been afforded Constitutional protection by the Supreme Court in Lukumi.

  20. Ben on April 24, 2009 at 2:17 pm

    Dan, your comments are getting strident enough that several times I’ve gotten in a few lines, said “is this Dan again?” skipped to the end of comment, and confirmed it…

  21. Dan on April 24, 2009 at 2:18 pm

    Thanks for that “self” I didn’t know that.

  22. Dan on April 24, 2009 at 2:19 pm

    Ben,

    Is that meant to insult me? Just curious why you would even need to say something like that.

  23. Tim on April 24, 2009 at 2:30 pm

    self,
    You are correct; I am referring to the time period between Sherbert and Smith.
    As to exactly how much religious freedom Sherbert allowed, I’m not sure–but it allowed more than Smith does.
    The law in Lukumi was unconstitutional because it prohibited just the ritual slaughter of animals (and it didn’t prohibit other killing of animals). It specifically targeted a religious practice. Had it outlawed all slaughter of animals, it would not have been unconstitutional, and the religions that slaughter animals would be out of luck–their religious practices would be illegal.

  24. Bruce in Montana on April 24, 2009 at 2:33 pm

    I agree with #13.
    Religious rights in this country have yet to even come up to the point of allowing the restored gospel to be practiced.
    Those adherents to celestial plural marriage, for example, do so at great risk to themselves and their families.
    But it’s ok. I’ve never seen a great prophet that would hesitate to put God’s law above man’s.

  25. Ben on April 24, 2009 at 2:43 pm

    Not meant to be insulting (though I frequently disagree), but the combination of writing style and repeated themes marks a comment as “Dan the Democrat” pretty quickly.

  26. Tim on April 24, 2009 at 2:45 pm

    Dan,
    I’m kind of a neophyte with this whole law thing, and I’m fairly certain that “self” understands these issues better than I do. But I’ll still try to answer your questions.
    Between about 1963 and 1989, any governmental regulation or prohibition that imposed a substantial burden on a sincerely-held religious belief was subjected to strict scrutiny (which means that the courts made sure that the government regulation was narrowly tailored to advance a compelling governmental interest).
    Given modern drug laws, I don’t think smoking pot could possibly be a Constitutional right under those standards, although religious, carefully controlled use of peyote probably would.
    From what I know about the use of peyote, I’d say it’s comparable in importance to that specific religion as temple service is to our religion. They place high value on the experience, and consider it to be a sacred one. If we weren’t allowed to attend the temple–I’d say our religious liberties were threatened, even violated.

  27. John Mansfield on April 24, 2009 at 2:56 pm

    Liberty has to be upheld for everyone, not just for certain groups. Religious groups, for example. Any law that can justifiably have a religious exemption is a law that shouldn’t exist at all. A person shouldn’t have to belong to a church to get relief from laws running his life. If religious people are only defending religious liberty, and that becomes the only liberty left, then soon enough it will be curtailed as well.

  28. Jack on April 24, 2009 at 3:06 pm

    IMO, those who tend to believe that religious liberties are not being threatened also tend to conveniently interpret the free exercise of religion as something that has meaning only in the abstract i.e., beliefs, teachings and sacraments–nothing that has any real traction in the trenches of society (as they suppose).

  29. aloysiusmiller on April 24, 2009 at 3:25 pm

    25. Give up

  30. Ian Cook on April 24, 2009 at 3:25 pm

    Sometimes I switch the words “Gay marriage” with the words “Religious liberty” on either side of an argument, and I see basically the same thing. I think the harder we fight to take things away from one side of the coin, the more likely things are going to be taken from us on the other.

    If you know what I mean.

  31. Ian Cook on April 24, 2009 at 3:26 pm

    In other words, isn’t Gay marriage a form of religious liberty?

  32. Fred Gedicks on April 24, 2009 at 3:37 pm

    “Religious liberty is vanishing.” (Yes, I paraphrased.)

    Where to start?

    1. Smith was decided in 1990; 19 years later, the sky still has not fallen. Perhaps that’s because the Sherbert-Yoder regime from the 1960s to 1990 (to which Tim seems so attached) had way more more bark than bite.

    2. Following Smith, the Court walked back some of Smith with the Lukumi case, which was a generous construction of “religiously neutral” and “general applicability” that provides more protection from Smith than first appeared.

    3. Congress enacted the Religious Freedom Restoration Act in 1993; it was struck down as applied to the states in 1995, but still applies to federal government action.

    4. Following the invalidation of RFRA as to the states, Congress enacted the Religious Land Use and Institutionalized Persons Act, which requires that states show a compelling interest when they burden religious land uses, and religious exercise by prison inmates. RLUIPA has been repeatedly upheld by the circuits, and in one unanimous SCOTUS opinion.

    5. More than half the states have adopted state RFRAs, by constitutional amendment, statute, or court decision.

    6. Overblown Prop 8 rhetoric to the contrary notwithstanding, there is no threat–repeat, none, nada, nessuno, nothing–to the autonomy of churches regarding for whom they perform marriages or their tax exemptions, and there is little realistic threat to church autonomy over employment in nonprofit agencies and auxiliaries, nor would there have been any if Prop 8 has failed.

    In short, one can make a powerful case that religious liberty is more protected now than at any time in our history, including during the Sherbert Yoder regime. Of course, when I say “religious liberty,” I do not mean to include the “right” to an affirming majoritarian culture, but on the right to enough room to live one’s faith authentically. It is indeed annoying to have to correct some of the things one’s children learn at school (and, for that matter, at seminary), but it would be a much more serious matter if parents did not have the right to make such corrections, or the right to home school, or send their kids to nonpublic schools, or send them to Sunday School, etc.

    The post makes a good point, although obliquely: It may well be better for religious minorities (that includes us Mormons, however much we’d like to think otherwise) to deemphasize legislation that seeks to conform society to their moral values, in favor of spending that capital seeking exemptions and other kinds of “elbow room”.

    Fred Gedicks

  33. john willis on April 24, 2009 at 3:45 pm

    I would call your attention to two U.S. Supreme Court Cases that ought to address some of your concerns, First is Corporation of Presiding Bishopbric v. Amos 483 U.S.327 (1987) . In this case the Church fired a maintaince man at the old Deseret Gymnasium, now the site of the Conference Center ,because he did not have a Temple recomend. The Court held that the Church was within it’s rights to do do so.
    In Boy Scouts of America v. Dale 530 U.S. 640 (2000) the court held that a gay junior assistant scoutmaster did not have a right to be reinstated in the scouts after he was expelled from the Scouts after he had come out. The court found for the Scouts even though the state of New Jersey had passed an anti discrimination statute which included Gays .

    The notion that if a state legalizes Gay marriage that the Church would be forced to marry gays in the Temple is bogus.
    I would also call your attention to an article by Morris Thurston an active L.D.S attorney from Califronia who wrote an excellent article showing that the parade of horribles that supposedly would follow the legalization of gay marriage were based on fundamental misunderstandings of the state of the law on free exercise of religion in the United States. Just google “Morris Thurston” and you can read his article.

    I would also note that the state legislature of Vermont which recently became the first legislature to legalize gay marriage included provisions in the bill whcih expressly stated that no religious group would be required to marry gays . The state legislature in Connecticut ,which is writing legislation to implement their state Supreme Court decision legalizing gay marriage , has also included language stating that religous groups will not have to preform any acts such as preforming a marriage between a same sex couple that violates their religious beliefs. The notion that part of the so called “gay agenda” is to force religious groups opposed to homosexual practices to preform actions such as marrying same sex couples is also bogus.

    I am not arguing that the Church was wrong to oppose Porosition 8 or that it should change our doctrine on same sex relations. I am just trying to make a case that many of the arguments that legalizing same sex marriage or making discrimination against gays in public acomidations and employment would mean that Churches would have to violate their principles does not have a sound basis in law.

    The two U.S. supreme court cases I cited are pretty well established precedents and I do not see the Supreme Court overturning them ,even after some Obama appointments.

  34. self on April 24, 2009 at 3:47 pm

    Jack @ 28:

    It appears that your real beef is with the Free Exercise framework established by the Supreme Court in Reynolds v. U.S., where the Court ruled that the Free Exercise Clause does not prohibit Congress from regulating conduct — only from regulating belief. There are a lot of good reasons to be critical of the Court’s reasoning in Reynolds — many of which George Cannon illucidated shortly after the opinion was handed down (thanks to N. Oman for pointing to GQC’s review on googlebooks).

    One critique of the distinction that I find compelling is that it is unrealistic to prohibit religious conduct without also affecting religious belief. From a non-Mormon perspective, it looks very much like the Mormon church abandoned its *belief* in polygamy precisely because it faced an existential threat due to the prohibited *practice* of polygamy. Certainly, far fewer Mormons in 2009 believe that polygamy is a necessary prerequesite to exaltation, than so believed in 1889 (or even 1909).

    All criticisms of the reasoning, or effect, of Reynolds aside — what’s your alternative? It could easily be averred that “IMO, those who tend to believe that religious liberties are being threatened also tend to conveniently interpret the free exercise of religion as something that has meaning” only for their preferred set of beliefs. See, e.g. Dan @ 18 (condemning religions that practice animal sacrifice); see also J. Scalia who has said that it would be perfectly appropriate for the state to privilege monotheistic religions (would Mormonism qualify for Scalia??).

    I think that when we speak of religious liberty, we must necessarily confess that there need to be *some* limits on religious liberty. The tough question is, what are the limits? How do we set up a sytem that tolerates and even encourages religious belief and practice, without devolving into either a theocratic regime, ala Iran, or into a total anarchist state where every man is a law unto himself based on his religious beliefs (i.e. J. Scalia’s dire prediction in Smith)?

  35. Geoff B on April 24, 2009 at 4:00 pm

    Dave, I think you bring up important points in this post. While I agree with you that with the Iowa Supreme Court decision and all the activity on gay marriage in New England we (meaning the Church) seem to be losing the SSM battle, I believe the Prop 8 fight was important precisely because it showed many people that the most ardent supports of SSM have absolutely no respect for religious people or religious liberty. Interestingly, recent polls in California have shown that opposition to SSM is growing, not decreasing. Personally, I think that the extreme reaction of the gay rights groups caused “moderates” on the issue to decrease their support for gay rights, rather than increase it. And the reason is that they rightly perceive that if the extremists have their way religious liberty will decrease.

    So, to summarize, the religious liberty fight and the anti-SSM fight are, in many cases, the same battle.

    By the way, I know you have gotten some grief on the whole Obama-firing-a-CEO comparison, but I think there is some relevance. In a larger sense, if the president of a country can step in a fire a CEO we are entering a world where many things that were previously considered off limits are suddenly no longer off-limits. This may potentially apply to our religious liberties in ways we couldn’t even imagine just a few years ago.

  36. Mark B. on April 24, 2009 at 4:14 pm

    The religious liberty concerns that arise from the state giving its sanction (not simply holding its nose and looking away) to acts that most of humanity for most of the history of the world have considered odious are better enunciated in letters written by Prof. Doug Laycock and by Professors Robin Wilson, Carl Esbeck, Rick Garnett, and Tom Berg to the Connecticut legislature, which is considering legislation to implement the decision the Connecticut Supreme Court made allowing “gay marriage.” You can read those letters, and reasoned discussion of the issues discussed in them, at http://www.volokh.com.

    All those who glibly assure us that there are no religious liberty issues relating to this issue remind me of all those who glibly assured us that all the “progressive” decisions by courts granting rights based on homosexual behaviors would surely never lead to calls to treat their relationships as “marriages.”

    Can’t you understand why those glib assurances don’t seem particularly reassuring?

  37. Ardis E. Parshall on April 24, 2009 at 4:19 pm

    I don’t know whether this is a post encouraging the political protection of religion, or a post using religion to mask a political opinion.

  38. Marc Bohn on April 24, 2009 at 4:22 pm

    Fred Gedicks is one of the country’s most respected experts on religious freedom and his response in #32 is hardly glib.

  39. TMD on April 24, 2009 at 4:23 pm

    On the merits the argument misunderstands the natue of civil society, in that economic activity has traditionally been excluded from definitions of society. So, the basic argument that the firing of Wagoner is evidence of an erosion of civil society is, strictly speaking, incorrect. Reflection on British history shows that this is clearly the case: during the late ’40’s, when the British went in for large-scale nationalizations of industry, national health-care, etc., there was no expansion of control over its largely vibrant civil society.

    However, I do agree with the need to increase the defense of religious liberty. Those who argue that gay marriage by the state will not lead to the state forcing the church to allow gay marriage in the temple are of course correct–and they’re being disingenuous for responding to that straw man argument. The real issue is what protestants call the ‘parachurch,’ (in the LDS case, think LDS social services, DI, etc.) those parts of the church, and affiliated organizations (like the scouts). Gay marriage will compromise thier ability to continue to maintain their rights to conduct their business as they like without punishment (denial of licenses, for example, to social workers who affirm heteronormativity, or, as we have seen in the case of the Boy Scouts (despite, in fact because of, BSA v Dale), early termination of leases without compensation for improvemnts (see the Philadelphia council office case). The issue isn’t what happens inside the temple; the issue is what happens to everything that happens outside of it. That’s the serious religious liberty issue that confronts us with gay marriage.

    Indeed, I think it’s so serious that I would actually favor a US constitutional ammendment that would both legalize gay marriage if it would secure individuals and private organizations in the public square who express heteronormativity from any sanction or punishment by the state (or the ‘para-state, like organizations whose licenses or certifications are required by the state to engage in a professional activity) on that basis.

  40. TMD on April 24, 2009 at 4:24 pm

    ‘…has been traditionally excluded for definitions of _civil_ society.’

  41. Fred Gedicks on April 24, 2009 at 4:32 pm

    Re # 39 TMD, it is not disingenuous to respond to a disingenuous example that pro-8 forces flogged for all it was worth in the weeks preceding the election. IMHO, the damage to the Church and other marriage coalition forces stemmed from use of precisely this kind of bogus argument.

    I agree with the spirit of TMD’s last post, however, that securing exemptions for what is called the “parachurch” is what we should be after.

    Re #36 Mark B., I have great sympathy for the nonprofit activities of churches (as does, generally, constitutional and statutory law) in this regard, but not so much for people (and churches) engaged in for-profit businesses. I agree with Laycock, et. al., re nonprofits, but not with the “marriage florist” situation that they are worked up about.

  42. TMD on April 24, 2009 at 4:33 pm

    I would further note that the problem with relying on statute law and court decisions, as Gedicks does is that with the recongition of gay marriage has been accompanied (in for instance the California decision) by the recognition of homosexuality as a ‘suspect class,’ much as is race. This means that there will likely be a clash of claims between civil rights legislation/decisions and these sorts of religious freedom statutes and decisions. It is not so clear how well they will withstand this collision.

    Additionally, there is something of a commitment problem here: will the public and political climate be as willing to support rights to heteronormativity in the public square after a decade of gay marriage? These statutes and decisions can be changed quite quickly. Arguably, a constitutional ammendment at least lessens the commitment problem–since it would require a further constitutional ammendment (no easy thing) to undo.

  43. Dan on April 24, 2009 at 4:38 pm

    TMD,

    Indeed, I think it’s so serious that I would actually favor a US constitutional ammendment that would both legalize gay marriage if it would secure individuals and private organizations in the public square who express heteronormativity from any sanction or punishment by the state (or the ‘para-state, like organizations whose licenses or certifications are required by the state to engage in a professional activity) on that basis.

    I’m with that.

  44. Dave on April 24, 2009 at 4:55 pm

    Thanks for all the comments. I may have sent the discussion off on a tangent by reference to the GM CEO (thanks, Geoff), but other recent events tell the same story: strings attached to TARP funds; increased government oversight over banks and securities markets that is sure to come; health care reform that will increase government involvement in that large sector of the economy. This is nothing new — the government sector has been growing for the better part of a century. The potential impact of this growth on religious liberty, coupled with the desire of some interest groups to trim back religious liberty in pursuit of their own agendas, was the point of the Mirror of Justice post and my own post.

    Thank you for your comments, Prof. Gedicks. Some earlier comments reflect the notion that because there is a constitutional Free Exercise Clause and a No Establishment Clause, that religious liberty is thereby insulated from government statute or decisions of the court. That is not the case — religious rights often come into conflict with other rights and must be vindicated, balanced through compromise, or subordinated vis-a-vis those other rights, whether they be constitutional or statutory.

    For example, Reynolds held that what citizens were guaranteed freedom to exercise under the Free Exercise Clause was mental belief and that government could rather freely regulate religious practices. The Court’s position moderated in the 20th century, but at present, under Smith, recognizes the power of generally applicable government law and regulation to trump contrary religious practice. That does protect against laws specifically intended to restrict or infringe religious practices (as in Lukumi Babalu Aye), but still leaves religious practice subject to general government regulation.

    Now that isn’t necessarily a bad thing. But the reality is that it leaves religious liberties subject to legislative or judicial redefinition in (as some label it) an age of growing intolerance.

  45. Marc Bohn on April 24, 2009 at 5:59 pm

    Dave – I assume you were alluding to my comment, among others, when you said “Some earlier comments reflect the notion that because there is a constitutional Free Exercise Clause and a No Establishment Clause, that religious liberty is thereby insulated from government statute or decisions of the court.”

    To clarify, I in no way think that religious liberty is somehow insulated from statute or court decision. I do think that you failed to adequately provide grounds for the incursion on religious liberties you fear is coming. You issue a call to work “toward things like putting in legislative safeguards protecting the right of private religious institutions to make their own hiring decisions (think GM CEO here) free of governmental direction or the President Obama seal of approval. Or protecting the right of private religious institutions to make their own membership decisions (who gets to join and who can be dropped from membership) and to decide who can receive its religious sacraments (including marriage).” But while you seem to suggest that incursions like these are not only plausible but likely, you provide no basis for that suggestion. Do you have any evidence to support your claim that government is imposing on religious liberty in the way you outline above?

    In a later comment you note that Reynolds (and I would add Smith) “still leaves religious practice subject to general government regulation.” This is true… but ultimately I think most people would subscribe to the belief that government SHOULD at some point regulate religious practice. Should government not be allowed to regulate, say, a faith’s practice of marrying its twelve-year-old daughters into polygamous relationships? The question becomes one of where exactly you draw the line (with these issues that skirt this line typically being the ones that are litigated and that end up defining our legal understanding of the First Amendment).

    Has government, at times, overstepped its bounds on these issues? No doubt, but this is nothing new. What I think you’re hard-pressed in arguing is that there is any real danger of the parade of horribles that you trotted out being imposed. At the margins, there may well be some conflicts, and here I would agree with one thrust of your post, and echo Fred Gedicks in saying: “It may well be better for religious minorities (that includes us Mormons, however much we’d like to think otherwise) to deemphasize legislation that seeks to conform society to their moral values, in favor of spending that capital seeking exemptions and other kinds of “elbow room”.

  46. Brad Kramer on April 24, 2009 at 7:08 pm

    Rather unimpressive analysis, here. I expect more from you, Dave.

  47. Brad Kramer on April 24, 2009 at 7:11 pm

    “In a larger sense, if the president of a country can step in a fire a CEO we are entering a world where many things that were previously considered off limits are suddenly no longer off-limits.”

    Sigh…

    Do you really think the acceptance of federal bailout funds is an irrelevant point of (non)comparison? Good grief.

  48. Ben on April 24, 2009 at 7:23 pm

    “25. Give up”

    I’m not sure what this means…

  49. Dave on April 24, 2009 at 8:25 pm

    FYI, I don’t buy in to the “parade of horribles” that were circulating in connection with Prop 8. That was not the frame for this post nor the topic discussed.

    Nor did I suggest the sky was falling on this issue, simply that the political winds have shifted and there will be pressure on religious liberties, which are likely to contract. Here’s a news item from the Pew Forum three days ago, “Obama upholds case-by-case approach on religious hiring.” Excerpts:

    President Obama will continue to use a case-by-case approach to judge whether hiring discrimination based on religion is appropriate for religious groups.

    ***

    DuBois [director of the White House Office of Faith-Based and Neighborhood Partnerships] said his office would consult with the White House counsel and the attorney general to “form a recommendation” on a particular issue and then “submit it to the president for review,” looking at the “legal and policy implication for each case as they come.”

    Case-by-case approach … interesting way to describe what’s left of free exercise. There’s a story on the same topic, religious hiring, in the Washington Post.

    Brad [#46] — rather unimpressive comment. I expect more from you.
    ;-)

  50. sparsile on April 24, 2009 at 8:51 pm

    Although religious freedom is not in imminent danger of disappearing in America, legal “solutions” to acts (or statements) of conscience based on religious belief seem to be increasing around the world, including in the U.S. We see some Connecticut legislators proposing to place Catholic church funds outside the control of church authorities, an almost unbelievably arrogant and “government knows best” attempt to subvert religious freedom. Now Obama seems to be on the verge of disallowing a conscientious refusal to participate in abortions. What will this mean? That a health-care provider or pharmacist will lose their license if they don’t participate in abortion? Although not a frontal assault on “religious rights”, per se, certainly the effect will be the same since most of the “conscientious objection” will be based on religious belief. I think we are entering a dangerous era in our country, and the “liberal” countries in general – an era when decisions based on religious belief will increasingly be discounted and even made illegal. The sky has not yet fallen, but we need to be cognizant that religious will be increasingly under attack so that we can attempt to stem the tide.

  51. Fred Gedicks on April 24, 2009 at 9:49 pm

    #49 Dave, the news item you mention relates to the faith-based initiative. Bush allowed churches to take FBI money but continue to discriminate in hiring; Obama has rolled Bush’s blanket exemption back to a to case-by-case one, depending on the church and the situation. As a zillion government funding cases have held, there is no constitutional right to get gov’t money with no strings attached. The answer: don’t take the money, as the LDS church has (not) done for decades.

    The (Clinton/Repub Congress) welfare reform act in the late 1990s provided for social service funding directly to religious organizations for related “good works” projects, mostly job hunting and retraining assistance, as well as some substance abuse. Bush tried to get wide ranging legislation beyond welfare through Congress, but it got hung up on the employment discrimination issue; Congress was unwilling to fund religious social service programs while allowing the programs to discriminate in employment. So Bush did what he could by executive order; that’s why Obama could repeal or alter it by executive order.

    This hardly presages any of the things mentioned in your original post, or the implication that churches are being boxed in on employment decisions in your last post, since this has no effect on churches who don’t take FBI money. And anyway, it’s only been a little over a decade that the order Obama altered had been in place, so it’s not like some righ”deeply embedded in the history and traditions of our people” has been lost.

  52. aloysiusmiller on April 24, 2009 at 10:46 pm

    I am sure that if we go back far enough we can find experts telling us there is no danger whatsoever that homosexuals will ever have marriage rights.

    I don’t have the research skills but I’ll bet someone might be willing to take up the challenge.

  53. Dan on April 24, 2009 at 11:12 pm

    but how does homosexuals having marriage rights threaten “religious liberty?”

  54. Mark B. on April 24, 2009 at 11:24 pm

    Whether Marc Bohn is correct about Fred Gedicks, why should we suppose that Fred Gedicks or any other student of what has happened in the past is thereby become a prophet of what will happen in the future?

    As to this statement of Mr. Gedicks:

    there is no threat–repeat, none, nada, nessuno, nothing–to the autonomy of churches regarding for whom they perform marriages or their tax exemptions, and there is little realistic threat to church autonomy over employment in nonprofit agencies and auxiliaries, nor would there have been any if Prop 8 has failed.

    As I said before, the “church forced to perform ‘gay marriage'”
    does seem like a nonsensical argument (which leads me to think that it was invented by proponents of “gay marriage” in an attempt to distract people from the real issues, or in an attempt to show that their opponents were stupid scaremongers), but recent history suggests that we should not feel nearly so sanguine about churches’ hiring decisions or engagement in social service functions (adoption services, for example), and statements that there is no risk of such things occurring are glib if not worse.

  55. Jack on April 24, 2009 at 11:30 pm

    Dan,

    As I said before, it depends on how you define religious liberties. If it is in only the most abstract sense i.e., the protection of beliefs and sacraments etc. then homosexuals having marriage rights shouldn’t be a threat. But if one’s definition goes beyond the abstract and into practices then there can be lots of problems for religions–or at least folks who are informed by there religions as to morality, ethics etc.

    self,

    Re: Comment #34–Thanks for the response. I don’t know what the best answer is at this point either–I too agree that there must be some limitations in place. Ideally it would be nice to convert everyone to the gospel. But until that day comes I think we’re just gonna have to duke things out as best we can in the kindest way possible with whatever political clout we can muster the secular arena.

  56. Kaimi Wenger on April 25, 2009 at 12:17 am

    Mark B.,

    _Marriage Cases_ explicitly carved out religious weddings, so Fred Gedick’s statement on wedding performance seems accurate.

    I agree that it seems like a silly argument to begin with. And yet, I have personally heard it made by ward members: “We need to pass Prop 8, or else the temple will have to be closed down because we don’t do gay weddings.” That exact statement was made by a ward member in Priesthood meeting and agreed on by many more. I was there, listening (and sighing, and shaking my head).

  57. lyle on April 25, 2009 at 6:16 am

    “Let’s take the reformulated concern of the OP: religious liberties subject to legislative or judicial redefinition in (as some label it) an age of growing intolerance.” [Post 45]. A valid concern.

    Perhaps a better example: Catholic hospitals have suggested they may close their doors rather than be forced to perform/allow abortions to be performed. While the issue is more nuanced, that’s the basic story. Government forcing a religious entity to do something it doesn’t believe in, or be left without government funds. Nevermind that those funds are used to help the poor and those who can’t afford healthcare.
    While a separate debate can be held re: whether the Catholic Hospitals would be hurting their faith more by closing than allowing evil into their buildings in order to continue doing “more” good by providing health care to the poor, its the government compulsion that gives cause for concern.

    If Hari Seldon used Psychohistory to predict the future, I think we see a world most popularly predicted by the Left Behind (evangelical) book series. Perhaps the causal connection is in fact reversed, but I didn’t see any mention in the media of Christian’s as “haters” until the gay-rights movement got into full swing.

  58. Dan on April 25, 2009 at 6:34 am

    Mark B.,

    but recent history suggests that we should not feel nearly so sanguine about churches’ hiring decisions or engagement in social service functions (adoption services, for example), and statements that there is no risk of such things occurring are glib if not worse.

    But all those “para-church” activities and institutions are not essential to “religious liberty.” Boy Scouts is not an institution essential to “religious liberty.” These kinds of institutions are open for general public consumption and are not exclusive to religious members. Thus, if open for the public, they are more required to be less discriminating. Religions themselves can dictate whatever the heck they want for their membership. That’s “religious liberty.”

    Or am I wrong in describing “religious liberty?”

  59. lyle on April 25, 2009 at 6:37 am

    Anyone more interested in the legal nuances of this issue, there is a pretty good running debate about how to protect the “liberty” of homosexuals and churches below:

    http://volokh.com/archives/archive_2009_04_19-2009_04_25.shtml#1240449003

  60. Dan on April 25, 2009 at 6:41 am

    Jack,

    If it is in only the most abstract sense i.e., the protection of beliefs and sacraments etc. then homosexuals having marriage rights shouldn’t be a threat. But if one’s definition goes beyond the abstract and into practices then there can be lots of problems for religions–or at least folks who are informed by there religions as to morality, ethics etc.

    But again, we need to get specific. If we are making an argument that there is a “threat” to our “religious liberty,” then surely we understand what parts of our “religious liberty” are actually threatened. However, if “religious liberty” is purposely vague so that we can lump whatever we want within its umbrella, then we are being disingenuous. We then can claim anything we want as an affront on our “religious liberty.” And that is exactly how this particular argument that Dave makes feels. He shares no specifics, because to do so would limit “religious liberty” when that’s not what he wants. He wants “religious liberty” to be whatever he wants it to be. Gay marriage, for example, threatens “religious liberty”… somehow. No one really knows how, but surely it does!

    others have made a better point than I that there probably hasn’t been a better time for “religious liberties” than the present. Surely the 1800s weren’t a good time for “religious liberties” at least for Mormons. And for Jews. And for Muslims. And for any other non-influential Protestant or Catholic religion. You think Native American religions had many rights back then? You think Wiccans could believe what they wanted?

  61. Dan on April 25, 2009 at 6:45 am

    lyle,

    Government forcing a religious entity to do something it doesn’t believe in, or be left without government funds

    What’s wrong with being left without government funds? surely without government funds, such a hospital is free to discriminate as it pleases. Ah…but it wouldn’t get the business it does, now would it?

  62. Brent Hartman on April 25, 2009 at 8:23 am

    Funny enough, the Church supporting traditional marriage legislation actually opens the door (wider) for government intrusion into other religious ordinances.

    If the government can dictate who is allowed to get married, then what’s to stop them from dictating how and where they get married?

    Based on the Lukumi ruling, couldn’t we pass laws that are neutral and generally applicable that would end the practice of temple marriage as we know it?

    For instance, the gays could argue that marriages should be done in open and public places. Let’s end this practice of secret, behind closed door covenant making. I bet they could even find support for this legislation from the fundamentalist Christians.

    From my perspective, the government should play no role in determining who a person covenants with, or what kind of religious covenants they can make.

    As long as one is not violating the constitutional rights of another, then mind your own damn business.

  63. Fred Gedicks on April 25, 2009 at 8:54 am

    Re #54 Mark B., just for the record, I am not a prophet. But you don’t have to be to conclude that “gay marriages in the temple” is ridiculous.

    For example, neither the Civil Rights Act of 1964 nor Loving v. Virginia (invalidating state anti-miscegenation laws) forced the LDS chutrch to perform marriages (anywhere, let alone in the temple) involving Africans or African Americans in advance of the 1978 revelation. Nor has Title VI or Title IX or the elevation of gender discrimination to near-suspect status by the courts in any way threatened the tax exemptions of churches that do not ordain women.

    Making an argument entails more than darkly stating a conclusion based on the fear that judges or legislators might do something crazy. Martians could also invade tomorrow, but that’s not the way to bet. On what are you basing your conclusion that gay marriages in the temple is a legitimate threat?

  64. Ardis E. Parshall on April 25, 2009 at 9:23 am

    Mark B.’s last did not “conclu[de] that gay marriages in the temple is a legitimate threat” — he says that “does seem like a nonsensical argument.”

    His stated concern, rather, is about “churches’ hiring decisions or engagement in social service functions.”

    I’ve appreciated some of what you have written, Fred Gedicks. I would appreciate it if you would read Mark B.’s comment for what it really says, and respond to that.

  65. Dan on April 25, 2009 at 9:53 am

    Brent,

    From my perspective, the government should play no role in determining who a person covenants with, or what kind of religious covenants they can make.

    That’s my feeling too. Let religions handle marriage.

  66. Fred Gedicks on April 25, 2009 at 9:56 am

    Re #64 Ardis, fair enough. (Query, for Mark B., though: what is “worse” than “glib”?)

    The threat to church employment decisions in nonprofit social service auxiliaries is very low (unless they take faith-based or other government funding, in which case, under the Obama administration, there will be a case-by-case determination whether the church will be able to discriminate in favor of its own members). SCOTUS decided Corporation of the Presiding Bishop v. Amos about 20 years ago, holding that the exemption of churches from the Civil Rights Act antidiscrimination provisions did not violate the establishment clause, and resting that conclusion on a determination that churches have a strong right of self-determination and autonomy when they act in their nonprofit capacity. Of the current members of the Court, only Justice Stevens has questioned Amos.

    The threat to social service auxiliaries, then, is not to their employment decisions, but in the performance of their missions. Some of the more aggressive state public accommodation statutes prohibit discrimination on the basis of sexual orientation and religion by “public accommodations”–i.e., entities that hold themselves out to the public as generally providing a good or service. Ironically, social service agencies that attempt to fulfill their missions in the public at large–Catholic Soc Services, for example–are at greater risk than those who carefully tailor their missions to their members–this is my impression of what LDSSS does, but I could be wrong–since the latter approach greatly diminishes the possibility that the agency will be found to be a public accommodation. I’m unfamiliar with the details of the Massachusets situation, except to observe that there seems to be considerable disagreement in the MSM about what, exactly, Catholic Social Services has been required or not required to do, and how it has responded.

    It’s worth pointing out that most states have religious exemptions from public accommodation statutes, although their breadth can vary. It’s also worth pointing out that some churches choose not to discriminate in favor of members in their social service auxiliaries, and thus subject themselves to the antidiscrimination provisions of public accommodation statutes voluntarily. This may be the situation in Mass.

    The litigation in this area cuts a swath much wider than SS marriage or related issues–should adoption agencies be able to prefer same-race or same-religion parents, must Catholic hospitals cover antificial contraception in their employee insurance programs, may FBOs such as substance abuse programs that are formally open to the public require attendance at religious services, etc. Regardless, whether antidiscrimination values do or should outweigh social services provided by discriminatory nonprofits is not a simple question, and is almost certainly a legislative one, which is where public accommodation statutes have originated.

    As I’ve suggested earlier in this thread, my sense is that the political capital of churches is better spent retail on exemptions rather than wholesale on broad values-based legislation whose effect overflows church membership boundaries. That is, however, a pragmatic assessment, and for many folks what is at stake is principle, not pragmatics.

  67. aloysiusmiller on April 25, 2009 at 10:44 am

    And so you say Fred and so we must believe but there was a time when no one would have brought the cases and now they go all the way to the Supreme Court. Nonsense that should have been dismissed out of hand now requires significant time, money, effort and vigilance to protect.

    I am afraid, dear Fred, that we are in a slowly closing vise of, first, threats to religious conscience and, second, threats to the practice of religion.

  68. Dan on April 25, 2009 at 10:58 am

    aloysius,

    Nonsense to you, but not to others. In a secular democracy, what you consider nonsense has rights under the Constitution. That mostly pro-Protestant morality has ruled America to this point shows that “religious liberty” really means “Protestant Christian liberty”.

  69. lyle on April 25, 2009 at 4:28 pm

    Dan:

    Would you prefer that the poor are unable to get medical services because the Catholic hospitals, unable to get gov’t subsidies for providing free medical care to the poor, close down? Because your exactly right…they wouldn’t get their current business: helping others. I don’t see anyone else jumping at the chance to open hospitals that will serve the poor and uninsured merely to get the ‘business’ of government subsidies.

  70. Dan on April 25, 2009 at 7:11 pm

    lyle,

    Demand is high for hospitals. If Catholic hospitals shut down, others will rise in their ashes. I’m not too bothered if Catholic hospitals shut down.

  71. Lyle on April 25, 2009 at 8:59 pm

    Dan obviously has health insurance, doesn’t understand hospital economics and there is obvious disagreement regarding the substance of the post. Nothing left to discuss.

  72. Cameron on April 25, 2009 at 11:48 pm

    I think where some are missing the point is that while ‘official’ religious liberty is still the same as it has been for decades, the reason church members are alarmed is that the scope and frequency of the ‘unofficial’ P.C. police singling out Christianity as something bad that should be paralyzed and expelled is steadily increasing. There is much less tolerance and respect for Christians now than there used to be, as evidence by the Prop 8 hostility towards us.

  73. Cameron on April 25, 2009 at 11:53 pm
  74. Dan on April 26, 2009 at 7:26 am

    Cameron,

    Do you think some of that lessened tolerance toward Christians is deserved?

  75. mythago on April 26, 2009 at 9:35 pm

    Tim – _Employment Division v. Smith_ was decided almost twenty years ago. It was authored by Justice Scalia. It was certainly an awful decision, but it had to do with engaging in a secular activity (drug use) that was illegal, and claiming a religious exemption from that law.

    Dave is trying to make the huge leap to claim that there is a ‘threat’ to, for example, a church deciding who it will and won’t marry. This is at best misguided. It will not happen. Only when a church sticks its foot in the secular arena – and then claims to be exempt from secular law – does the government interfere.

    So a church is free to state that it will not admit blacks, or will not perform interracial marriages. But if it runs a restaurant, it has to seat blacks at the lunch counter.

  76. Larry on May 2, 2009 at 6:30 pm

    re:75

    I’m not convinced that Dave is misguided in his argument. Certain conditions certainly have to be met in order for the scenario he describes to come to fruition.
    The primary condition being that the Constitution no longer is a living document changed by legislative action, but rather is a living document changed by judicial activism, such as we have seen in Iowa and other places.
    The present administration is not averse to controlling anything and everything. The fact that the president of GM is fired by the President, and some people think it’s a good thing doesn’t make it appropriate.
    The fact that the gov’t handed out a bunch of money to industry doesn’t scare you? And then, ex-post facto lets everyone know that they are now in control doesn’t scare you? What ever happened to shareholder control? What was wrong with letting them go bankrupt to begin with, instead of wasting taxpayer money?
    Why is it that we become blind to the reality that there is no existing service, or benefit, not expressly permitted by the Constitution, that the gov’t has become involved in that has ever succeeded?
    Whenever they (Federal gov’t) have gotten their foot in the door they have never relinquished or reduced that control. In fact they create arguments to show that their control is necessary because of some implied interstate activity that may derive from that action they identify.
    Now that judges feel empowered to change state constitutions despite the wishes of the people, do you think that they will ever surrender that power?
    So why wouldn’t the judiciary, now empowered to be activist in changing the Constitution, not decide that religion needs to be regulated. The Supreme Council in Saudi Arabia does that. And since judges can bring in laws from foreign lands to provide legal justification for their decisions, why not use this power to destroy WASP influences with respect to the Constitution, and thus destroy “Natural Law and Nature’s God”. They are then free to create ad hoc laws based on their own intellect and reasoning. God won’t matter to them.
    It is not a stretch to see Dave’s argument. Just wait and see who the next few appointees to the Supreme Court are and then judge for yourself . . . but by then it may be too late. At least the way I see it.

  77. Dan on May 3, 2009 at 6:21 am

    Larry,

    I’m not convinced that Dave is misguided in his argument. Certain conditions certainly have to be met in order for the scenario he describes to come to fruition.

    Don’t forget to describe those conditions as highly unrealistic. And then yes, if they are met, then his scenario could come to fruition. But I think pigs will fly first.

  78. Larry on May 3, 2009 at 9:31 am

    You have to have the ability to identify flying pigs, I guess.

  79. MikeInWeHo on May 3, 2009 at 11:40 am

    re: 76
    Wow, that’s really paranoid. France + Saudi Arabia = Obama’s America??

  80. Dan on May 3, 2009 at 12:03 pm

    Larry,

    I have not seen a pig fly yet. I’ve seen them get on airplanes, but never on their own. The moment I do, I’ll be convinced of the paranoia of Dave’s post.

  81. Larry on May 3, 2009 at 4:05 pm

    re: 79
    That’s the beauty of paranoia. Just because one is paranoid doesn’t mean it’s not real. It’s only the ones who aren’t paranoid that always wonder what happened after the fact.

    Dan:
    You catch on quick. I suppose that Justice Ginsberg was just kidding when she threw out her thoughts on foreign influences on decisions last week.
    The major premise of my comment is that taking God and religion out of the equation allows for judicial activism to regulate anything they want – including religion . . . but that religion can only be Christianity.
    They won’t attack any other religion, because they don’t form the foundation of the Constitution, or the Declaration of Independence.
    I’m actually surprised that legislative changes to state constitutions is even considered anymore. The populace is so ignorant, and behind the times, that they can’t possibly make correct choices. Legislatures can now be done away with, because the only voice that counts is the one sitting on a bench, basking in the light of his/her own . . . . (you choose).

  82. Dan on May 3, 2009 at 4:16 pm

    Larry,

    I think you misunderstand the nature of those who prefer to change the nature of our society, as well as the supposed lack of power and influence of the legislative body. In New Hampshire, the legislative body created a law for same sex marriages. In New York, Gov. Patterson is pushing for same sex marriage legislation. To state that the “populace is so ignorant and behind the times that they can’t possibly make correct choices” is just not accurate. It’s highly based on un-reality.

    Christianity’s existence is nowhere near at threat of extinction. Not anywhere close. This nation, however, is NOT a Christian nation. It is a secular nation where ALL religions are supposedly allowed to flourish, or at least reside, or exist. That other faiths, or even non-faiths, wish to flex their political muscle should not be taken as an attack on Christianity. Besides which, this post is not talking about “the future of Christian liberty” but “the future of religious liberty.” I posit that “religious liberty” is quite alive, well, and very vibrant in this country. There has been a decline in Christian believers, but not in religious believers, or even non-believers. The ability to believe or not believe in this country has never, IMHO, been at a better point than now. Christianity is not the only religion that deserves political protection. All religions do. At least that is what we claim to stand for.

    Now, personally, I don’t have a problem with Christianity declining in popularity. I think that too many Christian denominations pressed too far politically and started forgetting what they really stood for. They forgot the core values of being followers of Christ.

  83. Larry on May 3, 2009 at 7:08 pm

    Dan:
    I do hope that you are not asleep at the wheel. It is obvious that you either have no concept of the origins of the Constitution, or you choose to ignore those origins.
    The reason that you espouse with respect to the decline of Christianity clearly illustrates that it is not they who have strayed from being followers of Christ, but those who enjoy the decline in their “popularity”.
    We don’t have to agree with the all the strategies that Christian churches espouse in support of the Constitution, because reasonable people can disagree on what qualifies as sound principle, or not, for provisions in the Constitution. The arguments usually center on “what would God have me do.” The Founders certainly had those disagreements themselves. The issues, however, have changed to more current problems, and I think that they would role over in their graves if they knew what the issues today would be and how they are solved.
    To remove the “Christian” focus from the governance of the U.S. is to remove all the foundations on which it is based. You might prefer “secular law” to “Christian law”, but I ask you what the foundations of that law would be.
    Give it just a little thought. Write a thesis about how lasting and enduring that secular law would be. Write about how it will bind people for generations to come. Don’t forget to comment with glee on the decline of Christianity and the horrible people Christians are. Rejoice in the rise of other religions and their commitment to “life, liberty, and the pursuit of happiness,” . . . the way they see it. With your joy in the decline of that horrible Christianity, you must also remove all references, implicit or implied, to Christian principles and practices that the Founders used to help guide them in their course. To leave them in place would be an hypocrisy.
    Good luck. I would say “God bless” but that’s too Christian.

  84. Dan on May 3, 2009 at 9:59 pm

    wow, I go from “catching on quick” to being “asleep at the wheel” without having changed a single thing about my views…

    1. The origins of the Constitution comes from a mishmash of things, including Judeo-Christian philosophy. But that doesn’t make the United States a “Christian” nation.

    2. The Founders did not create a system that emulated “what God would have me do.” They created a system that could best treat everyone on equal grounds. Now, if that is “what God would have me do” then I’m all for calling it God’s plan. Sadly, the Founders did not begin with a system that treated everyone on equal grounds, but the did create mechanisms within the Constitution that allowed it to be changed to correct such inequalities.

    3. No, to remove “Christian” from governance (when it didn’t belong there in the first place) doesn’t at all remove “all” the foundations on which it is based. You’re starting here to get hysterical and ungrounded.

    Don’t forget to comment with glee on the decline of Christianity and the horrible people Christians are.

    Dude, take a chill pill. I’m dispassionate in my judgment. And it is my honest assessment that today’s Christian denominations have strayed from their roots, focused their fights where they shouldn’t be. As an example, same sex marriage. It doesn’t threaten traditional marriage. However, traditional marriage has a very powerful enemy: divorce. Divorce is highly destructive to traditional marriage. If Christian denominations focused half as much of their energy that they spend on gay marriage, and tune it in on divorce, you would save thousands of marriages and families in this nation. But talking about how to fix divorce is not politically incendiary. So few talk about it. But let me tell you, there is NOTHING as destructive to the family as divorce. You want to protect families and marriage in this nation? Help tamper down the number of heterosexual divorces and stop worrying about what the homosexuals of this world do. Their actions have little if any consequence upon a heterosexual couple and on families. I mean, really, it’s not that hard to figure this out.

    Rejoice in the rise of other religions and their commitment to “life, liberty, and the pursuit of happiness,” . . . the way they see it.

    Okay. Sounds good.

    With your joy in the decline of that horrible Christianity, you must also remove all references, implicit or implied, to Christian principles and practices that the Founders used to help guide them in their course.

    Um, why exactly? As if those principles and practices are trademarked by Christianity? As if they are exclusive to Christianity? Dude, you’ve gotta get out some time and see the world around you!