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View Diary: Hobby Lobby: Does RFRA violate the Establishment Clause? (263 comments)

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  •  The halal and kosher slaughterhouse (46+ / 0-)

    hypothetical isn't hard at all. Do laws against animal cruelty override religious objections (superstitions about food preparation?) IMHO, they should.
       Suppose a religion prescribed human sacrifice and/or cannibalism and there were devotees volunteering to be sacrificial victims? Would RFRA override the laws against murder?
       Once you exempt people and institutions from generally applicable law for religious reasons, the stopping point is purely arbitrary.
       Hobby Lobby's lawyer is arguing that generally applicable law should be constrained by religious people to the extent that courts arbitrarily allow or disallow.
      That being the case, it's hard to see why we should keep paying Congress and state legislatures to write laws in the first place.

      •  Yours was exactly my next thought (13+ / 0-)

        Where does the exemption for religious beliefs end, if it does, and who decides? And if it is the courts, HOW do they decide in a just way?  A really slippery slope.

        I'm part of the "bedwetting bunch of website Democrat base people (DKos)." - Rush Limbaugh, 10/16/2012 Torture is Wrong! We live near W so you don't have to. Send love.

        by tom 47 on Wed Mar 26, 2014 at 08:21:49 AM PDT

        [ Parent ]

      •  We don't know about Alito (1+ / 0-)
        Recommended by:
        Beelzebubs Brass Bs

        But Roberts, Kennedy, Thomas, and Scalia upheld a religious group's claim that the government couldn't stop it from importing and consuming ayahuasca.  

        •  But that was a specifically religious organization (2+ / 0-)
          Recommended by:
          Back In Blue, JerryNA

          rather than a secular corporation. A specifically religious group is defined differently under that law and has long had protections that general incorporation does not offer for religious practice while preventing those same religious organizations from gaining many of the advantages of a corporation. The case you refer to simply does not apply here.

          Strategy without tactics is the slowest route to victory, tactics without strategy is the noise before defeat. Sun Tzu The Art of War

          by Stwriley on Wed Mar 26, 2014 at 05:10:51 PM PDT

          [ Parent ]

          •  As was asked in the oral arguments, (0+ / 0-)

            If an individual engaged in a for profit activity can have religious rights and if an incorporated non-profit entity can have religious rights, then what is the argument that an incorporated for-profit entity cannot have religious rights?

            •  That's not really a hard question. (1+ / 0-)
              Recommended by:
              JerryNA

              It breaks down pretty quickly under scrutiny, based on the nature of individual rights and incorporation laws.

              The individual's non-religious activities, for-profit or otherwise, are not germane to their Constitutional right of free exercise of religion. That right is and has always been an absolute (as much as anything can be in a Common Law system) that has no relation to other rights an individual may or may not have (the right to engage in a particular type of secular business, for instance.)

              Any non-profit entity does not have inherent religious rights under the Constitution any more than any other incorporated entity does unless it chooses to accept the very limited form of incorporation provided for by law to explicitly religious organizations to enable them to conduct their religious activities. That includes the provision of being non-profit as well as significant restrictions of other rights that individuals and other types of corporation may enjoy. This is a matter of law that was established explicitly for this particular type of corporation in order to facilitate the exercise of their chosen religion by individuals associated with that corporation.

              A for-profit entity incorporated under the laws governing general incorporation (which is what businesses like Hobby Lobby are) has no religious rights whatsoever, since it is specifically limited from exercising "matters of conscience" by both law and court precedent. These types of corporation have far more rights in other areas (economic, political, etc.) that are denied by law to the religious non-profit corporation, because the purpose of allowing them to incorporate and exercise legal rights is different and has been enshrined in law and backed by precedent since the earliest days of incorporation in the United States.

              Remember that all rights of corporate "personhood" are derived from the laws that establish them. It is thus quite easy to distinguish between the three example you give, since each has a different basis for the rights they claim under the law and the Constitution.

              Strategy without tactics is the slowest route to victory, tactics without strategy is the noise before defeat. Sun Tzu The Art of War

              by Stwriley on Thu Mar 27, 2014 at 04:56:48 AM PDT

              [ Parent ]

              •  You assume false facts and make unsupported (0+ / 0-)

                leaps of logic.

                The individual's non-religious activities, for-profit or otherwise, are not germane to their Constitutional right of free exercise of religion. That right is and has always been an absolute (as much as anything can be in a Common Law system) that has no relation to other rights an individual may or may not have (the right to engage in a particular type of secular business, for instance.)
                Absolutely untrue.  For example, it would be absolutely and blatantly unconstitutional to pass a law requiring all people engaged in business X not to be Jewish or requiring all people engaged in business X to have uncovered heads.
                Any non-profit entity does not have inherent religious rights under the Constitution any more than any other incorporated entity does unless it chooses to accept the very limited form of incorporation provided for by law to explicitly religious organizations to enable them to conduct their religious activities.  That includes the provision of being non-profit as well as significant restrictions of other rights that individuals and other types of corporation may enjoy. This is a matter of law that was established explicitly for this particular type of corporation in order to facilitate the exercise of their chosen religion by individuals associated with that corporation.
                I am not aware of any "very limited form of incorporation provided for by law to explicitly religious organizations to enable them to conduct their religious activities".  As far as I know, religious organizations incorporate their various entities as non-profits or for-profits.  There is no special form of incorporation for them.  Now, incorporation is covered by state law, not federal, so it is certainly possible that one or more states have special forms of incorporation for religious entities, but if so I'm not aware of them and it is certainly not the norm.  Can you please provide your evidence for your claim?
                A for-profit entity incorporated under the laws governing general incorporation (which is what businesses like Hobby Lobby are) has no religious rights whatsoever, since it is specifically limited from exercising "matters of conscience" by both law and court precedent.
                Please cite the laws and court precedents you are referring to.  As I understand it, this is one of the issues in the Hobby Lobby case and there is little or no law or precedent on this issue.
                •  Anything can be willfully misconstrued... (0+ / 0-)

                  as your comment proves quite nicely. Let's take a look at where you went off the rails.

                  First, you seem to have some trouble with the difference between an individual engaging in secular and religious activities and between the actions of individuals and governments. As I said, the individual's right to religious expression is guaranteed and this is not germane to their secular activities. What you reply with is an example of an individual being specifically denied something by law on the basis of religion, the very thing my statement clearly rejects. The government could bar that individual from acting as, for instance, a doctor because he refuses to get a medical license (a secular reason for denying him access to a secular business) without him being able to raise a religious objection because that would inherently not apply to the secular activity being denied or the secular reason for denial.

                  Second, just because you are not aware of the special incorporation status of religious 501(c)3 corporations (which all religious organizations and their non-profit charitable arms are) does not mean it doesn't exist. This type of incorporation specifically denies to the religious organization such things as the right of direct political action and advocacy (just ask any church that's had it's incorporation converted to for-profit status and lost the privileges of the 501(c)3 religious designation, like the limitations on federal audits and exemption from filing Form 990 financial statements, how well that went for them.) Most states also have special privileges for religious organizations that even other non-profits do not enjoy. For instance, here in Pennsylvania, religious non-profits are exempt from the filing requirements that other non-profits (except very small ones) must obey:

                  Who is exempt from filing an Institution of Purely Public Charity Registration Statement?

                  The only two exemptions from the Institutions of Purely Public Charity Act are:  1) Bona fide, duly constituted religious institutions and such separate groups or corporations that form an integral part of a religious institution and are exempt from filing an annual IRS 990 Return, and 2) an institution of purely public charity that receives contributions of less than $25,000 per year provided that the institution's program service revenue does not equal or exceed $5,000,000.

                  So, in fact, religious incorporation does carry very special privileges that no other form has.

                  On the final point, there is a clear distinction in all incorporation laws that separates (as I pointed out above) secular for-profit corporation from religious non-profit one for many purposes. For-profit entities have been denied several constitutional rights that have to do with things inherently human in nature (5th Amendment rights, for instance, which have never successfully been advanced by a for-profit corporation.) Not only that, but even case law confirming the right of explicitly religious non-profit corporations to certain elements of the right of conscience have also confirmed that such rights do not apply to for-profit entities, especially Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987).

                  While you are passionate in your attempt to wedge in more rights for corporations under the guise of "religious freedom" or whatever other cloak is convenient, you really need to learn a bit about the law (and not make statements in counter-argument like "I am not aware of any..." since they only prove your ignorance rather than actually refute anything) before you try to argue with someone who does.

                  Strategy without tactics is the slowest route to victory, tactics without strategy is the noise before defeat. Sun Tzu The Art of War

                  by Stwriley on Thu Mar 27, 2014 at 08:06:29 PM PDT

                  [ Parent ]

      •  there was such a case in the 90s (1+ / 0-)
        Recommended by:
        JesseCW

        (out of FL) while they upheld it on religious grounds they said they would not have upheld it on animal cruelty grounds

    •  Scalia's petard: (29+ / 0-)

      Employment Division v Smith:

      Respondents in the present case, however, seek to carry the meaning of "prohibiting the free exercise [of religion]" one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that "prohibiting the free exercise [of religion]" includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as "prohibiting the free exercise [of religion]" by those citizens who believe support of organized government to be sinful than it is to regard the same tax as "abridging the freedom . . . of the press" of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that, if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.

      With the Decision Points Theater, the George W. Bush Presidential Library becomes the very first Presidential Library to feature a Fiction Section.

      by Its the Supreme Court Stupid on Wed Mar 26, 2014 at 07:16:45 AM PDT

      [ Parent ]

      •  Scalia was right (2+ / 0-)
        Recommended by:
        jrooth, drmah

        But Congress decided to jump in and change course.  This is not primarily a Constitutional case.

      •  Scalia the sophist can distinguish as he likes (2+ / 0-)
        Recommended by:
        happymisanthropy, Ice Blue

        ...he will come up with some bullshit rationale why the situation of contraception coverage in Hobby Lobby is purportedly different from peyote prohibition...maybe because the government is making a non-religious based prohibition in one case, but actively forcing an organization to support an infringement of religion in the other.  OK, so that isn't really consistent with either Scalia's pronouncement in Employment Division or up-to-now unremarkably well-established constitutional law on the subject, but that won't inhibit Scalia from crafting a rational that brazenly uses insubstantial sophistry to reach his politically desired conclusion.

        •  Well, the easy way to distinguish it is that (0+ / 0-)

          in response to Smith, the US Congress passed the RFRA which changed the law.  As I remember it, the only congressman who voted against it was Jesse Helms.  Amusing to see how many people here now seem to agree with him.

    •  This was settled years ago by SCOTUS (22+ / 0-)

      They held that Florida could ban ritual animal sacrifice by Santerians.  Alito should damn well know this.

      This isn't freedom. This is fear - Captain America

      by Ellid on Wed Mar 26, 2014 at 07:55:38 AM PDT

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    •  I think the Halal/Kosher argument (5+ / 0-)
      Recommended by:
      Armando, Sylv, whl, Paragryne, Nisi Prius

         is a red herring. A primary consideration in both religions is to eliminate to the extent possible the fear and pain experienced by the animals.

      http://meat.tamu.edu/...

      •  The Danish Law Is Pretty Recent (0+ / 0-)

        One story on it can be found here.

        "A famous person once said, 'You can fool some of the people some of the time, but you can't fool all of the people all of the time.' But as I once said, "If you don't teach them to read, you can fool them whenever you like." – Max Headroom

        by midnight lurker on Wed Mar 26, 2014 at 09:46:53 AM PDT

        [ Parent ]

        •  I commented more thoroughly up thread ... (1+ / 0-)
          Recommended by:
          happymisanthropy

          but basically the new Danish law (though not mentioned in that article) doesn't change any current practice in Denmark.  Danish Jews and Muslims have already been practicing an acceptable religious variation that complies with European law (without the need for an exception) in which non-lethal stunning of the animals precedes the slaughter.  

          Not controversial in Denmark, even among the religious communities, and has been the practice for many years.

      •  The primary consideration is to comply with (7+ / 0-)

        the ritual practice as laid out thousands of years ago, no matter whether or not more humane means of killing have since been devised.

        I've witnessed Halal slaughter.  It's not what I'd call quick, compared to a bolt gun used properly.

        What's actually at issue here, though, is that if only slaughter using a bolt gun is permitted, and that rule is firm and fair for everyone, and it's been passed without any motivation to discriminate - it doesn't matter what some religion teaches about humane slaughter.

        On the other hand, if some assholes pass a law prohibiting anyone from saying a prayer before killing an animal - that's as clear cut a violation of the First as it gets.

    •  What you're actively doing though (3+ / 0-)
      Recommended by:
      Armando, whl, coffeetalk

      is eliminating the business entirely. It's not a simple point. Besides actually forbidding a major point of two religions.  

      http://jasonluthor.jelabeaux.com/

      by DAISHI on Wed Mar 26, 2014 at 08:16:46 AM PDT

      [ Parent ]

    •  It would be discrimination against religion (1+ / 0-)
      Recommended by:
      Armando

      If the law allowed terminally ill patients to choose to cause their own death, but didn't allow willing sacrificial victims the same choice.

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