Transcript PUTTING OLD WINE IN NEW BOTTLES

PUTTING OLD WINE IN
NEW BOTTLES
A Framework for Protection
of Duty of Conscience and
Articulation of Religious
Liberties
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YOU PUT NEW WINE IN
NEW BOTTLES
Neither do men put new wine in old
bottles: else the bottles break, and
the wine runneth out, and the
bottles perish;
but they put new wine into new
bottles,
and both are preserved.
St. Matthew 9:17
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PUTTING OLD WINE IN
OLD BOTTLES
OLD
BOTTLES
OF FAITH
Foundation
IN
GOD
of Western
AND
Culture and
RELIGIOUS
Political
BELIEF
Theory
BIBLE
(KJV)
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PUTTING OLD WINE IN
OLD BOTTLES
1760-1865
Political and legal
thought and
public action
beginning with
King George III
and eliminating
by amendment a
constitutional
guarantee of
slavery
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OLD
BOTTLES of
FAITH IN GOD,
CHOICE OF CIVIC
VIRTUE and a
RULE OF LAW
founded on a
CONSTITUTION
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OLD WINE
AXIOM # 1
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OLD WINE
AXIOM # 2
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OLD WINE
AXIOM # 3
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OLD WINE
AXIOM # 4
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OLD WINE
BELIEF # 1
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OLD WINE
BELIEF # 2
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OLD WINE
BELIEF # 3
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OLD WINE
BELIEF # 4
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OLD WINE
CHOICE # 1
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OLD WINE
CHOICE # 2
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OLD WINE
CHOICE # 3
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OLD WINE
CHOICE # 4
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OLD WINE IS BETTER
No man also having drunk
old wine straightway
desireth new; for he saith,
The old is better.
St. Luke 5:39
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PUTTING NEW WINE IN
NEW BOTTLES
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PUTTING NEW WINE IN
NEW BOTTLES
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WEAKNESS OF
NEW BOTTLES
For my people have committed
two evils: they have forsaken me
the fountain of living waters, and
hewn them out cisterns, broken
cisterns, that can hold no water.
Jeremiah 2:13
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PUTTING OLD WINE IN
NEW BOTTLES
1993-2012
Change
principles
and form of
government
so as most
likely to
effect
happiness
and safety
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RFRA (1993)
• 1990 Smith opinion, (494 US 872)
– No free exercise of religion by itself
– When statute general in scope
without exceptions
• 1993 Congress passes RFRA, (42
USSC 2000bb)
– Compelling governmental interest
– Least restrictive means
• 1997 City of Bourne opinion, (521
U.S. 507)
– RFRA binding on federal government
– RFRA not binding on states
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POST-1990 SUPREME COURT
OPINIONS INTERPRETING “SMITH”
• 1993 City of Hialeah opinion, (494 US 872)
Facially neutral ordinance is still
unconstitutional if intentionally
discriminatory against a religion
• 2010 Christian Legal Society, (130 S.Ct. 2971)
Universal limitation on association;
restrictions on a club’s membership that
indirectly impacts those based on
religious belief is allowed under Smith.
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RLUIPA (2000)
• Applies to State Religious Land
Use and Institutionalized Persons
• Requires “substantial burden” to
exist
• Based on Tax-Spend & Commerce
Powers
• Must satisfy “compelling
governmental interest test”
• Must satisfy “least restrictive
means”
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POST-1990 SUPREME COURT
OPINIONS APPLYING STATUTES
• 2005 Cutter v. Wilkinson, (544 U.S. 709)
Protections facially applied to religious
claims based on beliefs of Aryan Nations,
(separation of faces)), Asatru or Odinism,
the polytheistic religions of Vikings,
including Thor, a practicing ”witch” of the
Wiccan religion, and a Satanist.
• 2006 Gonzales v. UDV, (546 U.S. 418)
RFRA requires federal government to
show how compelling interest is in fact
impeded by allowing requested conduct
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RLUIPA (2000)
• Applies to State Religious Land
Use and Institutionalized Persons
• Requires “substantial burden” to
exist
• Based on Tax-Spend & Commerce
Powers
• Must satisfy “compelling
government interest”
• Must use “least restrictive
means”
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STATES ADOPTIIG RELIGIOUS
LIBERTY PROTECTIONS
AL
AZ, CN, FL, ID, IL,
LA, MO,
NM, OK, PA, RI,
SC, TN, TX
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YEARS BY NUMBER OF
STATES TAKING ACTION
YEAR
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# OF STATES
1993
1994
1998
1999
2000
2002
2003
2009
2010
1
1
1
5
3
1
1
1
1
TOTAL
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WHY UTAH NEEDS ITS
OWN RFRA
1.
The migration to Utah that began in 1847 was
based on a need to find religious toleration on
the most basic level. It is needed for all who
come.
2.
Utah joined the Union only after a forty year
battle where many lost homes and families by
reason of federal disapproval of religious beliefs
and practices. Doing so now would protect basic
individual, family and voluntary associational
rights that are unprotected.
3.
Since 1993, Utah has more protections for
conscience and related speech in public schools
than any other state. Why not include other
government functions?
4.
As June 2009, Utah’s population reflects a longterm growing diversity in belief: 61% LDS; 6.6%
Catholic; 13.4 Other Christian; .4% Jewish; 12.9%
None-Atheist-Agnostic. (Gallup Poll Jan – Jun
2009)
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JUST ASK ME
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