the whole thing is interesting so i'm not going to bother bolding parts of it.

http://fish.blogs.nytimes.com/2007/12/0 ... /#comments

In a case now pending in a federal court in Brooklyn, Mamie Manneh of Staten Island stands accused of having brought smoked bushmeat – known colloquially as monkey meat – into the United States without proper permits, in violation of the Convention on International Trade in Endangered Species.

Ms. Manneh’s defense is that in her religion the eating of bushmeat has both a cultural and a spiritual significance. In an affidavit, 17 of her co-religionists declared, “We eat bushmeat for our souls.” Manneh’s lawyer, Jan Rostal, has analogized the African-based practice to the consumption at a Passover seder of foods like bitter herbs “that might have some reference to the Exodus.” In a motion to dismiss, Rostal said that the case, while apparently novel, “represents the sort of clash of cultural and religious values inherent in the melting pot that is America.”

No, it doesn’t. It represents a more fundamental clash: between the imperatives of religion and the rule of law. The question raised by the case is whether the fact of a religious belief is sufficient to exempt the believer from the application of generally applicable laws — laws (like driving on the right-hand side of the road) that apply to every citizen no matter what his or her religious, ethical or moral convictions. Is religious belief a special case, so special that the devout practitioner gets a pass?

John Locke posed that question in “A Letter Concerning Toleration” (1689), and his analysis of it remains relevant today. Locke asks if it is lawful for Meliboeus (a name borrowed from pastoral poetry) to slaughter a calf and offer it as a sacrifice at a religious meeting. It depends, he says, on whether slaughtering a calf in order to put food on his family’s table is lawful. If it is, then killing the calf for ritual purposes is perfectly allowable, for “what may be spent on a feast may be spent on a sacrifice.”

But the logic also holds in the opposite direction. Suppose, Locke imagines, a disease had destroyed a large number of cattle and the government decreed that no more could be slaughtered. The prohibition would surely extend to religious rituals, not as a specific target of state action, but as a practice swept up in the wake of a general law.

That law, Locke observes, would not be “made about a religious matter, but about a political matter.” It would be true that some people would no longer be able to engage in behavior they considered central to their religious life, but because that would not be the result aimed at — the good of the commonwealth would be the concern — the government could not be accused of contriving to harm religion, even if that were an unintended consequence of its action.

Nor would it be wise to exempt persons of certain beliefs from the general prohibition; for that would amount to bending the law to the preferences and desires of particular citizens, and once you begin to do that there is no logical place to stop and the rule of law would be destroyed.

The upshot of Locke’s argument is that religious practices flourish only at the sufferance of the state. In theory you have the right to worship in the manner dictated by your faith, but should an aspect of that worship run up against a duly enacted regulation, the regulation, provided it is neutral in intention, trumps the demands of worship.

This same line of reasoning can be found in religion clause cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990). (There is an alternative tradition of “accommodating” religion in cases like Sherbert v. Verner and Wisconsin v. Yoder.)

In Reynolds the court considered the argument made by a man convicted of practicing polygamy that it is the religious duty of male members of the Mormon Church to engage in plural marriage, and that the penalty for failing to do so “would be damnation in the life to come.” The court observed that the prohibition against polygamy was general and not directed at any sect, and asked, “can a man excuse” his illegal practice of an interdicted behavior just “because of his religious belief?”

The answer is swift, firm and Lockean. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” In such a circumstance, the court concluded, “government could exist only in name.”

The same logic rules in Smith. Here the issue was the ingestion at a Native American religious ceremony of peyote, deemed a “controlled substance” by the laws of Oregon. Justice Antonin Scalia, writing for the majority, notes that the Native American celebrants “contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice and that is concededly constitutional as applied to those who use the drug for other reasons.” In short, the demand is that the law be applied differently to persons with different beliefs — you can’t use peyote as a recreational drug, but I can use it because I consider it sacramental — and this Scalia refuses to do.

The intention of the Oregon law, he points out, was not to curtail anyone’s free exercise of religion, and the fact that the free exercise rights of some people happened to be impacted negatively is “merely the incidental effect of a generally applicable and otherwise valid principle.” If the affected believers are unhappy, Scalia concludes, let them turn to the “political process” and try to get laws passed that will address their concerns.

That is exactly what happened on two fronts. Congress passed a law making the use of peyote in religious ceremonies an exception to the controlled substances regulations. And the same Congress passed the Religious Freedom Restoration Act (1993), which transferred the burden of proof from the religious practitioner to the government.

Where the assumption in Reynolds and Smith is that the state need only be innocent of the intention to impede free exercise, the distinction between intentional effects and what Scalia calls “incidental” effects is RFRA’s first casualty: “Laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” Whatever the source and pedigree of the burden, whether it is designed or accidental, those who suffer it must have a legal recourse.

Accordingly, in any instance where the burden is “substantial,” the state must demonstrate that the law in question “(1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” In other words, the fact of a law duly passed by the appropriate bodies is not enough; with respect to a particular class of persons – religious believers – that law cannot take effect unless it can be shown that the highest state considerations require that it be applied without exception.

While RFRA was hailed as a victory for religious freedom by many, others saw in it the realization of the fear expressed by the Reynolds and Smith courts, the fear that any law could be lawfully disobeyed by someone who asserted that it interfered with the free exercise of his or her religion. In effect, they complained, the rule of law was being subordinated to the private convictions of an ever expanding set of citizens. For, as Scalia observes in Smith, who can tell another that a certain practice is not central to the free exercise of his religion? Prison inmates can claim that their religious requires them to eat porterhouse steak every day. And Meliboeus must be allowed to slaughter his calf even when his non-religious neighbors are prevented from doing so.

This brings us back to Mamie Manneh and monkey-meat. How will she fare in the courts? Her attorney is mounting an RFRA defense, but the act was weakened in City of Boerne v. Flores (1997), when Justice Kennedy challenged Congress’s ability to pass it. Congress, he said, has the power to enforce rights, not to create them: “Legislation which alters the Free Exercise Clauses’s meaning” – by creating a special right of exemption from general laws – “cannot be said to be enforcing the clause.” Moreover, said Kennedy, “if Congress could define its own power by altering the Fourteenth Amendment’s meaning, no longer would the Constitution be ‘superior, paramount law, unchangeable by ordinary means.’” In short, saying what the Constitution means is our job, not yours.

That might have seemed the end of it, but in a 2006 case (Gonzales v. O Centro), the Roberts court interpreted Boerne as invalidating only the application of RFRA to the states. Given that Ms. Manneh’s case is being adjudicated in a federal court, an RFRA defense is at least plausible, although the fact that bushmeat is associated with diseases like ebola will likely be enough to satisfy even the “compelling interest” test and give the government a victory.

But no matter how the case turns out, we can be sure of one thing: it won’t be the last, because the issues Locke identified and analyzed will never be resolved. In her dissent in Boerne, Justice O’Connor wrote, “Our Nation’s Founders conceived of a Republic receptive to voluntary religious expression, not a secular society in which religious expression is tolerated only when it does not conflict with generally applicable law.”

Yes, that’s the question. Do we begin by assuming the special status of religious expression and reason from there? Or do we begin with the rule of law and look with suspicion on any claim to be exempt for it, even if the claim is made in the name of apparently benign religious motives? From Reynolds to the present moment, everyone has had an answer to that question, but I predict that no one will ever have the last word.

I feel that you have have to uphold the law in a situation like that. Most forms of worship do not call for one to eat bushmeat however everyone no matter what color, race, sex, or religion must follow the laws that a state/goverment sets up. To start to make exceptions for certain groups of people can lead down a dangerous road

Say what you will about the tenets of National Socialism, Dude, at least it's an ethos.

Walter's wisdom is timeless.

I think this is definitely something that needs to be taken on a case-to-case basis. Why didnt she have a permit? If there is one available, then she should get into trouble for not having it.

It's dangerous to make a blanket "for religion it's okay" law, because it would be taken advantage of pretty quickly.

damn, i should have used this thread.

http://www.nytimes.com/2009/01/21/us/21 ... ml?_r=1&hp

Trials for Parents Who Chose Faith Over Medicine

WESTON, Wis. — Kara Neumann, 11, had grown so weak that she could not walk or speak. Her parents, who believe that God alone has the ability to heal the sick, prayed for her recovery but did not take her to a doctor.

After an aunt from California called the sheriff’s department here, frantically pleading that the sick child be rescued, an ambulance arrived at the Neumann’s rural home on the outskirts of Wausau and rushed Kara to the hospital. She was pronounced dead on arrival.

The county coroner ruled that she had died from diabetic ketoacidosis resulting from undiagnosed and untreated juvenile diabetes. The condition occurs when the body fails to produce insulin, which leads to severe dehydration and impairment of muscle, lung and heart function.

“Basically everything stops,” said Dr. Louis Philipson, who directs the diabetes center at the University of Chicago Medical Center, explaining what occurs in patients who do not know or “are in denial that they have diabetes.”

About a month after Kara’s death last March, the Marathon County state attorney, Jill Falstad, brought charges of reckless endangerment against her parents, Dale and Leilani Neumann. Despite the Neumanns’ claim that the charges violated their constitutional right to religious freedom, Judge Vincent Howard of Marathon County Circuit Court ordered Ms. Neumann to stand trial on May 14, and Mr. Neumann on June 23. If convicted, each faces up to 25 years in prison.

“The free exercise clause of the First Amendment protects religious belief,” the judge wrote in his ruling, “but not necessarily conduct.”

Wisconsin law, he noted, exempts a parent or guardian who treats a child with only prayer from being criminally charged with neglecting child welfare laws, but only “as long as a condition is not life threatening.” Kara’s parents, Judge Howard wrote, “were very well aware of her deteriorating medical condition.”

About 300 children have died in the United States in the last 25 years after medical care was withheld on religious grounds, said Rita Swan, executive director of Children’s Health Care Is a Legal Duty, a group based in Iowa that advocates punishment for parents who do not seek medical help when their children need it. Criminal codes in 30 states, including Wisconsin, provide some form of protection for practitioners of faith healing in cases of child neglect and other matters, protection that Ms. Swan’s group opposes.

Shawn Peters, the author of three books on religion and the law, including “When Prayer Fails: Faith Healing, Children and the Law” (Oxford, 2007), said the outcome of the Neumann case was likely to set an important precedent.

“The laws around the country are pretty unsettled,” said Mr. Peters, who teaches religion at the University of Wisconsin Oshkosh and has been consulted by prosecutors and defense lawyers in the case.

In the last year, two other sets of parents, both in Oregon, were criminally charged because they had not sought medical care for their children on the ground that to do so would have violated their belief in faith healing. One couple were charged with manslaughter in the death of their 15-month-old daughter, who died of pneumonia last March. The other couple were charged with criminally negligent homicide in the death of their 16-year-old son, who died from complications of a urinary tract infection that was severely painful and easily treatable.

“Many types of abuses of children are motivated by rigid belief systems,” including severe corporal punishment, said Ms. Swan, a former Christian Scientist whose 16-month-old son, Matthew, died after she postponed taking him to a hospital for treatment of what proved to be meningitis. “We learned the hard way.”

All states give social service authorities the right to go into homes and petition for the removal of children, Ms. Swan said, but cases involving medical care often go unnoticed until too late. Parents who believe in faith healing, she said, may feel threatened by religious authorities who oppose medical treatment. Recalling her own experience, she said, “we knew that once we went to the doctor, we’d be cut off from God.”

The crux of the Neumanns’ case, Mr. Peters said, will be whether the parents could have known the seriousness of their daughter’s condition.

Investigators said the Neumanns last took Kara to a doctor when she was 3. According to a police report, the girl had lost the strength to speak the day before she died. “Kara laid down and was unable to move her mouth,” the report said, “and merely made moaning noises and moved her eyes back and forth.”

The courts have ordered regular medical checks for the couple’s other three children, ages 13 to 16, and Judge Howard ordered all the parties in the case not to speak to members of the news media. Neither Ms. Falstad nor the defense lawyers, Gene Linehan and Jay Kronenwetter, would agree to be interviewed.

The Neumanns, who had operated a coffee shop, Monkey Mo’s, in this middle-class suburb in the North Woods, are known locally as followers of an online faith outreach group called Unleavened Bread Ministries, run by a preacher, David Eells. The site shares stories of faith healing and talks about the end of the world.

An essay on the site signed Pastor Bob states that the Bible calls for healing by faith alone. “Jesus never sent anyone to a doctor or a hospital,” the essay says. “Jesus offered healing by one means only! Healing was by faith.”

A link from the site, helptheneumanns.com, asserts that the couple is being persecuted and “charged with the crime of praying.” The site also allows people to contribute to a legal fund for the Neumanns.

In the small town of Weston, many people shake their heads with dismay when Kara Neumann is mentioned. Tammy Klemp, 41, who works behind the counter at a convenience store here, said she disagreed with the Neumanns’ passive response to their daughter’s illness but said she was not sure they should go to prison.

“I’ve got mixed feelings,” Ms. Klemp said. “It’s just such a terribly sad case.”

Chris Goebel, 30, a shipping department worker for a window maker, said many people in the area felt strongly that the parents should be punished.

“That little girl wasn’t old enough to make the decision about going to a doctor,” Mr. Goebel said. “And now, because some religious extremists went too far, she’s gone.”

religion vs. law.


LIVE. ONLY ON PAY-PER-VIEW.

http://www.sfgate.com/cgi-bin/article.c ... 16IBH6.DTL

Christian law group loses fight with Hastings

SAN FRANCISCO -- UC Hastings College of the Law can deny recognition and funding to a Christian student group because it excludes gays, lesbians and non-Christians, a federal appeals court ruled Tuesday.

The San Francisco law school is entitled to require official student organizations to "accept all comers as members, even if those individuals disagree with the mission of the group," the Ninth U.S. Circuit Court of Appeals in San Francisco ruled. It said the school's policy is "viewpoint-neutral" and does not violate the rights of the Christian Legal Society.

The brief ruling cited the court's decision last year allowing a Washington state high school to deny recognition to a student Bible club that required members to endorse its religious creed. Last week, the club asked the U.S. Supreme Court to review that case.

Both rulings allow public schools to "require religious organizations to include people in their groups who disagree with what the religious groups believe," said attorney Jeremy Tedesco of the Alliance Defense Fund, a Christian legal organization that is involved in both cases on behalf of the student groups. "That's a violation of the First Amendment, free speech and freedom of religion."

Ethan Schulman, a lawyer for UC Hastings, said Tuesday's ruling allows the school to apply its nondiscrimination policy to any group seeking recognition and a share of the funding that goes to organizations from mandatory student fees.

The Christian Legal Society's arguments "would carve a gaping loophole in those nondiscrimination policies" and "force the law school to subsidize discriminatory groups," Schulman said.

In San Diego last month, a federal judge ruled that the California State University system could rely on its nondiscrimination policy to deny recognition to Christian student organizations.

The Virginia-based Christian Legal Society says it has chapters in 165 law schools, consisting of evangelical Christians who meet for Bible study and discussions about applying their faith to the practice of law.

The Hastings chapter, Hastings Christian Fellowship, was initially open to all students and was eligible for funding, office space and inclusion in official publications.

Starting in 2004, however, the chapter - apparently following a new national policy - required members to endorse a "statement of faith" and barred anyone who engaged in "unrepentant homosexual conduct."

Hastings then withdrew recognition but allowed the organization to meet on campus. U.S. District Judge Jeffrey White ruled in Hastings' favor in 2006, saying its policy was reasonable and left the religious group free to determine its membership.

i have no problem with that