Leftist tactics to scare the uninformed about America’s religious freedoms *UPDATED*

I got a very hysterical form letter from Americans United for Separation of Church and State.  What’s impressive about it is that Barry Lynn, the Executive Director who purportedly authored this fevered screed, is totally uninformed about the nature of America’s Constitutional mandates regarding religion.  Here’s what the First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Boiled down to its essence, the First Amendment says that government in American may not control people’s religious worship.

By stating this principle, the Founding Fathers sought to distinguish themselves from the European tradition that saw government actively interfering in people’s religious practices.  On the one hand, European governments dictated which religion citizens should worship and often controlled the doctrinal substance of that state approved religion.  On the other hand, these same governments brought harsh civil penalties to bear on those who refused to comply with state religious mandates.  The easiest example to point to, of course, is England, which was the situation against which the Founders were reacting.  Not only were the State and the Church of England inextricably intertwined (with the monarch as head of the church), but England in the late 18th Century still had multiple laws on its books barring people who were not C of E from serving in the government or even obtaining a higher education.

Although Leftists deny it, Thomas Jefferson was imply reiterating the principles in the First Amendment when he coined the phrase “separation of church and state” (a phrase found nowhere in the Constitution itself).  Although Progressives like to forget this fact, Jefferson was a very religious man, although he was sufficiently private in his worship that he avoided incorporating it into public ceremony, as Washington and Adams had done.

In late 1801, while still President, Jefferson received a letter from the Danbury Baptist Association complaining that, as a religious minority in Connecticut, the state was treating their religious rights as privileges from the legislature, rather than immutable rights inherent in all citizens.  Jefferson’s reply makes it plain that the Legislature can neither grant nor deny religious rights, since it is not the responsibility of the American government to interfere in church function and doctrine (emphasis mine):

To messers Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson a committee of the Danbury Baptist association in the state of Connecticut.


The affectionate sentiments of esteem & approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful & zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more & more pleasing.

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. [Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from presenting even occasional performances of devotion presented indeed legally where an Executive is the legal head of a national church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.] Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection and blessing of the common Father and creator of man, and tender you for yourselves and your religious association, assurances of my high respect & esteem.

(signed) Thomas Jefferson

It is manifestly clear from perusing both the Bill of Rights and Jefferson’s own letter that none of the Founders intended that religious people must be barred from civil participation.  They can bring their values to bear in the civic arena, even if those values are religiously inspired.  What they cannot do is hijack the government so that the government uses its coercive powers to force people to worship a specific faith, to interfere with a religion’s doctrine, or to punish or ostracize people for practicing a faith that the government does not sanction.

These subtleties — the difference between government controlled religion, which is bad, and a religious people whose religion informs their conduct, which is constitutionally neutral — completely eludes the anti-religious Left.  They want people who enter government to check their religion at the door.  They are incapable of understanding that the complete absence of religion is a religion in and of itself, with faith in government and its bureaucracy being substituted in place of faith in God and his morality.

During the 1980s, religious people called this Leftist faith “Secular Humanism.”  As a thoughtless, knee-jerk Leftist myself during those years, I actually appreciated the label (“Hah!  I’m a Humanist”), but rejected the Religious Right’s contention that Secular Humanism is itself a religion.  To the Left, something can be a religion if the word “God” (or, if you’re polytheistic, “Gods”) is involved.  None of us on the Left understood (or, at least, the thoughtless amongst us refused to understand) that Secular Humanism is a religion because it is a comprehensive belief system.  The only difference between Secular Humanism and traditional “religion” is that, in place of an omnipotent deity, secular humanists worship an omnipotent government that rejects traditional Judeo-Christian moral and social values.

It is this Secular Humanist faith that explains the letter I received today, parts of which I reproduce below, along with my interlineations in red:

Do you know how the Religious Right is now targeting your neighborhood, and every town and city in America?

By joining local school boards and local communities . . . winning local elections . . . and creating local precedents with NATIONWIDE consequences . . .

Dear Friend,

They want to hit you right where you live.

The Religious Right has hijacked Christianity and claims to speak for all people of faith . . . and its leaders and activists want to force their ultraconservative agenda on you and your community[You'll notice that Americans United does not argue, because it can't, that religious Christians are trying to enforce their faith on Americans, which would be unconstitutional.  Instead, it just makes it sound utterly evil that religious people want to get involved in local politics to advance their values, something that the Founders generally and Jefferson specifically would appreciate.]

The goal of the movement’s members is nothing less than to shatter the wall of separation between church and state . . . and force you to live a “moral” life.

Their morals!  [Again, this statement ignores the fact that our government is set up so that all citizens, including religious citizens, are welcome to get into politics to advance their values, including their "moral" values.  They just can't use politics as a means of forcing you into their church, something even the hysterics at Americans United cannot say is the case.]

And if they can’t get into your public schools with creationism . . . if they can’t get into your pharmacy to deny patients and their doctors the right to make medical decisions . . . if they can’t use the power of their pulpits to choose your political representatives . . .  [If they can't do all that, then they'll leave more room for the Leftists to get into your public schools with endless scare tactics and indoctrination regarding anthropogenic climate change, pro-illegal alien propaganda, pornographic sex education, and identity politics and anti-marriage activism.]  UPDATEPer Atlas Shrugged, we now know that Lynn’s particular brand of non-deity center religion is being actively foisted onto American students.

. . . Then they’ll zero in on friendlier, more willing targets to get the political clout and legal precedents they need . . . which then may have nationwide ramifications.


[I've deleted the bit in Barry Lynn identifies himself, his career and his organization.]

Throughout those years, we’ve seen what happens when religious extremists like Pat Robertson and James Dobson get their way:

* A tax-funded “faith-based” initiative that forces citizens like you and me to pick up the tab for the Religious Right’s ideology-based social agenda.  [I have no idea what Lynn is talking about here.  As I detailed above, as a tax payer and a parent, I'm currently paying for my children to learn about increasing discredited AGW, the virtues of illegal immigration, radical sex education, anti-marriage values, victim-based identity politics, etc., all of which are part of the Leftist religious canon.  After all that kind of intellectual garbage, just how bad can the Religious Right's "ideology-based social agenda be?]

* “Marriage amendments” that turn out anti-gay voters and swing elections.  [This is a perfect example of Lynn's confusion about the different between a state religion, and religious people speaking up within a state.  The religious right did not seek to force people into a religious viewpoint about marriage in California.  That is, no one said, when we pass this law, you'll all have to become Mormons.  But people who are religious and take seriously the fact that Western religions limit marriage to a man and a woman certainly did get out and vote.  What's really ironic about Lynn's sentence here is that it was Obama's presence in the election that was the "swing" factor, since the same blacks who made their way to the polls so they could vote for him, also happen to come from religious backgrounds that created in them values antithetical to gay marriage.]

* Houses of worship endorsing political candidates, violating their tax-exempt status.  [If I remember my election history correctly, the Democratic candidates were barely able to peel themselves out of Leftist houses of worship, and had Leftist religious people crawling all over them.  I'm unaware of any celebrated case in which the IRS went after any church, Left or Right, for encouraging its voters values in such a way that the voters learned towards one candidate or another.  Churches are allowed to teach values -- and in heated elections, those values may steer voters in one direction or another.  This is not the same as endorsing a candidate.]

* More restrictions on reproductive choices chipping away at the right of access to contraceptives and services that citizens have worked so hard to win since the 1960s.  [I don't need to make my argument here again about the difference between religious people using the government to force all people to Catholicism or Baptism, so that they forswear abortion, something that hasn't happened and won't happen, and the fact that people of faith are disturbed by the number of abortions performed annually, and who seek to change the laws to change that situation.  What I do find interesting, however, is the way in which Lynn's sentence makes it sound as if religious people aren't "citizens."  "Citizens" work for abortion; religious people are scary zombies who block citizens from their Progressive-guaranteed rights.  That kind of phrasing highlights the way in which the Left is incapable of acknowledging that religious people are citizens and that the Constitution clearly allows them to use government to advance their values, although not to advance their specific faith.]

I’ll stop here.  Believe it or not, there are three more single-spaced hysterical pages with this types of ignorant, mean-spirited demagoguery.

Long-time readers know that I don’t even really have a dog in this fight, as I am a non-religious Jew.  I am, however, intellectually honest, and it disgusts me to see the Left try to use our Constitution and the deeply religious Thomas Jefferson as vehicles by which they shut religious people out of politics and civic discourse.

Cross-posted at Right Wing News

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  1. Doug Indeap says


    Hmm. You seem to reduce doctors from professionals to mere service sector workers concerned not with patients but rather their own interests.
    I am more familiar with the legal profession, so when speaking of professionalism I use that model. Our society has decided (by adopting a Constitution and passing laws) that every person accused of a crime is entitled to representation by a lawyer. Lawyers’ professional codes of ethics call on them to provide such services. Each lawyer has an obligation to accept his or her share of pro bono clients (who cannot pay) as well as unpopular ones. If volunteerism doesn’t suffice to handle the need in a given area, courts can and have “appointed” lawyers to represent such clients. Recall Atticus Finch in To Kill A Mockingbird. Assuring that everyone has adequate legal counsel is the first priority; the interests and desires of lawyers naturally can be accommodated in such a professional system, but only as long as clients get adequate representation.
    Similarly, with respect to the medical and pharmacy professions, I endorse accommodating the different interests and desires of individual members of those professions–as long as the professions also take steps to assure that the medical and pharmacy needs of their “clients” are met. We should not pervert these professions by transforming them into a backdoor way to choke off medical and pharmacy services some don’t like.
    But, I note we have strayed rather far from the separation of church and state. My main point has been that, under current law, the government cannot enact and enforce laws aimed at a interfering with a particular religion, but it can enact laws generally applicable to everyone or large classes of people and enforce those laws against even those who object on religious grounds. (Were it otherwise, the government could hardly operate.) While the government has this power, it may (and sometimes does) choose to relieve individuals of this bind by including conscientious objector provisions or the like in the law.
    I gather that there is general agreement or at least recognition here that that is the framework within which we operate and the focus of interest is on the policy question of whether and under what circumstances or conditions the government should allow medical and pharmacy professionals to opt out of providing certain services and avoid the legal consequences they may otherwise suffer under existing laws regarding employment, professional standing, civil liability, etc. I favor accommodating doctors and pharmacists to the extent possible while still assuring patients’ needs are met. Others here, I gather, favor giving doctors and pharmacists immunity from legal consequences they otherwise may suffer for refusing to provide services–period, regardless of consequences to patients. That’s a policy disagreement, and I’m content to leave it at that.

  2. BrianE says

    Note to self:
    Never argue with an atheist.
    Never argue with a lawyer.
    You’ll end up at the same point. Nothing is absolute. Everything is relative.
    What I am seeing in Doug’s line of reasoning is the slippery slope argument neatly tied with a bow. Once the needs of society trump individual rights, it’s only a matter of time before the rights of society are absolute and those of the individual rare.

    “Rights rarely are absolute; they commonly are subject to limitations and exceptions. The freedom to exercise one’s religion fits this norm; it necessarily is subject to various limitations, if for no other reason than because (as I explained earlier) the government could hardly operate if people had total freedom to opt out of laws for religious reasons.” -Doug
    Let me put this in non-lawyer speak. Let me know if I’ve missed something.
    “Only the rights that I deem important arise to the status of absolute, and I’ll decide what limitations should be placed on those less important rights. While I’m a liberal sort of guy and want folks to be able to practice folklore when it’s not inconvenient, it would be really, really inconvenient for the government to operate under these restrictions, not to mention messy, so we need to limit rights to those that help the trains run on time.”
    Since you think some rights are absolute (though rarely), why don’t we agree that the Bill of Rights rights should be an example of those rare absolute rights.

  3. Mike Devx says

    Doug #103,
    I haven’t responded yet, because there is a great deal of argument there that I consider very well-thought out, and it is giving me pause.  I’m definitely paying attention, but I’ll need time on this one.  I will say I’m grateful you took the time to respond with such care.

  4. Doug Indeap says


    Check the various rights in the Bill of Rights and you’ll commonly find limitations and exceptions. Freedom of speech, for instance, among our most revered and closely guarded rights, may be limited by reasonable time, manner, and place restrictions. You’ve heard, I suppose, the one about not having a right to endanger people by yelling “Fire!” in a dark, crowded theater. Similarly, freedom of the press is limited by the laws of libel and slander. Similarly, the right to peaceably assemble may be limited by reasonable time, manner, and place restrictions, e.g., traffic and safety laws, parade permits, and the like. Similarly . . . well, you get the idea.

  5. says

    “Similarly . . . well, you get the idea.”
    We’ve had that idea because the people back then had the debate on this subject, which didn’t mean back room deals designed to enrich the robber barons.
    Now a days if you think you can get such a thing going for federal legislation on patients and doctors, you’d be wrong. The process was sabotaged so it’s pointless to recall former successes when it is not going to be using former methods.

  6. suek says

    >>You’ve heard, I suppose, the one about not having a right to endanger people by yelling “Fire!” in a dark, crowded theater.>>
    And you, I suppose, _do_ understand that the freedom of speech has nothing to do with endangering other people – a separate issue entirely – but rather one that permits us the freedom to speak about politics – and yes, even religion – without being restricted by the government.  Your position would restrict that right.

  7. Doug Indeap says

    I’m not sure what “my position” is that you think would restrict the right to free speech.  I’m merely pointing out that the right is not absolute since it is subject to well recognized limitations.  For instance, governments can impose reasonable time, manner, and place restrictions on speech.  A local government thus may stop someone from yelling through a bullhorn at your home at midnight.  Similarly, a city or state may enact a sign ordinance prescribing reasonable limitations on size, location, lighting, etc.  Then there are the laws against obscenity (overly lax as you may consider them).  All of these limit the freedom of someone to say whatever they want, wherever they want, however they want, etc.
    I trust too that you are not suggesting that the right protects only speech on political and religious subjects; such a view would radically limit the scope of the right.

  8. suek says

    All of the conditions you mention are wheres and hows.  None of them limit _what_ is said.  The topic here is the discussion of religion as the topic of discussion.  Not where, how, how loud or any other condition.
    In other words, all of the “limiting factors” you describe are irrelevant to the freedom of speech issue.

  9. Mike Devx says

    Dou, on #103,
    > This law pertains to a situation where a doctor or pharmacist who otherwise under existing law has an obligation to provide a service nonetheless refuses to do so for religious [...] reasons.

    OK, I’m willing to limit the discussion to religious objections.  The broader categories are hardly irrelevant, however; but the discussion does become too wide-ranging. So – limit it.  But you also say,
    I understand and agree that doctors generally may exercise their career choices and professional opinions in the manner you suggest.
    and then – but solely for refusals based on religious objection:
    If such refusals are isolated and infrequent, the effect on patients is likely inconvenient but not such that they would be deprived of the service altogether.

    Therefore, for you, religious objections have a special burden that must be met.  However, professional objections, fears of lawsuit abuse, and all other such “exercising of career choices and professional opinions” do not face such a special burden.  That’s curious to me.

    > I am all for individual doctors and pharmacists having such freedoms, but not if the result is to so degrade the delivery of medical and pharmacy services that patients go wanting. Remember, we’re talking only about those situations where, under existing law, a patient has a right to a service or a professional has an obligation to provide a service and the professional refuses to do so for religious reasons.

    I believe that, based on the above excerpt and its surrounding defense that, in the end, your objection to the physician’s right to refuse to provide a service would extend to all situations, not just religious objections.  Your argument is that, if a patient has a legal right to seek the service, the physician MUST extend it.  Providing that no reasonable alternative exists, such as another conveniently located doctor who is willing to offer the service (and is not already too busy to schedule it).  We’ll focus on religious objections, but the nature of your defense applies across the board.

    Pharmacists, though, commonly work for companies that hire them to practice pharmacy by filling prescriptions presented to them by members of the public.

    Here we are going to restrict the argument further to pharmacists under employment.  I believe we have agreement here – and most if not all of Book’s readers here would agree with you.  By agreeing to work for the company, a pharmacist agrees to fill all prescriptions that the company honors.  If they do not wish to, they must seek employment elsewhere.  But what of the company?  If the company refuses to honor, say, RU-486, it should be their right.  And the burden on the patient – the patient with his or her need – that you cite as your main defense, still remains.  So, what of company?  I assume your argument (“… that they would be deprived of the service altogether”) means that the company MUST provide the service.  So we’re back to exactly the same issue, but now it applies to the pharmacy company, not the physician.

    I’m simply urging an effort to find a balanced solution that frees doctors and pharmacists of adverse legal consequences of refusing services without thereby throwing patients under the bus.

    That is definitely a reasonable goal.  So we come to it: Can such a balanced, compromise  solution be found?

    I suppose we could play out the experiment of allowing professionals unfettered freedom to refuse their services to those in need and just see how it turns out.

    While there are word choices in your statement above that make it clear that you consider this solution to be worthy only of complete disdain, it is nevertheless an acceptable and legal choice.  You might limit such a choice to the national government only.  I – a 10th Amendment person who sees states as the laboratory of all such “experimentation” – would grant that any state that wishes to take such an approach do so.  As you then indicated ( “If no problems arise, then there’s no real problem.“) it would prove its worth – though again I don’t think you believe it.  Ingenuity, and the fact that market forces tend to find a way to provide solutions in unexpected ways, to satisfy a demand – might surprise you, however.  Conservatives trust in market forces providing solutions; liberals do not.  It’s one of the key differences between us.

    But, let’s proceed, and assume that such an experiment fails such that all states, or the national government, abandons that as a solution.  Then, what?  Below I condense your argument, hopefully not leaving out anything of consequence:

    > [...] many cannot get the services they need because so many of those licensed to practice the profession refuse to provide the services, society may then find it necessary and reasonable to reform the profession [so that they] actually are willing and able to serve society’s needs. [...] We license professionals, after all, not merely to serve their career goals, but rather to foster a real profession that effectively serves the medical and pharmacy needs of people.

    > [...] because integral to the profession is putting the client first. A profession is not just a job. Understanding what it means to be a professional, I have no qualms about expecting as much from doctors and pharmacists.

    Once you have accepted a client, I agree with you about professional responsibilities.  Yet I know that not all lawyers accept every client that comes to their door.  The analogy here is that you are presented with a case – or such an odious client – that you refuse the case, and in my view you are entirely correct.  Regardless of whether there is another lawyer in town that would accept the case, or not.  Yet you would not allow such a choice to a physician or a pharmacy company.   But I agree – having accepted the case, professional obligation ought to require you to carry through.  I’ll take you at your word that there are situations where in fact a lawyer cannot withdraw from the case – and by analogy accept that physicians and pharmacy companies likewise can face such situations where they cannot deny such continuing service that has already been agreed upon.

    Would it matter if your refusal to accept a case were based on religious objection, rather than a professional evaluation of the case?  Would you accept government regulation requiring you to accept the case?  If so, then your analogy is complete, and we would again simply disagree.  I would allow you to refuse the case for any reason, as I would allow the physician up front to exclude items from the services he or she offers, and the pharmacy company to refuse – again, up front – to provide certain services.

    Repeating from your quote above,
    >  I have no qualms about expecting as much from doctors and pharmacists.

    Physicians (doctors) are back in the argument again, so I’ll include them in a question: What is it, in the nature of pharmacy companies and doctors, that compel *them* to special burdens, but not other professionals or companies within our country?  I think we are simply back to the same argument as before: You see health care as a “positive right”, so that it requires special burdens and demands be place-able on those who provide services by contract.  Whereas I do not find it reasonable that we should allow the government to do that to us – to any of us.  If it is reasonable to do that to my neighbor in his profession, then it will be reasonable to do it to me in my own profession.  And I don’t find it reasonable.

    You do use phrasing about “society” quite a lot in your arguments. (society may then find it necessary and reasonable to reform the profession”).  Charles Martel answered this quite well above, so I won’t go into it a great deal.

    Via the vote, we elect legislators who pass laws, and regulatory pressure is one area that we grant government power over us.  There is a question over which regulations are proper and necessary.  This question – how much regulation and of what sort is proper –  is one of the main contentious areas between liberals and conservatives.   Our debate may simply wind down to that: If the voters approve legislators who would place such special burdens on doctors and pharmacy companies, then so be it.   You’d be happy, I wouldn’t, but in the nature of representative government, we move on… until the next election cycle, that is.

    But “society”, meaning, in the end, government power – is also composed of judicial decision.  And if “positive rights”, such as the health care burden to be placed on doctors and pharmacy companies, hold sway over the judges, then by judicial fiat the question becomes Constitutional, and the issue becomes settled.  (Perhaps only until elections again result in a different set of judges being appointed…)   But again it comes down to our prior difference on “positive rights”.  Where, once something becomes a positive right, a judge may rule on it, and the case is closed, one way or the other, for it is no longer merely a matter for legislation.

    So, in summary, I don’t know that anything new has been added here, from my perspective.  I don’t think a compromise goal can be justified, because I would not vote for legislators that would vote for such regulations, nor do I believe in positive rights.  I would allow physicians and pharmacy companies to refuse to provide a service based on religious objections as for any other objection.   It is simply a time-honored legal precedent that an individual or company offers services by contract, or does not.   Allowing the government to violate that precedent, but only for some companies or individuals of some types – such as those providing health care – can’t be correct, to me.

    You would possibly argue that the resulting pain and suffering of the client is such that they must be compelled.  Do you see that such an argument has astoundingly broad implications?  If you can do that in the area of health care, then you can do that in any area.  I could stop paying my electric bill, and expect continued service, for in the winter (and here in Dallas in the summer) I would be in danger of freezing, and especially there could be harm and suffering for children.  Philosophically, such claims that pain and suffering require special burdens be placed on those offering services would result in violations of precedence across so many areas.

    It’s a noble goal, I grant you.  But allowing the government to step in and impose special burdens across the board, can only be done via the affirmation of “positive rights” across the board.  You can try to limit such “positive rights” to health care only, and that might in fact end up being the pragmatic result you seek.  We – the collection of American citizens you call a society – vote in legislators that vote in such regulation, and elect judges that support it – and those in favor are happy, those not in favor are not, and on we go.  Should “positive rights” extend beyond health care in the manner I fear, voter outrage forces reform via elections.

  10. BrianE says

    It’s interesting that in relation of the “church and state” you view the separation as absolute, but in the matter of conscience to practice your religion (the free exercise thereof) you are willing to limit that right to convenience.
    If a doctor believes abortion is murder, and arrives at that conclusion based on a religious belief, I’m not sure how you can compel a doctor to provide the service regardless of whether there are other doctors willing to perform the abortion.
    It’s really simple. You are forcing the doctor to violate his belief. Once we cross that line (I suppose we’ve already crossed it) as our society becomes ever more greedy, seceding more authority to the central government, their is no limit to what the government can compel people to do.
    I get the impression you view the Bill of Rights as a convenience.

  11. suek says

    >>I get the impression you view the Bill of Rights as a convenience.>>
    I get the feeling he agrees with O about “negative Rights”, and thinks there should be a second “positive” Bill of Rights.
    I still don’t understand, though, how he can defend government’s right to limit various freedoms, but deny the right of a local school board to determine what will be taught in its school.  Or why it seems to be the right of the minority to limit the rights of the majority – and therefrom, state that if the membors of the majority don’t like the limitations on religious freedom in public schools, they can opt for private schools of their choice, but places no burden on the minority to opt for private schools of _their_ choice.
    Other than that he’s a Statist, of course.  And desires to control the education/indoctrination of all children through the offices of the State instead of leaving that job to the parents.

  12. says

    ” I’m merely pointing out that the right is not absolute since it is subject to well recognized limitations. ”
    You are not a Founding Father. Utilizing the authority of the Constitution, as it was written in the past, does not bolster your case now.

  13. says

    I’m simply urging an effort to find a balanced solution that frees doctors and pharmacists of adverse legal consequences of refusing services without thereby throwing patients under the bus.”

    There’s no way to preserve people’s self-interest by sacrificing one group to appease the other. That is neither alpha leadership nor is it particularly stable in the long run.
    You can try to find a balanced solution, by the methods you advocate are inherently designed to exploit one class in favor of another. Not all goals can be achieved through any means. Some goals require a specific method or methods.

  14. suek says

    >>Utilizing the authority of the Constitution, as it was written in the past, does not bolster your case now.>>
    “Make them obey their own rules … all of them … to the letter.”
    This has a familiar feel…

  15. Doug Indeap says


    Of course, many limitations of rights are of the time, manner, and place variety. They are nonetheless limitations, and the rights thus are not “absolute” in that respect.
    But you want to focus on a particular type of limitation on freedom of speech, i.e., limitations on the content of what someone can say. Okay. Such limitations are perhaps the most disfavored (with good reason) and thus rare sort the law recognizes. They do nonetheless exist. For instance, obscenity. Freedom of speech does not preclude government from prohibiting or punishing obscenity. (There are, of course, problems defining obscenity, but that’s another subject.) Similarly, freedom of speech does not preclude the government from prohibiting or punishing slander. One cannot defend against a charge of slander by invoking the freedom to say whatever one wants. Similarly, freedom of speech does not protect speech presenting a “clear and present danger,” e.g. falsely shouting fire in a crowded theater or giving a spy secret information on military matters. See, e.g., http://en.wikipedia.org/wiki/Schenck_v._United_States

  16. Doug Indeap says


    I have not said that said that separation of church and state is absolute. Indeed, I said just the opposite. See #94, last paragraph.
    You suggest I am willing to limit the free exercise of religion to convenience (whatever that means), but I said nothing of the sort. You seem to suggest, as has Earl and suek and Ymarsakar, that this right or freedom is or should be absolute. My point is that it is not and cannot be so. I have mentioned the Wake Forest paper several times, not because it is the be all and end all of the subject, but because it offers a good, readily accessible summary of what the law is on this subject. A quick perusal would put to rest this “absolute” discussion.

  17. Doug Indeap says


    I think you see “positive rights” in this discussion where they just aren’t. You seem to have a different understanding of this new federal statute–and my suggested revision of it–than I do. I have said nothing about this positive rights idea you are eager to oppose. Neither this new federal statute nor my comments on it are predicated in the least on any such positive rights.
    Here is my understanding of this law: Various existing laws (primarily state laws) either grant patients rights to certain services or obligate physicians or pharmacists to provide certain services in various circumstances. For instance, perhaps a doctor or pharmacist may be obligated by his or her employment contract to provide professional services to certain people. Or perhaps if a doctor or pharmacist already has a professional relationship with a patient, state law and/or professional codes of ethics limit his or her ability to discontinue or refuse professional services. I am hardly expert in these areas of law, so cannot recite all of the various circumstances in which EXISTING LAW obligates these professionals to provide services and imposes consequences (e.g., demotion, termination, loss of license, or civil liability) on them if they wrongfully refuse. Realize the circumstances in which existing law imposes such obligations may be relatively few and far between; I don’t really know. (I did not mean to somehow “limit” discussion to pharmacists or anything else in particular; I merely observed that they likely were most often in circumstances where existing law obligates them to provide pharmacy services to members of the public.) In any event, the risk apparently was sizeable enough that Congress saw fit to pass a statute to relieve doctors and pharmacists of such legal consequences if they refuse to provide services for religious reasons.
    So, that is my starting point. I do not posit any new “positive rights.” I merely suggest that, as a matter of policy, this provision relieving doctors and pharmacists of the consequences of failing to fulfill obligations they have under existing law would be better if it included at least some measures aimed at assuring that those to whom the doctors and pharmacists owed the obligation (i.e., their patients) are not harmed as a result. This suggestion calls merely for adjusting or tempering the grant of immunity to doctors and pharmacists; it does not impose on them any obligation that they don’t already have under existing law (by that, I mean existing law before the recent grant of immunity).
    You say that I would impose a “special burden” on refusals to provide services for religious reasons, a burden not placed on refusals for other reasons. Existing law, though, does not obligate a doctor or pharmacist to make a particular career choice, nor does it obligate a doctor or pharmacist to provide a particular service against his or her professional judgment. Nor do I propose any such obligations. (Indeed, in my view, when a doctor refuses to perform an operation or a pharmacist refuses to fill a prescription for professional reasons, he is not refusing professional service, but rather is providing it; perhaps the most important aspect of that service is the doctor or pharmacist exercising his professional judgment. It is an entirely different matter when a doctor refuses to perform an operation or a pharmacist refuses to fill a prescription for religious and not professional reasons; that is refusing to provide professional service.) Again, I simply accept as a given whatever obligations existing law imposes on doctors and pharmacists and suggest that they be relieved of the legal consequences of refusing to fulfill those obligations for religious reasons provided that at least some measures are taken to assure that their patients don’t suffer as a result. Relieving a professional of his existing obligations on the mere condition that something be done to protect those to whom he was obligated hardly seems too much to expect of any professional worthy of the name. Realize that if a doctor or pharmacist did not have any obligation under existing law to provide service, then under the immunity provision as well as my suggested revision of it, the doctor or pharmacist would remain unobligated and free to refuse the service for religious, or indeed any other, reasons. This is not about creating or extending rights beyond those currently existing. Rather, this is about whether and how to relieve professionals of whatever existing obligations they may have.
    It appears we have come full circle on this–and then some–so perhaps we’ve about exhausted what we can get from this discussion. I appreciate your–and others’–thoughtful comments. I have enjoyed the conversation and have learned from it. Thanks.

  18. says

    “You seem to suggest, as has Earl and suek and Ymarsakar, that this right or freedom is or should be absolute.”
    It is more accurate to say that what has been constituted in the US Constitution simply cannot be replaced on the say so of any law or opinion.
    Not only are the laws you raised in contention over whether they are Constitutional, but whether people “understand” the law or not is completely apart from whether the law is just or not, constitutional or not. Those are issues you choose to ignore at the peril of serious debate.

  19. says

    “You say that I would impose a “special burden” on refusals to provide services for religious reasons, a burden not placed on refusals for other reasons.”
    If we speak of the law, necessarily we speak of the law’s enforcement. I don’t believe you should take on the persona for the enforcer of the law when your powers as a lawyer are rather disparate.
    Although it would help if you separated your own personal views from what you say is the view of the law in question. It’s not a particularly good idea to mix and match personal beliefs with that which you are representing without a clear dividing line.

  20. suek says

    >>One cannot defend against a charge of slander by invoking the freedom to say whatever one wants. Similarly, freedom of speech does not protect speech presenting a “clear and present danger,” e.g. falsely shouting fire in a crowded theater or giving a spy secret information on military matters.>>
    You’re repeating yourself.
    If you slander someone, you are not prosecuted by the State _for_ the State  – you are sued by the person slandered.  That is not a government limit on free speech.
    If you yell Fire in an empty theater, no problem.  Crowded theater, problem.  But once again, the problem isn’t with the speech, it’s with the harm.  If all of the crowd managed somehow to exit without any harm, it’s unlikely that any prosecution would occur – though they might ban you from the theater.  If someone _is_ harmed, then no doubt that person would hie themselves to the nearest injury attorney and sue the socks off you.  Again, probably not a criminal prosecution unless multiples of people are injured – in which case – yes. You would be criminally liable – not for a free speech violation but for an action that endangered others.  Giving the enemy spy secrets is not a free speech violation – you don’t even have to verbalize the secrets – it’s an “aid and comfort to the enemy” issue.  Not a free speech issue.

  21. Mike Devx says

    Doug, I do have one further comment…
    You seem to have a different understanding of this new federal statute–and my suggested revision of it–than I do.

    I’d missed the fact that you were discussing a specific statute.   I’m still unclear on the specific statute you’re referring to.  I waded through all the discussions above – and what wide-ranging ones they all were! – and I did find a link to the “Carlson” paper in #85 that may be the statute you refer to.

    That paper was interesting.  This leapt out at me:

    Pharmacists are in a unique position of power in these situations. If they refuse to refer the patient to another willing pharmacist, or worse, keep the prescription, the pharmacist has made it much more difficult for the woman to gain access to contraception. The refusal to give EC to the patient or refer her to a willing pharmacist may literally make it impossible for women in low-income areas and rural communities to get access to the drug.

    I’ve never heard of a pharmacist “keeping a prescription”.  That sounds like theft to me.  In any health care program I’ve been under, I’ve been free to take my prescription to any pharmacy I choose.  I thought that was the case for everyone.  A pharmacist who “keeps” my prescription because he or she doesn’t like its contents is risking me coming over the counter to take it back, violently.  And with a hell of a lot of shouted words and expletives directed at them.  I’m probably just fantasizing on my violent reaction here, but the idea of a pharmacist daring to do that REALLY pisses me off no end.

    I’m actually surprised that “conscience clauses” allow an individual pharmacist to refuse to honor a legal prescription.  I don’t agree with that.  I don’t agree that an Islamic taxi driver be allowed to refuse me taxi service because I am carrying a bottle of liquor in a bag; or such a cashier in a grocery store be allowed to refuse to ring up my wrapped-in-plastic pork product either.  Perhaps as a side note, I’ve heard at least a few stories of military contractor programmers leaving their jobs because they no longer could justify, to themselves, working on software programs that advanced certain destructive weapons systems.  That’s the proper response to me: If you’re confronted, as an employee, with something you conscientiously object to, but is legal, your choice is to leave or stay.  That’s how I see it, anyway.


  1. [...] Links To Visit – 01/31/10 Published in January 31st, 2010 Posted by TMH in 2nd Amendment, American Revolution, American Stuff, Constitution, Financial, Founding Fathers, Illegal Immigration, Military, Politics, Religion, Survival, Taxation, Terrorism Bookworm Room – Leftist tactics to scare the uninformed about America’s religious freedoms *UPDATED* [...]

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