From: matt@smoke.brl.mil (Matthew Rosenblatt)
Newsgroups: misc.legal
Subject: Re: Oppose the Religious Freedom Restoration Act
Summary: Religion deserves the special place that the Ist Amendment gives it.
Keywords: Ist Amendment; compelling interest
Date: 7 Jan 93 14:23:12 GMT
Organization: U.S. Army Ballistic Research Lab, APG MD.

In article <merlyn.726359537@digibd> merlyn@digibd.digibd.com (Merlyn LeRoy) 
writes:

>dgross@worf.acs.calpoly.edu (Dave Gross) writes:

>>The Supreme Court recently decided that you can't break the law just because
>>your religion teaches that it's okay to do so.
. . .
>>The drug legalization movement should oppose the Religious Freedom 
>>Restoration Act.  [Dave Gross]

The Roman Catholic Church already opposes the Religious Freedom 
Restoration Act.  Does that mean that the drug legalization movement
should jump on the bandwagon with the Church?

>>For a change, the Supreme Court was right about 
>>something.  It's a shame that nobody noticed.  [Dave Gross]

It's not the Supreme Court that's right; it's Merlyn LeRoy:

>Sorry Dave, I think you're reading this decision very badly.  I'd say the
>SC ruling significantly weakened first amendment protections by allowing
>laws to restrict religious practices without a compelling state interest.
>This puts religious practices at about the same level of protection as
>other non-first amendment practices; it should have at least as much
>protection as speech, and not be restricted at some politico's whim.
>[Merlyn LeRoy]

Merlyn LeRoy's comments have my (Matt Rosenblatt's) enthusiastic
support here.

>The peyote decision could easily be used to pass laws forbidding minors
>from being served alcohol in public under any circumstances, thereby
>making it impossible for Catholic children to receive communion wine
>(and no, not all Catholics think a nonalcoholic drink is an acceptable
>substitute).  [Merlyn LeRoy]

The Religious Freedom Restoration Act could be the basis for a claimed
right of pregnancy termination even if the Supreme Court goes back on
the decision that dissenting Justice White called "an exercise in raw
judicial power," viz., _Roe v. Wade_ 410 U.S. 113 (1973).  Some cold-
hearted career-girl Feminazi could squawk, "The worst sin in my
particular religion is failure to realize one's full self-potential,
and carrying this pregnancy to term will interrupt my progress up the
promotion ladder, so my religion *demands* that I terminate it, and
the Religious Freedom Restoration Act backs up that demand."  That's
why the Roman Catholic Church opposes the Act in its present form,
and the Church's vigorous opposition (through Congressmen like Chris
Smith of New Jersey) is why Congress has not enacted it.  Opposition
by the "drug legalization movement" is not going to make a dime's
worth of difference toward passage of the Religious Freedom Restoration
Act.

The Church has proposed a compromise amendment to the Act to make it
clear that the Act does not change the status of pregnancy termination
one way or the other.  I support such a compromise in order to get 
the Religious Freedom Restoration Act passed, but the combined lobbies
of the Planned Barrenhood business and the NOW crowd don't like it.
Planned Barrenhood and the other abortuaries refuse any compromise
that could endanger their bread and butter, while the stone-hearted 
Feminazis refuse any compromise that could endanger their precious 
"right" to self-actualization.  So the Act remains stalled in Congress.

>Santerians in Florida are in danger of having their animal-sacrifice
>religion outlawed, because the town has made it illegal to pray over
>an animal before killing it (but you can pray over it after killing
>it; saying grace is still legal).  Since hunting is still legal in this
>area, we have the absurd situation where it's illegal to kill an animal
>for religious purposes, but OK to kill it for the entertainment value.
>[Merlyn LeRoy]

It sure is absurd.  Other net.readers ought to see from Merlyn LeRoy's
remarks that Ist Amendment "Freedom of Religion" is being stood on its
head in today's America:  From the favored position it once had, where
otherwise impermissible acts (e.g., serving wine to minors) become
permissible if done for religious purposes, religion has been relegated
to the position of a disfavored stepchild, where otherwise permissible
acts (e.g., killing animals) become impermissible if done for religious 
purposes.

>. . . This won't make it legal for e.g. people to kill other people for
>religious reasons; such laws easily pass the older "compelling state 
>interest" test.  Unfortunately, without the RFR act, the new test (I 
>forget what it is, but it seems to come down to "anything the legislature 
>thinks is a good idea") . . .   [Merlyn LeRoy]

There is language in _Employment Division v. Smith_ that seems to 
indicate that if the law was purposely "aimed" at a particular religion,
it might not pass Constitutional muster.  This dictum will be tested
in the Florida animal-sacrifice case, where the anti-sacrifice law
was indeed passed for the purpose of outlawing a particular religious
practice.

>. . . will allow almost any restrictions on religious 
>practices.  I think first amendment rights should be much harder to 
>restrict.  [Merlyn LeRoy]

Yesterday, the Government Relations Committee of the Baltimore Jewish
Council got to discuss this year's position paper of the National 
Jewish Community Relations Council.  Part of the background information
in that paper raises the possibility that recent changes in the 
composition of the Supreme Court have made it less hostile to religion
than the _Smith_ court was, and that the current Court might revisit
the _Smith_ decision along the lines suggested by Merlyn LeRoy.  In
my opinion, the best thing the Court could do would be to discard
_Smith_ entirely and restore the old "compelling interest" standard
as a matter of Constitutional law.  Such a decision would render the
"Religious Freedom Restoration Act" unnecessary.
 
I congratulate Merlyn LeRoy for a fine article!

					-- Matt Rosenblatt
                                        (matt@amsaa.brl.mil)

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