Gene,
To put
it simplistically, it is not at all clear that the phrase "Congress shall make
no law prohibiting the free exercise of religion" means that the clause is
violated only when Congress "totally" prohibits the free exercise of
religion. It is just as intellectually fair to say that the phrase
"Congress shall make no law prohibiting the free exercise of religion"
means that Congress cannot prohibit, at all, the free exercise of
religion. To the extent that you are unwilling to acknowledge the shades
of meaning contained within this phrase, honest debate on the topic is not
possible.
Gene Summerlin
Ogborn, Summerlin & Ogborn, P.C.
210
Windsor Place
330 South Tenth Street
Lincoln, NE 68508
(402)
434-8040
(402) 434-8044 (facsimile)
(402) 730-5344
(mobile)
[EMAIL PROTECTED]
www.osolaw.com
Steve,
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Gene Garman
Sent: Sunday, November 20, 2005 10:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Discrimination
Government can restrict people from putting religion or nonreligion beliefs into action. No discrimination involved. Specific religion and nonreligion actions can be prohibited or abridged by the laws of society. The question is not under what circumstances government can do so. Government can do so, under any circumstance, religion or no religion. In respect to actions, the Free Exercise Commandment does not assert any exception to the rule of law. The First Amendment merely commands that "religion" shall not be established by law and that Congress shall make no law "prohibiting" (which means totally) the free exercise of religion. The First Amendment does not say Congress shall make no law "abridging" the free exercise of religion.
Therefore, I concur with the unanimous opinion of Reynolds v. U.S. (cited below) and with the Virginia attorney, first United States Secretary of State, and President, Thomas Jefferson, who, in 1802, wrote: "the legitimate powers of government reach actions only, and not opinions."
Gene Garman
Steven Jamar wrote:
The question is not whether the government can restrict people from putting into action certain beliefs. It can. The question is under what circumstances the government can do so. Gene takes an approach that gives the government a lot of room to limit exercise of religious beliefs, as did the S Ct in Smith.But even Smith doesn't go as far as Gene would push it.As all lawyers on this list know, any particular rule or utterance about freedom of religion may be read narrowly or broadly and predicting just what approach will be used in any particular circumstance is difficult at best.In the ordered liberty set up by the Constitution, as amended, neither rights of individuals nor the power of the government are unlimited, howsoever broad they each may seem to be from time to time.Howsoever much Gene may wish his interpretation were the law, or would be found persuasive to many of us, it is neither the law of the land nor convincing to most on this list.BTW, Gene, don't go read the 11th Amendment and its history to see how it has been contorted into something quite at odds with what it was meant to address -- you would probably find it even more vexing.Some of us feel the same way about a variety of other provisions of the Constitution as well.Oh, one last thing, Gene, are you with Justice Thomas on the constitutional invalidity of our entire system of administrative agencies and the welfare state? I'm just trying to see whether your cramped, literalist meaning approach extends beyond the religion clauses and comprehends a whole, unitary approach to constitutional interpretation. If so, that would help me understand your view of the religion clauses.Steve
On Nov 20, 2005, at 5:35 PM, Gene Garman wrote:
Nevertheless, in America, the "free exercise" of religion shall not be prohibited (which means totally), nothing more and nothing less. Laws against specific exercises or actions do not a total prohibition of free exercise make. It is opinion only which is totally exempt from the law.
If I may, from a precedent setting, unanimous (9 to 0), U.S. Supreme Court decision, May 5, 1879:
"Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order."
Reynolds v. United States, 98 U.S. 145, 164.
"Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices."
Reynolds v. United States, 98 U.S. 145, 166.
"Can a man excuse his practices ... because of his religious belief? To permit this would be to make ... religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances."
Reynolds v. United States, 98 U.S. 145, 166-167.
Gene Garman
--
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8428
2900 Van Ness Street NW mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
"Face violence if necessary, but refuse to return violence. If we respect those who oppose us, they may achieve a new understanding of the human relations involved."
Martin Luther King, Jr.
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