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View Diary: Fundies, I get it, I really do, but grow up (227 comments)

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  •  Not true. (2+ / 0-)
    Recommended by:
    mapamp, VClib

    generally, a compelling government reason takes precedence -- public safety, or example.  The government can pass laws to protect others if your religion (as an extreme absurd example) practices human sacrifice.  What the government can't do is say, I think it's the Muslim religion is demeaning to women so I'm outlawing the hijab.

    •  But your example (last sentence) doesn't apply (2+ / 0-)
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      allergywoman, Nowhere Man

      to a "free exercise" situation-- at least not to the claims of "free exercise" protection that many Christian conservative legal groups are pressing.  The current claims of free exercise-- for example, with regard to exceptions in the law for conscience concerning abortifacients/morning-after pills, abortions, etc.-- do not respond to any sort of government proscription (as in your hypothetical example).  Rather, current "free exercise" claims are all about claiming that the individual is above or outside any sort of law whatsoever purely because he or she "believes."

      That's one more thing to add to my long list of small problems. --my son, age 10

      by concernedamerican on Sat Apr 27, 2013 at 05:42:14 AM PDT

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      •  No, that's not the nature of their challenge. (2+ / 0-)
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        VClib, scott5js

        The abortion conflict in general is because there is no general consensus in this country as to when a fetus is a separate human life.  I'm a mother, and I can tell you that at SOME point, I considered my children separate human beings.  If someone had killed one a day before my due date, I would have considered it a murder of a person, not just an attack on my.  The question is, when can the law consider that fetus a separate human life, a life that has its own interests, separate from the woman's, that the government can protect?  Roe v. Wade said that the dividing line was viability - the government can enact laws to protect the fetus (even from its mother) at viability.  That was kind of an arbitrary decision, as even Roe supporters admit.  Why then?  What happens when viability moves earlier?  Why not when there is separate brain activity?  Why not when there is a separate heartbeat?  Why not when the separate DNA is established?  The answers to those questions can be religious or not, or can be philosophical or spiritual.  And we have no consensus answer.

        IF -- and that's the big IF -- that fetus is a separate human life, then the government can, and should, pass laws that protect that separate human life from physical harm by others.  The BIG question is when that status begins.  Roe says viability, but the country as a whole is all over the place (some earlier, some later) on that.  

        •  What you are describing does not apply to the (3+ / 0-)

          situation at hand.  The "free exercise" clause issue has to do with whether or not someone can claim that he/she is above or outside the law, or that the law does not apply to him/her, simply because he she believes something within a religious framework.

          Such exemptions are requested beyond the framework of abortion or viability or "life".  They are currently being claimed by people who assert that it "restricts their freedom of religion" for them to rent to homosexuals, provide services to gay people or transsexuals, teach science in the classroom, etc.  In the face of laws passed in localities and states which reflect the public's sentiment in those states with regard to what they want their democratic process to make possible for citizens, such "freedom of religion" conscience exemption claimants insist that they are not part of that "public" and that they should not be subject to the laws made by the public.

          When the founders provided for a "free exercise" of religion,they were not intending to provide for an individual's whim to trump the public good.  It is part of the public good that American children learn accepted science in schools so that they might be competitive and knowledgeable.  It is part of the public good that taxpaying, law-abiding citizens (such as gay people) be shielded from discrimination in public housing and in service situations where the providers use taxpayer-funded infrastructure that their businesses benefit from, like roads and bridges and sidewalks and public utilities.  It is part of the public good that we assent as a community to certain practices that embody or manifest a core set of American values.  

          Those who currently want to avoid living according to such shared common American values are de facto setting themselves above American law.  I guess they're invoking divine law and saying that it trumps American law.  But that's not very American, is it?

          But that's ultimately what's at stake in the fact that a "free exercise" clause is in our Constitution in the first place:  individual whim is subordinate to the overall framework of the rights and obligations enumerated therein.  

          That's one more thing to add to my long list of small problems. --my son, age 10

          by concernedamerican on Sat Apr 27, 2013 at 07:22:43 AM PDT

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          •  That's contrary to the First Amendment (1+ / 0-)
            Recommended by:
            VClib

            the Free Exercise clause was put in the First Amendment precisely so that the government CANNOT say, I think your religious values are not good for the country as a whole, so I'm going to make it illegal for you to exercise your religious beliefs.  

            Remember, at the time, most countries thought that it was really, really, really bad for the public at large to have any religion other than their version of Christianity. The Free Exercise clause was precisely so that government would NOT be able to say, your religious values are wrong, so we are going to pass laws against them.  

            The GOVERNMENT cannot, however, function on those religious values.  So, the GOVERNMENT cannot discriminate.  But if a church wants to say, "only men can be a part of our church, women have to stay in a separate room outside," the Free Exercise clause means that government can't say, that's discrimination, you can't do that.

            Government CAN pass laws that inhibit someone's free exercise if the law is not directed at a religious value (no matter how horrible that value may be) and the law is prompted by some completely independent and important government interest, like the safety of others.  I'm a woman - I have a constitutional right (the 14th Amendment) not to have THE GOVERNMENT discriminate against me.  I DON'T have a constitutional right not to have, for example, the Catholic Church discriminate against me (as it clearly does).  I can't say, I really really really want to be a priest, but the Catholic Church won't give me that job. It would be a violation of the Free Exercise Clause for the government to say, because discrimination against women is bad for the country as a whole, the Catholic Church can't discriminate against women.   I don't even have a constitutional right not to have my neighbor discriminate against me -- if he wants to have a neighborhood party and invite only men because he thinks women are subhuman, that's his right.  The federal government passed civil rights laws under its Commerce Clause power -- its power to regulate interstate commerce -- and because of the recognition that certain people, based on race, etc. were not getting adequate access to interstate commerce because of "whites only" or separate but equal situations.  There is no government interest in making sure that people have adequate access to a religion when their access would violate the beliefs of that religion.  That's why the Free Exercise Clause is in there.  

            I am often dismayed at this site by the hostility of some to the First Amendment, and the notion of some people that my views and values are the only ones that should be respected by, or given protection by, the federal government.  

            •  It does not violate one's freedom of speech for (1+ / 0-)
              Recommended by:
              Nowhere Man

              one to accede to a publicly-desired, democratically-passed law in this Republic.

              One can always speak out about the law, one can criticize it, one can try to elect representatives who will propose versions of it that more reflect what one wants, instead of what the rest of the public wanted.  All this happens and that's entirely as it should be.

              Re:  your example:  how do you distinguish between "The Catholic Church" and the many businesses and service centers run by the Church, for which the Church receives government money?  This re: your comment "It would be a violation of the Free Exercise Clause for the government to say, because discrimination against women is bad for the country as a whole, the Catholic Church can't discriminate against women."  A Catholic hospital, for example:  if it is going to receive government funding to carry out a host of operations, and if it's going to rely on public infrastructure, to what extent is the hospital obliged to obey prevailing secular law when the Church's services are not physically being provided in a Church setting, but in an office, say, or a hospital room?  

              That's one more thing to add to my long list of small problems. --my son, age 10

              by concernedamerican on Sat Apr 27, 2013 at 08:38:19 AM PDT

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              •  The First Amendment also includes (1+ / 0-)
                Recommended by:
                VClib

                a "free exercise" clause.  You can't pretend it doesn't exist.

                As for the Catholic hospital, I think that's a grey area of the law, and I will be interested to see how it plays out.  As I've said elsewhere, I agree that religions have to obey the law, but the law cannot be directed toward religion, and cannot be based on the notion that religions beliefs are wrong.  Instead, a law has to have a legitimate, serious (not pretextual) basis that is not related to some statement that the religious belief is wrong.  

                For example, suppose Congress passed a law saying that Catholic owned hospitals have to provide abortions, but the allowed other hospitals could make the decision not to provide abortions if they chose.  I would suspect that would be a violation of the Free Exercise clause, as it would be passed based largely for the purpose of showing Catholics that the government thought their religious beliefs are wrong.  It's the same concept as if, for example, the government said Jewish-based food kitchens had to serve pork.  Making a statement that a religious belief is wrong is NOT a legitimate government interest.  

                On the other hand, suppose there were a law saying that EVERY hospital in the country has to provide abortions.  That may be constitutional, or may not, depending on the justification.  If there was evidence (in the Congressional record, for example) that women could not find any place to have abortions, there could be a legitimate government interest in assuring that a legal medical procedure were available to women who needed it, and Catholic hospitals may have to abide by it or face whatever consequences are in the law.  If, on the other hand, the evidence in the Congressional record were that most women who wanted that medical procedure could find it, then the law might well be seen as pretextual for an attack on a religious belief, enacted for no other purpose than to assure that medical providers had to violate their religious beliefs because the government doesn't think those religious beliefs are legitimate.  That may not be constitutional.  

                •  I can see something more like (0+ / 0-)

                  If a hospital provides gynecological services, they must provide ALL services, including abortions where medically indicated.

                  That would give an out - if you don't provide ANY gyn services you don't have to provide abortions.

                  But it would severely impact the hospital.

            •  The hostility is not to the First Amendment (1+ / 0-)
              Recommended by:
              concernedamerican

              It's to your interpretation of the First Amendment. There is a difference.

              Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

              by Nowhere Man on Sat Apr 27, 2013 at 08:46:51 AM PDT

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              •  NM - there is a lot of hostility here to the (2+ / 0-)
                Recommended by:
                coffeetalk, andalusi

                First Amendment. I too have been surprised at how willing people are to try and silence other views. We have had a long debate about "hate speech" and the issue of "incitement" by the media, as a good examples.

                "let's talk about that"

                by VClib on Sat Apr 27, 2013 at 10:07:33 AM PDT

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                •  I would not at all call that hostility (2+ / 0-)
                  Recommended by:
                  coffeetalk, concernedamerican

                  Misunderstanding, or in rare cases even ignorance, very possibly, but not hostility. Not hostility to the First Amendment, anyway. I still those conflicts as being about interpretation -- what is intended to be covered, and what is not?

                  Personally, I think extreme examples of hate speech on university campuses are not protected speech, even at public universities, because of the university's need to establish and maintain a safe and collegial environment. I recognize that it's difficult to define and apply a concrete standard as to what constitutes extreme hate speech. Still, to me the important test is not whether the speech is "extreme" hate speech; it's whether the university would punish a student for speech made off of the campus grounds (or campus network servers), where the university community would be far less substantially affected. So long as students are free to express themselves elsewhere without retribution from the university, I don't see a major First Amendment issue in "reasonable" restrictions on hate speech.

                  (By the way, this isn't about whether I personally think hate speech restrictions are a good idea or not; I'm focusing solely on whether they violate the First Amendment.)

                  Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

                  by Nowhere Man on Sat Apr 27, 2013 at 11:04:52 AM PDT

                  [ Parent ]

                  •  NM - I think hate speech is a HUGE (2+ / 0-)
                    Recommended by:
                    coffeetalk, Nowhere Man

                    First Amendment issue, even on public university campuses. And we will agree to disagree on this point.

                    Thank you for a thoughtful reply.

                    "let's talk about that"

                    by VClib on Sat Apr 27, 2013 at 11:34:25 AM PDT

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                  •  I agree with VClib (1+ / 0-)
                    Recommended by:
                    VClib

                    the problem with the "hate speech" thing is defining "hate speech."  Most often, it is defined by the group in power as "derogatory speech directed to people or principles we think are important or good."   For example, suppose we are talking about  fundamentalist Christian or Catholic have certain religious beliefs on marriage (such as "I believe same-sex marriage is sinful and an abomination in the eyes of God").  Does calling them "bigots" for their religious views constitute "hate speech"?  I suspect fundamentalist Christians and Catholics would say yes, but those who support same-sex marriage would say no.  "Hate speech" is too often subjective, and colored by your values.  The importance of the First Amendment is that it doesn't allow government to distinguish among speech based on the values of those who are in government positions.  

                    That's why I believe that, absent speech that constitutes an incitement of an imminent threat of unlawful conduct, there's very little in the way of speech that can be banned.  Even the speech of the Westboro Baptist Church, which I believe is about as "hateful" as you can get, can't be banned, but can be regulated as part of content-neutral time place and manner regulations (for example, no first amendment activities, regardless of content, within so many feet of a funeral).  And the best way to deal that hate speech is "more speech" - counter protesters blocking them from the sight of the funerals they are protesting.

                    •  Well I agree with that. I know a journalist who (1+ / 0-)
                      Recommended by:
                      andalusi

                      is one of the most liberal people among my acquaintances, but he has emphatically said on more than one occasion that he unequivocally supports the Nazis marching in Skokie or Westboro trying to picket anywhere they damn please, because of their first amendment rights to do so.  And he's right.

                      That's one more thing to add to my long list of small problems. --my son, age 10

                      by concernedamerican on Sat Apr 27, 2013 at 03:33:30 PM PDT

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                      •  I fully supported the right of the Nazis (0+ / 0-)

                        to march in Skokie. Did then, do now. But Skokie is a municipality, and the march was on public streets. I see a clear distinction between that forum and a university campus. Just as it's often said that the First Amendment does not apply here on dailykos.com, it may be that a university, too, has some ability -- if not an obligation -- to establish rules regarding content.

                        Here's one example: Suppose a biology professor turns out to be a creationist, and starts teaching creationism in the classroom. The university fires him. Does the professor have any grounds to sue based on First Amendment rights? Why or why not?

                        May the university establish restrictions on speech within the classroom? If so, why may it not do so outside of the classroom?

                        Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

                        by Nowhere Man on Sat Apr 27, 2013 at 06:46:31 PM PDT

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                        •  As long as the professor was teaching and (0+ / 0-)

                          Testing his students on the curriculum, and covering the required elements of the course, they likely wouldn't have much problem with anything else he said.

                          Even at the college level, there are goals and outcomes that need to be taught, and if your students don't get those, there can be repercussions.

                          Not for what you say or even how you say it, but because your students aren't getting the course content they need to move on.

                          •  Totally agree with you. (0+ / 0-)

                            The university has not only the right, but the obligation, to ensure that students are being taught properly in the classroom.

                            The question is, does that right and obligation end at the classroom door?

                            Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

                            by Nowhere Man on Sun Apr 28, 2013 at 09:26:21 AM PDT

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            •  You are incorrect-- the government doesn't say (0+ / 0-)

              "you can't exercise your religious beliefs" when it says to people that they may not deny housing to gay people in a town where there is a non-discrimination ordinance that reflects prevailing public sentiment.

              What the government is saying is, "you can exercise your religious beliefs in your own home, in public places you are free to speak your mind about your religious beliefs, and you are free to worship where you wish--- but it is illegal for you to elevate your individual religious beliefs above the law and above the common good."

              The government is telling conscience exemption claimants nothing more than that if they wish to run a business or provide a service from which they would use public infrastructure and make a profit, then they cannot discriminate against citizens who are protected by the law and who are to be accorded all the rights of every other citizen under the law.  

              Their religious beliefs have nothing to do with it.  

              Now, if they so value their religious beliefs that they feel it is of the utmost importance to deny citizens their rights rather than obey the law, then they can choose civil disobedience, or they can get out of a business that caters to the public.  That's pretty simple it seems to me.

              That's one more thing to add to my long list of small problems. --my son, age 10

              by concernedamerican on Sat Apr 27, 2013 at 03:43:42 PM PDT

              [ Parent ]

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