Tuesday, March 24, 2015

ACLU Strongly Supports Religious Freedom Restoration Act; Urges Congress to Act Quickly to Restore Protections

Anyone who thinks the American Civil Liberties Union's legal positions aren't affected by politics should examine its press release from 22 years ago:

ACLU Strongly Supports Religious Freedom Restoration Act; Urges Congress to Act Quickly to Restore Protections

For IMMEDIATE RELEASE
March 11, 1993

WASHINGTON -- The American Civil Liberties Union today joined congressional sponsors and other members of the diverse coalition formed to support the Religious Freedom Restoration Act in calling upon Congress to act quickly in restoring full legal protection to religious liberty.

"Passage of the Religious Freedom Restoration Act is the most important action that Congress can take for the free exercise of religion since the First Congress passed the Bill of Rights," said ACLU Legislative Counsel Robert S. Peck.

The legislation is designed to restore the level of legal protection that was previously enforced by the courts under the First Amendment.

"For two centuries, the guarantees of the First Amendment has proven to be the boldest and most successful experiment in religious liberty the world has known," Peck added. "A disastrous and erroneous decision by the Supreme Court three years ago has threatened to derail that experiment and make religious freedom a matter of legislative grace. Such an approach is inconsistent with our constitutional heritage and the level of protection the courts afford all other fundamental rights."

In Employment Division v. Smith (1990), the U.S. Supreme Court rejected the traditional tests for evaluating infringements of religious liberty and effectively read the Free Exercise Clause out of the First Amendment. As Justice Blackmun's dissent correctly put it, the Court's "holding dramatically departs from well-settled First Amendment jurisprudence . . . and is incompatible with our Nation's fundamental commitment to individual religious liberty."  The Religious Freedom Restoration Act attempts to restore the previous status quo, under which religious practices must be accommodated unless a compelling governmental interest can be demonstrated and advanced in the least restrictive manner.

The Smith decision rejected a claim for unemployment benefits by two Native Americans who had been fired from their state jobs for the ritual use of peyote in tribal religious ceremonies. It did
so expansively, reaching far beyond the issue before them and declaring that government practices and policies that are neutrally stated and generally applicable will be upheld against constitutional attack as long as the policies are not targeted at religious practice. Thus, under the Court's new rules, laws passed in ignorance or passed irrespective of their impact on religious freedom would be deemed constitutionally valid. In rejecting the compelling government interest standard that
previously governed these cases, Justice Scalia's majority opinion characterized the test as a "luxury" that the nation could no longer afford as a result of the country's growing religious diversity.

"The Court's rationale turns the First Amendment on its head, and guarantees judicial protection only in periods of relative religious homogeneity," Peck said.

The Religious Freedom Restoration Act simply and elegantly restores the compelling interest test that previously characterized free exercise cases prior to Smith.

The ACLU applauds the leadership of Senators Edward Kennedy (D-MA) and Orrin Hatch (R-UT) and Representatives Charles Schumer (D-NY) and Christopher Cox (R-CA) as well as the more than 150 original co-sponsors in both Houses, for their support of this important legislation.

18 comments:

johnnystir said...

Except it's not about religion. It's about same sex marriage and gay people, Paul. That's it. This is about LGBT Hoosiers having the right to marry.

Paul K. Ogden said...

Johnnystir,

You sure didn't hear me encouraging that foolish same sex marriage battle last year. If the Republicans would have instead focused on the RFRA instead of same sex marriage, the RFRA would have passed with only a smattering of 'no" votes.

Anonymous said...

Tax the churches.

Anonymous said...

News flash: This press release was dated 22 years ago. It's a different world now. Just because legislation has the same title doesn't mean it has the same motivation.

Paul K. Ogden said...

Anon 8:22, it is the same bil as 22 years ago. Isn't it important what the bill actually does? Isn't that more important than fictional horror stories about what the bill does, stories not ground in reality?

Pete Boggs said...

This is about the right to associate, and / or disassociate; for both, those of faith & those of other belief.

In the absence of clarity at the state level; those of faith are subject to predatory & we'll funded legal maneuvers; not designed to advance tolerance but are themselves hostile acts of intolerance, directed at people of faith.

Tully's recent op ed seems to be driven by a contempt for people of faith; intolerance.

Pete Boggs said...

How did the Indiana delegation vote in 1993? Had the Governor been in Congress at that time, he most likely would've voted...

Are rights somehow different now than they were then?

tryexcept said...

I've been working my entire career to convince technology companies to move here and I've just had my goddamn nuts cut off by this idiocy.

We sure showed them gays didn't we? And the major employers as well.

Anonymous said...

If it's really the same bill as the federal one, why does Indiana need one of its own?

Paul K. Ogden said...

tryexcept, since we have a federal RFRA, just like Indiana's, are you encouraging those technology companies to locate outside the United States?

Paul K. Ogden said...

Pete,

How did the Indiana delegation vote in 1993? Had the Governor been in Congress at that time, he most likely would've voted...

ANSWER: Lugar, Coats and the entire Indiana house delegation voted for it. It passed the U.S. House unanimously and the Senate 97-3. The ones who voted against it in the Senate were former Klansman Robert Byrd (D-West Virginia), Jesse Helms (R-North Carolina) and Matthews (D-Tenn).

Are rights somehow different now than they were then?

No. What is remarkable if you study the RFRA in its 22 years of being law at the national level and in some states, people who have religious freedom have almost always lost because the state can point to a compelling interest for its laws. There is not a single case, NONE, that supports the left wing's claim about the horrible discriminatory atmosphere that the RFRA will usher in.

Paul K. Ogden said...

Anon 5:39, it is needed because of a 1997 decision by the U.S. Supreme Court which said that the federal RFRA could not apply to state laws because of federalism...that states had to adopt it on their own. If Indiana does not adopt the RFRA, then when there are free exercise challenges to state laws, government does not have to show a compelling interest for the law (a requirement of RFRA and its predecessor the Sherbert test); government need only show that the law applies generally to everyone. That is a result of the 1990 decision written by Scalia that gutted free exercise protections. The RFRA is aimed at restoring those protections.

tryexcept said...

You're kidding yourself if you think this is anything other than a 'kick the gays' bill.

Ken said...

And you are kidding yourself if think this law will accomplish anything of the sort.

Anonymous said...

I work in IT as well and it only took my 2 minutes to google this. http://www.inkfreenews.com/2015/02/16/brooking-institution-says-indiana-ranks-fourth-in-high-tech-jobs/

Anonymous said...

No, it's not. That is what you have been led to believe. That is what detractors have convinced you that it's about. It isn't about that at all.

Anonymous said...

Who cares what the motivation is if it does the same thing?

Anonymous said...

Your kidding yourself if you think it is.