Topic Tuesday #142 2015/04/07 "Lemon Sherbert"

In last weeks ORly Radio Podcast, our one year anniversary show, we examined the Lemon Test and the Sherbert Test. Since they are so similar, form, function, method, I have grouped them as The Lemon Sherbert Test for "excessive entanglement" between government and religion.

The recent hubbub about the Religious Freedom Restoration Acts that the individual states are hoisting upon the citizenry got me thinking what the deal was. The original RFRA (1993) was brought about primarily (or under the guise) of supporting indigenous American religious rites, including land use and the use of illicit substances in the practice of their religion. Drugs, kids, I'm talking about Peyote (mescaline). The new state laws extend the law to individual citizens and it works out that it is very possible to use these laws to promote religious discrimination, looking a lot like bigotry ala segregation but for GLBT and other unprotected classes. So... How can you tell that the government has stepped in the doo doo? A fairly simple test, that in true government fashion was invented twice.

The Sherbert Test came about in Sherbert v. Verner in 1963. It works as follows:

For the individual, the court must determine:

whether the person has a claim involving a sincere religious belief, and
whether the government action is a substantial burden on the person’s ability to act on that belief. Expanded: If government confronts an individual with a choice that pressures the individual to forego a religious practice, whether by imposing a penalty or withholding a benefit, then the government has burdened the individual's free exercise of religion.

If these two elements are established, then the government must prove

Interest Prong: that it is acting in furtherance of a “compelling state interest,” and
Narrowly-Tailored Prong: that it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

The Lemon Test similarly came from Lemon v. Kurtzman in 1971. It breaks down like this:

The requirements for legislation concerning religion, is threefold:

Entanglement Prong - The statute must not result in an "excessive government entanglement" with religious affairs.
Effect Prong - The statute must not advance nor inhibit religious practice
Purpose Prong - The statute must have a secular legislative purpose.

If any of these prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.

Now, let's break this into the Lemon Sherbert Test.

Three seems to be a magic number, so let's keep with three "prongs".

Entanglement Determination Prong: Does an established religious practice run against a government interest? Then the Government cannot advance nor inhibit the free exercise of religion with its secular (religion neutral legislative) purpose.
Narrowly-Tailored Interest Prong: In the event that the least burdensome government action to religion is still in conflict with a practice for furtherance of a “compelling state interest", the state interest will overrule the free exercise of religion. (National Security Loophole, which I estimate why the Sherbert test is prefered in RFRA legal challenges.)
Purpose Prong: The government's purpose/actions must adhere to the constitution and be in the best interest to the citizenry without endorsing a religious belief.

But to be even clearer:

Government, may not endorse or burden a religion. Government must work around religion without interfering in, or endorsing, the practice thereof - unless a compelling state interest makes compromise infeasible for greater national interests within the bounds of the constitution.

There... Now, hopefully, you understand how to determine if there is a violation of a religious interest by government action. Typically, what we see is a misunderstanding of the rights of the religious versus the abilities of the government to govern. Religions do not exist in a vacuum and must deal with the laws of the land. Even Jesus said, "Give back to Caesar what is Caesar's and to God what is God's." Mark 12:17

Topic Tuesday #94 2014/05/06 "Equality?"

As I pay attention more and more to the news now that I have a show that talks about it every week, I find some disturbing recurring themes. There is always violence, that has been pretty steady, with the whole, "If it bleeds it leads" mantra of news agencies around the United States. Today in the US, faith based matters dominate. Don't think so? I can see why you may think otherwise, as on the surface they seem to be other issues. Dig a little deeper, and you get to why it is an issue in the first place.

Take marriage equality, or "gay marriage" as an example. Is this a civil rights issue? Most likely. Why in the 21st century would such civil or even human rights be impinged upon? Religion. It's plain and simple. Countless articles and news stories, and the only ones causing a fuss about letting two humans marry each other, are those with a religious stake in the game. They are losing by the way, and I think that's a good thing for humanity. Eventually those that oppose gay marriage and homosexuality will fall to the side, like their predecessors did for slavery and the rights of minorities and supporters of women's suffrage (though equal pay has a ways to go...).

Take abortion, or right to life, or choose life, or any other number of phrases used to get legislation passed... If one looks at the issue from the position of medical science, there is no real question on the issue. It should remain in the hands of those trained to deal with these matters safely... Rather than those that look at it from the position of life beginning at conception or EVEN BEFORE conception in some cases... http://www.huffingtonpost.com/2012/04/10/az-abortion-bills-arizona-gestational-age_n_1415715.html Now we can get into how cells divide and what constitues a person, and when the rights of the mother are somehow less than the child she bears... But we don't need to. Really we don't. You can comment if you like and I encourage you to do so, but be very honest with your arguments.

While on abortion, we also have Hobby Lobby and Conestoga Wood, sueing to avoid having to pay for the contraceptive mandates within the Affordable Health Care Act. They are claiming that their publicly traded companies have a religious preference... When the entire reason to incorporate it to remove liability from an individual and make the company it's own legal entity. Now this legal entity has a religious preference. Funny how we can't imprison a company, or execute it for a crime, or even talk directly to it... Yet it holds, funny enough, the same religious views as its board of directors... So it can claim that based on its religious objection, it can withhold government mandated care from it's employees, effectively pushing their views upon others.

If they open that door wide enough... There are monsters that lurk there. The monsters of other peoples faiths and preferences and then... laws.

Here is the problem... The separation of church and state as inferred by the 1st amendment's establishment clause, no matter how you look at it, is there to prevent religions from hurting the rights of others by playing favorites. It's simple. Person 1 believes X. Person 2 believes Y. If you make a law that is based solely off of belief X you can infringe upon the beliefs of Person 2, because they believe Y, not X. The only way for both X and Y to co-exist peacefully is for there not to be any laws based on beliefs... A separation of law and faith; between church and state. It keep is fair.

Now we had a recent result from the US Supreme court that narrowly sided (5 to 4) that it was permissible to have prayer before civic/government functions. All I can hope, is that the invocations/prayers come in from all faiths, equally. History tells us this won't happen and that such displays drive wedges in communities because of differing faiths. Bigotry... Faith Based Bigotry is still alive and well. And it needs to stop...