Saturday, October 07, 2017

Two Blockbusters In Two Days

What do you call it when…
You are fired from your job,
You are denied housing,
You were refused serve in a restaurant,
You were refused medical care,
You were told that you can’t use the bathroom,
All because of the way you were born?
I call it discriminate, but the president and the Attorney General call it “religious freedom.”

The US Attorney General Jeff Sessions issued two legal opinions directed at us and the LGBT community in general. Between the two rulings they may nullify all the state’s non-discrimination laws!

On Friday I wrote about Attorney General’s legal opinion on why I think his interpolation was wrong; well on Friday he released a legal opinion “religious freedom” that I feel is also on shaky ground. But as it stands now it could spell disaster for the country, basically we will not be a nation of one law but instead we will be Balkanized with people obeying only the laws that they want to obey. All they have to say is… “It is against my religion.”

For those who care to read it, here is the legal opinion from the Attorney General

There is a lack of news coverage about Sessions decree because at the same time he issued the decree Trump cut back on birth control for women. Coincidence? I think not, I think it was deliberate to bury it in the news.
Civil liberties groups decry Sessions’s guidance on religious freedom
Washington Post
By Matt Zapotosky and Sarah Pulliam Bailey
October 6, 2017

Attorney General Jeff Sessions issued sweeping guidance to executive branch agencies Friday on the Justice Department’s interpretation of how the government should respect religious freedom, triggering an immediate backlash from civil liberties groups who asserted the nation’s top law enforcement officer was trying to offer a license for discrimination.

In a memorandum titled “Federal Law Protections for Religious Liberty,” Sessions articulated 20 sweeping principles about religious freedom and what that means for the U.S. government — among them that freedom of religion extends to people and organizations; that religious employers are allowed to hire only those whose conduct is consistent with their beliefs; and that grants can’t require religious organizations to change their character.

Though the principles are lofty — and some of them in no way objectionable — they could have a broad negative impact, permitting religious groups to impinge on the rights of LGBT people and others, said civil liberties advocates, including the American Civil Liberties Union, Equality Federation and others. The announcement, though, was welcomed by groups like the Becket Fund for Religious Liberty, the Alliance Defending Freedom and the Family Research Council.
The article goes on to say that this can have a much greater impact than just the LGBT community,
And civil liberties groups said there could be other effects. The principle allowing religious employers to hire only those whose conduct is consistent with their beliefs, for example, might allow a religious school to fire a teacher who had a child out of wedlock or a man who wed another man, said Louise Melling, deputy legal director at the ACLU.
And even through it is based somewhat on court rulings it extrapolates beyond the court rulings,
Rick Garnett, a law professor at University of Notre Dame, said in some respects, the guidance served to “summarize, restate, and endorse existing and established Supreme Court doctrine,” but in others, it took “strong religious-freedom stands on questions that are contested.”
The article ends with…
“Most of what it actually says is bland and general,” said Doug Laycock, a professor at University of Virginia Law School. “Whether it is significant depends on the follow-through and on how it is interpreted.”
And that can bring even more oppression for us.

Some of the article about his memorandum are;

Transgender Law Center wrote,
Today, the Department of Justice issued a broad memo instructing federal agencies to grant government contractors and grantees religious exemptions from federal non-discrimination law. Transgender Law Center executive director Kris Hayashi issued the following response:

“Just one day after announcing the government would refuse to uphold the law when it comes to protecting transgender workers, the Attorney General today issued alarming guidance promoting state-sanctioned, taxpayer-funded discrimination against women, transgender people, and many other members of our communities.

Make no mistake: today’s guidance is devastating for transgender people. This license-to-discriminate memo invites illegal discrimination on a chilling new scale and attempts to open the door for carving certain communities, including transgender people, out of basic protections guaranteed by law.
The Times Herald writes,
WASHINGTON >>> In an order that undercuts federal protections for LGBT people, Attorney General Jeff Sessions issued a sweeping directive to agencies Friday to do as much as possible to accommodate those who claim their religious freedoms are being violated.

The guidance, an attempt to deliver on President Donald Trump’s pledge to his evangelical supporters that he would protect religious liberties, effectively lifts a burden from religious objectors to prove that their beliefs about marriage or other topics are sincerely held.

Under the new policy, a claim of a violation of religious freedom would be enough to override many anti-discrimination protections for LGBT people, women and others. The guidelines are so sweeping that experts on religious liberty are calling them a legal powder-keg that could prompt wide-ranging lawsuits against the government.
I searched the web for Supreme Court cases that were about religious freedom and I found…
Limits of Religious Freedom
Harvard Political Review
By Zak Lutz
May 27, 2013

Constitutional arguments over the First Amendment have always been legally treacherous and fraught with political strife. While the first half remains clear (“establishment of religion”), the latter half (“free exercise thereof”) has been the subject of much legal and political debate.
[…]
The Sherbert Test
While Reynolds and Smith can be used to argue that the free-exercise clause has a rather narrow application, a concurring opinion in Smith by Justice Sandra Day O’Connor applied the test of “compelling government interest.” She argued that the government can only infringe on religious liberty when a compelling interest exists to do so. This test, established by Justice William Brennan, has been used in defense of religious liberty. In Sherbert v. Verner (1963), Adell Sherbert sued her employer when he extended her hours to include Saturdays—a day on which Sherbert, a Seventh-day Adventist, was religiously obliged not to work. The court ruled that the employer had placed a “substantial burden” on her and that the government lacked a compelling interest to deny benefits.
[…]
Free Exercise TodayThe Sherbert Test and free-exercise clause play into arguments over two current exercise events: gay rights and contraceptive coverage. Though these two issues are different and apply separate constitutional arguments, each rests principally on the role of religious liberty within American society.

Sixteen states have approved laws allowing citizens to “ignore state regulations or laws that contradict his or her sincerely held religious beliefs,” and Kentucky seems likely to approve a similar bill soon. Though applied broadly, these laws are a thinly veiled attempt to allow employment, housing, and other forms of discrimination against homosexuals. In essence, the laws apply a version of the Sherbert Test to states—groups establish sincerely held beliefs and then demonstrate a burden originating from following the law. Because the Sherbert Test applies only at the federal level, it could be seen as either changing state law or as unconstitutional based on Smith’s precedent. Considering many religious objections to gay marriage, any verdict on the issue could have future implications for the debate over who is required to acknowledge marriage between homosexual couples.

This requires something of a tricky legal balance. Even many liberals do not think religious institutions should be forced to perform same-sex marriage, but Smith might not allow for that if same-sex marriage were granted on constitutional grounds. But, the free-exercise clause could allow for private groups to discriminate against homosexual couples (for example, by not catering certain weddings). While states that legalize same-sex marriage can easily outline precisely what discrimination is acceptable, courts are much less able to navigate a middle ground.
From the Bill of Rights website they list important Supreme Court cases on limits to religious freedom, most of the cases cited on the website boiled down to if the law was religiously neutral such as…
Reynolds v. United States (1879)A federal law banning polygamy was upheld. The Free Exercise Clause forbids government from regulating belief, but does allow government to regulate actions such as marriage.
The law didn’t target just one religion so it was deemed neutral.

Another important case was…
Christian Legal Society v. Martinez (2010)The court ruled that a student organization at a public university was not free to limit their members to those who shared their belief system if that resulted in discrimination on the basis of sexual orientation.
This was important because the court ruled that the club could not discriminate on the bases of sexual orientation

In a New York Times article “What Are the Limits of ‘Religious Liberty’?” the author writes,
And yet we’ve arrived at an unfortunate impasse over the meaning of religious liberty. Unlike in earlier eras, when religious objections let the faithful separate themselves from institutions they felt they could not support, many conservatives now deploy the phrase as a way of excluding other people. Take the furious outcry that erupted in response to the Supreme Court’s 5-to-4 decision to make same-sex marriage legal in every state. Conservative pushback began with the dissenting justices: Clarence Thomas warned of ‘‘potentially ruinous consequences for religious liberty.’’ Some Republican officeholders rushed to throw up whatever shield they could for people of faith. Two states have declared that county clerks may refrain from issuing marriage licenses if they don’t want to give them to gay couples as a matter of conscience. Bakers, photographers and florists — and adoption agencies and landlords — who cite their religion when refusing to serve gay couples won assurances like this one from Greg Abbott, governor of Texas: ‘‘No Texan is required by the Supreme Court’s decision to act contrary to his or her religious beliefs regarding marriage.’’
So what does this mean?

Well in my non-legal opinion in order for someone to discriminate against me, say not serving me in a restaurant, the courts should be applying the Sherbert Test on whether the law places an undue burden on the individual in following the law and if a law is religious neutral.

So it will all boil down to Justice Kennedy who will probably the swing vote.

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