Tuesday, July 05, 2011

What's Wrong With Hammer's "Religious Freedom" Act?

A member of "Westboro Baptist "Church"" protests at the funeral of a dead serviceman. Completely legal, right up to the edge of the casket? A Missouri judge thinks this behavior is protected by Missouri state law, and Kim Hammer's "Religious Freedom Restoration Act" would embolden such behavior right here in the Natural State.

When a panel of activists picked our Best Ten and Worst Ten lists of state legislators we got a lot of very positive feedback. The one sore spot was placing Rep. Kim Hammer of Benton on the "Dishonorable Mention" list. There were several reasons he made the list, but one of them was the "Religious Freedom Restoration Act." That struck a nerve even with some very good folks who thought it was a good bill. It's not a good bill. It has a good name, and it may have been sponsored with the best of intentions. But I don't evaluate policy by the intentions of those proposing it. I evaluate policy by it's probable consequences, both intended and unintended.

In the case of this bill, the probable outcome would be to encourage every oddball religious group that has a grudge against society to be as obnoxious as possible. But don't take my word for it, look at the text....

16-123-403. Religious freedom preserved.

29 (a) Except as provided in subsection (b) of this section, no

30 government entity shall burden a person’s free exercise of religion through

31 the enforcement of a rule of general applicability or otherwise.

32 (b) No government entity shall burden a person’s free exercise of

33 religion unless it demonstrates by a preponderance of the evidence that

34 application of the burden to the person and the specific act or refusal to

35 act is:

36 (1) Essential to further a compelling governmental interest; and
(2) The least restrictive means of furthering the compelling

2 governmental interest.

So if anybody gets to have arbitration for a legal matter whose results are recognized by our civil courts, then under this act a Muslim Sharia court has to get the same recognition, unless one of our screwed-up judges finds that the state has a "compelling interest" to stop it. This vague language gives far too much leeway to an already out of control judiciary whose values are mostly at cross-purposes with those of the American people.

And let's see how this law can be used like a club against a local government simply trying to make Muslims apply to the same laws as the rest of us, and stopping Westboro "Baptist" from desecrating the funerals of our service members...

18 (a)(1) A person whose exercise of religion has been burdened by a

19 government entity in violation of this subchapter may in any judicial or

20 administrative proceeding before a court or other tribunal of competent

21 jurisdiction assert the violation as a claim or defense.

22 (2) The court or tribunal may grant any combination of

23 declaratory relief, injunctive relief, and monetary damages deemed

24 appropriate for the violation.

25 (b) A person who prevails against a government entity in any

26 proceeding to enforce this subchapter may recover reasonable costs and

27 attorney’s fees.

They would feel secure knowing that if the authorities did not dot every "i" then they could easily get a free pass to break the law, and even win a lawsuit and get money off of it.

And if you think it far-fetched that something like the "Religious Freedom Restoration Act" could be used to give Islamic Sharia courts the full backing of law then you had better think again. In England, a clause in the Arbitration Act said that if both parties agreed on an arbiter, then the courts were to back their rulings in certain areas of law. There are now 85 Sharia courts operating in England and their rulings are backed by domestic courts. Under Hammer's bill as I read it, if two Muslims agree that a Sharia Court will be the arbiter of their dispute, the government will not be able to shut it down without shutting down the arbitration process for everyone- and maybe not even then. Read the language of the bill and think about it through the eyes of a liberal judge.

How about noise ordinances with their 5 times a day "call to prayer?" As I read the bill, there is no "compelling government interest" behind noise ordinances and they would not carry the same weight as religious practices are given under this bill. If a city tried to fine a Mosque for noise ordinance violations or "disturbing the peace" with their prayer calls it would be the city itself on trial. The ordinances would be on trial, not the mosque. Just the way the law is written makes it so likely the city would lose a lawsuit that it would serve as a deterrent from even attempting to enforce laws on Muslims that it used to enforce on everyone.

Some people have tried to frame this as a 1st amendment issue. It's not. That says "CONGRESS shall make no law." The first amendment is a prohibition against the central government interfering in the free exercise of religion. The fact is, plenty of state governments had official state religions at the time of the adoption of the amendment and for decades afterward. They were not considered violations of the amendment because they knew it was a prohibition against central power.

The closer you get to the local level the more people should have the right to set the rules of their society as they see fit. Families for example, should have more leeway than cities or counties, who should be able to make more rules than states. The central government should have very little power to regulate personal behavior in a free society. That way, everyone can live in a place where the rules are more to their liking. Some people will like fewer restrictions, and some more. Let them all be free to have it their way. That's liberty.

The Founders would be shocked at the behavior of Westboro Baptist members. Every county in the country would have probably locked them up for it. I'd vote to do the same in my county, even if I would vote against making one rule for the whole state, much less the whole nation.

All Hammer's bill does is turn over to judges all decision-making power as to whose practices are allowed to trump the will of the majority of the local population and whose must bow to the will of the local authorities. Given their track record, this is an awful idea. Hammer's bill is written under the assumption that all religious practices are equal. They are not, and legislating against that reality is going to bring Westboro Baptist protests to every military funeral, Sharia Courts to our country by much the same route they came to England, and Rastafarians blowing dope smoke in your face- all in the name of "sincerely held religious beliefs."


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