ORly Radio Show 52 - A Whole Year! RFRA or How Bigotry Becomes Law...

ORly Radio Show 52 for Friday April 3rd, 2015 - A whole year! RFRA or How Bigotry Becomes Law...

Hosts: Andy & the Usual Suspects: Mike, David, and Don!!!
Music: "Rocket and Pamgaea” by Kevin MacLeod (www.incompetech.com)

Errata From Last Week: We make mistakes. Please, if you find one, pause the podcast, and send us a note. orlyradiopodcast@gmail.com or phone it in 470-222-6759

The Good

Education: Stanford University's tuition is now free for students whose families make less than $125,000 a year http://theweek.com/speedreads/547755/stanford-universitys-tuition-now-free-students-whose-families-make-less-than-125000-year

SCIENCE: Humans are evolving more rapidly than previously thought, according to the largest ever genetics study of a single population. Scientists reached the conclusion after showing that almost every man alive can trace his origins to one common male ancestor who lived about 250,000 years ago. The discovery that so-called “genetic Adam”, lived about 100,000 years more recently than previously understood suggests that humans must have been genetically diverging at a more rapid rate than thought.


GARLIC: a team looked at the nutrient’s ability to inhibit ― and even possibly reverse ― brain cell damage caused by environmental stress. Environmental stress could include the aging process, smoking, pollution, traumatic brain injury or excessive alcohol consumption


CHOCOLATE: Scientists Work Out How To Make Chocolate Healthier And More Flavorful


Geopolitical: Deal with Iran pretty much in the bag.


The Bad

Geopolitical: Israeli Cabinet 'united in strongly opposing' Iran nuclear deal


VIDEO/AUDIO: Prisoner Calmly And Logically Explains Why He Had To Murder His Cellmate (hint: child molestation)


NOT GONNA HAPPEN: California Forced To Allow Signatures For Appalling 'Shoot The Gays' Ballot Initiative


The Ugly

“Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof’, thus building a wall of separation between Church & State” – Thomas Jefferson in his 1802 letter to the Baptists of Danbury, Connecticut

RFRA was passed overwhelmingly in 1993 and was brought about by Democrats in the House and Senate.
From Wikipedia: Religious Freedom Restoration Act 1993 United States federal law that "ensures that interests in religious freedom are protected." The RFRA was held unconstitutional as applied to the states in the City of Boerne v. Flores decision in 1997, which ruled that the RFRA is not a proper exercise of Congress's enforcement power. Stating that Congress had stepped beyond their power of enforcement provided in the Fourteenth Amendment.[10] In response to the Boerne ruling, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, which grants special privileges to religious land owners.[12]
However, it continues to be applied to the federal government—for instance, in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal—because Congress has broad authority to carve out exemptions from federal laws and regulations that it itself has authorized.
Provisions: This law reinstated the Sherbert Test, which was set forth by Sherbert v. Verner, and Wisconsin v. Yoder, mandating that strict scrutiny be used when determining whether the Free Exercise Clause of the First Amendment to the United States Constitution, guaranteeing religious freedom, has been violated. In the Religious Freedom Restoration Act, Congress states in its findings that a religiously neutral law can burden a religion just as much as one that was intended to interfere with religion;[4] therefore the Act states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”[5]

The law provided an exception if two conditions are both met. First, the burden must be necessary for the "furtherance of a compelling government interest."[5] Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues.[6] The second condition is that the rule must be the least restrictive way in which to further the government interest.

RFRA (1993) applies "to all Federal law, and the implementation of that law, whether statutory or otherwise", including any Federal statutory law adopted after the RFRA's date of signing "unless such law explicitly excludes such application."

A Little Background on why RFRA 1993 passed.  Employment Division v. Smith, 494 U.S. 872 (1990) the Court upheld the state of Oregon's refusal to give unemployment benefits to two Native Americans fired from their jobs at a rehab clinic after testing positive formescaline, the main psychoactive compound in the peyote cactus, which they used in a religious ceremony. Peyote use has been a common practice in Native American tribes for centuries. It was integrated with Christianity into what is now known as the Native American Church.[9]

The Smith decision outraged the public. Many groups came together. Both liberal (like the American Civil Liberties Union) and conservative groups (like the Traditional Values Coalition) as well as other groups such as theChristian Legal Society, the American Jewish Congress, the Baptist Joint Committee for Religious Liberty, and the National Association of Evangelicals joined forces to support RFRA, which would reinstate the Sherbert Test, overturning laws if they burden a religion.[10]

The constitutionality of RFRA as applied to the federal government was confirmed on February 21, 2006, as the Supreme Court ruled against the government in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546U.S. 418 (2006), which involved the use of an otherwise illegal substance in a religious ceremony, stating that the federal government must show a compelling state interest in restricting religious conduct.

Post-Smith, many members of the Native American Church still had issues using peyote in their ceremonies. This led to the Religious Freedom Act Amendments in 1994, which state, "the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremony purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any state. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation."[5]

Basically, RFRA was to get the government to stop meddling in illicit substance use during native american religious ceremonies and mucking about with native land use in regards to sacred spaces. BUT that has been a subnote in actual use of the law.  

The Sherbert Test  - Sherbert v. Verner 1963

It is based on the following four criteria (sometimes referenced as 3 prongs)

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 - Lemon v. Kurtzman 1971

The Court's decision in this case established the "Lemon test" (named after the lead plaintiff Alton Lemon),[2] which details the requirements for legislation concerning religion. It is threefold:

  1. Entanglement Prong - The statute must not result in an "excessive government entanglement" with religious affairs.

  2. Effect Prong - The statute must not advance nor inhibit religious practice

  3. 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.

The act stipulated that "eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion." Still, a three-judge panel found 25% of the State's elementary students attended private schools, about 95% of those attended Roman Catholic schools, and the sole beneficiaries under the act were 250 teachers at Roman Catholic schools.

The court found that the parochial school system was "an integral part of the religious mission of the Catholic Church," and held that the Act fostered "excessive entanglement" between government and religion, thus violating the Establishment Clause.[1]

Held: Both statutes are unconstitutional under the Religion Clauses of the First Amendment, as the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion.[1]


Video/Audio WALKERTON, Ind. -A small-town pizza shop is saying they agree with Governor Pence and the signing of the controversial Religious Freedom Restoration Act.

Video/Audio CNN's Tapper Battles Arkansas Pol: Does Religious Freedom Bill Discriminate or Not? https://www.youtube.com/watch?v=uDhEwTbq5aI
From Mike - http://en.wikipedia.org/wiki/Swastika

Video/Audio Speaking on the Religious Freedom Restoration Act (RFRA) in his state, Republican Senator Tom Cotton of Arkansas urged gay people to “have a sense of perspective” on the issue, mentioning that, in Iran, they hang gay people.


Don Lemon challenged guest Kristen Waggoner, attorney for the Alliance for Freedom, to defend the law after asking why it hasn’t been fixed as a result of the national backlash.Penn Jillette to CNN guest defending ‘religious freedom’ laws: No one is being asked to have gay sex http://www.rawstory.com/rs/2015/04/penn-jillette-to-cnn-guest-defending-religious-freedom-laws-no-one-is-being-asked-to-have-gay-sex/


Andy’s: US, watch everything!
David’s: http://www.amazon.com/gp/product/B00OS5BTDU/ref=ox_sc_act_title_1?ie=UTF8&psc=1&smid=A1G1D6VG4GOCMX

Don’s: http://www.reaper.fm/download.php & https://www.audinate.com/products/software/dante-virtual-soundcard