My post on religious accommodations, and in particular the statement, "But requests from minority religious groups (including recent immigrant groups) for accommodation are a longstanding and respectable part of the American tradition of religious freedom," drew this response from a commenter:
Correction: It's not part of American tradition but part of a U.S. Supreme Court adventurism under the faulty disguise it has the power to dictate social religious preferences within states.
Actually:
1. None of the examples I gave are U.S.-Supreme-Court-mandated religious accommodations; all were done by the democratic process.
2. While from 1963 to 1990, the U.S. Supreme Court read the Constitution as mandating some sorts of religious accommodations, the 1990 Employment Division v. Smith decision almost entirely rejected that doctrine. The rule right now is that the Free Exercise Clause almost never mandates religious exemptions from generally applicable laws. (I have written in support of the Smith constitutional rule.)
3. Following the Smith decision, it was Congress that enacted the Religious Freedom Restoration Act, which provided that governments have to exempt religious objectors from generally applicable laws that burdened their religious practices (unless applying the law to the objector was necessary to serve a compelling government interest). Congress voted in favor of RFRA by a 97-3 vote in the Senate and by voice vote with no objection in the House.
4. It was then the Supreme Court, in 1997, that struck down RFRA as it applied to states. State legislatures in about a dozen states, and state voters in Alabama, have since enacted state-level RFRAs that do apply to state laws. (State supreme courts in about a dozen more states have also read their state constitutions as mandating some sorts of exemptions from generally applicable laws.)
So you can fault the Court for lots of things, but don't turn hostility to the Court -- or even to constitutional constraints on legislative action more broadly -- into a macro (ctrl-shift-A for "activism") that becomes a blanket response to everything. The American tradition of religious accommodation has generally been a tradition of accommodation precisely by the political branches of government.
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Imagine the bandwidth that would save.
Which traditionally had little tolerance for competing doctrines or non-christian teachings (idols).
When I went to high school in Los Angeles 50 years ago, Fairfax High School on the west side essentially shut down during the Jewish holidays. I don't recall a murmur of protest.
Never heard of idol worshiping? In some states you couldn't hold office or vote if you worshiped idols.
But unless I'm mistaken, the Supreme Court has a fairly permissive regime for judging prison-system burdens on constitutional rights -- under Turner v. Safley (1987), all you need is something like a reasonable relationship to a legitimate penological interest. That does not put a terrible burden on prison systems.
On the other hand, it's, again, Congress that has mandated a more protective regime (at least in prisons receiving federal funds) by enacting the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) (upheld by the Supreme Court).
Nothing can justify the US Supreme Court from being an religious arbitrator. They went so far as once saying the death penality was unconsititutional in face of the fact the 5th amendment recognizes capital punishment. The court is playing way out of their league and this shows in their rulings.
Apparently the Supreme Court is not the only one that plays out of its league.
Wow, so the Framers intended to protect the freedom of prisoners more than that of Evangelical photographers (NM) or Catholic philanthropists (CA)? Not only does the Supreme Court never "insist" on religious accommodation for Christians, but as we found out in RFRA it doesn't even PERMIT Congress to intervene on their behalf!
Calling non-Christian religions idol worship today is as unrefined, bigoted, and downright weird as supporting slavery today.
The good news is, who knew the Internet had penetrated the Idaho Wilderness until Mr Aldridge began to post here?
>...unrefined, bigoted, and downright weird as supporting slavery today.
We certainly enjoy more refined, egalitarian, and generally accepted forms of slavery in our modern age:
Mandatory Spending Shackles
Of course, if you're militantly anti-Hindu, you can work yourself up into a lather about idols -- and I imagine you'll have plenty of extremist Muslim company on that score.
I don't think the answer's quite as uncontroversial as you suggest.
Many of these cases were 4-1-4 with O'Conner as the swing vote. The replacement of O'Conner by Alito may usher in new doctrines.
More recently, fighting Nazis promoted tolerance of Jews and rights for blacks, fighting the cold war was a powerful argument for accepting Catholics and Jews and Eastern Europeans as full equals of the WASPs.
Speaking of religious tolerance (or the lack thereof), was this a real quote by a commissioned flag-rank officer in the United States military, or was it something lifted from a bad Saturday Night Live parody skit? No, on second thought don't tell me. To paraphrase one of my favorite Jack Nicholson movie characters, I don't want the truth. I can't handle the truth...
Tolerance builds quickly, but your description is a bit generous in light of this obit of the first Jewish BigLaw lawyer in Philadelphia - circa 1960.
Next up: Christians vs. Lions at the Super Bowl half-time show.
I haven't read all the comments, so sorry if this was already mentioned.
It's actually not up to you to give them their holiday or not.
First, I assume you meant to say "If the Muslims who work at this plant can be counted among the few
peopleMuslims who support the war on terror and denounce the most extreme Muslim fundamentalists," and weren't making a point about the current administration's unpopularity both here and abroad. Or should the plant's non-Muslim workers have to show a certain number of yellow ribbons and American flag bumper stickers before they are allowed to take New Year's or July 4th off?But even assuming that you are right that only a few Muslims oppose terrorism, the answer is still no, it's not relevant. This is a private arrangement between an employer and employees, and it isn't up to the rest of us to support or oppose it. Providing material support for terrorists is a crime, but "supporting" terrorism in the same way that I "support" opposition leaders in Zimbabwe (i.e., only in my head) isn't.
But why stop at refusing to let them negotiate their own holidays? If the Somalis really do hold thoughts we disapprove of, they shouldn't be allowed to hold jobs in the first place. In fact, why don't we just revoke their visas, green cards, or naturalization documents and deport them? Of course, with roughly 500 non-Somali Muslims working at the plant (according to the press release), we'll have to figure out what to do with the natural-born citizens working there, but maybe we can create some kind of camp to lock them up in.
If you mean the Detroit Lions -- and I say this as a longtime fan -- I recommend taking the spread and betting the house on the Christians.
More typical was the comment that is still my favorite, made the day after Yom Kippur senior year of high school -- "Brett, why were you out yesterday? You aren't Jewish!"
"Yeah, but I'm a sympathizer."
This is hardly a simple question, and I would love to see it discussed by some of the more legally educated denizens of this exalted Conspiracy.