Elder Oaks Speaks On "the Boundary Between Church And State" (merged)

[jkwilliams]

Here's the text of the First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It's not all that difficult to understand. Congress cannot pass laws that:

-Establish a state religion.

-Prohibit the free exercise of religion.

-Abridge freedom of speech

-Abridge freedom of the press

-Abridge the people's freedom of peaceable assembly

-Abridge the people's freedom to petition the government for redress of grievances.

Maybe it's just me, but I don't see that any of these clauses are given deference and solicitude over the others. Other than the establishment clause, all of these enumerated rights have been subject to restrictions over the years, even the right to free exercise of religion. For example, people who believe in faith-healing are free not to seek medical attention for themselves, but they cannot do so for a minor in their care. Likewise, Reynolds v. US established that Congress can restrict actions based on religious belief, and in 1963, the Supreme Court ruled that states can refuse to accommodate religiously based conduct when there is a "compelling interest" to do so. So, in practice, this is not an absolute right.

[Scott Lloyd]

Here's the text of the First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It's not all that difficult to understand. Congress cannot pass laws that:

-Establish a state religion.

-Prohibit the free exercise of religion.

-Abridge freedom of speech

-Abridge freedom of the press

-Abridge the people's freedom of peaceable assembly

-Abridge the people's freedom to petition the government for redress of grievances.

Maybe it's just me, but I don't see that any of these clauses are given deference and solicitude over the others. Other than the establishment clause, all of these enumerated rights have been subject to restrictions over the years, even the right to free exercise of religion. For example, people who believe in faith-healing are free not to seek medical attention for themselves, but they cannot do so for a minor in their care. Likewise, Reynolds v. US established that Congress can restrict actions based on religious belief, and in 1963, the Supreme Court ruled that states can refuse to accommodate religiously based conduct when there is a "compelling interest" to do so. So, in practice, this is not an absolute right.

There are very few "absolute rights."

 

However, you seem rather dismissive of the free exercise clause. That is a deeply significant right. The fact that religious liberty would be included among the four fundamental freedoms specifically enumerated in the First Amendment (the others being speech, the press and assembly) is no mean fact.

 

For reference, here is the portion of Elder Oaks's speech where he talks about the special "solicitude" that is afforded religious rights by our Constitution:

 

      First, please respect the laws that provide unique protections for believers and religious institutions, and please accept the fact that this grants religion an honorable place in our public life. Most notable is the uniquely positioned First Amendment in the Bill of Rights, which singles out the “free exercise” of religion for special protection, along with free speech, free press, and freedom of assembly. This favored constitutional status that a unanimous United States Supreme Court recently described in part as “special solicitude to the rights of religious organizations”[19] should be acknowledged in all controversies over the meaning of “free exercise” and how to balance it against contrary cultural preferences.

       Surely this unique constitutional guarantee of the “free exercise” of religion was intended to grant unique protections to those acting in accordance with religious belief. This was intended in our nation’s founding. As Professor Michael McConnell has observed, when the First Amendment was drafted, several formulations were considered, the two final ones being the protection of “rights of conscience” or the “free exercise of religion.”[20] The ultimate “choice of the words ‘free exercise of religion’ in lieu of ‘rights of conscience,’ is,” as Professor McConnell notes, “of utmost importance.”[21] First, it made clear that the First Amendment protected more than just belief. It protected action in accordance with belief.[22] Second, while “conscience” emphasizes individual judgment, “religion” also encompasses the “institutional aspects of religious beliefs.”[23] Finally, the framers’ preference for “free exercise of religion” over “rights of conscience” means that religiously based scruples are given more solicitude than nonreligiously based ones. As the framers thoughtfully reasoned, “The free exercise clause accords a special, protected status to religious conscience not because religious judgments are better, truer, or more likely to be moral than nonreligious judgments, but because the obligations entailed by religion transcend the individual and are outside the individual’s control.”[24]

       Treating actions based on religious belief the same as actions based on other systems of belief is, therefore, not enough to satisfy the special place of religion in the United States Constitution. Understanding this reality is important to advancing this conference’s purposes to further mutual understanding, edification, and collaboration.

 

Edited November 4, 2015 by Scott Lloyd

[jkwilliams]

There are very few "absolute rights."

However, you seem rather dismissive of the free exercise clause. That is a deeply significant right. The fact that religious liberty would be included among the four fundamental freedoms specifically enumerated in the First Amendment (the others being speech, the press and assembly) is no mean fact.

For reference, here is the portion of Elder Oaks's speech where he talks about the special "solicitude" that is afforded religious rights by our Constitution:

Don't be ridiculous. I am not dismissive of any of the rights enumerated in the Bill of Rights. All are fundamental to a free society and just government.

[Scott Lloyd]

Don't be ridiculous. I am not dismissive of any of the rights enumerated in the Bill of Rights. All are fundamental to a free society and just government.

OK, then you are dismissive of the remarkable fact that the Constitution does indeed single out and specifically provide for the protection of religious liberty, that such liberty enjoys a special "solicitude," just as Elder Oaks and Professor Michael McConnell observe.

 

In that, it is comparable to freedom of the press. Why don't other professions enjoy a special degree of solicitude in the Constitution as journalism does? It can't because journalism is particularly beloved. Goodness knows, there are plenty of people around who detest journalists, and their numbers seem to be growing.

 

You can ponder on that question if you like; I'll give you my answer now.

 

The four pillars of freedom: speech, press, religion and assembly, are safeguarded in the First Amendment because those are the very mechanisms by which a free people can arrive at, evaluate and ascertain truth. Think about that for a while, and you should be able to conclude that this must of necessity be true. We seek truth in the spoken and written word; by assembling with others for discussion, learning and planning courses of action; and by seeking God, as we understand Him, in our houses of worship, by honoring Him through our conduct; and by trying to help others to find Him.

[jkwilliams]

OK, then you are dismissive of the remarkable fact that the Constitution does indeed single out and specifically provide for the protection of religious liberty, that such liberty enjoys a special "solicitude," just as Elder Oaks and Professor Michael McConnell observe.

Not dismissive of that, either.

 

In that, it is comparable to freedom of the press. Why don't other professions enjoy a special degree of solicitude in the Constitution as journalism does? It can't because journalism is particularly beloved. Goodness knows, there are plenty of people around who detest journalists, and their numbers seem to be growing.

 

You can ponder on that question if you like; I'll give you my answer now.

 

The four pillars of freedom: speech, press, religion and assembly, are safeguarded in the First Amendment because those are the very mechanisms by which a free people can arrive at, evaluate and ascertain truth. Think about that for a while, and you should be able to conclude that this must of necessity be true. We seek truth in the spoken and written word; by assembling with others for discussion, learning and planning courses of action; and by seeking God, as we understand Him, in our houses of worship, by honoring Him through our conduct; and by trying to help others to find Him.

No disagreement here.

[Scott Lloyd]

Not dismissive of that, either.

 

No disagreement here.

Well, then contrary to your prior post, you must agree with me that freedom of religion and of the press enjoy unique solicitude under the Constitution.

[jkwilliams]

Well, then contrary to your prior post, you must agree with me that freedom of religion and of the press enjoy unique solicitude under the Constitution.

I do. What I said is that it does not enjoy unique solicitude above the other freedoms enumerated in the First Amendment.

[Scott Lloyd]

I do. What I said is that it does not enjoy unique solicitude above the other freedoms enumerated in the First Amendment.

OK. Got it.

 

I think what Elder Oaks was decrying was that some segments of society would grant it less.

[jkwilliams]

OK. Got it.

 

I think what Elder Oaks was decrying was that some segments of society would grant it less.

That wouldn't be me.