Freedom Defender

Reporting on politics, society, principles, Christian interest and news that intrigues me.

Friday, June 10, 2005

Alternative Value Systems in America and Christianity: Can We Really All Get Along?

We live in the greatest nation on Earth... the United States of America. This fact is tough for other nations to deal with, since it is self evident. In the dawn of the 21st Century, the United States is recognized as the greatest nation on Earth and some respond with envy and others respond with hatred.

We have a Constitutional Representative Government that has limited powers. The first and foremost of these restrictions on Government, is the Freedom of Religion (part of the First Amendment to the Constitution). There are times in the past where the Government has violated this restriction on itself and attempted to take more power from the people, than our founders permitted. This over-reaching of governmental power has been used to violate the rights of our citizens. Some say that as the majority religion in the USA in the past, Christianity, has been immune from the Government imposing it's views upon Christianity. Some feel that it warrants the way that Government is imposing on many Christian liberties now, although they are supposed to be protected by the First Amendment. Some feel that now Christianity is getting what it is long past due. I say that the rights promised to us in the Constitution are ours, whether we have a mainstream view (as Christianity has been for many years) or an alternative value system.

For educational purposes, I'll list some of the ways that the greatest nation in the world has struggled in invading citizen's religious freedoms. To protect the freedoms you have now, it is important to know how citizen's freedoms have been compromised in the past. This leads us to review the violation of religious rights of religious minorities or even "Pagans" in specific or other citizens who have alternative value systems. Violations of religious rights of people who call themselves Pagans is a tough subject to deal with. How should our society treat religious minorities that have a radically different value system? This question will become more pertinent in the next ten years, as Muslim immigration increases, but Muslims are not Pagans... who are the Pagans?

The religious minority Pagans could be Native Americans, Caribbean Peoples (Non-Christian Native American descendants from the Caribbean), Latin Americans (Non-Christian Native American descendents from Central & South America), Animists (mostly from Africa, Australia & SE Asia), Shintoists, Wiccans, Witches, Hindus, Druids, Gypsies, Pharaoh Worshipers, Mother-Earth Worshipers, Mintakans' Piccard-Worship, Satanists, Occultists, Bedouins, Zoroastrians and old-fashioned "Pagan"-Pagans (Pre-Christian European polytheists). Pagans are basically any polytheists/pantheists/mystics (except for the Pagan Satanists, who believe in God, but are supposedly fighting a "valiant rebellion" against an "unfair despot"). There have been times where their Freedom of Religion has been considered illegal action by the Government. I can think of primarily Caribbean Santeria.

In Florida, ritual animal sacrifice was illegal (except for Rabbi's) and the Santerian "Church of the Lukumi Babalu Aye" would mutilate animals, not for food consumption. The courts agreed that the Santerian Pagans were being oppressed by the City of Hialeah's Ordinance 87-40 which punishes "[w]hoever . . . unnecessarily or cruelly . . . kills any animal". That religious persecution by the City of Hialeah against the Santerians was stopped, although PETA was pissed.

Other alleged infringements on Pagan Religious Freedom would be the prohibition of Drug use (Employment Division v. Smith). This case was one where drug counselors/rehabilitators were fired from their jobs, because of their religious use of a hallucinogenic drug (peyote). Although Libertarians would strongly disagree, the government has decided that there it is not an infringement on religious rights to require drug counselors/rehabilitators to be drug free, simply because a religion chooses to require this illegal activity in their religious ceremonies. The majority opinion from this case said that allowing a religious exception to the drug laws "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind". Libertarians may argue that the prohibition of drugs is not a serious impairment of a compelling Government Goal. But it's a weak leg to stand on for this specific case, where the drug users were supposed to be rehabilitation counselors.

I suppose that some could argue that Alcohol is a Drug. If that given is accepted, then you could say that it is discriminatory to accept the Roman Catholic's drinking of wine during service, but to deny the Native American their Religious use of peyote. That could be considered Religiously discriminatory drug laws. But as mentioned above, those in question were hired as rehabilitation counselors.

One website does a great job of explaining Religious Freedom and the Free Exercise thereof:

A. Free Exercise generally: Let’s now turn to the second clause relating to religion, the Free Exercise Clause. Under this clause, the government is barred from making any law "prohibiting the free exercise" of religion. The Free Exercise Clause prevents the government from getting in the way of people’s ability to practice their religions. [624 - 625]

1. Conduct vs. belief: The Free Exercise Clause of course prevents the government from unduly burdening a person’s abstract "beliefs". (Example: Congress cannot ban the religion of voodooism merely because it disapproves of voodooism or thinks that voodooism is irrational.) But the Clause also relates to conduct.

a. Non-religious objectives: Free Exercise problems most typically arise when government, acting in pursuit of non-religious objectives, either: (1) forbids or burdens conduct which happens to be required by someone’s religious belief; or conversely, (2) compels or encourages conduct which happens to be forbidden by someone’s religious beliefs.

Example (government forbids conduct dictated by belief): The military prohibits any soldier from wearing a hat (other than a regular military cap) while on duty. This order prevents orthodox Jewish soldiers from wearing yarmulkes, which their religion requires them to wear at all times. (On these facts, the Supreme Court held that the Jewish officer-plaintiffs had a free exercise right that was being burdened, but that this right was outweighed by the need to defer to the military’s judgment that discipline and uniformity require the ban on all non-standard headgear. [
Goldman v. Weinberger])

Example (government compels or encourages conduct forbidden by the belief): The state awards unemployment compensation only to jobless workers who make themselves available for work Monday through Saturday. This rule has a non-religious purpose (making sure that only those whose employment is truly involuntary collect). But the statute strongly encourages conduct that violates the religious beliefs of some persons (e.g., Seventh Day Adventists, for whom Saturday is the Sabbath). Therefore, the rule raises significant free exercise problems. (In fact, the statute was held to violate the Free Exercise Clause as applied to Seventh Day Adventists. [
Sherbert v. Verner]. The case is discussed below.)

B. Intentional vs. unintentional burdens: The Free Exercise Clause prevents the government from unduly interfering with religion whether the government does so intentionally or unintentionally.
1. Intent: If the interference with religion is intentional on government’s part, then the interference is subjected to the most strict scrutiny, and will virtually never survive. [625 - 626]
Example: The Ps' practice Santeria, a religion involving animal sacrifice. D (the local city council), motivated by the citizenry’s dislike of this religion and of the sacrifices, outlaws all animal sacrifice (but exempts Kosher slaughter). Held, the Ps’ Free Exercise rights have been violated. D has acted with the purpose of outlawing a practice precisely because the practice is motivated by religion, so D’s act must be most strictly scrutinized. Because there is no compelling state objective here, and because any state objective that the state is pursuing (e.g., maintenance of public health) could be achieved by less discriminatory means, the law fails this strictest scrutiny. [
Church of the Lukumi Babalu Aye v. Hialeah]

2. Unintentional burden: If government unintentionally burdens religion, the Free Exercise Clause is still applied. Here, however, the government action is not per se illegal. Instead, the Court traditionally uses a somewhat less stringent form of strict scrutiny. (But there are signs that the Court is cutting back on this strict scrutiny for unintentional burdens on religion. For instance, if the government makes certain conduct a crime, and this unintentionally burdens the exercise of religion, the Court does not use strict scrutiny, and instead uses "mere rationality" review.) [626 - 631]

C. Coercion required: The Free Exercise Clause only gets triggered where government in some sense "coerces" an individual to do something (or not to do something) against the dictates of his religion. If the government takes an action that unintentionally happens to make it harder for you to practice your religion – but without coercing you into taking or not taking some action as an individual – the Free Exercise Clause does not apply. [632]

Example: The federal government, without intending to affect any religious practice, wants to build a road. The effect will be to destroy Native American ritual grounds.
Held, there is no impairment of free exercise rights, because the Native American plaintiffs are not being coerced into doing or not doing anything – external reality is simply being changed in a way that makes it harder for them to practice their religion. (But if government forbade the Native Americans from using existing grounds to pray on, this would be a violation, because the Native Americans would be coerced into not taking some action of their own.) [
Lyng v. Northwest Indian Cemetery Ass’n]

D. Denial of benefits: One way the government may be found to have interfered with a person’s free exercise of religion is if the government denies the person a benefit solely because of that person’s religious beliefs or practices. (Example: A state may not forbid practicing members of the clergy from holding elective state office, because this imposes a burden on the exercise of a religious belief. [
McDaniel v. Paty])

E. Exemptions required: Because strict scrutiny is traditionally given even to unintentional impairments of religion, government must give an exemption to avoid such an unintentional interference with religion, if this could be done without seriously impairing some compelling governmental interest. (Example: P is denied unemployment benefits because he refuses to work on Saturday, his religion’s holy day. Held, the state must exempt P from the requirement of Saturday work as a condition to unemployment benefits, since an exemption will not seriously undermine any compelling governmental interest. [
Sherbert v. Verner]) [627 - 629]

1. Criminal prohibition: But there’s a special, recent, rule in the area of criminal prohibitions: A generally applicable criminal law is automatically enforceable, regardless of how much burden it causes to an individual’s religious beliefs (assuming that the government did not intend to disadvantage a particular religion when it enacted its law). [631 - 632]

Example: A state may make it a crime to possess the drug peyote, and may enforce this rule against Native Americans who use peyote as a central part of their religious rituals. [
Employment Div. v. Smith]

2. No serious impairment required: Also, even where no criminal prohibition is involved, government does not have to tolerate a serious impairment of some compelling governmental goal – here, no exemption needs to be given, because strict scrutiny is satisfied. (Example: Even if a religiously-affiliated university honestly believes that its religion bars African Americans and whites from studying together, government need not tolerate interference with its compelling goal of eliminating racial discrimination, so government does not need to exempt the university from anti-discrimination laws.)

The site continues:
"F. Conscientious objection: Probably Congress must (as it does) give an exemption for military service for conscientious objectors (i.e., those who believe that all war is evil). [633]
1. Selective c.o.’s: But Congress need not give an exemption to "selective" c.o.’s (i.e., those who do not believe that all war is evil, but who believe that the particular war in which they are being asked to fight is evil). [
Gillette v. U.S.]

G. Public health: Government may have to sacrifice its interest in the health of its citizenry, if individuals’ religious dictates so require. [634]

1. Competent adult: Where the case involves a competent adult, and only that adult’s own health is at stake, government may probably not force treatment on the individual over his religious objection. (Example: A state probably can’t force a Jehovah’s Witness to accept a blood transfusion or other life-saving medical care over that person’s religious objections.)

2. Child: However, where the patient is a child whose parents object on religious grounds, the state may probably compel the treatment.

3. Danger to others: Also, if the case involves not only a health danger to the person asserting a religious belief, but also a health danger to others, then government probably does not have to give an exemption. (Example: P may be forced to undergo a vaccination over his religious objections. [
Jacobson v. Mass.])

H. What constitutes a religious belief: Only bona fide "religious beliefs" are protected by the Free Exercise Clause. But "religious beliefs" are defined very broadly. [634]

1. Non-theistic: For instance, non-theistic beliefs are protected. That is, the belief need not recognize the existence of a supreme being. (Example: Public officials cannot be forced to take an oath in which they say that they believe that God exists. [
Torcaso v. Watkins])"

In that court case the Supreme court listed Secular Humanism as a religion. The quote was that: "Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others."

"2. Unorganized religions: Similarly, unorganized or obscure religions get the same protection as the major religions. In fact, even if a person’s religious beliefs are followed only by him, he’s still entitled to free exercise protection.

3. Sincerity: A court will not sustain a free exercise claim unless it is convinced that the religious belief is "genuine" or "sincere." (The fact that the belief or practice has been observed by a religious group for a long period of time may be considered in measuring sincerity. But the converse – absence of a long-standing practice – does not mean that the belief is insincere.)
a. Unreasonableness: The court will not consider whether the belief is "true" or "reasonable". Even a very "unreasonable" belief (that is, a belief that most people might consider unreasonable) is not deprived of protection, so long as it is genuine. [
U.S. v. Ballard] (Example: The practice of voodoo, including sticking pins into dolls representing one’s enemies, might be considered by most of us to be "unreasonable." But as long as such a practice is part of a person’s genuine set of beliefs and religious practices, it will not be deprived of protection merely because most find it unreasonable.)"

Other religious minorites (not Pagans) such as the pro-polygamy Mormons and the Pacifist and "leave-school-after-8th-grade" Amish, have had their religious beliefs infringed upon by the United States Government. The Amish won, but the mormons lost their Religious Freedom in having multiple wives.

Drugs, Polygamy and Transportation needs have been considered to be a more compelling Government goal than the Freedom of Religious expression of Religious Minorities, by the US Supreme Court. Out of those three, only drugs has been the cause for Pagan persecution. The temporary persecution of Religious Minorities by military draft, forcing School completion until 12th grade and stopping the mutilation of Animals have all been rectified and the Government is no longer oppressing these Religious Minorities.

This site does mention, however, that the Freedom of Religion has been under assault lately. It does not say it directly, but it shows the lack of willingness of the Government to protect the First Amendment. They say: "In any event, all of free exercise law seems to be in the process of being scaled back, so the general rule that government must give an exemption where this can be done without seriously impairing a compelling governmental interest, may be on its way out." The Government has been siding against non-Secular Humanist religions lately and permitting or encouraging the erosion of the Constitution and Religious liberties.

I believe this scale back of Religious Freedom is going to change though. Not just because of the 2004 election results, but because of lawyers and the new influx of Muslim immigrants. In NYC the Public School Chancellor promised rooms for Muslims to practice salat (prayer at specific times during the day - noon). I believe soon Muslims will bring this policy preventing Muslims from observing salat (prayer at certain times of the day facing Mecca) into the courts. As Chancellor Levy promised, this may bring a requirement of prayer rooms into Schools to accomidate Orthodox Islam.

Right now the religious minority of fundemental Islam is having their Religious Freedoms infringed (not allowing the practice of Salat) by the Public School system.

Overall it's tough to make a balance for Religious Minorities, who have very different value systems. For the most part, I think the US does a pretty good job with the religious minorities specifically (but not Christianity or theism in general). It's mostly the Christians (arguably the majority) and just any theistic Religion (non-Secular Humanist, non-Atheist) that the US Government is subsidizing the dismantling of and targeting for oppression (aside from drug using Pagans, polygamous Mormons and fundamentalist Islamic Public School Children). Christianity, and theism in general, are under assault in the United States and I want to do what I can to defend it.


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