Category: Legal Commentary

Jefferson’s Robust Views of Religious Freedom

Public Discourse

17 December, 2012

Brian Walsh, T.J. Whittle,  and Garrett Bauman within Religion and the Public Square

Notwithstanding his unorthodox views of Christianity, Thomas Jefferson staunchly adhered to the rights of all religious believers, Christian and non-Christian alike, to free religious exercise.

Thomas Jefferson called the holidays the season of “greatest mirth and jollity,” but as Americans gather with friends and family this month, recent threats to religious liberty might dampen some of their holiday cheer. Fortunately, Jefferson’s thought also can give hope and encouragement to supporters of religious freedom. After a wearisome election year fraught with animosity and threats to religious freedom, it behooves us to reconsider Jefferson’s advocacy for religious liberty as a cornerstone of our fundamental rights.

Jefferson held deeply conflicted (some would say hostile) views of the religious beliefs of most of his fellow citizens. Despite this, he was devoted to the liberties of all religious believers. Examining his reasons for this might help even those who share his skepticism toward traditional, organized religion to appreciate the case for defending America’s historically broad protections for the free exercise of religion. Jefferson advocated religious freedom not out of any strict pious devotion, but out of his insights into human nature and the nature of good government. These include the view that religious pluralism in tandem with the exercise of enlightened reason is foundational to a well-ordered society.

But it is imperative to distinguish the long-simmering contention and disagreement over Jefferson’s beliefs on religion from his clear public support for religious liberty. When it came to religious freedom and rights of conscience, Jefferson was both a strong critic of official government establishments of religion and a staunch proponent of the free exercise of religion. . . [Read on]

Re: Washington State Board of Pharmacy Regulation

  •  Carrie Severino* | My organization, the Judicial Education Project, in conjunction with two leading Jewish Orthodox Groups, Agudath Israel of America and the National Council of Young Israel, has filed an amicus curiae brief in a Becket Fund case, Stormans Inc. v. Mary Selecky, et al. . . .  Stormans challenges the constitutionality of Washington State’s Board of Pharmacy regulations that require pharmacists and pharmacies to dispense emergency contraceptives. Unfortunately, this regulatory burden falls—due to secular regulatory exemptions and the Board’s selective regulatory enforcement—exclusively on religious objections to emergency contraception, while passing over similarly situated non-religious objectors. . .
    Full Text

Legalizing therapeutic homicide and assisted suicide

A tour of Carter v. Canada

Carter v. Canada (Attorney General) 2012 BCSC 886. Supreme Court of British Columbia, 15 June, 2012. Vancouver, British Columbia.

Abstract

A British Columbia Supreme Court Justice has struck down Canada’s absolute ban on assisted suicide as well as the rule that one cannot legally consent to be murdered. It pertains only to cases of physician-assisted suicide or homicide. She has suspended the ruling for a year to give the government time to decide how to respond, but, in the meantime, has ruled that a physician may help one of the plaintiffs to commit suicide or provide her with therapeutic homicide. The government of Canada has filed notice of appeal.

The trajectory of the trial was determined by the unchallenged fundamental premise that suicide can be a rational and moral act, and that the sole purpose of the law against assisted suicide is to prevent suicides by vulnerable people in moments of weakness, who might be tempted to commit suicide that is not rational and moral. The only issue was whether or not safeguards could be designed to permit legitimate access to assisted suicide, while preventing the vulnerable from accessing it in moments of weakness.

It was not thought reasonable to demand that a system of safeguards be 100% effective. A different standard was required. The standard chosen was the current regime of end-of-life practices, since the outcome of a mistake in this regime (‘death before one’s time’) is the same as the outcome of a mistake in regulating assisted suicide.

Patient safety in end-of-life care is currently ensured by the principle of informed consent, assessment of patient competence, and the use of legal substitute decision-makers for incompetent patients. Since these measures are considered sufficient for the purposes of withholding, withdrawing or refusing treatment, it was decided that they should be sufficient for the regulation of assisted suicide for competent adults. The burden of proof was on the defendant governments to prove that this could not be done. The text of the ruling indicates that they provided evidence of risk, but failed to prove that safeguards cannot be effective.

Madam Justice Smith does not rely on any part of the ethical discussion in Part VII of the ruling in reaching her conclusion about the constitutional validity of the law against assisted suicide. The discussion of ethics in Part VII is a judicial soliloquy that is likely to capture the attention of readers, but it is likely to distract them from the pith and core of the judgement and contribute to rather than minimize confusion and controversy.

In legal argument, keeping prudent silence about morality, philosophy or religion does not produce a morally neutral judicial forum. It simply allows dominant moral or philosophical beliefs to set the parameters for argument and adjudication. However, in the case of conscientious objection to participation in assisted suicide or therapeutic homicide, an appeal to freedom of conscience or religion must make direct reference to the beliefs of the objector about the moral nature of the act to which he objects.

[Full Commentary Text]

Warning against anti-Shari laws

Robert K. Vischer of St. Thomas University in Minneapolis warns against The Dangers of Anti-Sharia Laws in First Things.  Such legislation, he says, “. . . proposes an unconstitutional double standard.”  The attacks on the application of Sharia by American courts, which also apply denominational and private prinicples when adjudicating contract disputes, “fan the flames of religious intolerance while nurturing public acceptance of the notion that the religious commitments of our citizens have no place in our courts.”

“Canon law and biblical principles are not dirty words in the American court system,” writes Professor Vischer, “and Sharia should not be either.”

 

Project Submission to the College of Physicians and Surgeons of Ontario

Re: Physicians and the Ontario Human Rights Code

(11 September, 2008)