Sunday, April 26, 2009

Clarification of my error in "Obama's UnGodly Youth Corp"

To everyone who might have a problem with the statement in my article, that all religious activity is barred under this legislation

I'll begin by admitting my error the way I worded my claim. I offer no excuse accept to say I should have used the phrase, "Could be interpreted by a court that non volunteer religious related activities are banned".

In my preparation for writing the article, I looked at the probable intent of the law, which is meant to limit the volunteer services to completely secular endeavors - in keeping with the authors understanding of the constitutional requirement for religious neutrality. Remember Courts are constantly ruling upon "original Intent" when they interpret a law.

I also should have pointed out the original language before it was changed to give the reader an understanding of the authors original intent, which was to exclude all religious activity regardless of when it was done. In court, a judge will look at original intent of the legislation like Justice Black claimed he did in his landmark case. In this case the original intent was to ban all religious activity regardless of when it took place. The original text of 125 contained the phrase, "A participant in", which was dropped from the later text.

Now, in looking to original intent, Justice Black claimed that while it was not written in the constitution, Thomas Jefferson's letter proves what the intent originally was. That is how we got the "Separation of Church and State" clause we are bound by. Remember also that Thomas Jefferson was not present when the Constitution was written so he would not be a good candidate to get any intent from. The activist courts have gone out of their way to find any reason to claim the intent of a law is what they want it to be.

These activist judges have shown time and time again that they will use non Constitutional literature to base their opinions on such intent, as Black did. We only have to look at the current members of the Supreme Court who admit they look to foreign laws to base their opinions upon. Where in the constitution does it say we should look to foreign laws to interpret what the founding Fathers wrote in the constitution?

Another problem with the Bill is it is against the EEOC rules to limit religious freedom in the workplace. Courts have upheld the rights for free religious expression even in the workplace as long as they do not interfere with anyone's ability to properly carry out their task. Here is what the Equal Employment Opportunity Commission (EEOC), say on religious freedom at the workplace.

Title VII of the Civil Rights Act of l964
(“Title VII”)
prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. Title VII also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer. This means that:

* Employers may not treat employees more or less favorably because of their religion.
* Employees cannot be required to participate -- or refrain from participating – in a religious activity as a condition of employment.
* Employers must reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer.
* Employers must take steps to prevent religious harassment of their employees.
* Employers may not retaliate against employees for asserting rights under Title VII.3

Now, we know that liberals often claim that proselytizing at work is not allowed. However, while the law is constantly changing with every new court challenge, it is currently permissible to a point. An employee does have a right to engage in religious conduct to the extent that it is not an undue hardship on the employer. Harassing another employee is likely to be an undue hardship. Recall, however, that harassment is a fairly high - but not impossible - standard. So, while the line between permissible proselytizing and workplace harassment is blurry, important factors that bear on the analysis include,

* the pervasiveness of the proselytizing
* its impact on coworkers (e.g., harassing them) and work performance (including profitability)and
* the capacity and willingness of the employer to take steps to accommodate the aggrieved parties, such as by moving the proselytizing employee and the offended employee to different work stations.

The Supreme Court, and lower courts have routinely upheld the language of the EEOC regulations on Freedom of religion in the workplace. The language in the legislation that Obama signed into law is not only unconstitutional, but it goes against the very laws put forth by the EEOC.

What this Bill represents is the over-reaching of an administration that wants to get it all done in the first 3 months, so we end up with an 86 page, shoddily written document that leaves way too much open for interpretation. It is my belief that this legislation is unconstitutional in the way it is written, and will face a court challenge in the future. If history is any indicator we can expect different judges to rule differently.

Another thing to take into consideration, is that Obama only needs one extra judge on the Supreme Court to tip the balance of the court in his favor. So like I said I did error in my assertion about the extent of this Bill's control, but it is already unconstitutional the way it is written, and only one bad ruling away from being what I warned about.

Remember to think about what my "original intent" was, and you can find that by reading the second paragraph of this comment. Again I apologize for my error in the wording of my statement.

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