Why Kim Davis is Wrong: “Beliefs cannot trump rights” by George Panichas

It should be no surprise that many Americans have come to the defense of Kim Davis, believing that she is being denied her right to “live her religion.” A long-term strategy to restore what is perceived to be the rightful place of religion and/or Christianity in public life has been bearing fruit recently (most clearly in Hobby Lobby case). In doing so, they have inverted the relationship between the Establishment Clause (“Congress shall make no law respecting an establishment of religion”) and the Free Exercise Clause (“or prohibiting the free exercise their of”).

By weakening the power of the Establishment Clause and denying its purpose of protecting individual rights, conservatives can then ignore its power to protect the rights of individuals from government laws and/or other individuals, groups, corporations, etc. The other prong in this strategy has been to expand the right to free exercise to include the right to impose their religion on others, all in the name of religious liberty (hence all the Religious Freedom Restoration Acts, RFRA). This also allows them to present themselves as the defenders of “religious liberty,” when in fact they are undermining it.

George E. Panichas uses a story about “Old Jim,” who believes that his faith does not allow him to sell guns to women, to illustrate why Kim Davis and her supporters are wrong. Taking into account the protections of the Establishment Clause, he concludes, “The constitutional rights of Americans are protected against infringements emanating from even the most deeply held religious beliefs. Indeed, abandoning this commitment closes the door on a reasonable pluralistic democracy and opens it wide to an oppressive theocracy.”

Source: Beliefs cannot trump rights

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The Obergefell Ruling is a Victory for the LGBT Community, but it’s Also a Victory for James Madison and Religious Liberty

Does the Court ruling in Obergefell v. Hodges violate the principle of democracy as those writing in dissent (Chief Justice John Roberts and the Justices Scalia, Thomas, and Alito) have claimed? James Madison, the Father of the Constitution and Bill of Rights, would say no.

Bolstered by the legal arguments of the dissenting justices, those opposed to the Court’s decision will continue to campaign against same-sex marriages, even though they lost. It is therefore important that we examine the merits of the arguments from the dissenting justices. (1) One of the main charges brought against the majority is the claim is that this opinion is a threat to democracy and religious liberty. This allegation is based on a misunderstanding of the relationship between rights and majorities in a democracy. On this subject, James Madison had the greatest insights, and he is primarily responsible for our current understanding of how to best protect rights in a democracy.

James Madison

James Madison

In his fight against religious establishments in Virginia, James Madison learned many lessons, one of the most significant of these lessons was that bills of rights were “parchment barriers” when facing overbearing majorities. Acting through their representatives, majorities will inevitably push through legislation that will violate the rights of others, even when expressly prohibited by a bill of rights as happened in Virginia when an attempt was made to pass a general assessment for the support of teachers of the Christian religion. The general assessment bill failed but it prompted Madison to reconsider the assumption that legislatures are the best protectors of the rights of the people. In his Vices of the Political System of the United States (1787), which was written in response to the failures of the Articles of Confederation, Madison questioned “the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.” In exploring the root of this problem, he concluded that the cause lay “in the people themselves.” It was for this reason that Madison originally opposed adding a bill of rights to the Constitution, although he later changed his mind and became the primary author and mover of the amendments that became our Bill of Rights. Even though he changed his mind and pushed the amendments through, Madison never changed his mind about the relationship between majorities and violation of individual rights. Continue reading

The Obergefell Ruling is a Victory for the LGBT Community, but it’s Also a Victory for James Madison and Religious Liberty

Does the Court ruling in Obergefell v. Hodges violate the principle of democracy as those writing in dissent (Chief Justice John Roberts and the Justices Scalia, Thomas, and Alito) have claimed? James Madison, the Father of the Constitution and Bill of Rights, would say no.

Bolstered by the legal arguments of the dissenting justices, those opposed to the Court’s decision will continue to campaign against same-sex marriages, even though they lost. It is therefore important that we examine the merits of the arguments from the dissenting justices. (1) One of the main charges brought against the majority is the claim is that this opinion is a threat to democracy and religious liberty. This allegation is based on a misunderstanding of the relationship between rights and majorities in a democracy. On this subject, James Madison had the greatest insights, and he is primarily responsible for our current understanding of how to best protect rights in a democracy.

James Madison

James Madison

In his fight against religious establishments in Virginia, James Madison learned many lessons, one of the most significant of these lessons was that bills of rights were “parchment barriers” when facing overbearing majorities. Acting through their representatives, majorities will inevitably push through legislation that will violate the rights of others, even when expressly prohibited by a bill of rights as happened in Virginia when an attempt was made to pass a general assessment for the support of teachers of the Christian religion. The general assessment bill failed but it prompted Madison to reconsider the assumption that legislatures are the best protectors of the rights of the people. In his Vices of the Political System of the United States (1787), which was written in response to the failures of the Articles of Confederation, Madison questioned “the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.” In exploring the root of this problem, he concluded that the cause lay “in the people themselves.” It was for this reason that Madison originally opposed adding a bill of rights to the Constitution, although he later changed his mind and became the primary author and mover of the amendments that became our Bill of Rights. Even though he changed his mind and pushed the amendments through, Madison never changed his mind about the relationship between majorities and violation of individual rights. Continue reading

Did the “right to privacy” Argument in Griswold v. Connecticut Hinder the Advancement of Women’s Rights?

Jill Lepore examines the complex history of women’s rights as it played out in the courts from Griswold v. Connecticut (1965), which ruled Connecticut’s law banning contraception was unconstitutional, to the present. Griswold was decided on the basis of a couple’s right to privacy, rather than a woman’s right to determine her own path in life. Lepore argues that this precedent carried forward in later judicial decisions to the detriment of women’s struggle for full equality as citizens. “There is a lesson in the past fifty years of litigation. When the fight for equal rights for women narrowed to a fight for reproductive rights, defended on the ground of privacy, it weakened. But when the fight for gay rights became a fight for same-sex marriage, asserted on the ground of equality, it got stronger and stronger.” Read her entire argument here:

From Griswold v. Connecticut to Gay Marriage – The New Yorker.

"Illustration by Cristiana Couceiro; Clockwise from Top Right: Lee Lockwood / The LIFE Images Collection / Getty (Griswold); Paul Morigi / Getty Images for HRC and Bill Clark / CQ Roll Call / Getty (Flags); Barbara Alper / Getty (Sign); Purestock / Getty (Supreme Court)"

“Illustration by Cristiana Couceiro; Clockwise from Top Right: Lee Lockwood / The LIFE Images Collection / Getty (Griswold); Paul Morigi / Getty Images for HRC and Bill Clark / CQ Roll Call / Getty (Flags); Barbara Alper / Getty (Sign); Purestock / Getty (Supreme Court)”

History News Network | Why Indiana Republicans Blundered so Badly on Gay Rights

The legal scholar Victoria Saker Woeste evaluates the Indiana RFRA law (Religious Freedom Restoration Act) and concludes: “They relied only on the legal opinion that portrayed religious liberty as under attack. But most people across Indiana—and indeed the nation—do not believe that it is. That is why the backlash was so swift, so furious, and so scalding.This is a classic case of winning the battle and losing the war. A balanced approach to civil rights should prevail at the state level, but Indiana’s RFRA “fix” stops short of guaranteeing equal civil rights to individuals regardless of sexual orientation or gender identity. Until that oversight is addressed, Governor Pence should spend some time improving his Captain Renault impersonation.” Read the entire article here:

History News Network | Why Indiana Republicans Blundered so Badly on Gay Rights.

Indiana protests against RFRA 2015