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Open Mic On "Compelling Interest"

Saturday, January 14, 2006

I'm gathering information on the subject of "compelling interest" for an up-coming post. I want to offer the following space for all readers to leave me any and all thoughts on this subject. As you may be aware, the government uses the "compelling interest" argument when it wants to assert itself into areas that it has no business. We usually see this argument when children are involved, or in matters involving public safety.
Title 42, Chapter 21B has a section devoted to a compelling interest test in matters of religion. I'll recreate it here so that you can get a feel for what the lawmakers intend when they encroach on areas that they have no authority. Remember, the first part of Amendment I states, "Congress shall make no law... prohibiting the free exercise [of religion]." Compare that with the language below stating, "governments should not substantially burden religious exercise without compelling justification." At what point does a reasonable person conclude that the intent of these two expressions are not the same? The First Amendment's language is black and white and without limitations. Congress, on the other hand, is trying to use the law to subvert the Constitution and the Bill of Rights by legislating themselves a loophole. "No law" means "no law." Here's the code:
§ 2000bb. Congressional findings and declaration of purposes
Release date: 2005-12-27
(a) Findings
The Congress finds that-- 
(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
(2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
(b) Purposes
The purposes of this chapter are--
(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
Again, please leave me any thoughts on this subject. Thanks!


Blogger Timothy Birdnow said...

Hi Don!

I agree that the Government stretches the elastic clause more than comic book hero Plasticman ever stretched. Still, liberties cannot be absolute, and there are times when certain encumberences will be placed on them by law. For example, my freedom of speech does not permit me to claim to have a bomb on an airplane, since such a claim circumscribes the liberties of the other passengers.

Freedom of assembly does not mean that a mob can form to kill someone they don`t like, or to destroy private property. Remember Kent State? Much was made about the National Guard ``repressing`` the students. In fact, the students were rampaging through town, and the locals wanted the Guard to protect their homes and businesses. Their right to private property trumped the student`s rights to speech and assembly in that case.

I can see the necessity of certain restrictions and burdens on freedom of religion. Certainly, many practices of Satanism and Voodoo should be restricted-human sacrifice, sexual exploitation of minors, torture, etc. If we were to slavishly follow a no burden policy we would be forced to accept whatever foul and illegal things anyone who claimed a religious exemption did.

That said, the line MUST be drawn where real damage to the rights of another occurs. Here is the difficult part, because the Left routinely ``deconstructs`` the meaning of things, and will claim that the ``right to work`` at a facility is absolute, for example. (I`m thinking here of a recent case where a woman who had signed a no-pregnancy agreement was released from her Catholic teaching job when she became pregnant. She, of course, sued.) That there is nothing specifically stated in the Constitution about such a right is immaterial to the Left; they will find it ``inherent`` in the text.

How about the fact that Catholic hospitals are forced to perform abortions despite abortion being condemned by the Church? This is clearly an overstepping of the bounds of Constitutionality.

That is why the fight over judges is so important.

Anyhoo, those are my two cents.

6:06 AM  
Blogger Alnot said...

I like what Tim had to say. I also realize that religeous cults have tried to take advantage of those protections in order to brainwash and'program' willing or unwilling converts. Thank God that we are a Christian nation that practices some tolerance unlike muslims. I just think we have been too tolerant of wrongdoing and outright evil such as abortion.

12:34 PM  

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