Monday, April 4, 2011

My take on Oregon v Smith

Of course all rights have limits, including rights of religious practice.

The common saying which describes this principle is as follows: "the right to swing your fist ends at my face." I.e. you have a right to swing your fist, by my right to security in my person trumps your right to swing your fist. Much constitutional law involves conflicts of interest that mimic this example.

However, the the only rights, other than the plaintiffs right to religious practice, in question in Oregon v. Smith, are the rights of the government to deny someone unemployment benefits. This interest is not substantial enough to deny someone a fundamental right that is clearly enshrined in the text of our constitution. In other words, it doesn't meet the fist-to-face test. The governments security is not threatened by our plaintiffs religious practice (nor is anyone's security threatened by this practice).

Furthermore, the very first amendment to our Constitution states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." A basic reading of the constitution makes it clear that Congress cannot make a law that "prohibits the free exercise" of religion.

However it is clear that the government policy at question in Oregon v. Smith did indeed "prohibit the free exercise" of the plaintiffs' religious practice. This is conceded in the majority opinion. The plaintiff's were denied unemployment benefits because they were fired "for cause" after a drug test revealed traces of peyote. The plaintiff's are/were active members of a native american religion and they consumed (smoked) the peyote as part of a religious ritual. The law designating firing on this basis as "for cause" was designed to restrict the practice of smoking peyote, which is in, the case of the plaintiff's, a religious practice. Therefore, the first amendment is implicated.

Furthermore, The plaintiffs weren't harming anyone via their religious practice. (They were smoking peyote, in a controlled environment similar to a sweat lodge.) And there is never any mention of the possibility that they're religious practice might have affected the rights of other people in the majority opinion. Therefore, the plaintiffs' constitutionally guaranteed right to religious practice should trump the governments interest in denying them money.

However, Oregon vs. Smith, chose to ignore the plain meaning of the Constitution. The majority in the Supreme Court instead chose to proscribe limits to the right of religious practice that subject religious practice to basically any whim of government policy.

Oregon v. Smith establishes that the government only needs a reasonable rationale in order to restrict religious practice. Furthermore, the "reasonable rationale" need not be very clearly fleshed-out - as it never very clear what Oregon's rationale is in restricting the plaintiff's religious practice. Therefore, SCOTUS essentially ruled that it would default to government opinion, everytime government policy "accidentally" restricts the practice of someone's religion.

Having a "reasonable" government interest as the only test to determine the constitutionality of laws that restrict religious practice is not enough protection for a foundational constitutional right. In this case (and any other case where it is solely a governments interest that conflicts with religious practice) the religious practice should win out. I think this is facially obvious and the only plausible way to interpret the meaning of the "free exercise" clause of the first amendment.

Therefore, I join James E. Faust, Russel M. Ballard, and former professor of law, Dallin H. Oaks, in opposing the decision rendered in Oregon v. Smith. Let them smoke peyote!

Sunday, April 3, 2011

Response to Oaks' comments at Religion and Law Symposium

I really like and agree with elements of Oaks' analysis given here at a symposium on Religion and Law at Chapman University while also strongly disagreeing with other elements.

Now, I'd like to preface my statements with a caveat: In case you're a fellow mormon and you want to say, he's a prophet, you can't disagree with anything he says, I'd like to point out that Oaks was not speaking prophetically. He was not preaching from the pulpit to the general assembly of the church. He was instead speaking in an academic setting on a panel about law and religious freedom - in which he has academic training. Therefore his analysis should be treated academically, and although Oaks does have good academic credentials, his analysis is still subject to academic criticism, and need not be accepted dogmatically.

Furthermore, Oaks himself says that there is "no unique mormon doctrine" in what he expounds, and that "his sources are law and secular history". Which unlike revelatory sources are subject to high levels disagreement and dissent.

Finally, when Oaks does take a moment at the end of the speech to offer a few words as an official representative of the church he clearly states that he is shifting into this role by saying: "as an Apostle of the Lord Jesus Christ..."

Now, for my response to his statements. I'll start with what I agree with in his statements:

I agree that Oregon v. Smith was a bad court decision and bad case law. I further agree that not only religious speech, but also religious practice should be protected by our interpretation of the constitution. I further agree that several of his examples offer strong evidence that personal religious practice is being punished by the state in violation of the constitution freedom of religion clause and this should be corrected.

I further agree that people of all beliefs should be united in our resolve to protect religious practice even against popular majority opinion.

However, I disagree with Oaks that moral relativism is necessarily in opposition to constitutional values or even religious values for that matter. In fact, moral relativism is an underlying assumption to the republican form of government and the constitutional structure.

Likewise, even if you believe there is a divine law, that doesn't necessarily assume that we humans have direct access to said law. Ultimately, the human condition requires the acknowledgment that morality is relative to time, place, situation, belief, tradition, age, sex, station, etc. It's silly to state otherwise.

Just as we mormons seek respect in the public forumn, we must reciprocally cede respect in the public forumn to those with other beliefs. I believe this respect for others beliefs should go so far as to advocating the provision of the same protections and rights to same-sex couples as are currently enjoyed by hetero couples.

Personally I like the libertarian option: Civil Unions for everyone! This is to me the ideal compromise between religious people who want a special definition for the word "marriage" and same-sex, and alternate lifestyle individuals who want to be treated equally under the law.

1. It provides equal recognition of the law of all moral and sexual preferences. (I also think the moral/sexual preference of polygamist marriages should also be recognized by the state in this fashion.)

2. It removes from the state the whole debate over the word marriage. Mormons (and like minded religionists) have a special fetishized conception of 'marriage' that we hold very dear - i.e. an eternal bond between man and woman. Many of us (not so much me admittedly) seek to have our understanding of marriage codified into law. (Personally, I think this demand reveals a weak and impotent belief in that it feels the need for state sponsorship in order to be able to live it out. Pathetic.) However, if everyone was uniformly granted civil unions the debate over the word marriage would be moot at the governmental level and would be apply to play out at the proper level of individual decision-making.

Finally, I also take issue with Oaks statements to the effect that general morality is impossible without religiosity. I know many people whose beliefs can be described as agnostic/atheist who are deeply moral. Furthermore, there is an enthusiastic academic and social tradition that demonstrates this point. Oaks wants to make the point that there is a lively tradition of religious voices that have significantly contributed to political and social advances, but fails to recognize that is an equally important tradition of non-religious activism and philosophizing, which have contributed to the advancement of society. Furthermore, without the voices of opposition and dissent, religion becomes stale, dogmatic, rigid and generally inhospitable. We need to be challenged in order to ascend to higher levels of understanding as religious individuals. For these reasons moral relativity is an essential component of our democracy.