Posted 24 February 2004 - 03:22 AM
Question, Is HB 2637 neutral, and...
...what is the "grave and immediate danger" which the State seeks to protect.
From Alcor's Letter:
"Regulation requires: the demonstration of public need; protection of the public from health and safety hazards... None of these criteria have been suggested to exist,..."
The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. See Zablocki v. Redhail, 434 U.S. 374, 388 (1978), if a requirement imposed by a State "significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." The Constitution imposes... the obligation to "examine carefully . . . the extent to which [the legitimate government interests advanced] are served by the challenged regulation." Moore v. East Cleveland, 431 U.S. 494, 499 (1977). See also Carey v. Population Services International, 431 U.S. 678, 690 (1977) (invalidating a requirement that bore "no relation to the State's interest"). An evidentiary rule, just as a substantive prohibition, must meet these standards if it significantly burdens a fundamental liberty interest. Fundamental [497 U.S. 261, 304] rights "are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference." Bates v. Little Rock, 361 U.S. 516, 523 (1960). Also see Freedman v. Maryland, 380 U.S. 51; Garrison v. Louisiana, 379 U.S. 64; Speiser v. Randall, 357 U.S. 513. "...inhibition as well as prohibition against the exercise of precious First Amendment rights is a power denied to government."
The free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden. Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 141 -142 (1987); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S., at 717 -719; Wisconsin v. Yoder, 406 U.S. 205, 220 -221 (1972). It is not within the judicial keen to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds see, PRESBYTERIAN CHURCH v. HULL CHURCH, 393 U.S. 440 "In this country the full and free right to entertain any religious belief, to practice any religious principle..."[At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.] See, e.g., Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (plurality opinion); Fowler v. Rhode Island, 345 U.S. 67, 69 -70 (1953). Indeed, it was ["historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause."] Bowen v. Roy, 476 U.S. 693, 703 (1986) (opinion of Burger, C.J.). See J. Story, Commentaries on the Constitution of the United States 991-992 (abridged ed. 1833) (reprint 1987); T. Cooley, Constitutional Limitations 467 (1868) (reprint 1972); McGowan v. Maryland, 366 U.S. 420, 464 , and n. 2 (1961) (opinion of Frankfurter, J.); Douglas v. Jeannette, 319 U.S. 157, 179 (1943) (Jackson, J., concurring in result); [508 U.S. 520, 533] Davis v. Beason, 133 U.S. 333, 342 (1890).
No chapter in human history has been so largely written in terms of persecution and intolerance as the one dealing with religious freedom. From ancient times to the present day, the ingenuity of man has known no limits in its ability to forge weapons of oppression for use against rights of those who dare to express or practice unorthodox religious beliefs. And the Jehovah's Witnesses are living proof of the fact that even in this nation, conceived as it was in the ideals of freedom, the right to practice religion in unconventional ways is still far from secure. Theirs is a militant and unpopular faith, pursued with a fanatical zeal. They have suffered brutal beatings; their property has been destroyed; they have been harassed at every turn by the resurrection and enforcement of little used ordinances and statutes. See Mulder and Comisky, 'Jehovah's Witnesses Mold Constitutional Law,' 2 Bill of Rights Review, No. 4, p. 262. To them, along with other present-day religious minorities, befalls the burden of testing our devotion to the ideals and constitutional guarantees of religious freedom. We should therefore hesitate before approving the application of a statute that might be used as another instrument of oppression. Religious freedom is too sacred a right to be restricted or prohibited in any degree without convincing proof that a legitimate interest of the state is in grave danger.
Although the law appears on it's face to be neutral, we reject any contention that may be advanced by Bob Stump that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause "forbids subtle departures from neutrality," Gillette v. United States, 401 U.S. 437, 452 (1971), and "covert suppression of particular religious beliefs," Bowen v. Roy, supra, at 703 (opinion of Burger, C.J.). Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked as well as overt. Arizona must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders. See" Walz v. Tax Comm'n of New York City, 397 U.S. 664, 696 (1970) (Harlan, J., concurring).
The Supreme Court has repeatedly found that infringements of fundamental rights are not limited to outright denials of those rights. First Amendment decisions have consistently held in a wide variety of contexts that the compelling-state-interest test is applicable not only to outright denials but also to restraints that make exercise of those rights more difficult. See, e. g., Sherbert v. Verner, 374 U.S. 398 (1963) (free exercise of religion); NAACP v. Button, 371 U.S. 415 (1963) (freedom of expression and association), Linmark Associates v. Township of Willingboro, 431 U.S. 85 (1977) (freedom of expression). [432 U.S. 464, 488].
The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. "Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality..." See Epperson v. Arkansas, 393 U.S. 97, 103 -104 (1968) (footnote omitted).
Whatever may be the wisdom, however, of an approach that would reject exceptions to the plain language of the First Amendment based upon such things as "grave and immediate danger" such is not the issue in this case.
We assume of course that Bob Stump surely would not contend that the kind of activity involved in this case, the seeking of physical immortality, falls outside the protection of the First Amendment, however narrowly Mr. Stump wishes to interpret that Amendment. So the only issue presently before us is whether religious freedom that must be well within the protection of the Amendment should be given complete protection or whether it is entitled only to such protection as is consistent in the mind of the Bob Stump with whatever interest Bob Stump may be asserting to justify its abridgment. Bob Stump, no doubt will state unequivocally that there are no "absolutes" under the First Amendment, and will necessarily take the position that even religious activity that is admittedly protected by the First Amendment is subject to a "balancing test," and that, therefore, no kind of religious activity is to be protected if the Government can assert an interest of sufficient weight to uphold its abridgment. Such a sweeping denial of the existence of any inalienable right to practice one's religion undermines the very foundation upon which the First Amendment, the Bill of Rights, and, indeed, our entire structure of government rest. The Founders of this Nation attempted to set up a limited government which left certain rights in the people, rights that could not be taken away without amendment of the basic charter of government. If HB 2637 is allowed to stand, it will tell us that no religious right exists in the people that cannot be taken away if the Government finds it sufficiently imperative or expedient to do so. That would turns our "Government of the people, by the people and for the people" into a government over the people.
Arizona should find that no State's interest which is here should be "balanced" against the interest in protecting our religious freedoms. Important constitutional rights need not be "balanced" away. This, of course, is an ever-present danger of the "balancing test" for the application of such a test are necessarily tied to the emphasis particular legislators give to competing societal values. Legislators, like everyone else, vary tremendously in their choice of values. This is perfectly natural and, indeed, unavoidable. But it is neither natural nor unavoidable in this country for the fundamental rights of the people to be dependent upon the different emphasis different legislators put upon different values at different times. For those rights, particularly the First Amendment rights involved here, were unequivocally set out by the Founders in our Bill of Rights in the very plainest of language, and they should not be diluted by "tests" that obliterate them whenever particular law makers think values they most highly cherish outweigh the values most highly cherished by the Founders.
We believe that the First Amendment's unequivocal command that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, " shows that the men who drafted our Bill of Rights did all the 'balancing' that was to be done in this field.
Live Long and Well
Rev. William C. O'Rights PhD
Founder and President
Universal Live Extension Church, Inc.
