SB1062: A History

"An enlightened citizenry is indispensable for the proper functioning of a republic." -Thomas Jefferson

Thomas Jefferson

Today, Jefferson's quote is my guide post. My goal is to make myself more of an informed citizen and if you want to join me on that quest, you are welcome to come along for the ride.

I'm a knee-jerker. I often read one article, feel like I have the gist of the situation, and then proceed to form a staunch position on the subject. It's embarrassing, but I have a hunch that I'm not alone in this folly. After reading about Arizona's amendment to their Religious Freedom Restoration Act, I began to consider where I stood on the issue and how I would present my opinion to others. However, as is so often the case, the more I looked into the issue, the more I realized that my knowledge of the law in this instance was insufficient. The purpose of this post is to explain, as best I can, the legal history behind religious freedom that preceded Arizona's SB1062. I can't cover everything, but what I can do is try to summarize the important issues at stake.

For the sake of clarity, I am going to write this blog chronologically. I can't possibly cover everything and I am going to try and be both thorough and concise. However, I am going to link to as many sources as I can and if you find information that you think deserves consideration, let me know.

History of Religious Freedom:

The First Amendment grants Americans five basic freedoms: religion, speech, press, assembly, and petition. Out of the five, the protection of religious liberty is given the longest treatment. This protection is made up of two clauses:

1. Establishment Clause- "Congress shall make no law respecting an establishment of religion."
2. Free-Exercise Clause- "Congress shall make no law...prohibiting the free exercise thereof"

While there are a host of current debates surrounding the Establishment Clause, our current concern is the Free-Exercise Clause. Congress can't pass a law that limits the free exercise of religion. What in the world does that mean? The following examples are just a small sample of the types of questions that arise in an attempt to define the Free-Exercise Clause:

• Can a state pass a law that requires students to recite the pledge allegiance even if their religion prohibits that type of action? - West Virginia State Board of Education v. Barnette (1943)
• Can a state deny unemployment benefits to a citizen who was fired in relation to her religious beliefs?- Sherbert v. Verner (1963)
• Can Congress pass a law requiring businesses to provide health coverage that includes services religiously opposed by the employer? - Sebelius v. Hobby Lobby Stores, Inc. (2014)

For decades, the Supreme Court case Sherbert v. Verner was the standard and it provided an interpretational framework by which Congress and the states could determine whether or not their laws infringed upon someone's religious liberty.

Sherbert v. Verner (1963)

Adele Sherbert

In Sherbert, the Supreme Court acknowledged that sometimes government must infringe upon a person's religious freedoms. However, the Court set forth very stringent guidelines as to when that action was acceptable. In what became known as the "Sherbert Test" the Supreme Court stated that only "the gravest abuses, endangering paramount interests, give occasion for permissible limitation."

Furthermore, the Court stated that the government would have to demonstrate a "compelling interest" if they were to limit the free exercise of their citizen's religious beliefs. In this case, the Court ruled that denying Adele Sherbert benefits because she was fired from a job due to religious reasons was a violation of her First Amendment freedoms as it forced her to choose between practicing her religion and receiving state benefits.

This standard imposed a very strict test upon the laws passed by Congress and the states and was the established precedent until 1990.

Employment Division v. Smith (1990)

In this case, Smith and Black, Native Americans, were fired from their job at a drug rehabilitation clinic because they ingested peyote, a hallucinogenic substance, during a religious ceremony.  They applied for unemployment benefits through the state of Oregon and were denied due to the nature of their termination. They sued the state of Oregon and won. The Supreme Court's ruling greatly backtracked on the Sherbert ruling. Writing for the majority, Antonin Scalia stated that while the government cannot ban an action based solely on religious considerations, but:

Antonin Scalia

The [Free Exercise] Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.

Furthermore:

The [Sherbert] test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by "compelling governmental interest" on the basis of religious belief. 

In short, as long as a law is not directed specifically to a religious practice, the law is valid even if it requires a citizen to act in a way that is contrary to their religious belief.

Sources:

Cornell Law

Oyez.com

Congress Responds and is Rebuffed

Following Smith, the United States Congress passed the Religious Freedom Restoration Act. The vote was unanimous in the House of Representatives and was opposed by only 3 Senators. President Clinton signed the bill into law on November 16, 1993. Specifically, the law refuted Scalia's claim that religiously neutral laws did not deny a person's religious liberty. The law reinstated the Sherbert Test for both federal and state government.

In 1997, the Supreme Court struck down the provision in the RFRA that applied to the states and in response, many states, including Arizona, passed their own version of the RFRA. SB1062 is a revision to Arizona's RFRA law that was passed in 1999.

Sources

City of Boerne v. Flores- 1996

The Difference Between "Is" and "Ought"

Of course just because something is a certain way, doesn't mean that it ought to be that way. I'll stop my history lesson here and I hope to have my personal perspective on SB1062 published soon. In the meantime, feel free to leave comments and feedback!

Sources and Recommended Reading

Supreme Court Cases on Religious Liberty- Find Law
Arizona's Religious Freedom Debate and the Sherbert Test- Constitution Daily
Was Vetoed Arizona Bill Misrepresented? What Constitutional Scholars Say- CSMonitor

Passing the Buck Professionally

There's been a lot of discussion recently about how much politicians know about the scandals that threaten their political career.

• Did President Obama know about the IRS targeting conservative groups?
• How extensive was President Obama's knowledge of the NSA's spying program?
• Was President Obama aware of the calamity surrounding Healthcare.gov?

And finally...

• Did Chris Christie know about the Washington Bridge lane closures?

It all becomes exhausting, really.

Some people will argue, "of course he knew," while others may shrug and choose to let the story unfold.  

What is all that scandalous about a corrupt politician anyway?

While I will certainly be waiting with baited breath to see the documents that supposedly prove that Christie was complicit in the Washington Bridge scandal, my thoughts have been focused on a larger question: why are politicians refusing to take responsibility for the mistakes that happen in their administration?

In 1945, Harry Truman popularized the phrase "the buck stops here." He was so committed to the concept that he was personally responsible for the actions of his White House, that he kept a sign on his desk with those words engraved as a reminder. In his farewell address in 1953, Truman said, ""The President--whoever he is--has to decide. He can't pass the buck to anybody. No one else can do the deciding for him. That's his job." Truman recognized that no one else could make the decisions that he made and therefore, no one bore the responsibility that he did. 

 That perspective seems rather quaint now. 

Over the past year, there has been a growing trend of leaders relying on the argument of "I didn't know!" when it comes to scandals in their administration. No personal responsibility is taken and guilt is passed down to their subordinates. The problem with this response is two-fold: it is not true leadership and it undermines the politician's credibility.

Leadership is about taking ownership. You don't become President of the United States or Governor of New Jersey by luck. You've spent time convincing your constituents that you have the vision and the ability to make the tough calls and usher in needed changes. Leadership is inspiring those who work and vote for you. Leadership is about simultaneously giving people an ideal to aspire to and being sympathetic and relateable. Leadership is not being so self-absorbed that you throw your loyal supporters under the bus when hard times arrive. Who wants to work for a guy like that? Furthermore, who wants to vote for a politician that apparently thinks more of his own well-being than that of the individuals who have devoted their time and energy into making his administration successful? It lacks character and it reveals a rather childish perspective on life.

Furthermore, passing the buck down to subordinates seriously undermines the credibility of the politician in power. When a politician asks me to believe that they didn't know what was going on with major sections of their administration, what they are really asking me to believe that they are an incompetent leader who shouldn't be trusted with power. You want me to trust you to oversee the dismantling of Syria's chemical weapon arsenal, but you were clueless regarding the problems with Healthcare.gov? You want me to trust you to bring crime down in a state rife with violence, but you were unaware of a plan to close the world's largest bridge? It's too much. You're asking me to believe in your ignorance on the one hand and your competence on the other. 

The problem, it seems, is that politicians are happy to take credit for the good in their administration but refuse to take responsibility for the negative. It's an immature way to function and it's a quality that I would prefer to not have in my politicians.

Sources and Recommended Reading

Chris Christie's Botched Attempt at Bridgegate Character Assassination- Business Week

Chris Christie's Office Targets Former Ally in a Memo - New York Times

What Didn't Obama Know and When Didn't He Know It- American Thinker

Sebelius: President Didn't Know of Obamacare Website Woes Beforehand- CNN

And there you have it...

Mitt Romney is not running for president in 2016. As I wipe away a tear (purely for sentimental reasons) I am forced to wonder if Damon Linker at The Week is correct: will Jeb Bush be the Republican nominee in 2016?

These are serious topics to ponder my friends. 

 That was a joke.

Sort of.

Mitt Romney: "I'm not running" in 2016- Politico
It's Over: Jeb Bush will be the GOP nominee in 2016- The Week