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Descent Into Darkness

"Those who cannot remember the past are destined to repeat it."
-- George Santayana


    Manipulated masses on a rampage against people and institutions of faith.
    Academic elites and a complicit media smugly assuring us that we're on the path to a new and better society, an era of true liberty, equality, and fraternity.
    Tragically, political discourse in this country has begun to resemble eerie scenes from Les Misrables.
    It is both sad and frightening that the only thing missing seems to be the guillotine.

The Enlightenment
    This growing assault on faith has been a long time in the making. Students of history will recognize its roots in the Enlightenment. They will also recognize both the genius and the irony in the tactical decision to label that time of upheaval as "The Enlightenment" and the centuries which preceded it "The Dark Ages."
    For example, the era when the glorious cathedral at Notre Dame was created for the worship and glory of God is denigrated as the Dark Ages. But the time when that grand edifice was re-named the Temple of Reason, when God was summarily ejected from the public square, and the "Reign of Terror" bore its terrible fruits - that was praised as The Enlightenment.
    Indeed, that was the time when, in order to efficiently dispatch those who disagreed with the new enlightened order of things, Dr. Guillotin perfected the cruel invention which bears his name.
    So what does the new Enlightenment look like here in Idaho and the United States? To understand that, it's important to revisit the founding of our country.

First Freedom
    Following America's Revolutionary War, our nation's founders proposed a radical Constitution which was supplemented with an explicit Bill of Rights.
    In that Bill of Rights, the very first freedoms in the First Amendment are the religious ones. Stated elegantly, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
    One's faith and conscience are neither to be mandated, nor restrained.
    And the individual states were shortly thereafter bound by the same principles when the 14th Amendment was adopted stating that, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
    Over the next two centuries, the government and the courts settled on certain frameworks designed to apply and protect those freedoms.

Two-Pronged Test
    The balanced approach eventually adopted was simple: Government could not interfere with a person's religious actions and words unless it satisfied a two-pronged test:


    So where a government's interest was less than compelling, it could not punish a person whose actions or words were religiously motivated.
    And even where there was a compelling state interest, if a less intrusive or restrictive means of addressing the state's interest was available, the infringement was unconstitutional.

Back of the Bus
    Then came the Smith case.
    Decided by the U.S. Supreme court in 1990, the case involved a claim for unemployment benefits by Native American church members who had been fired after using peyote in their church services.
    But in the process of applying the established two-pronged test, the court threw in a ringer. Unless the case also involved another constitutional liberty - such as freedom of speech or the press - a less restrictive standard would apply, making the government's interference with religious liberties easier to defend.
    With the stroke of the pen, the Supreme Court sent religious liberty to the back of the bus. No longer was it included in the pantheon of fundamental constitutional rights that could only be infringed upon in the most unusual and compelling of circumstances.
    Instead of continuing to be our nation's First Freedom, religious liberty could instead be permissibly constrained in ways that a few decades ago would have been unimaginable. Where people of faith previously had a real and tangible shield behind which to find safety, they now had only a flimsy illusion of that once-great freedom.

Congress Responds
    With rare bipartisanship, Congress quickly responded by passing the Religious Freedom Restoration Act (RFRA) in 1993.
    RFRA simply reinserted the long-standing two-pronged test into the United States Code. It stated that, "Government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."
    RFRA passed the House of Representatives unanimously, the Senate with just three dissenting votes, and was quickly signed by President Clinton.

Flores Case
    Undeterred, the Supreme Court revisited the issue again in 1997.
    Ironically, for decades that court had given Congress carte blanch to pass laws that went far beyond the limited powers expressly granted the federal government by the Constitution.
    Yet suddenly in the Flores case, the Court was gravely concerned about Congress' overstepping of its constitutional bounds. Accordingly, the Court ruled that Congress could only protect people of faith from intrusions by the federal government. In the court's view, states, cities, and counties continued to be free to interfere with religious liberties despite RFRA.
    Only states could tie their own hands and re-impose the longstanding restrictions on interference with religious liberties.

Idaho's RFRA
    In response to the Flores case, the Idaho legislature, led by Senator Grant Ipsen, considered and passed Idaho's own Free Exercise of Religion Act in 2000.
    Section 74-302 of the Idaho Code now states that, "Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person is both (a) essential to further a compelling governmental interest; [and] (b) the least restrictive means of furthering that compelling governmental interest."

The Sniping Continues
    Those who would rid the public square of such liberties continue their search for new and creative ways of doing so, forcing the defenders of religious liberties to continually fine-tune their defenses. Consequently, diligence is required by those who would defend our first freedoms.
    For example, New Mexico photographer, Elaine Huguenin, politely declined to photograph a lesbian "commitment ceremony" because doing so would conflict with her Christian beliefs. In response, she and her husband were sued under New Mexico's non-discrimination statute.
    Elaine and her husband argued that their religious liberties permitted her to follow her conscience when deciding which work to take and which to decline.
    But, in a novel twist, the New Mexico Supreme Court ruled that Elaine's religious freedoms had no bearing in the case because the state itself was not prosecuting her for her business decision. Since the case was brought by the lesbian couple, somehow Elaine's liberties vanished. Shockingly, one of the justices in that decision actually confirmed that, as "the price of citizenship," Elaine could be compelled to compromise the very religious beliefs that inspire her life.
    Making matters even worse, the U. S. Supreme Court has now declined to accept Elaine's appeal of that decision not only leaving the state Supreme Court decision in effect in New Mexico, but inviting other state courts to follow suit.

Assault by Idaho Cities
    Another major assault on rights of religious conscience has already taken root here in Idaho in the form of city non-discrimination ordinances. These ordinances make it a crime to discriminate on the basis of sexual orientation or gender identity.
    So far six cities have already passed such ordinances in Idaho, including both Pocatello and Boise. And in each case, requests that such ordinances explicitly honor constitutional and statutory religious protections have been ignored or rebuffed.
    So, in Boise, for example, if a florist were to decline to provide flowers for a homosexual couple's celebration of their relationship, she could be jailed for up to six months. Or a pastor's widow, seeking to rent out a room in her home to help make ends meet, could also be jailed for refusing to rent a room to a lesbian or homosexual couple. In an even more chilling prospect, the ordinance permits a judge to compel the florist and the widow to be re-educated to the city's satisfaction as a condition of shortening the sentence.
    Because these and similar assaults stretch the fabric of our society to the point of tearing, it is critically important that we be diligent to oppose such efforts or adjust existing statutes to hold such efforts at bay. Otherwise, the slender thread that protects our rights of conscience and our religious convictions is in danger of snapping altogether.

Conclusions
    As President Reagan has said, "Those who have known freedom and then lost it have never known it again."
    While our courts, academia, and the media have attempted to suffocate our religious liberties, it is up to all of us to make sure those efforts are unsuccessful.
    That requires us to discern when the forces of Enlightenment are conspiring to delude and deceive us. Their simple intolerance of all things religious can often be found at the root of their strident accusations of bigotry, inequality, and unfairness against their opponents. Yet in this debate, there is only one side that seeks to completely silence the other.
    And when efforts arise in the next few months in our state legislature to strengthen our liberties, we must be bold to speak in support of those efforts, even when that means navigating the gauntlet of manipulated public opinion.
    Failure to do so will complete Idaho's descent into darkness. And once lost, that liberty will be gone forever.


Barry Peters is an attorney in private practice with offices in Eagle, Idaho, and is one of the legal advisors for both ICHE and CHOIS. His law practice focuses on the areas of wills, trusts, probate, and real estate contracts.

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