WEEKLY NEWS DIGEST (June 4-10, 2012)

LAW & PUBLIC POLICY

Religious rights vs. the public’s right.” By Oliver Thomas. USA Today. June 4, 2012. For decades, the U.S. employed a test for deciding these cases that balanced the religious liberty rights of the individual against the public’s right to maintain a civil society. The test went like this. If the government placed a “substantial burden” on a person’s religiously motivated behavior, the government must show that the burden was (1) in furtherance of a “compelling” interest, such as health and safety, and (2) was the least burdensome means of accomplishing that interest. The test worked well for years. Religious claimants won some and lost some. Then the Supreme Court changed the rules. In a case involving the use of peyote by Native Americans, the high court held that it was no longer necessary for government to justify restrictions on religious exercise unless the religion was being singled out for discriminatory treatment. Of course, legislative bodies generally don’t single out particular religions for special burdens. They pass laws that say no one can drink wine in a particular county, and suddenly Catholics have a problem celebrating the Mass. Or they say everyone has to wear a hard hat, and Sikhs — who must wear a turban instead — can no longer get a construction job. Nearly all burdens on religious exercise are caused by laws of general application. So you can guess what happened. Religious groups began having problems. Government, to a large measure, stopped accommodating religious exercise. Congress corrected the problem through the “Religious Freedom Restoration Act” — which returned things to the way they were before the peyote ruling. But the Supreme Court would not allow Congress to correct the states. That had to be done by the states themselves. Some 16 legislatures have done precisely that. In other places, the state Supreme Court has stepped in to provide similar protections by interpreting their own constitutions in ways that protect religious exercise. Either way, America is the better for it. Orthodox Jewish boys can wear their yarmulkes to school, Muslim girls can wear their head scarves, Jewish prisoners can get a kosher meal and evangelical Christians can home-school their children without fear of reprisal from the state. But some religious Americans want more. Unsatisfied with the First Amendment balancing test, they now want to tilt the playing field. Several states are considering these more radical remedial measures.

There’s More Secret Money In Politics; Justice Kennedy Might Be Surprised.” By Peter Overby. All Things Considered/National Public Radio. June 7, 2012. Justice Anthony Kennedy, who wrote the Citizens United opinion saying that corporations can pay for ads expressly promoting or attacking political candidates. Federal election law has required the public disclosure of campaign donors for nearly 40 years. But this year, outside groups are playing a powerful role in the presidential election. And some of them disclose nothing about their donors. That’s despite what the Supreme Court said in its controversial Citizens United ruling two years ago. But that wasn’t the whole decision. The nonprofit corporation called Citizens United, which had released a documentary critical of then-presidential candidate Hillary Clinton during the 2008 presidential race, had challenged the disclosure requirement, saying it wasn’t helpful to the public. Kennedy shot that down. “We reject Citizens United’s challenge to the disclaimer and disclosure provisions,” he said from the bench. “Those mechanisms provide information to the electorate. The resulting transparency enables the electorate to make informed decisions and give proper weight to different speakers and different messages.” Kennedy brushed off Citizens United’s other argument — that disclosure put its donors at risk. “If an association offers evidence that its members will face threats or reprisals, it may be able to show that the disclaimer and disclosure requirements are unconstitutional as applied to that association, but Citizens United has offered no evidence here of threat or reprisals,” he said in summarizing from the bench. But despite what Kennedy said, secret money has become the real growth area in campaign politics.

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