When First Amendment Prohibitions and Rights Collide

                       “Congress shall make no law respecting an establishment of religion, or prohibiting the 

                       free exercise thereof.” -- 1st Amendment, U.S. Constitution

In June, the U.S. Supreme Court, in Trinity Lutheran Church of Columbia, Inc. v. Comer, decided a major 1st Amendment case involving both the establishment of religion and the free exercise of religion clauses of the 1st Amendment.

So what happens when a state's effort to avoid establishing a religion collides with a church's free exercise of its religion?

The court summarized the facts:

"The Missouri Department of Natural Resources offers state grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.

"Trinity Lutheran applied for such a grant for its preschool and daycare center.

"The ... Center is ... open throughout the year to serve working families. It admits students of any religion. Enrollment stands at about 90 children, ranging from age two to five.

"... it would have received one, but for the fact that Trinity Lutheran is a church.

"The Department had a policy of categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program.

"The Department ultimately awarded 14 grants in 2012. Because the Center was operated by Trinity Lutheran Church, it was denied a grant."

The Court then set out the issue:

"The question presented is whether the Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment.

Trinity Lutheran sued alleging that the department’s failure to approve the venter’s application, pursuant to its policy of denying grants to religiously affiliated applicants, violates the free exercise clause of the 1st Amendment. The lower courts held for the department. The Supreme Court reversed, saying:

"The Free Exercise Clause 'protect[s] religious observers against unequal treatment' and subjects to the strictest scrutiny, laws that target the religious for 'special disabilities' based on their 'religious status.'

"... this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest 'of the highest order.'

"Consequently, [a state] cannot exclude individual Catholics, Lutherans, Mohammedans ... or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.

"A law, we said, may not discriminate against 'some or all religious beliefs.' Nor may a law regulate or outlaw conduct because it is religiously motivated. ...

"The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character."


The Missouri Department contended that merely declining to extend funds to Trinity Lutheran does not prohibit the church from engaging in any religious conduct or otherwise exercising its religious rights.

The court answered:

"It is true the Department has not criminalized the way Trinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel. But, ... the Free Exercise Clause protects against 'indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.'

"The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church -- solely because it is a church -- to compete with secular organizations for a grant. ... The 'injury in fact' is the inability to compete on an equal footing in the bidding process, not the loss of a contract).

"In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply."

Missouri argued its "compelling interest" was its "policy preference" for "skating" as far as possible from any possible "establishment of religion."

The court responded:

“The state interest asserted here -- in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution -- is limited by the Free Exercise Clause.”

So the bottom line is this: If the state is handing out balls and bats and/or playground equipment to not-for-profits, if you are a church, get your application in. They can't deny your request simply because your program is church-affiliated. Caveat: establishment of religion precedents would allow the state to refuse to fund a course of study designed to make the applicant a priest or a minister.

Posted: QCOline.com July 9, 2017
Copyright 2017, John Donald O'Shea

How Many Jihadist Refugees Are Too Many?

"Intelligence and law enforcement agencies have disrupted countless plots here and overseas, and worked around the clock to keep us safe.

"I've ordered the Departments of State and Homeland Security to review the visa (waiver) program under which the female terrorist in San Bernardino originally came to this country." 

                            -- President Barack Obama, Dec. 6 Oval Office address.

In the wake of one Muslim terrorist attack after another, President Obama has two proposals: (1) Keep guns out of the hands of U.S. citizens, and (2) Bring 50,000 more Muslims "refugees" into this country. He promises they will be "thoroughly vetted."

How does the U.S. go about vetting refugees to insure that NONE are jihadist terrorists? Suicide bombers? Religious zealots intent on slaughtering American infidels?

A day after the president's address, the Trump campaign responded with this news release:

Syria is in utter chaos. Is it possible to get records from Syria? Can we rely on Syrian records to be accurate? Or do we have to take each refugee at his word?  Would a Muslim terrorist intent on killing Americans tell a fib to get into our country?

A day after the president's address, the Trump campaign responded with this news release:

"Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing '25 percent of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad' and 51 percent of those polled, 'agreed that Muslims in America should have the choice of being governed according to Shariah.' Shariah authorizes such atrocities as murder against non-believers who won’t convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women."

It quoted Mr. Trump as saying, "Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.”

Do you recall the 1993 attack on the World Trade Center? The 9/11/01 attacks? The Ft. Hoot Shooting massacre? The Boston Marathon bombings? The Chattanooga Recruiting Office? The San Bernardino  massacre? Were all perpetrated by Muslim terrorists? All done in the name of Allah? All justified by Islamic religious beliefs?

The president calls those religious beliefs a "perverted interpretation of Islam." But is it? Or is it the very form of Islam that made war against the "infidels" throughout the Middle East, North Africa and as far into Europe as Tours and Vienna? That conquered Constantinople, the Balkans and Greece?

It's clear that not all Muslims adhere to this jihadist strain of Islam. But a great many do. AND,  there are 1.57 billion Muslims in the world! 

A Nov. 20 Pew poll concludes that 63 million Muslims support ISIS in 11 countries. In Pakistan, 9 percent support ISIS; in Turkey, 8 percent, in the Palestinian Territories, 6 percent. Additionally, there are another 287 million in those 11 countries who "haven't formed an opinion on whether they support ISIS or not." The survey did not cover Syria, Saudi Arabia, Iraq or Iran.

 Mr. Trump also cites a June 155 poll by the Center for Security Policy in which 600 Muslims living in the U.S. were interviewed and 51 percent of U.S. Muslims polled believe either that they should have the choice of American or sharia courts, or that they should have their own tribunals to apply sharia. Nearly a quarter believe that, “It is legitimate to use violence to punish those who give offense to Islam by, e.g., portraying the prophet Mohammed.”

Nearly one-fifth said that the use of violence in the U.S. is justified in order to make sharia the law of the land in this country.

Even the liberal Daily Beast says that worldwide "only about 12 percent of Muslims support terrorism."

So is Mr. Trump hysterical? Or is he rational? Consider:

If only 1 percent of 50,000 Syrian refugees come to America to make jihad" we would be admitting 500 terrorists adhering to what the president calls a "perverted interpretation of Islam"

Mr. Obama  ridiculed Republicans for fearing women and children. He assures us we can properly vet Syrians then concedes that the San Bernardino woman terrorist was properly vetted. If the government can't vet one woman from Pakistan, how can we be confident we can vet 50,000?

Two great values are at stake in this debate.

First, our forefathers came to America for religious freedom. Our constitution guarantees to people of all faiths, absolute freedom of belief, but limited free exercise.

That free exercise is rooted in toleration. Free exercise does not go so far as allowing a professed cannibal to eat his neighbor, or a professed Muslim jihadist to fly jets into the Twin Towers.

Second, the idea of admitting immigrants who come to bomb and shoot us, or to eat us is insane. Our constitution is not a suicide pact.

The difficulty is telling in advance which Muslims are entering the country to wage jihad. If one Pakistani woman can kill 14, and if 19 Saudis can kill 3,000, it makes no sense whatsoever to admit 500 potential jihadists. Or even 50.

It comes down to a question of probabilities and risks. Is it probable if we admit 50,000, that 500 are terrorists? 50? Two? If so, is it worth the risk?

I think this is what Mr. Trump means. I hope that is what Mr. Trump means.

So what exactly does the president mean?

Posted: Saturday, December 12, 2015 12:00 am - QCOnline.com

By John Donald O'Shea


Copyright 2015

John Donald O'Shea

Same-sex Marriage Ruling Carries Risks

"President Obama now says that it is important for him to affirm that same-sex couples should be able to get married. As such, for him, 'marriage' is now nothing more than a union between any two consenting adults. So, then, what is the President’s position on polygamy? Is it  'evolving,'as well? If so, why is the number 'two' sacred? If 'consent' between 'adults' is the key, what’s wrong with consensual polygamy?" -- John Donald O'Shea,  May '12,  "Is polygamy a constitutional right?"

The U.S. Supreme Court in Obergeffell v. Hodges (2015) has now held that two people of the same sex have a constitutional right to marry. Do you see any problems with that holding? Risks?

If fundamental liberty requires that any two (competent) consenting individuals must be allowed to marry, how can there be a bar to the marriage of three -- or more -- (competent) consenting adults?

What constitutional principle demands that any two consenting adults must be allowed to marry, while at the same time denying the same fundamental liberty to three or more consenting adults?

If the sex of the partners is irrelevant, and if all that is required of the two people is their consent, how can three or four — or more — consenting adults be barred from practicing polygamy?

Justice Anthony Kennedy, writing for the majority in Obergeffell, largely ignores those questions.

Chief Justice John Roberts, in dissent, however, squarely addresses the polygamy (plural marriage) question, with emphasis on the “historical aspect of marriage being between a man and a woman for over a 1,000 years.”

“One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.

“Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.

“Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.

“If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”
The chief justice then examined the majority’s justifications for same-sex marriage, and shows they would also justify polygamy.

“It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.

“If ‘there is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,’ why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?

“If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’ why wouldn’t the same reasoning apply to a family of three or more persons raising children?

“If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”

So if two consenting adults have a constitutional right to marry, why not three? Is two more sacred than three? More constitutional? If the states can’t constitutionally define marriages as being “between a man and a woman,” what constitutional principle  would allow same-sex marriage, but bar polygamy?  Is the harem now legal in America?

Justice Kennedy, speaking for the majority, also gives a fourth justification: “With respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”

But to say there is no risk of harm to third parties is absurd. Already a baker in Oregon has been assessed $135,000 in damages for failing to cater a same-sex marriage. If that verdict stands, Justice Kennedy’s assertion that the right of two consenting adults poses “no risk of harm to third parties,” comes from five judges wearing blinders.

Nor does Justice Kennedy fear for the First Amendment religious rights of people opposed to same-sex marriage.

“Finally, it must be emphasized that ... those who adhere to religious doctrines, may continue to advocate ... that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to  teach the principles ... central to their lives and faiths, and to their own deep aspirations to continue the family structure.”

Justice Kennedy reassures Americans that may still believe and teach that same-sex marriage is wrong. But do you see any assurance that Americans can still engage in the free exercise of their religion -- also guaranteed by the first Amendment -- by refusing to participate in or assist in a same-sex marriages?

Certainly the Oregon Labor Commission didn’t. How else do you explain their $135,000 damage assessment? What about contentious objectors? Does not the free exercise of religion guarantee the right not to participate -- to contentiously object? To not seemingly approve?

Make no mistake: I am not opposed to people or their legislators permitting same-sex marriage. That’s called democracy. The issues raised by Justice Roberts and the Oregon damage award spotlight the folly of judges deciding public policy questions and creating new constitutional rights under the guise of interpreting  the constitution.

Posted: Friday, July 17, 2015 11:00 pm, QCOnline

By John Donald O'Shea

Copyright 2015

John Donald O'Shea

Religion: Congress vs. the US Supreme Court

Indiana and Arkansas recently have passed Religious Freedom Laws. There has been a fierce negative reaction. This piece is not about those laws. Rather, it discusses the Religious Freedom Restoration Act (RFRA) passed by Congress in 1993, in one of its most lucid moments, rejecting the Oregon v. Smith holding of the U.S. Supreme Court. 

The First Amendment to the U.S. Constitution provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof  ...”  

The U.S. Supreme Court has held that a person has an “absolute right” under the “establishment clause” to hold whatever religious beliefs he desires. But the “free exercise” of religion is not unlimited.  For example, you have an absolute right to believe that  “cannibalism ” is the “true religion.”  “Free exercise” of your religion does not allow you to boil and eat your neighbor’s children.

The U.S. Supreme Court discussed the RFRA, and a subsequent piece of Congressional Legislation, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) extensively in its 2014 Hobby Lobby decision.

“Congress enacted RFRA ... in order to provide very broad protection for religious liberty.   RFRA’s enactment came three years after this Court’s decision in ... Oregon v. Smith, ... which largely repudiated the method of analyzing free-exercise claims that had been used in cases like Sherbert and Yoder ... ”

The court then explained why Congress got involved.

“In determining whether challenged government actions violated the Free Exercise Clause of the First Amendment, (Sherbert and Yoder) used a balancing test that took into account whether the challenged action imposed a substantial burden on the practice of religion, and if it did, whether it was needed to serve a compelling government interest.”

Sherbert involved an employee who had been fired for refusing to work on her sabbath. The court held that she could not be denied unemployment benefits… In Yoder, the court held that Amish children could not be required to comply with a state law demanding that they remain in school until the age of 16. Recognition had to be given to the fact that their religion required them to focus on uniquely Amish values and beliefs during their formative adolescent years.”

But then In Oregon v. Smith, the court rejected “the balancing test set forth in Sherbert.” Smith concerned two members of the Native American Church who were fired for ingesting peyote for sacramental purposes. When they sought unemployment benefits, the State of Oregon rejected their claims on the ground that consumption of peyote was a crime, but the Oregon Supreme Court, applying the Sherbert test, held that the denial of benefits violated the Free Exercise Clause.

The U.S. Supreme Court then reversed the Oregon Supreme Court, and rejected its own “Sherbert balancing test,” holding “the Sherbert test -- whenever a person objected on religious grounds to the enforcement of a generally applicable law -- “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”

The Smith court then set out a new test. “Under the First Amendment, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.”

Congress appalled, responded to Smith by enacting RFRA. It first found:

“Laws that are 'neutral' toward religion,” ... “may burden religious exercise as surely as laws intended to interfere with religious exercise.”

Then to ensure broad protection for religious liberty, Congress legislated that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” ... If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the government “demonstrates that application of the burden to the person --  (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Then, not satisfied with later Supreme Court decisions, Congress again intervened, passing the RLUIPA to insure that an “expansive” rather than a “restrictive” definition was given to the term “free exercise of religion.”

“In RLUIPA -- in an obvious effort to effect a complete separation from First Amendment case law -- Congress deleted the reference to the First Amendment and defined the “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”… 

 Indeed, Congress mandated that “free exercise”  “be construed in favor of a broad protection of  religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”

So, why am I writing about the two federal laws when the furor is about Indiana and Arkansas laws? In a future piece I propose to compare/contrast the new state laws with RFRA.

Posted: Saturday, April 9, 2015, 11:00  pm - QCOnline.com

By John Donald O'Shea

Copyright 2015

John Donald O'Shea

U.S. Apologies Aside, Murder Is Not a First Amendment Right

In America, the burning of a Bible is not punishable by death.

Indeed, if it is your copy of the book, you have the right to do so as a matter of symbolic free speech.

Recently, we have seen President Obama and those under him repeatedly and abjectly apologize because American troops in Afghanistan inadvertently burned one or more copies of the Quran.

In a letter sent to Afghan President Hamid Karzai, President Obama expressed his administration's "regret and apologies over the incident in which religious materials were unintentionally mishandled" in Afghanistan.

Then, Peter Lavoy, acting assistant secretary of defense for Asia and Pacific Security Affairs, told the American Muslim community "I come here today to apologize on behalf of the Department of Defense for the incident that took place in Afghanistan this week ... the burnings were done 'unknowingly and improperly.'"

Then, not to be outdone, Gen. John R. Allen, NATO's International Security Assistance Force Commander wrote, "To the noble people of Afghanistan --

"I have ordered an investigation into a report I received ... that ISAF personnel at Bagram Air Base improperly disposed of a large number of Islamic religious materials which included Korans.

"When we learned of these actions, we immediately intervened and stopped them. ...

"We are thoroughly investigating the incident and we are taking steps to ensure this does not ever happen again. I assure you -- I promise you -- this was NOT intentional in any way. I offer my sincere apologies... to the president of Afghanistan, ... and most importantly, to the noble people of Afghanistan...."

In the meantime, the world has seen a week of rioting in Afghanistan. More than 30 people have been killed. Hundreds have been wounded. The AP reports "Protesters [note: not "rioters, "murders,"or "terrorists"] angry over Quran burnings by American troops lobbed grenades at a U.S. base in northern Afghanistan and clashed with police and troops in a day of violence that left seven international troops wounded and two Afghans dead." All this by the "noble people of Afghanstan!"

So copies of the Quran, rather than the bible, have been burned. Does that justfy riots that culminate in over 30 murders? Untold woundings? Burning out of towns? I use the word "murders" because when you throw a grenade into a crowd, or intentionally shoot somebody during a riot, or in the back of the head, that is what it is.

If American troops had burned a like number of Bibles, would Christians or Jews have taken to the streets, killed their neighbors and wrecked everything in site? Maybe in 350 A. D. Maybe in the middle ages.

There is a simple problem here. If the burning of a copy of the Quran justifies the murder of one human being, then a principle has been established. If it justifies one murder, then why not two -- or even a million? And if so, are we going to see like conduct from America's Muslim population in the streets of America when the next idiot or malevolent burns a copy of the Quran?

I can understand the president apologizing for our troops doing something insensitive. But why doesn't the president condemn the riots, the murders, the woundings and the chaos going on in Afghanistan? Or are we here in America willing to accept the premise that those of the Muslim faith are free to do anything -- including murder -- any time they perceive their religion to have been slighted?

Newt Gingrich, has said, "There seems to be nothing that radical Islamists can do to get Barack Obama's attention in a negative way and he is consistently apologizing to people who do not deserve the apology of the president of the United States, period."

I feel the same way. I don't think you apologize to murders, to arsonists, to looters or to people who behave like barbarians.

Citizen A may believe that the Bible is God's word, but that doesn't make it so. Citizen B may believe that the the Quran is God's word, but that doesn't make it so.

And if B is justified in killing A because A doesn't believe God wrote the Quran, I see no reason why A is not justified in killing B if B doesn't believe that the men who wrote the Bible were inspired by God.

For two centuries people have come to America to escape such intolerance.

In our country "freedom of religious belief" is an absolute right. You have an absolute right to believe that the Quran is the word of God, and your neighbor has an absolute right to believe that God inspired the men who wrote the Bible. But there are necessarily limits to the "free exercise of religion."

Another of our neighbors may have an absolute right to believe that God wants him to practice cannibalism. But his right to "freely exercise his religion" won't save him from prosecution if he actually kills and eats his neighbor.

Then too, while all of us in America have an absolute First Amendment religious right to believe that a certain book (e. g., the Bible, the Quran, the Torah) is "sacred," all of us also have the right of free speech. For a Muslim, that includes the right to deny that the Bible is sacred, and even to burn his own copy of it as an act of protest or symbolic free speech.

In America, a man's right to believe a book is "God's word" does not give him the right to enforce that belief upon his neighbor. Any American who can't accept the supremacy of our Constitution on these issues, is an American in name only.

Our Constitution simply does not permit killing in the name of religion. Without religious tolerance, we regress to the dark ages, where religious freedom and tolerance were unknown. Those that chose such a world, are but an airline ticket away.



Posted Online: March 07, 2012, 4:51 pm - Quad-Cities Online

by John Donald O'Shea

Copyright 2012, John Donald O'Shea