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The Day Religious Liberty Died Print E-mail
By Austin Ruse   
Friday, 10 January 2014
 

Sam Casey sat at the head of the largest conference table in Washington and watched open-mouthed as half the room emptied, and religious freedom was grievously wounded. It happened in an instant that July day in 1999, but had been building quietly for weeks as one of the most potent left-right coalitions in the country was sundered.        

The recent legal and legislative history of religious freedom in America can be described in many ways, but ping-pong comes to mind.

The Constitution prevents the federal government from establishing a state religion but also prevents the government from hampering its free exercise. What free exercise means – and who can be hampered and how – is one of our most nettlesome issues.

Modern adjudication begins in the early 1960s with a woman named Adell Sherbert, a textile worker who converted to the Seventh Day Adventists. Her factory shifted to a six-day schedule requiring her to work on Saturday, something not allowed by her faith. The mill fired her. The state denied unemployment benefits and she sued on grounds of religious liberty. The Supreme Court ruled in her favor.

The Court established the Sherbert Test with some criteria to determine if the government had violated a person’s religious liberty. The person had to have a sincere religious belief upon which the government had placed a substantial burden for acting on that belief. The government must show there was a “compelling state interest” to burden the believer and that the government has acted in the least restrictive manner to further this compelling interest.

This is a high bar.

In the 1980s, along come Alfred Smith and Galen Black, who smoked peyote as part of their Native American religion and who also worked in drug rehab.  When the clinic found out, the pair were fired. The state denied benefits. In Employment Division v. Smith, the Court gutted the Sherbert decision and eliminated the test that had protected religious liberty. The decision hung on the fact that the two gentlemen were doing something that was illegal and the law against peyote smoking was not aimed strictly at the religious use of peyote, but peyote use in general.

The 1990 Smith decision precipitated a huge reaction from the religious community and civil libertarians. Christians of right and left, along with the secular left, were galvanized. This unique coalition, which included the ACLU, World Jewish Congress, along with the Christian Legal Society and the Traditional Values Coalition, demanded redress.

Keep in mind the actors in this group had been at loggerheads for years over abortion. Even so, on religious liberty, they agreed. Within three short years, they convinced Congress to pass the Religious Freedom Restoration Act, which restored the Sherbert Test. It passed the House of Representatives unanimously and the Senate 97-3. President Clinton signed it.  

Four years later, it was largely overturned.  In the City of Boerne v. Flores (Boerne, Texas refused to let the Catholic bishop tear down a landmark building to expand Church facilities), the Supreme Court determined that in establishing the Act, Congress had gone beyond their power under Section 5 of the Fourteenth Amendment. They decided the Act affected the Federal Government, but not the states.

The religious freedom coalition started work on the Religious Liberty Protection Act with a view to meeting some of the Supreme Court’s objections, primarily that there was a need for such protections, that actual harms were being done.

The coalition presented voluminous evidence to the House of Representatives of religious discrimination against churches and persons around the country, what Sam Casey says was a “complete record.” The bill passed the House 306-118, a smaller, but still a substantial majority that included 107 Democrats.

And then they hit a wall known as Teddy Kennedy and a lesser wall known as Joe Biden.

In a few short years, something had changed.

The coalition called a meeting on July 22, 1999, around that huge conference table in Washington D.C,, seating upwards of sixty people, at the Veteran of Foreign Wars’ headquarters. Sam Casey – now at the Jubilee Campaign, then at the Christian Legal Society – chaired the meeting.

Casey says, “Everyone was there, left, right and center. We had fought together all those years successfully. We had won in the House and were stuck in the Senate and we needed to figure out next steps.”

But the meeting opened with Oliver “Buzz” Thomas of the Baptist Joint Committee announcing he had concluded the Religious Freedom Restoration Act, which they were meeting to try to restore, was in fact unconstitutional. This despite the fact that he helped formulate it, and had testified in its favor. He then announced his group was leaving the coalition and promptly walked out.      

Half the room followed.

At that moment, Casey and the others realized how powerful the gay lobby had become. The new objection from the left was that religious freedom would be used to trump the rights of gays. Such objections were not part of the debate only a few years before. But now they stopped legislation to protect religious believers, and sundered one of the most potent left-right coalitions in U.S. history.

The remaining groups, exclusively from the Christian right, agreed to a truncated bill that protected religious practice for prisoners. That was all.

Casey had gone into that final meeting believing his was a majoritarian position and came out realizing he was a remnant American, trying to preserve what he could.

One of the sad ironies in how this has developed is the question of animus. The Smith decision requires complainants to show actual animus towards them for their religious beliefs. On the gay question, however, federal judges and Justice Kennedy have held that religious opposition to gay marriage is on its face evidence of animus toward gays and cannot stand.

It is a topsy-turvy world with the gays on topsy.

 
Austin Ruse is the President of the New York and Washington, D.C.-based Catholic Family & Human Rights Institute (C-FAM), a research institute that focuses exclusively on international social policy. The opinions expressed here are Mr. Ruse’s alone and do not necessarily reflect the policies or positions of C-FAM.
 
 
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Comments (49)Add Comment
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written by Rich in MN, January 10, 2014
We must continue to challenge those court-appointed cultural architects who would not know a load-bearing wall if it hit them in the nose. "But the wall limits my freedom to swing my arms! The wall is chock full of animus!" is not a very sophisticated rationale for trying to amputate the spiritual arms and legs of others. The modern version of "Occam's Razor" might be "What explanation -- regardless of its substance -- will give me the most of what I want?"

I think the 1947 study entitled "Family and Civilization" by Carle Zimmerman is still a valuable read. While the 800-page original is long out of print, there is an abridged version published about 15 years ago that is still available.
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written by Dan Deeny, January 10, 2014
Couldn't the gays insist that sodomy was practiced in their religion and that therefore the state must recognize gay marriage? Likewise the bestialists, the pederasts, the believers in incest, etc.? Didn't the old Romans and Greeks have temple prostitution as a part of one of their religions?
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written by Walter, January 10, 2014
As I was reading this column, I was struck initially by its measured tones, even flow and lack of hyperbole and histronics. Very un-Rusean. But then it veered suddenly over the inevitable gay cliff.

What you say might indeed be true. But it looks like entire paragraphs are missing. If you hope to sway opinions, you owe your readers some tangible evidence that actually links the coalition's disintegration with the conclusion that it was caused by the "gay lobby." Perhaps a quote from Mr. Thomas or a group member? Especially since Mr. Thomas still publicly speaks in favor of the RFRA.
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written by Mr. Levy, January 10, 2014
Dan Deeny: Yes, that's one of the problems with the Shebert test.
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written by Mr. Levy, January 10, 2014
While I can't agree with Walter's sardonic criticism of past Rusean columns, I also would like more information in support of your proposition that the coalition was broken by the Left's anti-family agenda.
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written by Seanachie, January 10, 2014
Seems to me that anyone offering opposition to anything manifests prima facie evidence of animus toward that which is opposed. Thus, if I oppose opposition to gay marriage on religious grounds, I evidence animus toward religion...and likely should recuse myself from making binding juridical decisions.
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written by Austin Ruse, January 10, 2014
Walter....Isn't there anyone else anywhere you can pester but me? I am not suggesting that you go away. Do stay. But pipe down. We understand. We really do. You do not like my columns. You do not like my subject matter etc etc etc blah blah blah. Got it...

Now move along...
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written by Militaris Artifex, January 10, 2014
Seanachie, I believe that you are failing to distinguish between opposition (as to a proposed action), and an emotional response or attitude. Merriam-Webster (m-w.com)offers four definitions of animus, two of which are clearly relevant to its linguistic usage in this context.

1. a strong FEELING of dislike or hatred.
2. a usually prejudiced and often spiteful or malevolent ILL WILL.

Assuming Merriam-Webster is an authority, one would conclude that a reasoned argument would fall under the category of rational opinion, rather than emotional dislike or worse.

Pax et bonum,
Keith Töpfer



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written by Walter, January 10, 2014
Austin, perhaps I am like my high school debate coach.... pestering you because I know you are talented and can do better. I would also hope that we're both big enough boys to have an honest exchange of ideas.

In all sincerity, your narrative is confusing because everything I see in the public record shows Mr. Thomas' continuous public support of RFRA to this very day. Mr. Thomas as recently as Nov. 2013: "Those who would criticize the Religious Freedom Restoration Act must criticize conscience itself....It’s about what it means to be an American....These principles matter more now than ever."

Did he ever repudiate the RFRA publicly and cite gay rights?
If there is a missing piece that ties it all together, I would invite you to share it.
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written by Suzanne, January 10, 2014
Well, I for one, love this piece. Thank you Mr Ruse, we need more writers like you.
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written by Jack,CT, January 10, 2014
@Walter.
You have very valid and smart points!
Mr Ruse appears obsessed with the topic and
i for one will no longer respond/Subsidize
the soft bigotry that pervades inbetween
some wonderful lttle essays.

Walter i find your perspectives refreshing and
witty.....please do not allow anyone to
bully you into silence.


Consider how Topsy Tervy some continue to be
in 2014!
Holder is going to recognize the realitys of
Alternative lifestyles and our president
champions rights for All as well no matter
the very thin minority of bigots.

So all is well for those of us who do Not
judge!
God Bless-
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written by Seanachie, January 10, 2014
Militaris Artifex...stand by my comment...the point being that a jurist's animus (perhaps the second meaning you proffer) toward religious opposition to something heretofore considered perverse and immoral cannot stand.

Pax per Potens,
Seanachie
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written by Allan Cheung, January 10, 2014
The title is a little off-putting maybe, but what some complain about with regard to Mr. Ruse's columns at TCT -- the tone -- is entirely appropriate, it seems to me. If you step back and take a Martian's p-o-v, how can you not see that the homosexual agenda isn't just about equality, it's also about destroying marriage and the family, so that their promiscuity will be matched by heterosexuals'. What will happen to the few unaborted children is a matter of no concern to "gays," as it already is of little concern for many irresponsible heteros. This change we're witnessing is the destruction of THE core value of civilization. No wonder Mr. Ruse gets attacked. I pray that he continues to have the courage to speak out.
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written by william manley, January 10, 2014
This essay is very troubling in its incoherence and reflects poorly on this website. Mr. Ruse's constant attacks on gays have gone from obsessive to tiring. He is the poster boy of what concerns Pope Francis. Where is the love; where is the mercy? Mr. Ruse, the tone of your response to Walter is most uncharitable. He deserves an apology. Mr. Ruse, we know that you are concerned about the homosexual agenda. We get that. Can't you move on to more productive points of view? Please consider it for the good of this website. Thank you.
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written by Austin Ruse, January 10, 2014
Walter, mr. Thomas? Who's that and what's he gotta to do with my column?

So you and jack will know:I believe the gay question is one of the most important of our time. I dedicate a great deal of my time to it and will continue to do so. I write about it even more at Crisis. So, settle in. Enjoy.
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written by Suzanne Bretz, January 11, 2014
I totally with Allan Cheung, and those catholics who do not realize what is going on today in relation to the gay lobby need to do some reading before they can further comment. Or maybe they still haven't realised that the "gay lobby" is not the equivalent of "gay people", for starters...
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written by Chris in Maryland, January 11, 2014
Jack:

It is wrong of you to call Mr. Ruse a bigot. So that I can understand why you do, please explain to me, in your view, is the man who said this below a also a bigot, or is he not? And why?

“In the coming weeks, the Argentine people will face a situation whose outcome can seriously harm the family…At stake is the identity and survival of the family: father, mother and children. At stake are the lives of many children who will be discriminated against in advance, and deprived of their human development given by a father and a mother and willed by God. At stake is the total rejection of God’s law engraved in our hearts….”

“Let us not be naive: this is not simply a political struggle, but it is an attempt to destroy God’s plan. It is not just a bill (a mere instrument) but a ‘move’ of the father of lies who seeks to confuse and deceive the children of God….”

“today the country, in this particular situation, needs the special assistance of the Holy Spirit to bring the light of truth on to the darkness of error, it need this advocate to defend us from being enchanted by many fallacies that are tried at all costs to justify this bill and to confuse and deceive the people of good will….”

“I invoke the Lord to send his Spirit on senators who will be voting, that they do not act in error or out of expediency, but according to what the natural law and the law of God shows them….”

“We look to Saint Joseph, Mary and the Child Jesus and ask that they fervently defend the family in Argentina at this particular time….”

“We remember what God said to his people in a moment of great anguish: ‘This war is not yours, but God’s’: defend us, then, in this war of God.”

reported 8 July 2010, NC Register, words of Cardinal Bergoglio

Your friend in Christ - Chris
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written by Austin Ruse, January 11, 2014
Oh..Buzz Thomas...sorry...

Thomas pulled the Joint Baptist Committee out of the religious freedom coalition when they were working on a fix that would make RFRA apply once more to the states. As it stood after Smith and as it stands now, RFRA only applies to the federal government. Of course, he defends religious freedom, so did the Soviet Union, so does the Obama administration. Does anyone think they mean the same thing as the Church when it comes to religious freedom? The Church believes in what Sam Casey calls "wall to wall" religious freedom, at all times everywhere, and not just what believers can do on their own property or what prisoners can do.

In subsequent years, Buzz Thomas has become an outspoken activist for gay rights. And that is the tension that developed then and now. This is the tension behind these new ENDA laws where gays are given preferential treatment over Christians. I refer you to my column below.

As to my "obsession" with this issue,Walter, William, Jack, get used to it. And keep in mind that we did not start this fight. The culture wars were started by the left. We have only responded. And we shall continue to respond in waht we do and say and write. As they used to say in the fight for Black civil rights...we shall not be moved...certainly not by you....

If you do not like my columns, change the channel and stop trying to stifle speech.

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written by Chris in Maryland, January 11, 2014
William Manley:

Pope Francis should move on to more productive points of view, do I understand your position correctly? Pope Francis is in the same way a bigot, as Jack claims Mr. Ruse is a bigot, do I understand your position correctly?

Your friend in Christ - Chris
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written by Chris in Maryland, January 11, 2014
To all who try to suppress Mr. Ruse, I await your answer about how Mr. Ruse is a bigot, and Pope Francis is not.

Your friend in Christ - Chris
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written by Guest, January 11, 2014
Mr. Ruse thank you and never back down from the Gay bullies. They have a demonic hold over this shallow culture. The jamming, deflection, and false charges are part of the agenda. Be strong.
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written by Rich in MN, January 11, 2014
@Chris in Maryland,

Thank you for your extended citation of Cardinal Bergoglio's brilliant remarks. I had not read that before. There is so much profound in there that one scarcely knows where to begin. One thing that strikes me as so excruciatingly apropos is Cdl Bergoglio's invocation of the Holy Spirit "to defend us from being enchanted by many fallacies that are tried at all costs to justify this bill and to confuse and deceive the people of good will...."

Absolutely, spot-on brilliant. So many people with good hearts, trying to do the right thing, are unwitting accomplices to evil. When we journey without an accurate compass, the road to Hell truly is paved with good intentions. And it is those yelling, "No! Turn around! Go the other way!" who are subsequently demonized as "bigots." (I am looking at you, Austin Ruse....)

I confess to having poked a modicum of fun at our Holy Father's expense in a TCT combox comment last week when I referred to him "Pope Rorschach" (i.e. that sometimes his remarks are like "ink blots," the interpretation of which says more about the interpreter than about the remarks themselves). But, man, when that guy hits a home run (or, to use a more Argentinian metaphor, "strikes a football"), it flies far and deep -- on the wings of angels.
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written by Jack,CT, January 11, 2014
Dear Chris,
I always apreciate your criticism as i do see it
is sincere.
However,I ask you to look at not just the posts I have
made but a few of the most recent remarks written by Mr Manley and others say it all,my Point:I am not ALONE
in the concern of Obsessive and troubling diction
by this "Contributor".

If I were a new to reading this Friday" rant I would feel
a poor writer is looking for shock value to make up for
poor writing/arguments.

Ok,that is the best positive spin his work deserves.
Some would argue a poorly functional Brain(Mental
illness),I happen to liken this to a child who has a
difficult time finding "Positive" feedback escapes
to a place where any attention is good,kicking,screaming
Negative if it has to be as long as "Attention" is
the result.
One can argue the shock value" of some of the most
sick,homophobic and "Twisted remarks" have done the
trick for austin.

"PORN, SEX, RADICALS..." AND ON AND ON..........
I do not read these articles on a Roman catholic site
to read that kind of "Diction" let alone arguments!

Rich, I pray for austin and I have no issue with him
but "His Writings",I hoped all last year that he would
find the wisdom to change and attempt "Hearing my words
and those of many other readers here!

As you see people are no longer remaining silent and
the anger is pervasive.

I read the "Below" article you asked me to and the
difference is simple: TONE.
The writer you refer to was respectful and careful
to Respect all.

I hate having to defend those who are accepting and
us who are no longer predjudice in 2014 but all
one has to do is read the works of this con. and
one can see why I do.

I wish you a wonderful and blessed Year and Chris
thanks again- Jack



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written by Rich in MN, January 11, 2014
@Jack in CT,

I certainly do pray for Mr. Ruse and the rest of the TCT writers, staff and readers (including you and me). However, my point is that our big, beautiful ocean liner has just had its hull breached by an iceberg and water is flooding into the bow, and Mr. Ruse needs to continue pointing out the reality of it because the rammers, jammers, slammers and scammers of this world are telling a completely different story. They are saying that the ship is undergoing some much-needed updating and remodeling. Well, some people are already beginning to feel the 40 degree water on their legs and it is rising up to their torso. Mr. Ruse is just pointing out that such a thing will not ultimately be good for anyone on board. He is the one with the megaphone (albeit a much smaller one than that of the other side) and he must continue speaking the truth, if not out of love for you and me and the rest of humanity, then out of trepidation for standing before Almighty God and trying to explain why he did not speak the truth. I know that I have some real trepidation about that second thing myself....

Peace, Sir!
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written by Chris in Maryland, January 11, 2014
Jack:

Thank you sincerely for your kind response.

In truth - you have not answered my question - and that is work you must do. One cannot hold two men with the same position to a different standard.

As Pope Francis himself said in the quote I gave you - war is being waged upon us. We not the aggressors, but fight we must. We either stand and fight for the truth - or we consign the world and our children to the arms of the evil one.

Sometimes, giving witness to The Truth is "not in season."

I see the war being waged for the souls of my family, my friends, and and children.

I agree with Pope Francis and Austin Ruse: This is God's war - and with God's help I can and will obey God before I obey another man. And so, reluctantly, I will answer the call of Pope Francis, and Pope Benedict, and Pope John Paul II, and every faithful teacher, and I will fight in this unseasonable time.
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written by Austin Ruse, January 11, 2014
Jack, You intimate above that you may be leaving us....if you left and never came back we would still miss your bad typing and emotional outbursts.

but if you stay, do not think you can bully or intimidate me into silence. Google my name and see what the homofascists have to say about me and then understand that if they can't intimidate me....do you really think you can?

And by the way, the column above is neither charitable or uncharitable. it is neither respectful or disrespectful. It is reporting, reporting on an event hardly anyone knows about. But, since it says something about teh your darlings, the gays, all of a sudden it becomes hate speech. Please. Grow up.

What you are others try to do is silence opposition and get discussions off track. We ought to be talking about the underlying issue in the column but instead we have to address your lunacy. You are a classic troll; always anonymous and understood as someone who deliberately derails an internet discussion by saying inflammatory things.

it won't work, Jack.
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written by Jack,CT, January 11, 2014
Mr Ruse,
I Wish you the best and have said
my peace.You will not hear from me austin
and i will not be reading your articles.
God Bless,
Jack




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written by Jack,CT, January 11, 2014
Dear Chris,
I have read your latest note and I
hear you and agree with almost every word.
The direction of a man can never go wrong
when turned to the Lord.

Anyway,I look forward to chatting in the future
on different topics.
God Bless, Jack
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written by Guest, January 11, 2014
I do not understand Jack's point? Hd thinks the tsunami of gay ideology should not be written about? Perhaps desensitization is why too many cannot see the horror of this new ideology of evil.
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written by FAMiniter, January 11, 2014
I find Mr. Ruse's article amazing in its claim that religious freedom has died in America. First, he fails to note a single instance in which a person has lost the right to worship alone or together with like-minded people. No one is forcing a minister to perform gay weddings. No one is forcing citizens to have a gay partner. No one is forcing any religious person to have an abortion.

The Smith decision did not reverse the Sherbert decision. It held that the Sherbert decision was and is designed for the evaluation of individual acts of discrimination. The Smith case, however, involved the application of a law of general effect where it had an incidental religious effect. On that issue the court ruled:

"Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons."

Basically, religion cannot put itself above laws made for the general welfare of the country. Consider a Sikh child who wants to wear a real knife to school, or a modern Aztec who wants to practice blood sacrifices.

Mr. Ruse has so far from proved his case that I am surprised the article was published at all. The only reason I can see for it is that it perpetuates the myth, popular among the religious right, that they are always in a state of persecution. This is not 17th century France where Huguenots were prevented from worshiping in their own manner, nor yet 15th century Constantinople where the Christian churches were forcibly taken to become Islamic mosques. Modern Americans are forging a false myth of persecution.
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written by Jack,CT, January 11, 2014
@Guest,
Perhaps entering the convrsation late
lends to your confusion,but did i say "Gay"
at all in this critique?......no

Did others?, well Yes
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written by Steve Golay, January 11, 2014
The Freedom of Worship is not the same as the Freedom of Religion. The first is a restrictive term. The first is a rabbit that Obama (and the collectivist Left) pulls from his rhetorical hat; the second is a live one which Obama skins, cubes, and tosses into his Leftist collective stew.

The gays know that - why they need to reduce religion down to "worship'. Once that is done, the next step for the totalitarian State is to control the threshold of who presides over that "worship". The one after that is to confiscate the right to define who and what is worshiped.

That is what was plopped down on that Long Table in Washington.
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written by DS, January 11, 2014
Context for the church's teaching on homosexuality is important, as Pope Francis has said and Cardinal O'Malley recently reiterated. A yoking of church doctrine on homosexuality with a broader Christian context seems to be missing from both sides of the commentary. As TCT's (and possibly America's) self-proclaimed anti-gay cultural warrior, Mr. Ruse should develop the ability to grasp this important nuance in future columns.
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written by Austin Ruse, January 11, 2014
Faminter, smith did two main things. It struck down the sherbet test and ruled rfra could not apply to the states. Yes, the grounds on smith vis a vis sherbert were related to general applicability and that had held since the early sixties.

The reason is that religion is the first freedom and therefore should supersede lesser laws that impede its free exercise. We see this happening a great deal now with gays targeting Christians in marriage related businesses.


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written by Austin Ruse, January 11, 2014
DS The gay movement is seeking to cripple the freedom of the church to live the faith in the public square. Again. I and neither will my colleagues be silent on this. You will not silence us either.
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written by Austin Ruse, January 11, 2014
I suspect, DS, that you do not accept church teaching on homosexuality anyway so it's rather rich that you quote the Pope on anything.
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written by Guest, January 12, 2014
Jack,

What exactly is your point?

DS,

Context is not the issue. Rejecting the truth is the issue as recognizing gay propaganda.
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written by Chris in Maryland, January 12, 2014
FAMinter:

The topic is religious freedom under the Constitution of the U.S. We do not conform to the new progressive "freedom of worship" propaganda confection, which is what the current POTUS and would-be POTUS Clinton will allow...for now.

They do not define the terms...the Constitution defines the terms - and as it commands - no law will prohibit the FREE EXPRESSION of religion.

Please stay on the topic of
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written by Chris in Maryland, January 12, 2014
DS:

You cannot and will not account for the explicit words of Pope Francis stating that the conflict for-against same-sex marriage is God's war.

You are trapped.
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written by DS, January 12, 2014
Whoa, Austin and Chris! Austin, you perceive every criticism as a nefarious plot to silence you (though you seem to be the one trying to shut people like Walter up), and you also seem to have a crystal ball into my beliefs. Chris, you seem to imply that I'm cherry picking the Pope's words. I'm trapped?

Pope Francis indeed speaks fully on this subject: (1) he acknowledges church doctrine - NO CHANGE, (2) he acknowledges the forces in the public square, including Satan, arrayed against church teaching, (3) he speaks of the human dignity of the person who is homosexual and /striving to follow Christ, and (4) he speaks of how faithful people should react to #3.

My point is simple: Austin only knows how to write on #2. Nothing else.
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written by FAMiniter, January 12, 2014
Mr. Ruse, in response to your comment of yesterday in response my own of yesterday, you are absolutely wrong about Employment Division v. Smith, 485 U.S. 660 (1988. I am a lawyer, in fact, I practice civil rights law. I have read Smith and nowhere does it strike down Sherbert. In fact, it several times quotes Sherbert as authority. You have to read the actual decision, which, by the way, was written by Mr. Justice Stevens.

As to your claim that religious freedom is the first freedom and deserves to trump everything else, that simply is not the way that law is analyzed. By that analysis, the most important and unassailable of the Powers of Congress listed Article I, Section 8 of the Conostitution would be the power to tax.

No, the Supreme Court has long recognized that the various protections of the Bill of Rights and the freedoms protected in later amendments have to be balanced against one another. In engaging in that balancing process, the Court considers whether a conflict involves a core right attendant on a protected area or a peripheral right. It looks at whether the action in question is one of an individual bureaucrat or that of the Congress of the United States. And so on. The approach you suggest is too simplistic for a reasonable weighing of rights.
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written by FAMiniter, January 12, 2014
To Chris in Maryland.

Actually, if you look at the document itself, the Constitution defines nothing at all. That is part of the reason why there needs to be a judiciary - to interpret all the undefined concepts and to resolve all the conflicts between them. For more than 200 years, since Marbury v. Madison, it has been accepted that the Supreme Court is the final arbiter on the meaning of a statute or the Constitution. Without a single final arbiter, we would quickly slip into chaos. No one has challenged that role of the Supreme Court because all serious students of the law realize that there is simply no other choice.

The First Amendment contains the words "or prohibit the free exercise [not expression, as you said] thereof [presumably referring to religion]". But "religion", "exercise", "free" and "prohibit" are not defined anywhere in the document. On a narrow interpretation, "prohibit" would not include "regulate". And "exercise" could refer to an overt act or action only. The Supreme Court has never taken such a narrow view, and precedent would indicate that it never will. But do not assume that these terms have been defined once and for all times, anywhere.
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written by Austin Ruse, January 13, 2014
Faminter,

In the Smith decision the Court backed away from compelling interest standard that had been set in the Sherbert decision. The court established a neutrality test, meaning a law could be upheld if it were determined “a valid and neutral law of general applicability” that also may infringe upon religious practice.

There is a big difference between a compelling interest (Sherbert) and a neutrality test (Smith). Before Smith, if a religious practice was hindered, nearly no matter the reason, a violation had occurred. Now, the religious person has to prove actual animus, that is, the restriction is against them alone.

There is a world of difference between the two.

Ponder this, if Smith left the compelling interest test intact, as you insist it did, then why did the Congress 532-3 vote in RFRA to reestablish this test?
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written by Austin Ruse, January 13, 2014
DS. Nice dodge. Do you accept the teachings of the church on homosexuality or not?

As to your claim that I write about morhing other than this topic is absurd. I've mentioned gays maybe 20 times out of 200 columns here. Try again.

And you are trying to silence me and others.
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written by FAMiniter, January 13, 2014
Mr. Ruse, in response to your response of today -

The Supreme Court did not back away from the Sherbert standard in Ssmith. Even in the decision at the re-hearing in 1990 Employment Division v. Smith 494 U.S. 872 (1990), written by Mr. Justice Scalia, the darling of the right and a strongly religious person himself, the Court did not back away from Sherbert. Scalia, if anything, clarified that the Sherbert test did not, could not, and never did apply beyond individual action, and certainly could not apply to judging the constitutionality of a law of general application.

Scalia wrote:

"Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law. The Sherbert test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct." (Ibid. at 884).

"Although, as noted earlier, we have sometimes used the Sherbert test to analyze free exercise challenges to such laws, see United States v. Lee, supra, at 257-260; Gillette v. United States, supra, at 462, we have never applied the test to invalidate one. We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The government's
ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." Lyng, supra, at 451. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling" — permitting him, by virtue of his beliefs,
"to become a law unto himself," Reynolds v. United
States, 98 U.S., at 167 — contradicts both constitutional tradition and common sense.[fn2]" Ibid., at 884-885.

And,

" If the "compelling interest" test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if "compelling interest" really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," Braunfeld v. Brown, 366 U.S., at 606, and precisely because we value and protect that religious divergence,
we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service, see, e. g., Gillette v. United States, 401 U.S. 437 (1971), to the payment of taxes, see, e. g., United States v. Lee, supra; to health and safety regulation
such as manslaughter and child neglect laws, see, e.g., Funkhouser v. State, 763 P.2d 695 (Okla.Cr. 1988), compulsory vaccination laws, see, e. g., Cude v. State,
237 Ark. 927, 377 S.W.2d 816 (1964), drug laws, see, e. g.,
Olsen v. Drug Enforcement Administration, 279 U.S.App.D.C. 1, 878 F.2d 1458 (1989), and traffic laws, see Cox v. New Hampshire, 312 U.S. 569 (1941); to social welfare legislation such as minimum wage laws, see Tony and
Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290
(1985), child labor laws, see Prince v. Massachusetts,
321 U.S. 158 (1944), animal cruelty laws, see, e.g., Church
of the Lukumi Babalu Aye Inc. v. City of Hialeah, 723 F. Supp. 1467 (SD Fla. 1989), cf. State v. Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dism'd, 336 U.S. 942 (1949),
environmental protection laws, see United States v. Little,
638 F. Supp. 337 (Mont. 1986), and laws providing for equality of opportunity for the races, see, e. g., Bob Jones University v. United States, 461 U.S. 574, 603-604 (1983). The First Amendment's protection of religious liberty does not require this.[fn5]" Ibid., at 888-889.

So, why would a bunch of elected representatives wholesale vote for a piece of legislation with the emotionally charged title "Religious Freedom Restoration Act", when the Smith case did not overturn the Sherbert case? Easy. (1) They are political creatures who are scared of being labeled against religious freedom (no matter that they are not) by the far right; (2) they did not understand the ruling of the Supreme Court - as it appears a lot of people did not, mostly because none of them took the time to read it in full.

I note that you never responded to my hypotheticals about the Sikh and the Aztec.
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written by Austin Ruse, January 13, 2014
Correct!. Scalia, writing for the majority, clipped the Sherbert test. Right. That's exactly what happened!

And which is the reason the Congress ---all Republicans and all Democrats, all liberals and all conservatives minus 3--- voted to reinstate the full Sherbert Test which had guided the court since the early sixties.

Btw. It was largely the libs on the court who side with me. You're on sec alias side.

Further it was the Christian Right that defended the Santarias in Babalu v. Hialeah.
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written by DS, January 13, 2014
Austin, You don't who I am or what I believe. You are not my judge or anyone else's. You apparently don't have the capacity to comprehend the totality of Catholic teaching on this subject. Quite literally, you know nothing.
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written by FAMiniter, January 14, 2014
No, no, no. You are reading it wrong. The Sherbert test still applies in situations of individual discrimination on the basis of religion. It never did apply to allegations of discrimination arising from a law of general application. Scalia makes that absolutely clear. And as a matter of common sense, look at the last two sentences I quoted from Scalia. I re-quote from Scalia:

"To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling' — permitting him, by virtue of his beliefs, 'to become a law unto himself,' Reynolds v. United States, 98 U.S., at 167 — contradicts both constitutional tradition and common sense."

And you have yet to respond to my examples about the Sikh and the Aztec, or is this freedom only for Christians who do things you approve of?
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written by Chris in Maryland, January 16, 2014
FAMinter:

You believe that progressive lawyers get to narrow the rights of citizens and say they only have freedom of worship in their houses and churches per Barama and Clinton.

I believe that Congress shall make no law inhibiting the free exercise of religion.

Your position is for suppression, such as telling a company that makes wedding cakes that they have no right to decline to make wedding cakes for "gay marriages."

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