Writes lawprof Marci Hamilton in a tribute to the recently deceased. David Frohnmayer, former Oregon Attorney General, Dean of the University of Oregon Law School, and President of the University of Oregon.
Thankfully, Frohnmayer was the Attorney General of Oregon when Employment Div. v. Smith was litigated, because he had the knowledge and wisdom to argue that the drug counselors in that case – who had signed an agreement not to use illegal drugs or they would lose their jobs, and then used peyote as part of a religious ceremony – did not have a First Amendment free exercise right to break Oregon’s criminal laws or to receive unemployment compensation.Smith is the reason why statutes like the Religious Freedom Restoration Act were passed. It said that there's no right under the Free Exercise Clause to exemptions from the neutral, generally applicable actions of government.
Unfairly maligned then and still by those who are so blinded by ideology they refuse to see the facts, history will lionize him for his role in Smith....
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49 comments:
"extreme" religious liberty is a tell...
I think the point is that the 1A does not give you license to break the law. Of course paranoid right-wing Althousians will shriek that the libruls are coming for their Bibles.
Smart man But when the Government establishes phony Sciences as the State's Religion who arrests the State?
The Answer has to be a SCOTUS with balls enough to do the job. The world awaits that streetcar. Maybe granting Justices life tenure would help them get up some courage.
Well, when everything you do is labelled "extreme" by the fascist libtards, you're not being paranoid.
Also Alex, your Mom says to stop being a snot on the intertubes.
She would tell you herself, but her mouth is busy at the moment.
Thanks for the warning, Alex.
Bibles must be a clear and present danger. They are both the most printed books and the most banned books in the world. The biggest Bible manufacturers in the world are in China, to be closer to their biggest market.
Smith was written by Justice Scalia and very much exemplifies his way of thinking about constitutional rights. Same rules for everybody. Formal equality as the best solution that can come from courts.
tradguy - we're coming for your bibles and your churches! We won't stop...
Problem is, "there's no right under the Free Exercise Clause to exemptions from the neutral, generally applicable actions of government" is an exception that swallows the rule.
If this statement, which nobody really believes, were taken literally, there would be no right to free exercise of religion.
Alex, people like you remind me of an old observation, "Americans' admiration for the constitution is matched only by their ignorance of its contents, with which they generally disagree.
And who gets to define "extreme."
Also, prosecutors and prison administrators are always the first people I go to when I need someone to explain why I should limit my exercising of my rights.
After all, it is self-evident that exercising my rights will lead to a slippery slope of extremism.
For instance, refusing to let the police search your house without a warrant could lead to someone escaping justice, inconvenience the police, and come on, you must be hiding something. Why else would you insist on a warrant?
And all this extreme free speech is causing some people to feel "unsafe." Why are some people such hatey hate haters. Best to limit speech to things that everyone agrees with. The government will let you know what those are.
And what about that pesky Fifth Amendment? Things would just be so much better if people could be induced to denounce themselves.
"Why is it that prosecutors and prison administrators are among the first to understand that extreme religious liberty is dangerous and antithetical to core American values?"
Perhaps because they are the first to recognize the manipulative and pathological behavior of some inmates to use the noble and good (rights and liberty) to achieve corruption and evil?
Alex... Have fun opening the bibles and churches. Just don't read them or you might end up like Nazis opening the Ark of the Covenant in Raiders of the Lost Ark.
Rush is going on about the importance of a God-based political movement.
He didn't want to quit for a break, he said, but had to.
This was said as I was reaching for the "off" button on the room sound.
Morally Rush is a moron.
"Of course paranoid right-wing Althousians will shriek that the libruls are coming for their Bibles."
Says the lefty who is ignorant of the recruitment of prisoners by Muslim "Chaplains" in prisons.
BTW, can anyone suggest a good constitutional law blog for madisonfella?
I'll bet he/she is curious to learn more about how challenges to Walkers Voter ID have been thrown out which shows that Walkers Voter ID law is constitutional.
Alex: "Of course paranoid right-wing Althousians will shriek that the libruls are coming for their Bibles."
Thank goodness there are none of those around here!
The prison system is not really a useful analogy to normal society when exploring what rights the average citizen should enjoy.
That is, unless your unstated belief is that citizens are to the state as prisoners are to a warden.
The Smith ruling was absolutely correct. A better response would have been an "Everybody's Liberty Restoration Act." Essentially, if a reasonable person can spend 15 seconds thinking that a religious exemption to a law makes sense, then the law should be stricken from the books. Government drug prohibitions are nuts - not just for certain religions, but for everyone. Government insurance mandates are nuts - not just for Hobby Lobby, but for everyone.
Also, starting with the Pilgrims, the Quakers, Shakers, Mormons, etc. hasn't "extreme religious liberty" been among the "core American values." Individual sects/states/localities may have been intolerant, but the dissenters moved on and the spirit of liberty survived in conglomerate.
Hamilton is, herself, an anti-religious zealot. In any weighing of "core American values" Hamiltons' views would be afforded little weight.
Is it possible to write, "prosecutors and prison administrators are among the first to understand that extreme religious liberty is dangerous and antithetical to core American values" without throwing up in your mouth a little?
"Morally Rush is a moron."
A responsible attitude is one that incorporates Lincoln's feelings toward Grant's drinking.
prosecutors and prison administrators are among the first to understand that extreme religious liberty is dangerous and antithetical to core American values
Can you imagine any Sixties Lefty (well, outside of the Warsaw Pact) writing that sentence? Not so much the antipathy to "religious liberty" part, but that such obvious agents of government coercion as "prosecutors & prison administrators" could ever be seen as folks to turn to when you need a good "hands-on" view of important Constitutional protections.
How the American Left has changed in my lifetime!
Not all religions or moral philosophies are created equal. Still, it is extreme secular liberty that claims the ignoble achievement of the most dead, tortured, and discriminated lives, inside and outside of the womb.
"The answer is that many religiously motivated criminals appear in their courts and jail cells. Accordingly, they understand through experience that religious liberty sits atop a slippery slope that lands in the criminal code and a well of human suffering."
I am no longer surprised by the willingness of some law profs to display their ignorance of the criminal legal system.
The Oregon Attorney General is not a prosecutor in the true sense of the word. Appeals and a few referrals are the extent of the Oregon DOJ's jurisdiction.
During my 20+ years as a metro prosecutor there were no more than a tiny handful of "religiously motivated criminals" prosecuted by us. I don't recall my colleagues in other offices around the country expressing concern about such offenders either.
The second sentence I quoted above is perhaps intelligible to law profs, but not many others.
I don't have a negative opinion about Frohnmayer or the Smith Case. It's the bullshitting in the "tribute" and the inferable agenda behind it I find objectionable.
Why is it that prosecutors and prison administrators are among the first to understand that extreme religious liberty is dangerous and antithetical to core American values?
Why is it that government agents are among the first to understand that limits on government authority are dangerous and antithetical to core American values?
gerry @ 11:57 answers the question. Good job sir.
YoungHegelian: "How the American Left has changed in my lifetime!"
I would argue that the left hasn't changed in several hundred years.
What has changed in this country is that the left achieved sufficient dominance in enough institutions that the lefties felt comfortable enough to start letting it all hang out.
Remember in 2008 all the talk of the permanent demise of the republicans due to demographics (which probably will spell the doom of the nation in the long term) and realignment of the middle class with the dems.
We heard some pretty extraordinary rhetoric in those heady days and it's clear the left assumed all the battles had been won and could actually push forward on their dream agenda.
There was genuine shock felt on the left when the setbacks starting occurring in 2010 and you can see the results of that shock in the behavior of the left now.
what the heck is "extreme religious liberty"?
Why are there no atheist chaplains in the military, hospitals or prisons?
Must be because there are no atheists in SCOTUS, POTUS or COTUS.
What an oppressive country!
Drago said...
"Remember in 2008 all the talk of the permanent demise of the republicans due to demographics (which probably will spell the doom of the nation in the long term) and realignment of the middle class with the dems."
When even John Judis had to confess that that talk of a permanent D majority was a mirage, the game was up.
Hombre said: "The second sentence I quoted above is perhaps intelligible to law profs, but not many others."
I found the whole piece dense.
As a 33-year state prosecutor I too can say I could count on one hand the number of cases of this sort I have encountered.
Can you imagine any Sixties Lefty (well, outside of the Warsaw Pact) writing that sentence? Not so much the antipathy to "religious liberty" part, but that such obvious agents of government coercion as "prosecutors & prison administrators" could ever be seen as folks to turn to when you need a good "hands-on" view of important Constitutional protections.
Heh. Maybe someone should point out to Hamilton that without prosecutors and prison administrators, one would hardly have need of Constitutional protections at all.
(Note that I'm not discounting the need for prosecutors and prison administrators. Exchanging the lack of them for civilization was a good trade.)
Extreme religious liberty or moral liberty is a generational or progressive form of liberalism that is characterized by a pro-choice or selective tenet. Its many sects converge to an extreme secularism or libertinism in a civilized or protect environment. Perhaps he's thinking of cults that have a notoriously materialistic and amoral orientation.
I think the point is that the 1A does not give you license to break the law.
I think the more important issue is whether the laws at issue violate the 1st Amendment.
what the heck is "extreme religious liberty"?
Religious Liberty über alles?
what the heck is "extreme religious liberty"?
It's liberty in support of that silly, superstitious shit you believe in, as opposed moderate religious liberty, which supports the silly, superstitious shit that I believe in.
@Drago,
I would argue that the left hasn't changed in several hundred years.
There I disagree with you, and have often disagreed with other conservatives commentators here & elsewhere.
For many conservatives, the Left is an historically continuous example of the Will to Power, and nothing more. It seeks only to maximize its political power, and will take any excuse to do so, even at the risk of self-contradiction.
I don't agree with this. I think the history of the Left is filled with true-believers every bit as much as the history of Christianity. This is not to say it wasn't often capable of the greatest evil. True believers of every sort often are. If the Left was interested solely in political power, why did they waste an ocean of ink & a continent of trees on thrashing out the minutiae of their doctrines, even after they were safely ensconced in power?
The doctrinal developments of the Left through history are easy to trace, even if the later developments often contain elements that contradict the earlier (e.g. modern "identity" political theory, while it draws on classical Marxism, contradicts it in many ways). But, among its adherents, these distinctions were & are matters of life & death. While such distinctions seem to us of other political persuasions fatuous (Trotskyites vs Stalinists, really?), I prefer to let the actors in the drama of history speak for themselves. If they thought these distinctions important, then it's up to me as a student of history to try & understand why.
"I think the point is that the 1A does not give you license to break the law."
You have that exactly backwards. The 1A prohbits government laws from breaking our religious freedom.
Because that's how it's always done, every time. First someone passes "generally applicable" laws which attempt to legislate in areas where the government is actually prohibited from even holding an opinion.
Then - shockingly! - people continue to exercise individual freedoms despite your assertion that you have taken those freedoms away.
This defiance/indifference to bad laws then justifies increasingly extreme infringements in order to enforce the will of the government, because It's The Law.
Bryan - actually courts have routinely ruled against Kosher or Halal slaughter as in violation of animal protection laws. So no, religious freedom is not absolute.
You religious whackos have to learn to live with the rest of us civilized people.
@Alex,
actually courts have routinely ruled against Kosher or Halal slaughter as in violation of animal protection laws.
Uhhhhm, what? Not in the US, they haven't. In Europe, yes, but in Europe they don't give a shit about free speech, free press, or self-defense, either.
According to this link in Wikipedia, the only prohibition is a 1958 prohibition of shacking & hoisting. Do you have any other examples?
[Smith] said that there's no right under the Free Exercise Clause to exemptions from the neutral, generally applicable actions of government.
Isn't that similar to the argument that gay marriage "bans" aren't an infringement on gay people's rights, because gay people are free to marry someone of the opposite sex, just like straight people are.
So the definition of marriage is "neutral" and "generally applicable" for both gays and straights, and if you don't like it, that's your problem.
That line of reasoning seems to be just slightly missing the point.
does this apply to the Religion of Peace? Or are they simply targeting Christians again?
"I would argue that the left hasn't changed in several hundred years.
There I disagree with you, and have often disagreed"
Could I agree with both Drago and YoungHegelian?
Yes, the Left has changed in focus, argument, and actual power.
Yes, the Left has had its true believers who cared about doctrine and doctrinal differences.
No, the Left has not changed in fundamental ways, in the pursuit of state power, for the sake of imposing equality and its vision of the good, by any means necessary.
A reincarnated Frohnmayer would not be the attorney general of Oregon now, not by a long long shot. Am I too cynical about that? I think not.
BTW, can anyone suggest a good constitutional law blog for madisonfella?
I'll bet he/she is curious to learn more about how challenges to Walkers Voter ID have been thrown out which shows that Walkers Voter ID law is constitutional
Don't fret, because Althouse always covers Scott Walker's victories and wins. It is his loses and lies she tends to avoid discussing. There was never a doubt in my mind she would make a post on this subject.
BTW, not that it matters much but I am a "he". Given what was said about you in a different thread it is perfectly understandable why you keep forgetting that.
Yes, many criminals use firearms, so we must ban guns among the law-abiding public.
Many criminals commit violent and deadly acts under the influence of alcohol, so we must ban alcohol among the law-abiding public.
Many criminals have extreme religious views so we must restrict religious expression among the law-abiding public.
It's like a reflex, isn't it...?
Freedom! Horrible, horrible freedom!
I ask Thomas Jefferson's question: does it break my leg or pick my pocket? If the answer is no, I'm probably for people having the right to do it.
We haven't lost our minds to the point where we can't write exceptions for prisons? I mean, the Second Amendment and Fifth Amendment don't apply to the incarcerated, so why would the First necessarily? I'd be willing to presume it does without a compelling state interest, but it doesn't, prisoners don't get to have even peaceful protests and they don;t get to write letter to the editor whenever they want.
The incarcerated of course have been tried, with the presumption of innocence, and then convicted. That does not go quite as far as it ought to these days, but nonetheless it's a bright line between incarcerated prisoners and everyone else.
@Gabriel, exactly my thinking too. Why on earth should the prison system be the test case of religious liberty? Felons have forfeited their right to bear arms, their right to vote, their right to freedom of assembly... so forgive me if I find it rather irrelevant whether religious freedom rights that would normally be theirs are not as liberal as they are for those of us outside prison.
This is not to say that we as a society shouldn't accommodate religious expression as far as possible in prisons. But if something presents a hazard or a risk, well, I don't understand why we can't distinguish between prison and society at large.
Schools and employers present much more challenging situations.
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