Even the Government’s Smartest Lawyers Can’t Figure Out Religious Liberty

[rug]

Conflicts between secular ideals and tenets of faith are ultimately problems of culture, not law.

Emma Green | 8:22 AM ET

It took the U.S. Commission on Civil Rights three years to produce its report on religious freedom and non-discrimination. With 27 pages, more than 1000 days of work, and 200-some additional pages of commentary, the document essentially amounts to this: Legal scholars have no idea how to resolve the government’s conflicting obligations to allow free religious exercise and protect minority groups from discrimination. Ultimately, legal language is not sufficient to resolve ultimate conflicts over belief and identity. Legislatures and litigators will have to continue muddling through, finding an imperfect balance between competing cultural norms.

This issue, perhaps more than any other, has been a significant source of recent conflict within the court system. Supreme Court decisions on birth control and gay marriage have highlighted religious dissent on issues of sexuality and gender identity, but recent conflicts have covered everything from the conscience claims of ministers to sectarian town prayer to the rights of religious student groups. Created nearly 60 years ago, the USCCR exists to advise the United States government on civil-rights issues, even though it has no power to enact or enforce any of its findings. But even with a mandate to regularly investigate controversial issues, the Commission stalled out on religious liberty.

“Because the report raises a lot of controversial positions … it took a while for the Commission, as a bipartisan body, to reach any agreement,” said Brian Walch, a spokesman. “It’s a spine-y issue.”

The report is worth reading, if only because it shows how deeply divided the legal community is about religious liberty and civil rights. A majority of Commissioners ultimately found that “religious exemptions to the protections of civil rights based upon classifications such as race, color, national origin, sex, disability status, sexual orientation, and gender identity, when they are permissible, significantly infringe upon these civil rights.”

http://www.theatlantic.com/politics/archive/2016/09/us-commission-civil-rights-religious-liberty-report/499874/

http://www.usccr.gov/pubs/Peaceful-Coexistence-09-07-16.PDF

[elleng]

1. Yes, it's a spine-y issue,

and no surprise it took the CCR so long, as it's as political as any.

Better to have the Supremes decide these matters?! "I know it when I see it."

The phrase "I know it when I see it" is a colloquial expression by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. The phrase was famously used in 1964 by United States Supreme Court Justice Potter Stewart to describe his threshold test for obscenity in Jacobellis v. Ohio.[1][2][3] In explaining why the material at issue in the case was not obscene under the Roth test, and therefore was protected speech that could not be censored, Stewart wrote:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.[4]

https://en.wikipedia.org/wiki/I_know_it_when_I_see_it

[rug]

2. They had another First Amendment case which they resolved in Brandenburg v. Ohio.

I thought they came up with a reasonable bright line marking when speech became action. They'll need another bright line for these cases.

[elleng]

3. Right, Brandenburg's a standard.

CITATION
395 US 444 (1969)

Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

Question

Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?

Conclusion

The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.

https://www.oyez.org/cases/1968/492

[Angry Dragon]

4. Just get rid of religion............problem solved

[rug]

5. Is that solution final?

[Angry Dragon]

7. Once people figure out that they need to depend on themselves instead

of a god, then religion becomes obsolete

[muriel_volestrangler]

6. A person's view of the morality of his conduct depends upon whether he thinks it is right,

but he tells himself he knows what "divine law" is, and that it coincides with what he currently thinks is right.

Rather than:

(Commissioner Peter Kirsanow described one world view as The morality of a person’s conduct does not ultimately depend upon whether he thinks it is right, or whether it accords with his desires, but whether it conforms to divine law.

[rug]

8. There is an objective view of morality as well.

The mores are determined by society, institutions, religions and other ideologies. It is prudent to avoid any of those that are insane.