Anomalous Data - Continued from "Rocky's OTHER blog"...religious freedom vs. drug laws.

Monday, December 27, 2004

Continued from "Rocky's OTHER blog"...religious freedom vs. drug laws.

“The needs of the many outweigh the needs of the few…or the one…”

That line conjures up the image of Spock, inside the engine room of the Enterprise, his flesh already showing the ravages of extremely high radiation. He’s willingly sacrificed his life for the lives of his friends. Sitting in the theater, an impressionable youth, I was moved to tears.

Spock was always my favorite. As a small child, often at the will of capricious and rather emotionally mercurial adults, he was a reassuring figure. He was gentle, compassionate, disciplined, consistent, and of course, logical. I wanted to be Mr. Spock when I grew up.

Sadly, capriciousness and emotional mercurialness (how is that in the dictionary? Weird) is part and parcel of my genetic code, and no amount of hero worship is likely to change that.

But I try, and in trying, I think I exercise the higher angels of my nature. While some of our best impulses are irrational, it is most often that our deliberate, rational actions propelled by those impulses, yield results of tangible goodness.

I think there are as many anti-utopian stories of good intentions gone horribly wrong as there are of cold, hard reason gone horribly wrong…cautionary tales of the danger of losing sight of any side of our humanity.

So there must be a balance, and in a universe where change and mutability are the only constants, that balance is always at the tipping point, and must be maintained…moment to moment. There must be constant questing, questioning, deliberation and even outright argument between our emotions and our thought so that equilibrium is maintained. This is human judgment on an individual scale. To be sure, there are the occasional melt-downs or shut-downs, and then we have to scrape together the scraps and start anew.

In a moment of crystal-clear logic and pure, heartfelt love for his companions, Spock made a decision that was painful in it’s beauty and clarity…a moment all the melodrama in the world could not spoil.

And he came out with the line “The needs of the many outweigh the needs of the few…or the one.”

And in that moment, if was true, and good and right. The sequel movie, of course, provides the necessary bookend to that statement. “Sometimes, the needs of the one outweigh the needs of the many…”

And in the context of that line, it was also good, and right and true.

What is significant about these quotes, and the contexts that they occurred in, is that in both cases, the people who’s needs were sacrificed did the sacrificing…out of love, honor, duty, and a sense of rightness and reason. Also, these decisions were not made lightly, or for the sake of convenience…but in the time of greatest need and danger for all involved.

I’m putting all of this before you, so you’ll understand where I’m coming from with this entry. The questions before us are, when do the needs of the few outweigh the needs of the many; when is it the other way around, who decides this , and how is the decision to be made?

We have a system that has worked, more or less successfully, for a couple of hundred years now…and I hope fervently that it will continue for at least a couple hundred more. In a universe of constant change and mutability, it seems a daring hope, but one I hold to nonetheless.

But I have had a few arguments that call this into question. The most recent occurred in my beloved husband’s personal blog. Follow the link, and read the comments section if you are interested in the blow-by-blow of this argument.

The argument generated from a discussion of the right to worship vs. federal drug laws. As I see it, the needs of the few (worshippers who use mind-altering drugs in their religious practices) vs. the needs of the many (society being safer from addiction and its deleterious effects).

The tenth circuit court made the decision to throw out drug charges against a small congregation in New Mexico for using a hallucinogenic tea in their worship services. This is part of an established religion from Brazil, and it is not made up for the purposes of getting through a loop-hole to get high legally. It’s also not unheard of in indigenous North American religions…look at the back-and-forth that has gone on with Peyote use, or the use of tobacco by underage Native worshippers. Going more mainstream, the giving of communion wine to underage children as part of a religious ceremony is also an example of religious practice in legally accepted conflict with the law.

The person I was having the argument with disagrees with the court decision to throw out the drug charges based on religious freedom.

My argument is not with the fact that he disagrees with the court. Obviously, there is a lot of latitude within the legal system to argue the specifics of their decision…and most likely this question will arise again…with a case that has better potential to create clear and defining precedent.

My argument is instead with the basis of his objection to the decision.

His argument is based on the assertion that the courts have no right to uphold religious practices that conflict with the law. He denies that it is the role of the courts to interpret the law and most importantly, to balance the rights of the few against the will of the many. His assertion is that it is merely the role of the courts to hand down sentence as detailed by the letter of the law.

This wouldn’t worry me if it were one person’s fundamental misunderstanding of the checks and balances system...but the growing antipathy against “activist judges” thwarting the “will of the people” has me very worried.

It appears that we have a mainstream misapprehension that it is in the best interest of this country to remove the safeguard of deliberative courts from the equation.

The letter of the law is fairly immutable. Once passed, it is difficult to get a law changed, and laws are often notoriously badly written. Laws are created in the legislature, ideally by the will of the majority of the people that the law will apply to.

They are enforced by the executive branch, ideally in accordance with the intent of the law and once again in accordance with the will of the majority of the people who will be subject to the law.

So, we have the needs of the many covered. The courts have, historically (as provided for in the constitution and the intention of the framers), been the place where the needs of the few are championed. Often to the annoyance of the many who think it’s just plain stupid that a bunch of discontented wackos can grind the gears like this.

The discontented wackos vary in their make-up depending on the case…Atheists, Christians, Muslims, black, white, asian, Native American, Amish, the elderly, minor children, women, pacifists…the list goes on to the point where somewhere, at sometime, some court has contributed a decision that became a precedent that most likely guarantees your right to do something that the majority of people in the country would like to stop you doing…

And most likely they have made decisions that prevent you doing something that the rest of the country thinks it’s in everyone’s best interest to prohibit.

Earnest citizens come down on both sides of the drugs/religion issue. They have good arguments and they see the point of the opposite side’s arguments. Often, they come down on both sides of the issue depending on the particular case. This is due to the deliberative process, where there is a constant striving to find the best possible balance between the few and the many. It’s part of recognizing the underlying struggle, and the ultimate goal of a free and open society. It’s hard, it’s messy, and it is always most critical in that fuzzy grey line that exists between absolute black and absolute white.

The problem is, as often is the case, ideologues. Pro-drug ideologues, anti-religion ideologues, pro-religion ideologues, pro-my-religion-anti-every-other-religion-ideologues…etc.

The inability to grant to another opinion any form of legitimacy…to see that in some cases the law can be in conflict with itself…to see that sometimes it is in the best interest of everyone that the rights of a few be protected…to understand that sometimes your ideas have to give precedence to someone else’s for the greater good…to be flexible to the demands of reason and deliberation…that is the greatest danger that I think we face right now. The inability to function within that fuzzy grey line, to see that there is a place where back and white meet and things are not so simple.

And while I disagree with most of the people running the federal government right now, on many, many things, I do not consider them to be as dangerous as the idea that the courts should not continue as deliberative bodies, that they should not be allowed to interpret the law, and that they must now exist merely as rubber-stamp automatons for handing out punishments.

This is a fundamental issue here; that goes to the very base of what America is, has been and was meant to be. If we deny that it is the role and responsibility of the court to interpret the law and to deliberately, carefully and with discernment, balance the needs of the few and the needs of the many…then we deny one of the founding principles of our society.

This system also depends on the goodwill, thoughtfulness and love of its citizenry…and that is also something that is in danger.

Monday, December 27, 2004 1:06:04 PM (Central Standard Time, UTC-06:00) | Comments [24] | Philosophical | Political

Monday, December 27, 2004 7:01:59 PM (Central Standard Time, UTC-06:00)

Hey! I'm pro-drug and anti-religion! Woohoo, a twofer!

The Evil Cub

Monday, December 27, 2004 9:11:20 PM (Central Standard Time, UTC-06:00)

i'm pro-legalisation of pot...and anti-religion...but not necessarily pro-drug as I've seen the personal devistation that misuse can cause...but I also know a lot of people who are responsible users, and well...as someone who has helped three other people through the second pitcher of Colorado Bulldogs (Rocky's bartending specialty) tonight...I can't cast the first stone.

mmmmm...creamy yummy Bulldogs...

Trees

kemaris

Monday, December 27, 2004 10:17:55 PM (Central Standard Time, UTC-06:00)

“We have a system that has worked, more or less successfully, for a couple of hundred years now”

That all depends on which system and how we are defining “worked.”

“He denies that it is the role of the courts to interpret the law and most importantly, to balance the rights of the few against the will of the many.”

In no way have I ever denied that one role of the Courts is to interpret law. In this case, the Courts are required to interpret far more than the law. They are required to interpret and validate someone else’s personal belief system. Of course, every judge and jury will interpret from the perspective of their own belief system which is predominantly Christian. So, Christian-like excuses will generally fly and non-Christian-like excuses generally won’t. Furthermore, religions that have a “track record” will be given more legitimacy. In other words, if you can get away with an illegal practice long enough, it can be established as tradition. By far the best way to grant legitimacy to *every* religion is ensure that they all abide by same laws. That still provides a tremendous degree of latitude in the expression of their beliefs.

Your lengthy argument comes down to the same point: you think there are times when the use and possession of currently illegal drugs should be legal. Ok. Then have the laws changed. If you think that laws are difficult to change, then have the process by which laws are changed, changed. But having Christian judges and mostly Christian juries decide which religious practices are an excuse for essentially illegal acts and which ones are not is a process fraught with peril.

BTW, have you noticed that every one of these situations deals with an old religion? What about new religions and new revelations? There is a clear push to disbelieve any modern day revelations (which should be applied to old religions as well IMO) or beliefs that might be developed. How does the court plan on handling that situation? Imagine Jimbo Bob claims a mighty something or other came down from the heavens and told him that he can get closer to his deity/deities by smoking marijuana. How does the court plan on handling personally spiritual situations not based on an organized religion? Using the Jimbo Bob example, he claims a personal spiritual experience. Based on precedent, he would most likely be denied because it is not an organized religion. Furthermore, one could argue that *any* drug that only affects the person involved (rightly so IMO) and thus should be legal. Ok. Then have the law changed.

Thomas

Tuesday, December 28, 2004 10:46:45 AM (Central Standard Time, UTC-06:00)

Thomas,

If I put words in your mouth I apologize. The statement that confused me was this one:

"This case revolved around the dispensing of an illegal drug in a technically illegal manner. The defendant should have been found guilty and then left it up to the judge to provide a sentence that accounts for the mitigating circumstances. The law is fairly clear about drug use and possession. If people feel that certain illegal drugs should be available for use in religious ceremonies, then they should have the law changed. Simply changing the interpretation of the law based on the whims of judge is lunacy. You’ll run into situations where using a drug is ok for one religion and not another. It will create an environment of favoritism based on the opinions of the judges."

You seem to be denying that the law is open to interpretation, and that that the constitution and case history are valid reasons to say a law cannot be applied to limit the free exercise of religion….equating their reasoning in the decision to “whims of the judge”.

Lets talk about new religions a little. Scientology is a new religion. It has successfully established a very extensive and established church here in the United States, which has flourished in just a few decades. It is not Christian or Christian-like, and yet it has not been "oppressed" by the courts, despite a widespread belief that it was started on a bet between science fiction writers and is now merely a tax-shelter revenue-generator for those at the top. In fact, their success at defending themselves through the courts of this country and others has been a source of much public comment.

The establishment/prohibition of free exercise clause clearly states...
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

So that is the law that you were saying we needed for the courts to make the decision that they did. We do not need new law to support the courts decision in the case under discussion, as this is the law that forms the basis of their decision. The constitution trumps subsequent law…unless the constitution is modified to accommodate said law.

The 1963 Sherbert Vs. Verner decision requires the test that the government must provide “compelling State interest” in applying laws to religions who’s practices conflict with law.

Church of the Lakumi Babalu Aye, Inc. v Hialea; struck down an animal cruelty law that was specifically tailored to limit the practice of a religion (non Christian).

Wisconsin Vs. Yoder says that governments should not substantially burden religious exercise without compelling justification.

Pagan worship (non Christian) has been upheld by various courts

Dettmer v. Landon 799 F.2d 929 (4th Cir. 1986) Click HERE
(Reflects federal constitutional law: binding in 4th Circuit only (which includes Virginia); persuasive precedent
elsewhere)
* Church based on Wicca/Witchcraft is religion for purposes of protection under First Amendment Free Exercise Clause.

* Courts must accept belief as "religious" so long as: it is sincere, it occupies a meaningful position in the individual's life, and it relates to that individual's ultimate concern (i.e. is spiritual).

* Protection of the First Amendment Free Exercise Clause in no way depends upon the truth or veracity of a belief, or the logic or consistency of a belief.

* The Church of Wicca, which is based upon Wicca (also known as Witchcraft) is religion for purposes of the First Amendment Free Exercise Clause, because its
members sincerely adhere to a fairly complex set of doctrines relating to the spiritual
aspect of their lives, and their ceremonies, leader structure, elaborate set of articulated doctrine, belief in the concept of another world, and broad concern for improving the quality of life of others, give it facial similarity to widely-recognized religions.
William B.. Wheeler VS Patricia Condon, P.S. Docket No. MD-45 (Jan 1989) In which there was a legal dispute argued before an U.S. Postal Service Administrative Judge, regarding the delivery of mail. In the decision the postal service found that Y Dynion Mwyn was a religious tradition, that The Church of Y Dynion Mwyn (a Witchcraft Church) was a legal non-profit church. http://www.usps.com/judicial/1989deci/md-45.htm
Roberts V. Ravenwood Church of Wicca, 292 S.E.2d 657,658 (Ga. 1982). Similar to Dettmer v. Landon.

Dettmer V. Landon, 799 F2d 929 (4th Cir. 1986), cert denied by Dettmer v. Murray, 483 U.S. 1007 (1987). Landmark case in which Wicca is recognized as a protected religion.

United States v. Phillips, 42 M.J. 346, 349 (C.A.A.F. 1995) (quoting Army Chaplain's Handbook). Extended pagan rights, in that it recognized the Army Chaplain's Handbook as legal evidence, specifically that a pagan's Book of Shadows held the same position as a sacred text as the Bible does for Christians.

Alvarado v. City of San Jose, 94 F.3d 1223 (9th Cir. 1996).

Reese v. Coughlin, 1996 WL 374166 at *3 n.3 (S.D.N.Y. 1996). Prisoners rights case.

Rouser v. White, 1996 WL 631130 at *1 n.1 (E.D. Cal 1996).

Rust v. Clark, 883 F. Supp. 1293, 1297 (D.Ne. 1995).

Church of Iron Oak, Inc. ATC v. City of Palm Bay, Fla., 868 F.Supp. 1361, 1362 n.1 (M.D. Fla 1994).

Nichols v. Nix, 810 F. Supp. 1448, 1451 (S.D. Iowa 1993). Iowa case recognizing Wicca as a religion.

Brown v. Woodland Joint unified Sch. Dist., 1992 WL 361696 (E.D, Cal. 1992). Textbook challenge, in which Christians challenged textbooks which discussed witchcraft (anti-establishment clause).

In re Bartha, 134 Cal. Reptr. 39 (Cal. Ct. App.1977). First case in which Wicca was a court issue; the court didn't go so far as to recognize it, but did allow astrology as a religious practice.

This is by no means a comprehensive list, nor a disciplined study of case law...merely examples that refute your claim that Christian bias in the courts makes it impossible for religion to be handeled fairly in the courts.

kemaris

Tuesday, December 28, 2004 3:07:40 PM (Central Standard Time, UTC-06:00)

oops.

Tha above information on pagan court cases was taken from this web sit:

http://www.tylwythteg.com/caselaw.html

I forgot to give citation. Bad me.

Trees

kemaris

Tuesday, December 28, 2004 3:34:09 PM (Central Standard Time, UTC-06:00)

"Courts must accept belief as "religious" so long as: it is sincere, it occupies a meaningful position in the individual's life, and it relates to that individual's ultimate concern (i.e. is spiritual)."

Do we really want the courts to decide what constitutes 'meaningful' as far as religion in an individual's life goes? Sounds like a spooky step to take to me.

And by this logic, if someone merely pays 'lip service' to the Catholic Church and allows their children to partake in communion wine, aren't they then committing a crime? If the church has no real 'meaning' to them, why would this not be the crime it would otherwise be in a non-religious setting?

The Evil Cub

Tuesday, December 28, 2004 4:47:02 PM (Central Standard Time, UTC-06:00)

I'm sure "the courts" would be more comfortable if they didn't have to define what constitutes "meaningful" as well.

Unfortunatly for them, it is their job to protect people's rights to it, and to protect it, they have to define it...to describe what they are protecting and why...I don't know how else you would do that...

kemaris

Tuesday, December 28, 2004 9:03:01 PM (Central Standard Time, UTC-06:00)

Perhaps I'm just uncomfortable with anyone who is elected to their position being given the authority to decide what beliefs - or anything else for that matter - are meaingful to one person but not to another. I mean, and espcially in this context, we can't just have them saying everyone's beliefs are de facto 'meaningful', because them anyone could claim that doing anything they felt like doing was a divine revelation - it would all be equally 'meaningful', and therefore all meaningless. But at the same time, I shiver when I think of judges elected to an office (or even appointed to it by elected politicians) who use a particular partisan ideology to decide which beliefs, and the degree to which one person or another holds them, are meaningful.

You know what I mean?

The Evil Cub

Tuesday, December 28, 2004 9:10:20 PM (Central Standard Time, UTC-06:00)

I know what you mean.

kemaris

Wednesday, December 29, 2004 12:45:47 AM (Central Standard Time, UTC-06:00)

Warning, this is a long post.

“You seem to be denying that the law is open to interpretation, and that that the constitution and case history are valid reasons to say a law cannot be applied to limit the free exercise of religion….equating their reasoning in the decision to “whims of the judge”.”

Not at all. I am stating that I do not think that judges (or juries) should be put in a position where they have to judge the validity of another person’s spiritual beliefs. The evaluation of another person’s spiritual beliefs is a whim of the judge and/or jury.

RE: Scientology
Firstly, Scientology is an organized religion that has been around since the 60’s I believe with something of a track record for ceremonies. Further, I do not believe that Scientology has come up in cases like this where they are using an illegal substance for religious purposes.

The establishment/prohibition of free exercise clause clearly states...
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

The First Amendment merely proves my point. We can’t make a law with respect to religion, but you are expecting judges to evaluate the validity of them none the less. That’s hypocritical. It is far more logical to have judges evaluate actions based on purely on secular law. It avoids any hint of the government infringing or evaluating the beliefs of others. Everyone is required to abide by the same set of rules.

Analysis of the cases you presented:

RE: 1963 Sherbert Vs. Verner
I could not find this one, but taking that your assessment of the content of this decision to be accurate; this has nothing to do with using religion as an excuse for illegal actions other than preventing the legislature from making laws that allow for it (which is a good thing IMO).

RE: Church of the Lakumi Babalu Aye, Inc. v Hialea
I could not find this case law so I cannot speak fully as to its contents. However, given what you have said, it still relates to the legislature attempting to pass a law limiting religion. That’s not the issue at hand. I fully agree with the limitations on creating legislation that limits religion. My point is that we also not ask the judges to do exactly that by interpreting the validity of someone’s belief system.

RE: Wisconsin v. Yoder Et Al. (1972)
This case merely related to whether the Amish were compelled to send their children to High School. Basically, the court held that the parents were allowed to raise and educate their children according to their wishes. I think the simpler judgment would have been that parents should be accorded the right to educate (or not) their children in any way they see fit and in fact they cite examples of this very position. Personally, I think the compelling issue is not religion v. state, it is instead related to the authority of the state to compel parents to raise their child a certain way.

RE: Dettmer v. Landon, 799 F.2d 929 (4th Cir. 09/04/1986)
This case was about an inmate that wanted certain items for this religious study of witchcraft. The appeals court decided that only those items which were deemed safe according to the Prison’s guidelines were allowed. This also supports my assertion that the action must be legal regardless of the religion.

RE: William B. Wheeler vs. Patricia Condon
That dispute was over who was allowed to get mail at given address. It was finally decided by determining that Condon did not have authority over the address because she nor the address was mentioned in the articles of incorporation for the Church. Firstly, this looks like arbitration not law. Secondly, this came down to who could provide written documentation (ie. a paper trail). That only works for an organized religion. This was basically a coin toss as to who “best” had authority over the mail. This had nothing to do with tradition. It had to do with documentation.

RE: Roberts et al. v. Ravenwood Church Wicca(04/06/82)
This was soley over whether the Wiccan church qualified for a tax credit as a “religion.”
Firstly, notice that this is a religion with old roots. That means that there is a long paper trail of its existence. That helped considerably in their defense. It also helped that the proprietor, Lady Sintana, was already a recognized authority by the state for the performance of marriages.

(From Roberts v. Ravenwood)
“For this reason, courts are loath to inquire into the merits or truth of any set of purportedly religious beliefs. We too will not trespass in this area.”

Hear! Hear! Courts should stay out of the business of validating the worth of a religion. IMO, the tax exemption for religious dwellings should be removed altogether. That would have certain made this situation far easier to resolve.

(From Roberts v. Ravenwood)
“The statement of Justice Hughes in his Dissent in United States v. Macintosh, 283 U.S. 605, 633-634, 51 S. Ct. 570, 578-579, 75 L. Ed. 1302, has emerged as a basic guide: 'The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.'”

Excuse me?! That implies a single deity. That implies inherit powers required to pass the test of a deity.

“as long as the group holds a sincere and meaningful belief in God occupying in the life of its possessors a place parallel to that occupied by God in traditional religions, and dedicates itself to the practice of that belief”

What?! So, firstly, as long as your religion looks and smells like our religion, it’s ok. Suppose my deity occupies a place completely different in my life than that of traditional religions. Do you see how ridiculously slippery this kind of subjective nonsense is? He is using his own religion, Christianity (it is Georgia after all) as a barometer to validate other religions. This is exactly the kind of judgment we *don’t* want judges to make for these very reasons.

“As stated by Judge Seiler in his Concurring opinion in Missouri Church of Scientology v. State Tax Commission, 560 SW2d 837, 845-846 (Mo. 1978), "We should be careful not to do anything to restrict religious freedom . . ., but if it is necessary to define religious worship or religion, . . . we should restrict the definition to conventional orthodox religions . . . History shows that what is orthodoxy today was once heresy."”

Again, if it smells like our religion (Christianity) then it’s ok.

In the end, the Wiccan’s got their tax exemption because the Court disagreed that language of the law implied that the dwelling must be exclusively used for religious purposes.

RE: United States v. Phillips, 42 M.J. 346, 349 (C.A.A.F. 1995)
Couldn’t find this one. Would need to read the actual decision to form an opinion on its contents

RE: Alvarado v. City of San Jose, 94 F.3d 1223 (9th Cir. 08/23/1996)
This was about whether an Aztec snake was considered religious and thus could not be put up in City Hall. Shockingly, it was the fundamentalist Christians behind this one (big surprise). In that decision was laid out a test to whether something was a “religion” for the purposes of the First Amendment are:
1. A religion addresses fundamental and ultimate questions having to do with deep and imponderable matters.
2. A religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching.
3. A religion often can be recognized by the presence of certain formal and external signs.

Item #2 is pretty vague and I’d have to read more of the supporting material to determine what they really mean by “consists of a belief-system.” It implies that a spiritual experience would not count as a religion and is not protected by the First Amendment but maybe not. The word “system” implies that it has to have some sort of protocol by which you interact with said deity/deities/uber-beings. Btw, the Court decided that snake was not considered religious and thus the City did not violate the First Amendment by putting up a religious symbol.

Actually, there are some fascinating opinions written in this decision which substantiate the claim against “Under God” in the Pledge, but that’s another story.

I could go on, but I think that’s enough for now. Even the Courts admit that any decision that requires legitimizing something as a religion is a touchy subject and one to be avoided. “Avoiding” in this case means finding a secular solution. In every case I can find, secular law superseded religious doctrine. Most of the cases were ones where someone was trying to qualify for a tax exemption or have use of contraband materials in prison. In every case I read, the Court upheld the prison’s guidelines. The Roberts v Ravenwood decision is a true Georgian bible-thumping opinion with all of the problems that follow when the Courts try to decide if something is a religion or not. If we removed the tax exemptions and simply stated that secular law superseded religious doctrine, it would make it far clearer to everyone and the Courts.

As I said, allowing illegal acts done under the auspices of religion is fraught with peril. Further, it most definitely does establish a Christian bias in the courts.

Thomas

Wednesday, December 29, 2004 9:19:00 AM (Central Standard Time, UTC-06:00)

OK, this has been a very interesting conversation, but if you are going to bring up secondary and tirtiary issues, and then dismiss my points about them as not on point...then there really isn't much more I can say to you.

for instance,
You claimed that new religions wouldn't be able to get favorable hearing in the courts. I brought up Scientology, as a new religion (only a few decades old), and you dismiss it as off topic (not dealing with illegal acts)...I was addressing an issue YOU brought up...yes, Scientology is now an established religion...but it has been established very recently...and much of what made it's establishment possible were the actions of American Courts. If American courts were hostile to new religions, it would not have reached the level of influence and establishment it has in just a few decades.

Also, the pagan stuff...saying it is possible for American courts to make favorable rulings with regard to non-Christian religions. There are biased judges and jouries, but there are many more biased voters and law-makers and enforcement agencies.

Historically, the courts have been the last defense against abuses of law, law enforcement and the tendancy of the majority to limit the rights of others. Saying that they have no right to make the ruling in question is a dangerous slide to limiting their ability to do so...and comes dangerously close to saying they should not be allowed to provide that protection...a sentiment that is growing in popularity amonst people who would love to pass laws that limit the practice of religion outside of mainstream Christianity, and that impose those values on the rest of us. Public sentiment against "activist judges" is contrary to the actual function of the law in our country historically, and plays into the hands of religious puritanism.

With regard to the establishment clause, the consitution IS law. Therefore, judging whether a law infringes on religious freedom is the purview of the court, as dictated by law. In order to defend religious freedom under the law, the courts must be able to deliberativly decide what religion is, what constitutes infringement, and also not allow for the abuse of the law by opportunists. It is a delicate balance, one that the courts are continuoously re-examining, and one that they will likely have to continue to re-examine...but it is absolutly their responsibility to do so. The fact that they would rather avoid further defining of religion wherever possible is responsible...but in no means a proof that it is not their place to do so when required by the case. If the issue can be resolved legally without contributing to the bulk of case-burdon with regard to religion, they have and should...but where the issue cannot be resolved without such judgements, then they are required to do so, and no doubt do so very reluctantly in most cases...but avoid it if they can...as shown by Roberts Vs. Ravenwood.

To your summary statement:

"As I said, allowing illegal acts done under the auspices of religion is fraught with peril. Further, it most definitely does establish a Christian bias in the courts."

Any decision of a court is fraught with peril. That's why people should pay closer attention to the judges they elect than to the president (but we don't...I'm also guilty, it's true...although one step you can take is to go to the Bar Association, and see who they recommend for judges.)

The courts have the unique responsibility to employ human judgement to reconcile conflicts within the law. To balance the needs of society with the needs of minorities and individuals. They must create definitions and guidelines for doing so, and when those guidlines fail to adequately address the case...they must break new ground. The decision in this case doesn't exactly break new ground...but it DOES cover very sparsly and variously populated ground,...ground most courts would rather avoid. The case law of this issue is very spotty, and this is but one more pixel in the big picture...but it was based on other cases similarly decided, in preferance over cases that went the other way, for various reasons. No doubt, it will be quite a while before a clear picture emerges, but that is how the process works.

WRT Christian bias in the courts; there is a Christian bias through every branch of our society and government...the courts have historically been the place where people can go to defend their rights to religious freedom..and weakening the courts ability to do that is not in the best interests of anyone.

Finally, the courts did not allow an illegal act under the auspices of religion. The court said that the law could not appy to the act in this case because it was a religious act. So the court did not say that a guilty person was innocent due to religion, but that there was no guilt in this specific case, as by law,(constitutional law, which supercedes other law), the subordinate law could not be applied to the action.

kemaris

Wednesday, December 29, 2004 9:38:41 AM (Central Standard Time, UTC-06:00)

Cub,

The judges in question are not elected, they are appointed. We're not talking about state district judges here, we're talking about federal district judges. They are appointed by the President and approved by the Senate. Then they are there for life.

While this is not perfect and does give opportunity for bias, there is some level of balance for a couple reasons.

First, the Senate provides some protection from the President's bias. For instance, our current President has had around 20 would-be judges blocked in the Senate thus far, and Clinton likewise had numerous appointments blocked.

Second, there's time. These people are appointed for life. They outlive their appointers, and in some cases the Senators that approved them. Due to this, these judges provide a type of long-term balance not present in either of the other branches of government.

The other thing that a life appointment does (or is supposed to do) is remove the pressure of election from the judge. They are there. End of story. Once there, they can judge based on their training, the precedent of law and all the wisdom they can muster.

There are numerous cases where judges and justices, appointed by one party, have gone directly against the desires of their appointers. Why? Because once appointed and in office, they are accountable only to the other judges and justices and to the law itself.

Is this perfect? Of course not. We are human. The idea that we can create a perfect system is laughable. The Tibetan monks have it right. When they do their most exquisite sand paintings, there’s always a flaw. Put there to remind them and us that humans are not perfect. If perfection exists it is in a supreme being or power and is out of our direct reach.

Illiante

Wednesday, December 29, 2004 1:58:04 PM (Central Standard Time, UTC-06:00)

I've been following this conversation since I got back from X-mas, and while everyone has been doing a good job with "Thomas", there are a couple of things I've noticed in his arguments that I'd like to point out.

First, he used a strawman attack against Kemaris early on, and when he was called on it he simply turned around and hurled the same accusation back - without any indication of what the alleged strawman argument was.

Second, whenever anyone points out that the role of a judge is to interpret the law, his response is, "In no way have I ever denied that one role of the Courts is to interpret law," yet the position he keeps repeating over and over again is, "Don't like the law? Ok; then have the law changed," by which he clearly and specifically means instead of having judges interpret law.

I am especially uncomfortable with Thomas' handling of this argument because I am in complete agreement with his fears regarding Christian bias in the judicial system. I also, like Illiante, realize that it is to some degree entrenched and has been for centuries - and that the real measure of how well such a system works is how far past his or her bias a judge can manuever. I think we're heading for a dark age; Illiante and Kemaris are counting on the liberal activist spirit to awaken, I fear that it is being smothered in its sleep... we've been having variations of that discussion for many years, sometimes calmly, sometimes a little heated. With regard to Illiante's view that these decisions show that Christians can find find tolerance and goodwill in their judicial decisions regarding things they personally don't like... I say maybe. Let's wait a few years and see what happens to the judicial landscape after the Bushneviks have sunk their claws in deeper...

But it's embarrassing to see (part of) my view represented by someone whose argumentive technique is a lengthy and well-worded version of sticking his fingers in his ears and yelling "Nyah! Nyah! Nyah! Nyah!" It says a great deal about his intellectual integrity - or lack thereof. Arguing a point is one thing, trolling for flames is quite another. Thomas' goal appears to be the latter.

Rick

Wednesday, December 29, 2004 3:21:47 PM (Central Standard Time, UTC-06:00)

Yes, I realized late in my arguemnt that appointed judges were at least some of what was being talked about _ I slipped in a mention of election and appoitment by elected officials. However, while it is true that at least some judges appointed to life terms prove to be willing to stand up for some sort of standard at some point, there are many (*cough*Clarence Thomas*cough*) who do exactly what they were appointed to do and seem content to never go beyond doing exactly what their ideological masters tell them to do.

And I still think this entire argument is more or less spurious hand-waving. While I don't think our political officials of any branch have the right to tell us which particular flavor of irrational belief in supernatural entities is more or less correct than others, I also think that the entire basis of the argument that they have the right to limit our behaviors because of the 'danger' they represent is essentially and basically flawed. As I mentioned elsewhere, until they step in and disallow snake-handling, there is no basis for limiting any other religious activity on the basis of danger whatsoever. There is no way in which the injection of rattlesnake venom is not more dangerous than the brewing of hallucinogenic tea - or the smoking of a fat doobie for that matter.

And on an even more fundamental level, the government has no right to tell us what drugs we can or can't use because of the 'danger' of those drugs while the government continues to profit from the production of alcohol and tobacco. And then there are those 'government approved' drugs that kill hundreds of people every year, and yet are not pulled off the shelf (quite rightly, because they do more good than harm by any rational, objective measurement).

I deny fundamentally the right of the government to tell me what I can and can not do in the privacy of my own home when it causes no harm to anyone else, especially when the government in question is hypocritically profiting from one set of mood-altering substances while irrationally fighting to keep another set illegal.

The Evil Cub

Thursday, December 30, 2004 1:22:29 AM (Central Standard Time, UTC-06:00)

Firstly, let me clarify. I fully agree that judges are required to interpret the law as it relates to a specific case. However, I am suggesting that we should not even put judges in the position of validating the existence of a religion in the first place. This is a form of interpretation that I feel should be eliminated through legislation. In short, I would rather not have judges having to make decisions about religion by eliminating special treatment to religion. People should have the right to practice their religion in any way they want *as long as* it does not violate the law. Religion should never be allowed as a defense for otherwise illegal behavior.

RE: Scientology
I dismissed the comment on Scientology because I initially did not think it was relevant. However, on consideration, it may be relevant to consider the cases involved with Scientology. The courts have clearly decided that Scientology is a religion. However, AFAIK, most of those cases specifically related to tax exemption (please correct me if I’m wrong). Similarly, the Wiccan case related to tax exemption. I’m suggesting that tax exemptions for religions should be eliminated. That would preempt the necessity for people to prove, in a Court of Law, that their organization qualified as a religion and thus tax exempt status.

“Saying that they have no right to make the ruling in question is a dangerous slide to limiting their ability to do so...and comes dangerously close to saying they should not be allowed to provide that protection”

On the contrary, I’m saying that we should not put them in the precarious position of validating someone’s belief system. We can accomplish that by not giving special favor to behavior under the auspices of religion and in fact, if you look at the actual text of the decisions being made, they certainly imply that secular law trumps religion.

“Any decision of a court is fraught with peril.”

That’s a sophomoric response. You are taking my comment to ridiculous extreme. The danger with judges validating illegal behavior done for religious purposes is that it provides a loophole for anyone to commit that illegal behavior.

I’m not suggesting we change anything about the Courts per se. Instead, I’m suggesting we change the law so that we don’t have to put the Courts in the position of validating whether Jimbo Bob’s Hail Bot club is a religion.

“Finally, the courts did not allow an illegal act under the auspices of religion. The court said that the law could not appy to the act in this case because it was a religious act.

Sooort of. I have read the actual decision (O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 09/04/2003)). Technically, hoasca is an illegal substance to possess, acquire or use. However, a huge reason that UDV won their case is because the Government could not prove that the drug was harmful. This begs the question of why it is illegal in the first place. (The answer is that hoasca contains DMT which is illegal.) If the drug isn’t harmful, then it shouldn’t matter whether they were using for religious purposes or not. If the drug is harmful, from the way the decision is written, the Government would have probably won the case. (In fact, I suspect that if scientific studies find that it is harmful, the Government will reopen the case.)

There was a lot written about the religious aspects of the case. It still appears, from the language in the decision, that when you boil the case down, UDV won for reasons that really had little to do with religion which was not my initial impression. I still think it would have been simpler and clearer if religion had had no bearing whatsoever. It should have simply come down to one group wanting to use a drug the Government thinks is dangerous. Since they couldn’t prove it was dangerous, it isn’t illegal to use it.

What I hope that we all agree is that if an act is considered illegal, it should be illegal regardless of whether you are doing a rain dance ceremony.

Thomas

Thursday, December 30, 2004 1:26:05 AM (Central Standard Time, UTC-06:00)

RE: Rick
Kemaris’ straw man argument:
“So, the law should be a dead, ridgid, inflexible thing that lops off all unsceintific unquantifieable aspects of the human condition, should not be open to interpretation, and should subject us all to the same mechanistic requirments without respect for concience.”

RE: Changing the law
I’m suggesting that we change the law so we don’t *have* to put judges in the specific position of validating someone’s belief system. Further, I don’t feel that behavior that is otherwise illegal should be excused because of religion. So, taking my own advice, I think the law should be changed such that we do not need for judges to make decisions about the validity of religions because they would have no status that would afford them special privilege (e.g. tax exemption).

Evil Club’s argument regarding whether the government should be allowed to regulate drugs at all is a good one. Clearly, without that restriction, this entire case is irrelevant.

Thomas

Thursday, December 30, 2004 7:55:57 AM (Central Standard Time, UTC-06:00)

> RE: Rick
Kemaris’ straw man argument:
“So, the law should be a dead, ridgid, inflexible thing that lops off all unsceintific unquantifieable aspects of the human condition, should not be open to interpretation, and should subject us all to the same mechanistic requirments without respect for concience.”

I went back and re-read the post that she was replying to. The comment you quoted above was clearly Kemaris' distillation of your argument in that post and previous ones. You make not agree, or find it unfair or overly simplistic, and if any of those are the case you should certainly feel free to say so.

But a strawman it ain't.

Previous to this, you had used a strawman argument against Illiante on his blog (the 'crack' post) and he called you on it in his subsequent post. You then used a strawman argument against Kemaris - "So, according to that logic, every drug offender (especially marijuana smokers) could claim that they were participating in a religious, spiritual ceremony?" Remember that one? She didn't call you on it that time, but did so with a later one.

I would accuse you of not even knowing what a strawman argument is - but your use of them against others is quite pointed and specific.

I also find it interesting that you posted under oviously made-up email names, and later with none at all. This is not the behavior of someone who is participating in a discussion, this is someone hiding in the shadows and throwing stones. My original judgement stands. Your intentions are not honest or honorable. You are simply a troll; someone whose sense of personal validation is derived from the fights he can pick over the safety of fiber-optic lines, someone who has a burning need to be 'right'. And it is contemptible.

Rick

Thursday, December 30, 2004 9:01:52 AM (Central Standard Time, UTC-06:00)

I would also agree with Cub that this whole argument would be moot if "the war on drugs" didn't exsist. That we have the reality we do is inescapable, however, so I choose to deal with the situation as it is, rather than the situation as I would like it to be. As I personally know Cub, I know that to be the case with him as well.

I also agree that personal choice, responsibility and accountability is more desirable than arbitrary directives of behavior by our government.

My problem with legalization is that few arguments look beyond the legalization of "street drugs" and make no accomidation for the regulation of pharmacuticals. The two are tied together, so while I am pro-legalization, I am also pro-regulation, and that is a position that (once again) marginalizes my ability to contribute to any conversation on the topic, as people who are pro-legalization tend (in my experiance)to be catagorically anti-regulation, and most people (in my experiance)seem to be catagorically against legalization.

But I am of the opinion that regulation is essential for true choice, as consumers of "street drugs" frequently find that their "choice" to smoke pot also includes the risk of getting all sorts of undisclosed crap in the form of other drugs used to "lace" the drug they think their taking, unknown potency, undisclosed quality, and popularily unknown and scientifically unexplored possible side-effects...the right to choose is meaningless in the absence of reliable, honest disclosure of information.

...and I do not think that this would improve with legalization without regulation.

I might also point out that the acceptance of the use of drugs in a religious setting could be seen as a useful foot-in-the door for legalization...just as the accepted use of "medical marijuana" could be...not in the form of precident (as revolutionary, wide-sweeping decisions with society-wide impact in conflict with the will of the majority based on precident are quite rare...and usually only have the impact of preserving the rights of a targeted minority against a specific threat), but instead in the court of public opinion, which is necessary for any law to be changed.

People have a lot of silly ideas about street drugs, both on the side of "they're harmless" and "they are instant death". Responsible use in carefully controlled nitch situations contributes to demonstrations of the real-life circumstances of the users of these chemicals. If it brings horrible consequences for individuals and society, we will see it demonstrated. If it does not, and I believe it will not, we will also see that demonstrated.

Evidence of what is real is superior to "street" information disseminated by dealers and uninformed users, and "official" information disseminated by corporations, the government and anti-drug ideologues.

If you want to change people's minds, you have to show them evidence of their error. Having pockets of population where this is possible could be of more benefit to the goal of legalization than Thomas's ad hominim attacks on people's belief systems, and tactically manipluative rhetorical style.

Trees

kemaris

Thursday, December 30, 2004 9:10:22 AM (Central Standard Time, UTC-06:00)

I fully understand the straw man tactic and yes I did use it a couple of times for which Rocky called me on it. In the original situation, I was really going for a rhetorical hyperbole rather than a straw man argument per se. Kemaris’ reply was clearly over blowing my position entirely, setting up a ridiculous position and then shooting it down; thus, a straw man argument.

I posted under a made-up email address because both blogs (Rocky’s and this one) make the email address public. I prefer to avoid spam bots if you don’t mind. If the email addresses were not posted, but the blogger wished to have them to help legitimize the posters, I’d be in full agreement with that.

Your use of an Ad Hominem attack on me instead of my position is completely off the mark and is a clear sign of insecurity. My intention to help further the discussion about the relevance of this case is an honest one.

Thomas

Thursday, December 30, 2004 9:43:11 AM (Central Standard Time, UTC-06:00)

>Kemaris’ reply was clearly over blowing my position entirely, setting up a ridiculous position and then shooting it down; thus, a straw man argument.

I found it an accurate summing up of your rhetoric. Again, your tactic has been to engage in strawman attacks and then hurl the accusation at others when called on it.

>I posted under a made-up email address because both blogs (Rocky’s and this one) make the email address public. I prefer to avoid spam bots if you don’t mind. If the email addresses were not posted, but the blogger wished to have them to help legitimize the posters, I’d be in full agreement with that.

Create an email simply for blogging purposes then, like nearly everyone else does. Hotmail, Yahoo, Excite, Freeze, Hushmail... the opportunities are endless.

>Your use of an Ad Hominem attack on me instead of my position is completely off the mark and is a clear sign of insecurity.

Did you really just say that?

Yes, yes you did.

I honestly laughed out loud when I read that.

Kemaris just pointed out that you engage in ad hominem attacks. In your very next reply, you hurl the same charge at the next target. Haven't we discussed that kind of behavior earlier?

And behavior is the issue here. I am not attacking you, or your position; I am criticizing your *behavior*, because it merits criticism. Insecurity? Oh, please.

>My intention to help further the discussion about the relevance of this case is an honest one.

All evidence to date suggests otherwise. If that truly is the case, perhaps you'd like to start over...?

Rick

Thursday, December 30, 2004 9:58:57 AM (Central Standard Time, UTC-06:00)

At this point, I am making the personal decision to no longer feed the troll. I had assumed that the desire to engage in debate was honest and inept. I have been taught otherwise. Everyone else is codially invited to join me.

Trees

kemaris

Thursday, December 30, 2004 10:42:32 AM (Central Standard Time, UTC-06:00)

Arguing that my intentions were somehow dishonorable because I did not use an email address is a classic Ad Hominem attack. That I pointed out the same type of fallacy at the same time as Kemaris is a coincidence. I was still in the process of crafting my response when Kemaris posted his. By the way, I fail to see how providing a trash-able email address provides any more credibility than simply not providing one at all.

While I did poke a bit of fun at belief systems, it was not my intention to somehow impugn the validity of anyone’s position because of allegiance to said systems. Rather, I am attempting to show that because of the severe subjective nature belief systems in general, which can go far beyond what “orthodox” religions have considered, we should strive to remove the burden of validating those systems for legal purposes. Instead, law should apply to actions regardless of the person’s belief system. To do that, the law would clearly need to be changed to eliminate special privilege for religion (e.g. tax exemption).

My intention in using extreme, albeit straw man, scenarios is to help everyone understand that people will push the envelope of the law. We can’t just think about the law in terms of the common belief. We have to think about law, include precedent, in terms of how people will abuse those decisions. It will be interesting to watch whether the hoasca usage increases disproportionately to the number of people ascribing themselves to this particular religion. The apparent message to law enforcement will be to overlook hoasca possession, sale and use because it will be too difficult to prosecute.

Anyway, this has clearly degenerated into a juvenile flame attack on me rather than any sort of logical discussion on topic at hand.

Thomas

Thursday, December 30, 2004 10:57:19 AM (Central Standard Time, UTC-06:00)

The real challenge here is that you are proposing changing not only conventional law, but the constitution itself. To change the fundamental nature of the First Amendment requires a new Amendment.

This is because at the very core of the system currently in place are a series of Supreme Court decisions that clarified the First Amendment, causing it to include things like the tax-exempt status of religious property, etc.

I would be curious as to how you'd word a subsequent Amendment such that it continued to preserve separation of church and state, and yet caused enforcement of state law against religious institutions.

In particular, I'd be interested to see how it is worded so that _subsequent_ secular laws (sometimes created to attack specific religious practices as noted by Kemaris) would somehow be invalid. Without such a provision to protect religion against secular law, there is no doubt that we'd end up in a pseudo-Christian version of Iran in relatively short order.

Illiante

Thursday, December 30, 2004 11:19:58 AM (Central Standard Time, UTC-06:00)

AFAIK, tax-exemption for religion is not part of the Constitution. Rather, laws were passed that provided tax exemption to religions. By eliminating that privilege, we would help alleviate the Court from having to decide if a given practice was a religion for the purposes of the First Amendment. People could still practice religion in any way they wish, just as long as it did not run contrary to secular law. In light of this Court decision relating to hoasca, that sort of happened but in a circuitous manner. From the text of the decision it seems that the core of the decision related to the harmfulness of the drug. Had the drug been deemed harmful, it appears that the Court would have ruled against the UDV regardless of its role in their religion.

It is my impression that what I’m suggesting would fortify the wall between Church and State. Church, specifically religion, any religion, would have to abide by the same set rules.

Although I do not doubt they exist, I’d be interested in examples of laws that were designed to target specific religions such that there was no other motive for the law.

Thomas

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