consultants are sandburs

Thursday, July 17, 2014

A friend I respect sent an email comment which I publish.

This is it, with one typo caught/changed:

Telling people you think are stupid, they are stupid is not a very helpful tactic. If they are stupid and you are smart what do you hope to accomplish? Based on your own premise, you already are smart and they probably will never be. So in that scenario who is really smart and who is dumb - from a practical standpoint?

Abortion is ending a life - that is a principled reasonably considered position. That is what I believe, but I also think a woman should be allowed to make that decision for something living inside her body. So we agree on many aspects of this. The Dems have won most aspects of this issue. Why force others to PAY for your abortive medicine? The backlash could be far worse than the potential benefit. What is the cost of "Plan B" pills?

You should accept their right to believe that way as fully as they (perhaps reluctantly) accept others who don't. They must accept your side can have divergent opinion. You should accept they don't want to collaborate/enable what they believe is wrong.

That is the essence of tolerance/acceptance. The Dems claim to be tolerant - it's time to step up and be tolerant in practice. Without that you'll get what you see in the middle east. Take a step back from your rant - for the sake of civility and the mutual benefit that can be derived from it.

Okay. There is little doubt of the sincerity of those putting religious upbringing ahead of other things. Indeed, the Constitution says it is an inalienable right to do just that. But the same First Amendment also says there shall be no establishment of a forced national religion. Broadly read, the Establishment Clause says that equal protection and equal enforcement of the laws is required. Not as to belief but as to conduct, that was the gist of Scalia's Smith decision (as to the penalty side of equal protection/penalization/criminalization).

Now a lawful requirement of equal availability of contraception to all wanting access to contraception as part of healthcare availability law has been judicially undermined, the Smith author agreeing it is fine with him to not have symmetry. On RFRA and Hobby Lobby, noting Smith, this link. Early in the Hobby Lobby 5-member majority opinion, Alito wrote:

Congress enacted RFRA in 1993 in order to provide very broad protection for religious liberty. RFRA's enactment came three years after this Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert v. Verner, 374 U. S. 398 (1963), and Wisconsin v. Yoder, 406 U. S. 205 (1972). In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, those decisions used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest. Applying this test, the Court held in Sherbert that an employee who was fired for refusing to work on her Sabbath could not be denied unemployment benefits. 374 U. S., at 408-409. And in Yoder, the Court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16 even though their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years. 406 U. S., at 210-211, 234-236.

In Smith, however, the Court rejected "the balancing test set forth in Sherbert." 494 U. S., at 883. Smith concerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause. 494 U. S., at 875.

This Court then reversed, observing that use of the Sherbert test whenever a person objected on religious grounds to the enforcement of a generally applicable law "would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind." 494 U. S., at 888. The Court therefore held that, under the First Amendment, "neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest." City of Boerne v. Flores, 521 U. S. 507, 514 (1997).

Congress responded to Smith by enacting RFRA.

[Those wanting links to cited cases can follow links in Hobby Lobby, online per Google Scholar. Pagination of the official published [reported] case is not yet set so the quote page cite is not yet available]

And that, RFRA, is the peg Alito and his four confederates hung their Hobby Lobby opinion. Conveniently, while trumpeting the Free Exercise Clause, they ignored the Establishment Clause, violation of which arguably renders RFRA, as interpreted by the gang of five, unconstitutional; i.e., the putting of religion ahead of compliance with law that facially is religiously neutral on its reach is "establishing" employer religion beyond what is properly Constitutional as to employee rights under law.

And there are nuances some do understand, while demagoguering, e.g., this brief item. Indeed, there are nuances some find puzzling, even troublesome. (Some find the Chief Justice troublesome, and hope for better down the line.)


Same friend emailed this link, which has an irony that while not subtle, nonetheless holds a great degree of truth and underpins some frustrations some feel with how DC is set up to run, not always for us, but at times over us.

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