#Employment Division v. Smith

[empiricalscotus]

Congressional Responses to Dobbs

With all of the attention focused on the Supreme Court in light of the Dobbs decision Congress' responses have been largely ignored. Here is some context for how Congress' response to Dobbs has gone so far.

The Supreme Court released its opinion in Dobbs v. Jackson Women’s Health on June 24, 2022. Within a little over a month of the release, a robust discussion developed within both Houses of Congress on whether there should be a legislative response to this decision.  Congress is notorious for lots of discussion combined with little action.  Based on Congress’ recent history, perhaps nothing will…

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#Andrew Clyde #Barbara Lee #Bob Good #Bowers v. Hardwick #Congressional Record #Dick Durbin #Employment Division v. Smith #Lawrence v. Texas #Lisa Murkowski #Reproductive Freedom Act #Respect for Marriage Act #RFRA #Scott Peters #Sylvia Garcia #Voteview

[schraubd]

Leaving the Mess for Later

One thing that's come up in a few of the Supreme Court's recent blockbuster decisions is the shakiness of the fact pattern in the underlying case. Mr. Kennedy in Kennedy v. Bremerton School District wasn't really just an average citizen whose desire to privately pray on his own was stymied by the evil liberal school district. Ms. Smith of 303 Creative v. Elenis might have outright falsified documents suggesting that a gay couple asked to engage her services. The Supreme Court's conservative majority did not care, blitzing ahead in decisions that made dramatic alterations to major areas of constitutional law doctrine.

At one level, I actually understand the perspective here. When it comes to abstract, "philosophical" question regarding the scope of the Establishment Clause or whether anti-discrimination law must sometimes yield to free speech commitments, the details of the individual case don't really matter. If it wasn't Kennedy, it'd be someone else. If what you care about is the broad, sweeping change -- interring Lemon v. Kurtzman for good, or laying a marker that public accommodations laws must yield to businesses right to "expressively" discriminate -- the details don't affect the underlying arguments all that much. The same claims and counterclaims that would be made in any case would be aired here. 303 Creative probably already felt like the can that was kicked down the road from Masterpiece Cakeshop. Similar impatience was seen in some of the concurrences in Fulton v. City of Philadelphia -- we know we're going to have to decide whether to revisit Employment Division of Oregon v. Smith, and we know the arguments for and against preserving the precedent, so why delay the inevitable? Just make the decision one way or the other and get it done.

At another level, though, this speaks to how the current conservative judicial cadre really doesn't care about the formalities of law and legal doctrine. It's movement conservatism through and through -- the important thing is the bottom-line results, and the Court will shoot first and let others clean up the mess later. This especially stood out for me in 303 Creative, a case where it was striking how much more legalistic Justice Sotomayor's dissent was compared to Justice Gorsuch's majority opinion. The former, whether one agrees with the result or not, worked through the relevant First Amendment doctrine via the same methodology I'd teach my students -- explaining the relevant doctrinal framework, explaining why this case falls into a particular part of the framework, and explaining the implications thereof. The majority opinion was basically an abstract ode to the importance of free expression but skipped past significant swaths of the seemingly essential legal analysis (often by vague gestures at party "stipulations" or just treating as gospel certain holdings of the Tenth Circuit). It was hard to escape the sense that the nitty-gritty details of Lorie Smith's case were not at all what interested the majority, and so they were disinclined to spend significant time on them. They wanted to make a big statement about the interplay of free speech and anti-discrimination law, so that's where they devoted their attention. 

From that vantage, the fact that Lorie Smith's case may not have been the cleanest vehicle isn't really all that important. Of course, from the vantage of lower courts trying to figure out what the hell 303 Creative actually means, it's extremely important, because nobody actually knows the concrete rule that 303 Creative is actually establishing, and the blurry fact pattern means that trying to infer it from Lorie Smith's situation is a doomed initiative. But again, that's someone else's mess to deal with. I honestly believe that the Justices in the 303 Creative majority did not care if Lorie Smith, personally, deserves the exemption from anti-discrimination law under the doctrine that will eventually lay out. What they cared about is being decisive in defending the existing of these exemptions in concept. Lorie Smith just had the good fortune to be the next case in line that could be plucked onto the docket.

I've written before of the Machiavellian character of the current Supreme Court, specifically, it's absorption of Machiavelli's advice to tyrants: that they should take their big oppressive swings early, in full force, and all at once. You won't gain any advantage from dragging things out, and you'll probably get credit if you cut back later. And the repeated pattern we've seen is of the Court taking these huge right-wing swings that delight conservatives on the level of ideology, but without much care for how they can be operationalized as a workable legal doctrine, and leaving it lower courts to clean up its mess. And to give an inch of silver lining, there is the chance (this follows from Machiavelli too) that as that "mess" resolves itself the Court will then quietly file down some of the roughest edges. The Bruen decision, which reads as a right-wing ideological fantasy document but which has unleashed utter chaos in lower courts, may be an example if the Court uses the Rahimi case to cut back the most extreme interpretations. Take the big swing, make the chest-out assertion of insisting that no amount of public necessity can weigh against robo-originalism, and then later on at their discretion maybe pick and choose a few morsels to dial back on and claw back some legitimacy.

But nonetheless, it really is striking the degree to which the conservative legal movement just no longer cares that much about the law. As a law professor, it makes for depressing teaching. As a citizen, it makes for depressing living. Just depression all around.

via The Debate Link https://ift.tt/03PY6Qg

#constitution #discrimination #gun control #law #supreme court

[beardedmrbean]

WASHINGTON — The Supreme Court on Monday rejected over the objections of three conservative justices a Christian therapist’s free speech challenge to a Washington state ban on so-called conversion therapy aimed at changing a child’s sexual orientation or gender identity.

Favored by some conservatives, the widely criticized practice is aimed at encouraging gay or lesbian minors to change their sexual orientation and transgender children to identify as the gender identity assigned to them at birth. Washington is one of 26 states have barred or restricted such therapy for minors, the state’s lawyers say.

The court’s decision not to take up the case means the law remains intact.

Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh all said they would have heard the appeal.

Thomas wrote that there is "a fierce public debate over how best to help minors with gender dysphoria" and that the state had "silenced one side of this debate."

In a separate brief opinion, Alito said that the case "presents a question of national importance" that clearly implicates free speech issues.

Brian Tingley, a licensed marriage and family counselor, said the law violates his free speech rights under the Constitution’s First Amendment because the government is seeking to dictate what he says.

Tingley, his lawyers say, “believes that the sex each person receives at conception is not an accident or error but rather a gift from God” and that sexual relationships should only occur “between one man and one woman mutually committed through marriage.”

He openly markets his business on those grounds, serving clients who “want to become comfortable with their biological sex” or seek “help to direct their focus to opposite-sex relationship,” the lawyers add.

Tingley is represented by the Alliance Defending Freedom, a conservative Christian legal group that has had recent success arguing religious rights and related cases at the court.

Washington Attorney General Robert Ferguson, defending the law, said in court papers that it was not a pressing issue considering that Tingley is the only licensed therapist in the state who has objected to the law.

The state argued that the law, enacted in 2018, regulates only conduct as part of a professional licensing requirement and only has an incidental impact on speech rights.

The law only prevents licensed therapists from conducting conversion therapy in a professional setting, Ferguson added, noting that it does not prevent similar counseling taking place in other settings, including churches.

The challengers also asked the Supreme Court to overturn a landmark ruling by the court from 1990, Employment Division v. Smith, in which the court found that religious exemptions are not typically available if a law applies equally to everyone. In the aftermath of that ruling, Congress enacted the Religious Freedom Restoration Act, which allows people to bring such claims against the federal government, but that law does not apply to states.

The court in 2021 declined to overturn the 1990 precedent, although three conservatives justices said they would have.

The Supreme Court has previously turned down challenges to similar conversion therapy restrictions in other states, but in recent years the court’s conservative majority has been strengthened, giving that bloc a solid 6-3 majority.

Lower courts have generally upheld local laws, but Tingley’s lawyers pointed to a 2020 ruling by the Atlanta-based 11th U.S. Circuit Court of Appeals that struck down similar measures enacted by jurisdictions in Florida to show that there are differing views on the issue.

They also cited the Supreme Court’s own 2018 ruling that struck down on free speech grounds a California law that required anti-abortion pregnancy clinics to notify clients about abortion access.

#nunyas news

[revolutionaryatheist]

#secular #secularism #law #church and state #atheism

[northcarolinaprelawland-blog]

Does the First Amendment Protect Discrimination?

By Kirsten Barrett, University of North Carolina at Chapel Hill, Class of 2025

July 17, 2023

When Justice Sonia Sotomayor was asked about 303 Creative LLC v. Elenis at oral argument in December 2022, she stated: “[this is] the first time in the Court’s history…[that] a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation” [4]. The case of 303 Creative LLC v. Elenis concerns a Colorado web designer named Lorie Smith, who sought an injunction to prevent the state of Colorado from forcing her to create websites that celebrate same-sex weddings [5]. On June 20th, 2023, the US Supreme Court conservative majority ruled that the constitutional right to free speech allows certain businesses to refuse to provide services for same-sex weddings [1]. 

Lorie Smith is a Denver-area web designer and sole owner of her company 303 Creative LLC. Her company services include marketing, graphic designing, and website designing. Smith wanted to start selling custom web designs for weddings. However, because Smith identifies as an evangelical Christian, she believes that “marriage should be reserved to unions between one man and one woman” [5]. She highlights her faith on the company website, stating “As a Christian who believes that God gave me the creative gifts that are expressed through this business…I am selective about the messages that I create or promote - while I will serve anyone I am always careful to avoid communicating ideas or messages, or promoting events, products, services, or organizations, that are inconsistent with my religious beliefs'' [2]. The website also expresses that what separates them from their competition is their belief “that a deeply personal relationship with [their] clients is essential to providing services that exceed [their] expectations'' [2]. Thus, Smith believes that the combination of her religious beliefs and company values would conflict with her ability to provide service to customers of a sexual orientation that does not align with her ideology. Ultimately this would result in Smith discriminating against potential clients that are a part of the LGBTQIA+ community.

Because Smith operates in Colorado, discriminating against customers of specific sexual orientations goes against Colorado's anti-discrimination act. The Colorado Anti-Discrimination Act (CADA) guarantees equal access to public accommodations, housing, and employment regardless of disability, race, creed, color, sex, sexual orientation (including transgender status), marital status, family status, religion, national origin, or ancestry [3]. Colorado law considers a place of public accommodation as any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public [6]. Under the CADA, Smith’s business was a place of public accommodation, so it was unlawful to withhold her business from people because of their sexual orientation [6]. Smith understood this, and on September 20th, 2016, Smith and her attorneys, Alliance Defending Freedom (ADF), filed their first case against the defendant Aubrey Elenis, Director of the Colorado Civil Rights Division, at the United States District Court in Colorado [6]. In this case, Smith and ADF asked the court to prohibit the state anti-discrimination act so she could only provide her wedding website design services to straight couples [4]. Smith and ADF alleged that the CADA violated her free speech clause of the First Amendment of the United States Constitution [6]. The court stated that the because the Banned-Speech Provision is content-based, it regulates speech on topics like disability, race, creed, color, sex, sexual orientation, marital status, national origin, and ancestry—while leaving unregulated speech on various other topics not listed in CADA [6]. Because Smith wanted to state her position against same-sex marriage on her website, it would go against the Banned-Speech Provision [6]. Thus, Smith lost this first case against Elenis and was still required to abide by the Colorado Anti-Discrimination Act.

On October 19th, 2016, the defendants argued a case dismissal because Smith had received no actual inquiries for services and is only a theory as to what may happen if it occurs, thus Smith has suffered no injury [7]. The defense provided support from a previous statement from the Supreme Court that a “theory of standing, which relies on a highly attenuated chain of possibilities, does not satisfy the requirement that threatened injury must be certainly impending” [7]. In Smith’s first case against Elenis, she never mentioned an inquiry from a customer that wanted her to design a website to celebrate their same-sex wedding [4]. When Smith’s attorneys, ADF, first responded in November 2016, they did not mention the inquiry but decided to refute the defense’s claims. ADF stated that Smith did not need to have received an inquiry to challenge the CADA [4]. It was not until February 2017 that ADF included the inquiry of a man named “Stewart” and argued its relevance to the case [4]. Stewart is only addressed by his first name because that was the only name provided on the case filing [4]. Although his name, phone number, email address, and website were on the inquiry form, he says he never sent the form and was married to a woman when it was sent [4]. Stewart, who is a web designer himself, stated that “it didn’t make sense to him…why [he] would seek to hire someone who has never built a wedding website…to build his wedding website” [4]. Ultimately, Stewart remained puzzled stating “I'm married, I have a child-I’m not really sure where that came from? But somebody’s using false information in a Supreme Court filing document” [4]. Thus, in September 2017, the federal court ruled the case dismissed because the evidence presented did not allow the court to “determine the imminent likelihood that anyone much less a same-sex couple, [would] request [Smith’s] services” [4]. Although the validity of the inquiry from “Stewart” has not been officially confirmed, it raised the question of how the use of fictitious information determines the ruling of a Supreme Court case.

When 303 Creative LLC v. Elenis reached the Supreme Court, the Colorado court rejected Smith’s proposals twice. However, the Justices ruled 6-3 in favor of Smith to overturn the lower court's rulings and exempt her from the CADA [1]. The Justices held that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees [5]. When giving his opinion of the Court, conservative Justice Gorsuch stated that the Court acknowledged that Smith’s planned wedding website qualifies as “pure speech” protected by the First Amendment [5]. He also stated that the First Amendment’s protections belong to all, including speakers whose motives others may find misinformed or offensive [5]. Justice Sotomayor presented her dissenting opinion describing the case ruling as “heartbreaking” [5]. She expresses her opposition to the ruling stating, “The business argues, and a majority of the Court agrees…that because the business offers services that are customized and expressive, the Free Speech Clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services. That is wrong. Profoundly wrong” [5]. She further explains her opinion by arguing that the law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group [5]. The divided opinions provided by the Supreme Court Justices display the different interpretations of the case and how they are affected by polarizing political influence.

______________________________________________________________

[1] Chung, A. (2023). US Supreme Court deals blow to LGBT rights in web designer case. Retrieved from https://www.reuters.com/legal/us-supreme-court-rule-web-designer-with-anti-gay-marriage-stance-2023-06-30/

[2] Smith, L. (2023). 303 Creative: What separates us from the rest?. Retrieved from https://303creative.com/

[3] One Colorado (2023). Discrimination: Public Accommodations. Retrieved from https://one-colorado.org/lgbtq-resources/anti-discrimination-laws-colorado/

[4] Gira Grant, M. (2023). The Mysterious Case of the Fake Gay Marriage Website, the Real Straight Man, and the Supreme Court. Retrieved from https://newrepublic.com/article/173987/mysterious-case-fake-gay-marriage-website-real-straight-man-supreme-court

[5] 303 Creative LLC et. al. v. Elenis et. al. (2023). Retrieved from https://www.supremecourt.gov/opinions/22pdf/21-476_c185.pdf

[6] 303 Creative LLC et. al. v. Elenis (2023) Retrieved from https://storage.courtlistener.com/recap/gov.uscourts.cod.165816/gov.uscourts.cod.165816.1.0.pdf

[7] 303 Creative LLC et. al. v. Elenis Retrieved from (2023) https://storage.courtlistener.com/recap/gov.uscourts.cod.165816/gov.uscourts.cod.165816.37.0.pdf

[Image] Supreme Court of the United States (2022). Justices. Retrieved from https://www.supremecourt.gov/about/justices.aspx

[snbc]

Today in Supreme Court History: November 6, 1989

Today in Supreme Court History: November 6, 1989

11/6/1989: Employment Division v. Smith argued. Employment Division of Oregon   The post Today in Supreme Court History: November 6, 1989 appeared first on Reason.com.

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[pennsylvaniaprelawland-blog]

303 Creative LLC V. Elenis: The Next Masterpiece Cakeshop?

By Morgan Polen, University of Pittsburgh Class of 2025

October 20, 2022

You may remember the Supreme Court’s (in)famous 2018 ruling in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. A local Colorado baker, Jack Phillips, refused service to a gay couple, contending that same-sex marriage was contrary to his religious beliefs and that consequently, he did not have to furnish their wedding cake. The couple filed discrimination charges under the Colorado Anti-Discrimination Act (CADA). SCOTUS ruled that the baker’s denial of service was protected under the Free Speech and Free Exercise Clauses of the First Amendment.

We arrive face-to-face with an analogous issue in 303 Creative LLC v. Elenis. Lorie Smith, a graphic and website designer based in Colorado, is challenging the same law that was said to have violated Phillips’s First Amendment rights. Lorie recently refused service to a gay couple, who inquired that she create a website celebrating their marriage. The Court for the Tenth Circuit upheld CADA’s authority to compel Lorie to create websites for same-sex couples [4]. Lorie appealed to SCOTUS, dubbing CADA anathema; the provision violated her First Amendment rights to express her beliefs [3]. The Supreme Court is expected to hear the case before the end of the year [5].

When considering the United States’s history of anti-discrimination laws, there are troughs of history and litigation to unpack. Before 1964, private establishments had every prerogative to choose its customers and thus deny service to many others. It was not until the passage of the Civil Rights Act (CRA) of 1964 and a corresponding SCOTUS ruling, Heart of Atlanta Motel, Inc. v. United States, that America saw the installation of federal anti-discrimination laws. Specifically, Title II of the CRA prohibits discrimination in public accommodations (e.g., restaurants, movie theaters, grocery stores, etc.) on the basis of race, color, national origin, or religion (though not on the basis of sex). Many states have similar provisions that also encompass sex, sexual orientation, and other social groups. Colorado’s Anti-Discrimination Act is one such example. Government-sanctioned anti-discrimination legislation has been foundational when it comes to ensuring everybody has access to public services and accommodations.

There exists an inextricable tension between anti-discrimination laws and First Amendment clauses. When does the freedom to exercise/of expression begin to encroach on one’s right not to be discriminated against? This is the heart of the argument of many people worried about the Supreme Court’s ruling in favor of Lorie. Relatedly, Employment Division v. Smith (1990) comes up yet again. Scalia authored the majority opinion, stating that one’s religious beliefs do not exempt an individual from a “valid and neutral law of general applicability” [2]. Such “civic obligations” may include requirements to provide one’s Social Security number, to pay taxes, to submit to a vaccine mandate or drug test, etc. [1]. Though it’s plausible that Smith is the next to fall, its relevance to the case at hand remains steadfast. Ambiguity still permeates the question of whether anti-discrimination laws are “civic obligations” that every citizen must adhere to.

It seems ostensibly conspicuous that Masterpiece Cakeshop will be the progeny to form the basis of 303 Creative’s decision. However, the stark flaw with the ruling in Masterpiece Cakeshop is that it was very narrowly tailored to the situation at hand and did not seem to generalize to any “bigger” issue. It neither did away with CADA nor stated that CADA was inherently unconstitutional. This blatant lack of clarification for what this means for prospective cases leaves many concerns unsettled. Can we carve out religious exceptions to anti-discrimination laws? Do anti-discrimination laws as a whole pose violations of one’s First Amendment rights? Most crucially, is “the right not to speak” synonymous with “the right to deny public services?”

While the Court has not set up any firm groundwork of applicability or precedent, many are extremely apprehensive that it may do so. If this becomes the case, the Court will have dug itself into an interminable trench of problems. In what sectors of life may such “religious exceptions” be permitted? Who defines what even constitutes a “religion?” Will the government be forced to expunge anti-discrimination laws and revert to total privatization of establishments? Society at large will be left to grapple with these conundrums as long as the Supreme Court continues with these vague, indeterminate rulings.

______________________________________________________________

[1] Employment Division, Department of Human Resources of Oregon v. Smith. (n.d.). Oyez. Retrieved from www.oyez.org/cases/1989/88-1213.

[2] Legal Information Institute. (n.d.). Employment Division, Department of Human Resources of Oregon, et al., Petitioners v. Alfred L. Smith et al. Cornell Law School. Retrieved from www.law.cornell.edu/supremecourt/text/494/872.

[3] 303 Creative v. Elenis. (n.d.). Alliance Defending Freedom. Retrieved from adflegal.org/case/303-creative-v-elenis.

[4] 303 Creative, et al. v. Elenis, et al., No. 19-1413 (10th Cir. 2021). (n.d.). Justia US Law. Retrieved from law.justia.com/cases/federal/appellate-courts/ca10/19-1413/19-1413-2021-07-26.html.

[5] 303 Creative LLC v. Elenis. (n.d.). ScotusBlog. Retrieved from www.scotusblog.com/case-files/cases/303-creative-llc-v-elenis/.

[sakrumverum]

Sources for “Religious Liberty Justifications for Violence: A Legal Analysis”

Tomorrow during the virtual Rehumanize International Conference, SPL founder and president Kelsey Hazzard is giving her presentation “Religious Liberty Justifications for Violence: A Legal Analysis.” (Don’t have a ticket yet? Get one!) Below are the legal opinions cited in the presentation. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) […] The post Sources for “Religious Liberty Justifications for Violence: A Legal Analysis” appeared first on Secular Pro-Life. https://secularprolife.org/2022/10/sources-for-religious-liberty-justifications-for-violence-a-legal-analysis/

[mourning-again-in-america]

one of the major problems i have with trying to explain pirsig is that he’s too much a fan of plato. granted, he avoids most of plato’s mistakes by not being obscurantist when he’s setting up an intellectual dunk, but it’s still hard. 

what i mean by this is basically every point that he makes is either setting up another of his points, interlinked, setting up one of his more complex subarguments, interlinked, or shitting on various intellectuals of the past, who he feels compromised the intellectual spirit of his people. he’s so willing to do this that he’ll shit lead on whatever modus tollenses his theoretical opponents try to offer: whether intellectuals should be superior[1], whether or not diversity is an unalloyed good and whether or not people are determined by their childhood and society[2], whether or not panpsychism is true[3], the importance of religious exceptions to generally applicable laws[4], whether or not victorianism (or social conservatism generally) is laudatory[5] he’s pro-shaman if they have the mandate of heaven, but anti-intellectual, sort of a right-wing hippie, pro-psychedelic experimentation and openly mourns how drugs have destroyed so many great people...he’s got a lot going on, but i can vibe--it’s just how to transmit the vibe clearly! he struggled with the same problem as well when writing Lila, that’s part of why it’s such a goddamn mess[6]

but it’s also a goddamn mess so that it can be read with relatively random access--Lila doesn’t need to be and imo shouldn’t be read just from front to back. front to back is a good start but it’s better if you reread it randomly, going from what you understood to what you disagreed with to what you didn’t understood and back as you please, or hell, disregard whatever i say and read it however the you want! i think he’d like it if you read it and reread it in a way nobody else has.

most of the fundamentals of his metaphysics don’t follow the genus-specie relationship where eventually, all abstractions bottom out into a thing-in-the world, but are rather specified in terms of the dynamics of physical, biological, social, and intellectual change, and his actual examples of these things are shown through his critics and his nostalgia which...it’s a tough sell! but it’s all bundled together in a way that would take more work to untangle than it’s worth, even tho it’s still useful to me -- which is what the metaphysics ultimately bottoms out in, so i don’t see myself as acting in contradiction to it, but rather with it as a partial foundation--which is exactly how he tries to convey shifts in mathematical physics as being embodied through his metaphysics

[1]: see Kohlberg, Rawls [2]: see Benedict, Mead; Locke in support of the latter claim [3]: i think most non-hippies refuse this bullet, tho he’s more of a Jamesian/Wittgensteinian at heartt [4]: this is speculation, but employment division v. smith was in the supreme court in 1987, remanded, then decided by the Supreme Court in ‘90, Lila was published in ‘92, Pirsig had smoked peyote with one of his colleagues at Montana State as part of his colleague’s ~research and wrote about it in Lila as part of his dispute with Benedict, Mead and Boaz [5]: lila was published in ‘92, written after/during 8 years of reagan, and pirsig makes it very clear that he hates hates hates victorianism and wanted so badly to tear it down--and yet it was still *useful*--which is fucked up! the puritans also had a useful culture even tho it was horrific as well! extending his arguments, the puritans were contemporaneous with spanish abuses in the new world (also horrific) as so many other horrific things were at the time, but we (for a certain kind of we) made things better, or at least more preferable (for a while)! [6]: he’s also just a bad writer

#od'et amo #which is i'm sure how pirsig reconciled w/ plato in the end

[morepopcornplease]

I’ll be honest, between Reynolds v US and Employment Division v. Smith, I’m not convinced that this argument of religious freedom > state abortion laws will pass muster in a judgement.

but I’m undeniably curious to see where a case could go…

#oops more commentary #roe v wade #us law

[carolinemillerbooks]

New Post has been published on Books by Caroline Miller

New Post has been published on https://www.booksbycarolinemiller.com/musings/social-concerns/making-a-hell-of-heaven-on-earth/

Making A Hell Of Heaven On Earth

The dividing line between church and state required by our Constitution is as fragile as a dry leaf. Republican Senator Marco Rubio, for example, took a righteous tone against Democrats who dared question Amy Coney Barrett’s brand of Catholicism during her confirmation hearings for the Supreme Court. Her religious views were irrelevant, Rubio insisted. Months later, he attempted to scorch Reverend Raphael Warnock, Georgia’s Democratic candidate for the U. S. Senate, for having religious views and expressing them during a political speech.  Apparently,  the Reverend’s religious opinions weren’t irrelevant. The same disconnect was true for a Catholic Bishop. Unable to hold his tongue when Joe Biden won the 2020 Presidential election, he warned his flock that though the President-elect was a Catholic, he couldn’t be trusted because of his pro-choice stance. Judges also like to treat the Establishment Clause as if it were putty. Conservative Supreme Court Judge Antonin Scalia provides an example.  In 1990, he wrote the Court’s opinion in the case of Employment Division v. Smith. Two American Indians had brought a complaint against the state of Oregon, arguing they’d been unlawfully denied unemployment benefits.  The state responded that the men were fired because they used peyote in their religious ceremonies and, as they’d broken the law, they weren’t entitled to unemployment benefits. Scalia sided with the state.  “It is impossible to provide religious exemptions from civic obligations whenever a person disagreed with the law.” (“Free Exercise Clause,” by Erwin Chemerinsky and Howard Billman, Freethought Today, November 2020, pg. 3.) Sixteen years later,  in 2014 in the High Court ruling on Burwell v. Hobby Lobby, Scalia took the opposite view. In this case, he agreed with four other conservative judges that business owners could deny employees contraception coverage provided under the Affordable Care Act if doing so was contrary to their religious conviction. The role of religion in societies is fraught with so much argument and confusion that the question has attracted the scrutiny of scholars around the globe. One of their discoveries is that religion is on the decline. (“Giving Up on God,” by Ronald F. Inglehart, Foreign Affairs, Sept/Oct. 2020 pgs. 110-118.) People seem to be praying less and enjoying themselves more. The reason is growing global prosperity. With health and longevity on the rise, some traditional norms are falling away, particularly those that are centered around fertility. Historically, the church and state were aligned in their strictures regarding female behavior—measures, among other things, intended to counteract high infant mortality and low life expectancy. For a society to survive, births had to keep up with deaths. (Ibid, pg. 116)  On average, a woman in her lifetime gave birth to as many as 5 to 8 children. (Ibid pg. 115.)   Today, that rigid yoke placed upon women is no longer necessary and, except in the Muslim world, (Ibid, pg. 116.) they are enjoying greater personal freedoms. Nordic states,  the nexus where women’s rights and secularization meet, enjoy cultures of greater harmony and progress than others. According to the World Values Survey, a report containing data collected over many years, they are societies that “have the lowest level of corruption.” Religious countries, to the contrary, “tend to be more corrupt than secular ones.” (Ibid, pg. 117.)  The assumption that a shared religion provides social cohesion is wrong. What it can do, according to Ronald Inglehart, Professor Emeritus at the University of Michigan, is create an atmosphere of absolutes which give rise to fanatical intolerance…” (Ibid, pg. 118.) Religion, he concludes, “may make people more punitive but it does not make them less corrupt. (Ibid. pg. 117.)   By way of contrast, according to the World Values Survey, members in secular societies give an “increasingly high priority to self-expression and free choice, with a growing emphasis on human rights, tolerance of outsiders, environmental protection, gender equality, and freedom of speech.”  (Ibid, pg. 118.)   

#Amy Coney Barrett #Antonin Scalia #Burwell v. Hobby Lobby #Employment Division v. Smith #Erwin Chemerinsky #Establishment Clause #Joe Biden #Marco Rubio #Raphael Warnock #Ronald F. Inglehart #World Values Survey

[gettothestabbing]

The response to Scalia’s opinion was swift and overwhelmingly negative—so much so that it led a bipartisan Congress to enshrine the old strict scrutiny standard in federal law just three years later. At the signing ceremony, President Bill Clinton announced that the Religious Freedom Restoration Act, known as RFRA, would “reestablish[ ] a standard that better protects all Americans of faith in the exercise of their religion.” . . .

Judges are more inclined to hold the government to RFRA’s demanding standard. For example, in Gonzales v. O Centro Espirita, the Supreme Court unanimously ruled for a religious group that argued its members had the right to use hoasca, a Schedule I hallucinogenic drug—exactly the opposite of the outcome in Smith.

But RFRA isn’t perfect. It only applies to the federal government, and while 21 states have adopted their own versions, not all are as robust as the federal standard, either as written or as interpreted by courts. It’s also a statute rather than a constitutional provision, meaning it could be revised or repealed if the political winds change (and they certainly have changed since 1993). . . .

The City of Philadelphia canceled Catholic Social Services’ contract to place kids in foster homes after learning the agency operates in accordance with the Catholic Church’s teachings and would not place kids with same-sex couples. (A same-sex couple had never approached Catholic Social Services, so the dispute is actually entirely hypothetical.)

The Catholic agency sued, arguing this violated its free exercise of religion under the Constitution as well as Pennsylvania’s RFRA. The lower court held that the Catholic agency was not entitled to an exemption from the city’s neutral, generally applicable non-discrimination policy and that it had failed to show the city singled it out for disfavored treatment based on religion.

At the Supreme Court, Catholic Social Services and a few foster parents implored the justices to throw out Smith and replace it with a strict scrutiny standard that a growing consensus maintains is more consistent with the original meaning of the Constitution. Several justices have expressed concerns about Smith. Justice Samuel Alito, joined by Justice Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, said Smith “drastically cut back on the protection provided by the Free Exercise Clause” in a statement when the court declined to take up a case brought by a football coach who was fired for praying at the 50-yard line after games.

Last month, Thomas cited Smith when he issued a statement respecting the court’s denial of an appeal from a county clerk who refused to issue marriage licenses to same-sex couples in the wake of Obergefell v. Hodges. In 1997, Justice Stephen Breyer dissented from City of Boerne v. Flores, which held that Congress exceeded its authority by extending RFRA to state and local governments.

Breyer said the Supreme Court should have considered whether Smith was correctly decided. That’s not typically the sort of thing you’d say about a ruling you agree with, right?

Naturally, all eyes will be on the newest justice, Amy Coney Barrett, to see if she’s persuaded by the view of her former boss, Justice Scalia, or the argument that Smith cannot be justified under an originalist view of the Constitution. Time will tell whether the Supreme Court will put in place a more demanding, constitutional standard when the government restricts our freedom.

#SCOTUS #Justice Antonin Scalia #Elizabeth Slatterly #Anastasia Boden #Fulton v. City of Philadelphia #Catholic Social Services #Catholics #First Amendment #religious freedom #foster care #Employment Division v. Smith #strict scrutiny #Religious Freedom Restoration Act #prejudice #originalism #Justice Stephen Breyer

[pennsylvaniaprelawland-blog]

The Separation of Court and Precedent?

By Morgan Polen, University of Pittsburgh Class of 2025

September 8, 2022

It is a longstanding, firm-rooted idea in our nation that to champion for “the separation of church and state” is to uphold the wishes of America’s Founders. However, we may be facing a future in which religion is inextricably linked with governmental institutions, workplaces, and policies. Just this year, the Supreme Court issued two exceptionally landmark decisions that could assuredly change the trajectory of how we approach religion when government entities are in question.

Carson v. Makin examined Maine’s subsidized student-aid program. In the state of Maine, there exists no formal public secondary school in some school districts. As a result, a family can decide to contract with another secondary school or choose a private school to which the student was accepted [1]. Nonetheless, these private schools did not encompass ones with a religious affiliation (i.e., where religion is a part of day-to-day instruction). SCOTUS ruled that this violated the Free Exercise Clause of the First Amendment. Chief Justice John Roberts authored the majority opinion, stating that if Maine is going to provide financial aid to private schools, then it must do so for all private schools.

Many rejoiced in the decision, explaining that this ruling ended the distorted notion that “neutrality” meant “no religion” [2]. Critics, on the other hand, deemed the ruling egregious; forcing the public (some of whom do not identify with a religion) to fund highly controversial religious installations is unethical [3]. Regardless of whether or not one agrees with the ruling, one thing remains evident: If the circumstances ever arise, citizens of Maine are now looking at having to fund all religious private schools.

Kennedy v. Bremerton School District effectively overturned Lemon v. Kurtzman. The latter famously established a 3-pronged test for deciding whether or not something violated the Establishment Clause. The statute/policy must (1) serve a secular purpose, (2) neither advance nor inhibit religion, (3) and it must not promote “excessive government entanglement with religion” [4]. In Kennedy, Joseph Kennedy, a high school football coach, was asked to stop praying during the football games so the school could avoid a lawsuit founded on an Establishment Clause violation. Kennedy sued the district, saying the school violated the First Amendment and Title VII of the Civil Rights Act of 1964. SCOTUS sided with Kennedy, ruling that the First Amendment protects someone from private religious observance.

Just as in Carson, many praised the ruling, lauding Kennedy as a symbol for religious freedom and personal expression. There was also immense backlash, with opponents worried that this ruling opens the door to unimaginable government involvement with religion. Additionally, many take particular issue with the ruling because before Kennedy, it was commonly accepted by the courts that government employees could observe their religion like all others, just not in their official job capacities (Employment Division, Department of Human Resources of Oregon v. Smith) [6].

The rationales used to justify Kennedy and Carson parallel the reasoning of Dobbs v. Jackson Women’s Health Organization. In the Dobbs decision, Justice Alito said there should be a novel, two-part test used to assess the viability of individual rights: (1) whether or not it’s expressed in the Constitution and (2) whether it existed as a matter of “the Nation’s history and tradition” [6]. SCOTUS has now placed a more salient reliance on an originalist interpretation, and this is often difficult to decipher. Moreover, originalism struggles to keep up with evolving societal standards and general public opinion.

It’s no surprise that the Court’s conservative majority is zealously pro-religion. In fact, the Roberts Court is the most pro-religion it’s been since at least the 1950s, with ~83% pro-religion outcomes when the matter is at hand [5]. Carson and Kennedy raise some noteworthy concerns: Where do we draw the line between church and state? Is religious freedom coming at the expense of others’ individual liberties? When does private religious observance spill over into public interference? Most importantly, who gets to dictate what is private and what is public? These partitions are very muddled, and this makes it all the more precarious when it comes to distinguishing them. With the recent Court rulings, especially the abandoning of Lemon, it’s not implausible to envision a (near) future where “the separation of church and state” becomes a constitutional violation.

______________________________________________________________

[1] Carson v. Makin. (n.d.). Oyez. Retrieved from www.oyez.org/cases/2021/20-1088.

[2] Haun, W. (2022, August 6). After a Half-Century, the Supreme Court Is Getting Religious Liberty Right Again. AEI, American Enterprise Institute. Retrieved from www.aei.org/op-eds/after-a-half-century-the-supreme-court-is-getting-religious-liberty-right-again/.

[3] Laats, A. (2022, July 15). The Supreme Court Has Ushered In a New Era of Religion at School. The Atlantic. Retrieved from www.theatlantic.com/ideas/archive/2022/07/supreme-court-religion-schools-prayer-kennedy-carson/661365/.

[4] Lemon v. Kurtzman. (n.d.). Oyez. Retrieved from www.oyez.org/cases/1970/89.

[5] Philbrick, I.P. (2022, June 22). A Pro-Religion Court. The New York Times. Retrieved from www.nytimes.com/2022/06/22/briefing/supreme-court-religion.html.

[6] Wehle, Kimberly. (2022, August 8). The Supreme Court Wants to End the Separation of Church and State. Politico. Retrieved from www.politico.com/news/magazine/2022/08/10/supreme-court-separation-of-church-and-state-00050571.

[supersoftly]

Except the Supreme Court has already had such a situation and ruled against that reading of the 1st Amendment in Employment Division v Smith i.e. it does not give individuals or groups the right to waive a neutral law (particularly one that concerns public safety) solely on religious grounds.

Good try, but that was a religion trying to use drugs and then telling the government ‘its religious drugs’ as a justification for their right to use it. While I don’t agree with the USA’s classification of dangerous drugs, that’s a different matter. For your argument, you need to use something that’s in context with the situation and circumstance.

[cristianesimocattolico]

Compagni di strada diabolici: Satanic Temple per l'aborto

La rivista Rolling Stone, in un intervento a firma di David S. Cohen, ha descritto ai suoi lettori la battaglia pro aborto da parte del Satanic Temple. Fra i principi dei satanisti "il proprio corpo è inviolabile" e ogni restrizione all'aborto viene considerata alla stregua di una violazione della libertà religiosa. Per questo si battono, finora senza successo, nei tribunali statali e federali negli USA.

di Giuliano Guzzo (26-08-2020)

Chissà se Joe Biden, il candidato democratico alla Casa Bianca le cui posizioni abortiste sono arcinote, racconterà nei suoi comizi elettorali delle prossime settimane quali siano i suoi compagni di viaggio nelle battaglie per i cosiddetti «diritti riproduttivi». Ma c’è da dubitare che lo farà, dato che nel fronte pro choice si trovano anche realtà abbastanza imbarazzanti in quanto espressioni, udite udite, del mondo satanista.

A darne conto, con un lungo articolo quasi celebrativo, è il noto giornale Rolling Stone che, in un intervento a firma di David S. Cohen, ha descritto ai suoi lettori la battaglia pro aborto da parte del Satanic Temple. Proprio così. Nel suo pezzo, Cohen – che presenta Satanic Temple come un gruppo religioso «che crede nella benevolenza e nell'empatia tra tutte le persone, rifiuta l'autorità tirannica e sostiene il buon senso e la giustizia» - ricorda come tale organizzazione, sulla base di asserite «motivazioni religiose», si stia battendo a favore dell’aborto no limits.

Nello specifico, il Satanic Temple ha tra i suoi principi fondanti la tesi secondo cui «il proprio corpo è inviolabile, soggetto solo alla propria volontà», con la conseguenza che l’aborto volontario senza limiti né restrizioni viene, in detta prospettiva, concepito come esercizio di «libertà religiosa». «Così come nessun cristiano accetterebbe un periodo di attesa obbligatorio prima di poter partecipare alla Comunione» - è il bizzarro argomento addotto da questa chiesa nera – «così i nostri membri hanno diritto alla libertà religiosa anche per praticare i nostri rituali».

Rolling Stone ricorda che il Satanic Temple, per conto di loro affiliate in gravidanza, aveva già tentato più volte di far valere le proprie istanze in seno ai tribunali statali e federali; in effetti, è almeno dal 2014 che questa chiesa si batte contro ogni limitazione all’aborto. Tutto ciò, finora, senza successo, come prova la sconfitta incassata nel 2019 davanti alla Corte del Missouri, che ha stabilito che la contestata legge sull'aborto di quello Stato non impone a nessuna gestante un'ecografia (anche se deve essere offerta) né di leggere (sebbene debba essere fornito) l'opuscolo di Stato sui diritti delle donne in gravidanza difficile o indesiderata.

Nel giugno di quest'anno, i giudici sempre del Missouri hanno altresì stabilito come gli affiliati di  Satanic Temple, non possano essere esentati dalle leggi statali generalmente applicabili solo perché le loro credenze religiose sono difformi dalla legge. A questo punto, scrive Rolling Stone, al Satanic Temple rimane comunque una carta importante: la Corte Suprema. Una via, evidenzia l’articolo di Cohen, che appare interessante soprattutto alla luce della dimostrata sensibilità al tema della libertà religiosa più volte mostrato dai giudici.

Tanto più, aggiunge sempre Rolling Stone, che c’è un precedente importante al quale appigliarsi e che potrebbe essere ribaltato. Stiamo parlando del caso Employment Division v. Smith (1990) con cui la Corte – con una majority opinion a firma dell’allora giudice conservatore Antonin Scalia – affermò che rientrava tra le prerogative dello Stato negare l’assegno di disoccupazione a chi fosse stato licenziato per aver violato una legge che rendeva illegale il possesso di peyote (un particolare cactus da cui possono estrarsi sostanze stupefacenti), anche se questi avesse affermato di averlo posseduto per motivi religiosi.

La Corte allora ritenne che, siccome lo Stato non aveva varato la norma per ledere la libertà di culto di un credo, nessuno avrebbe potuto sottrarsi al suo rispetto, essendo essa passibile di applicazione in maniera generale a chiunque – alla luce di una «neutral law of general applicability» - per qualunque motivo fosse stato trovato in possesso del peyote. Ora, se quel verdetto fosse ribaltato, sottolinea Rolling Stone, il Satanic Temple potrebbe veder riconosciuto l’aborto senza limiti come un «diritto di libertà religiosa».

Inutile dire che si tratterebbe di un’assurda forzatura logica prima che etica, dal momento che in un’ottica satanista l’aborto viene celebrato più come un sacrifico umano – quale a tutti gli effetti è -, che come un esercizio di culto in senso generale. L’auspicio è quindi che qualsivoglia, futura istanza giudiziaria del Satanic Temple possa naufragare al pari, del resto, delle precedenti. Anche se, comunque vada, questo gruppo di celebratori di Satana non sembra in alcun modo intenzionato a mollare la presa: per loro, la lotta contro il diritto alla vita è un’assoluta priorità. E sarebbe bello – cosa ci tocca dire - che in casa cattolica, vincendo la timidezza che regna sui temi etici, si prendesse esempio da cotanta determinazione battendosi con pari energia, in direzione opposta.

#aborto #satana #satanisti

[aspelladay]

Peyote Cactus

(Lophophora williamsii)

Family: Cactaceae 
Habitat: Desert, but prefers some humidity for seed germination Native to: Southwestern United States and Mexico Common Names: Peyote, buttons, mescaline, challote, devil’s root, white mule

When Spanish missionaries arrived in the New World, the observed the ritual use of the peyote cactus (mescaline) by Native Americans and called it witchcraft. Conquistadores and colonists banned it and drove its use underground. Ironically, when white settlers objected to peyote use, it was usually expressed in terms of the harm it might inflict on Native Americans. This belief continues into the twentieth century. In 1923, the New York Times quoted one antipeyote crusader as saying those who use peyote may be beyond help: “The alcoholic subject may by careful treatment escape physical and mental weakness, but the mescal[ine] fiend travels to absolute incompetency.”

This diminutive, slow-growing cactus forms the shape of a button one to two inches across, with no spines. Left to its own devices, a small, white flower blooms on top of the cactus and then goes to seed. But don’t go looking for peyote gardens in the desert: over-harvesting of the cactus has made the plant scarce in the Southwest.

The bitter, dried peyote buttons are either eaten or made into a tea. The initial effects can be quite terrifying and include anxiety, dizziness, headache, chills, extreme nausea, and vomiting. The hallucinations that follow have been described as intense experience of bright colors, increased awareness of sounds, and clarity of thought. However, the experience of peyote intoxication vary widely and has also been described as “a chemically induced model of mental illness.”

Use of the peyote cactus in Native American religious rituals has long been greeted with skepticism in the United States. Dr. Harvey W. Wiley, a tireless advocate for food and drug safety in the early twentieth century, once complained to the Senate Committee on Indian Affairs that if the religious use of peyote is permitted, “we will have an alcohol church and a cocaine church and a tobacco church.” In 1990 the Supreme Court ruled in the case of Employment Division v. Smith that the First Amendment does not protect Native Americans who wish to use the drug in the practice of their religion. In response, Congress amended the American Indian Religious Freedom Act to allow the use of peyote in Native American Religious ceremonies. For everyone else, mescaline is a Schedule I controlled substance, and possession is a felony.

(from Wicked Plants by Amy Stewart)


#plants #herbs #botanicals #ingredients #peyote #peyote cactus #mescaline #devils root