In order to prove that the above is true
I begin by uncovering the only 3 types of burdens needed to define in order to
describe the free exercise of religion
clause which are these:
(A) a coercion to violate religion in
practice.
(B) a coercion to consent to a
temptation to violate religion in practice.
(C) a coercion to consent to a proposed
temptation to violate religion in principle, only.
Giving concrete examples of a religious
adherent under burdens A and B above are easy enough. But have you ever heard
of a burden C? Would you even know how to describe a concrete example to anyone
no less yourself how a religious adherent would experience going through a
burden C? My bet is that you can’t and neither can any lawyer do so as well! Therefore
ALL LAWYERS ARE BLIND to burden C. As a preview of what’s to follow I’ll
not only provide you with a concrete example of a religious adherent burdened
by C but moreover prove to you that for 50 years now and running all lawyers in
the area of religious freedom (and leaking into other areas of the law as well
but for now I don’t want to confuse you) depend on and apply precedential case
law exclusively pertaining to burden C only,
yet erroneously lawyers apply that holding instead to substantially different
burdens e.g. A and B above even though all who do so have no definition or even
knowledge of C to follow as I have uniquely and powerfully provided here above.
In turn otherwise all lawyers and all those who depend on lawyers have no
handle on how to compare no less apply burden C to other facts and
circumstances (similar to those of Mrs. Sherbert in Sherbert v. Verner which will be
explained below) and consequently apply the some compelling state interest
test. Yet to the contrary when burdens A and/or B are part of the relevant
facts and circumstance consequently the government is prohibited to condone
doing so as in reality is the case with the Jan. 20th 2012 HHS
mandate and its Feb. 10th 2012 concession and what the California Supreme Court in 2004 did as
will be explained below. But on first glance let’s make some quick distinctions
between these 3 burdens:
First of all A and B involve burdens in
practice whereas C is in principle only. The distinction is that in principle
only [cf. C] means never in practice [cf. A and B]. Secondly A
and B involve burdens that exist in the present tense whereas C is in the
future tense i.e. not existing yet and even though in the future there is no
actual possibility of ever existing in practice at all!
So no wonder in Sherbert v. Verner where the
petitioner, Mrs. Sherbert, claimed that the State had placed a burden C on the
free exercise of her religion the United States Supreme Court would have
permitted the government to do so, yet only on condition that the governmental
limitation or restriction in question - here burden C - was shown to be the
least restrictive means of achieving some compelling state interest. But in Sherbert
the government failed to meet its burden of proof and consequently she did not
have to lawfully submit herself to burden C.
Nevertheless in 1963 Sherbert provided
the precedential case law for other courts to yet erroneously allow governments
to do so. A case in point occurred on March 1, 2004 in Catholic Charities
by the California Supreme Court which only followed Sherbert v. Verner
and held that coercing the Holy Roman Catholic Church to pay for intrinsically
evil contraception coverage in all group health insurance [“GHI”] plans offered
to its Prolife employees who work in Catholic Hospitals and at Catholic
Charities was the least restrictive means of achieving some compelling state
interest notwithstanding that the Holy Roman Catholic Church strongly objected
to support financially intrinsically evil contraception that Human vitae in 1968 taught
was non-negotiable. The legal reasoning why the California Supreme Court’s
doing so was clearly erroneous follows:
“We therefore
review Catholic Charities’ challenge to the WCEA [i.e. an abbreviation of The
Women’s Contraceptive Equity Act, added] under the free exercise clause of the
California Constitution in the same way we might have reviewed a similar
challenge under the federal Constitution after Sherbert, supra, 374 U.S.
398, and before Smith, supra, 494 U.S. 872. In other words, we apply
strict scrutiny. Under that standard, a law could not be applied in a manner
that substantially burdened a religious belief or practice unless the state
showed that the law represented the least restrictive means of achieving a
compelling interest or, in other words, was narrowly tailored.”
Catholic
Charities of Sacramento, Inc. v. The Superior Court of Sacramento County, Dept.
of Managed Health Care et al, Real Parties in interest, 10
Cal.Rptr.3d, at 311-2; 32 Cal. 4th, at 562.
As I pointed out above burden C is in
principle only whereas GHI involves burdens A and B but never C. By reason one
can easily imagine religious adherents refusing to accept A and B but for
practical reasons accepting burden C. Therefore by comparing religious
adherents who are burdened in reality by burdens A and/or B whereas the Court
analyzes and applies case law meant only as
if they were virtually burdened by burden C instead consequently by applying
the some compelling state interest test would end up to the contrary denying
religious adherents the very religious freedom Courts are bound but here
instead pretend to protect in the first place.
But
in fact in Sherbert affirmed in Thomas the U.S. Supreme
Court’s majority openly did - but to the contrary California’s Supreme Court
didn’t - prohibit the government to impose B as follows:
“For ‘[i]f the
purpose or effect of a law is to impede the observance (emphasis, added,
defined as making the practice harder to follow, added) of one or all religions
or is to discriminate invidiously between religions [emphasis, added]
that law is constitutionally invalid even though the burden may be
characterized as being only indirect [emphasis, added].’ Braunfeld v.
Brown, supra, at 607.” Sherbert v. Verner, 374 U.S. 398, at 404, 83
S.Ct., at 1794 (1963).
Note “[i]mpede the observance”, Id.,
here refers to identical verses at Matthew 26:41 and Mark 14:38 as this: “Watch
and pray that you enter not into temptation. The spirit is willing but the
flesh is weak.” Moreover Braunfeld v. Brown at 366 U.S. 599, 606, 81
S.Ct. 1144, 1147 (1961) defined “indirect” above as follows: “an
indirect burden on the free exercise of religion, i.e., legislation which does
not make unlawful the religious practice itself,” cf. the HHS mandate,
perhaps for employees and cf. its
Feb. 10th 2012 concession applied to employers as well both of whom
are not coerced to pay for this religiously
offensive coverage; “to discriminate invidiously between religions”, Id.,
however, applies here as is proven discriminatory judicially below. As a matter
of fact the rabbinic Talmud (text) on abortion is found in Mishnah Oholot 7:6 as follows:
“If a woman was in hard
travail [such that her life is in danger], the child must be cut up while it is
in the womb and brought out member by member, since the life of the mother has
priority over the life of the child; but if the greater part of it was already
born, it may not be touched, since the claim of one life cannot override the
claim of another life.”
In
1979, according to a U. S. District Court Judge Harold H. Greene, a Jew who’s
family fled Germany in 1939, the reason why abortion clinics are entitled to
tax-exempt status is not because it involves a woman’s health but rather
because the I.R.S. and/or the Court would “inhibit the free exercise of religion
[n. #1] by those with views opposed to plaintiff’s [Roman Catholic Religion,
added],” Haring v. Blumenthal [471 F.Supp.
1172, 1177 (D.D.C. 1979)] in case that tax-exempt status was taken away from
abortion clinics.
In
Haring v. Blumenthal, the Plaintiff, a Roman Catholic I.R.S. attorney,
refused on religious grounds to review and/or approve applications for tax-exempt
status submitted by abortion clinics on his claim that abortion is not related
to a woman’s health. Consequently Plaintiff demanded and the Court granted an
accommodation to plaintiff’s religious practices not to review such IRS
tax-exempt applications. Yet in addition Plaintiff raised another claim that
abortion clinics should not be granted a tax-exempt status per se precisely for
the same reason. But in denying his claim U.S. District Court Judge Harold H.
Greene revealed legal reasoning to support his denial by holding ab silencio
that abortion is not related to a woman’s
health but is obviously the exercise of a
religion opposed to the Roman Catholic Religion as is shown below:
“To the
contrary, it is the plaintiff’s claim which, if granted, would [emphasis,
added] be violative of the First Amendment. Should the Internal Revenue Service
or the Court grant him the relief he seeks, they would do precisely that which
the Supreme Court in Tilton, supra, stated the government may not do –
they would entangle government with the tenets of plaintiff’s particular
religious faith and inhibit the free exercise of religion by those with
views opposed to plaintiff’s [emphasis, added]. [Needless to say,
Plaintiff’s rights and his views are entitled to no more weight under the
Constitution and laws of the United States than competing speech or belief,
added from footnote #11 thereto, Id.,
at 1177].”
Haring v.
Blumenthal,
supra, at 1177.
On
the one hand at 1st glance Judge Greene respected an establishment
of Judaism by judicial consent that obligated all
taxpayers to fund the practice of abortion since “a tax-exempt or
tax-deductible status is equivalent to a governmental subsidy” Regan v.
Taxation Without Representation, 103 S.Ct. 1997, 2000 (1983) which under 28
USC 242 is a criminal Establishment of Religion Clause violation of the Federal
1st Amendment. The clearly erroneous and/or religious error here is
that Judge Greene compared “no more weight .. than competing speech or belief”,
Id., with abortion which is a sure practice of Judaism as indicated
above. Thus judicially disguising “a practice” by placing the words “competing
speech or belief” in its place is “clearly erroneous” and a religious error.
And it was Pope Leo XIII in his encyclical Inscrutabili Dei Consilio (1878) who
declared that “A religious error is the main root of all social and political
evils”!
On
the other hand the Plaintiff-Paul Haring’s additional claim as mentioned above
was never refuted by the law or by the facts. Since “Normally what is not disputed
is deemed to be conceded,” People v. Gruden [42 N.Y.2d 214, 216 (1977)]
consequently as Paul Haring had asserted to Judge Greene, abortion has nothing
to do with a women’s health which again was held ab silencio as a matter
of law since 1979. Why Pro-life lawyers haven’t seized this case
law opportunity to collapse the HHS mandate covering contraception, abortifacients
and abortion is beyond me. This indeed makes lawyers even that much blinder
than has been proven above! Nevertheless, both passages above make the January
20, 2012 HHS mandate and Obama’s February 10, 2012 concession (if it were ever
issued as the former was) unconstitutional per se under both the free exercise
and establishment of religion clauses to the federal first amendment.
On
September 13, 2012 in order to know what the latest in the law was on the HHS
mandate, I had attended a symposium for the Religious Freedom Project held at
Georgetown University in Washington, D.C. which is when and where I met a few Professors
re: HHS mandate.
On
December 13, 2012 in response to my above legal analysis, Law Professor Mark L.
Rienzi, Catholic University School of Law (Cordozzo School of Law), Wash.,
D.C., commented in a personal email to me that:
“(t)here isn't a
court in the country that will apply Sherbert to these claims as a
matter of Free Exercise law. The understanding of the constitutional history,
repeatedly recognized by the Supreme Court, is that Smith eliminated Sherbert
as the relevant standard. To the extent the California court invokes Sherbert,
I assume they are doing that as a matter of state constitutional law (as in,
they may claim to still interpret their state constitutional protection for
religious liberty according to Sherbert, even if the Supreme Court has
ditched Sherbert as the federal constitutional test). None of that means
that Smith was right (I don't think it was) and that Sherbert
shouldn't still be the test for the Free Exercise claim. But we are too far
down the path for any court to revive Sherbert for constitutional
purposes in a case like this one. That is why if we want to apply Sherbert,
we invoke RFRA (i.e. the abbreviation for and defined as The Restoration of Freedom of
Religion Act,
added) rather than the constitution.”
Yet
Professor Rienzi never realized that Mrs. Sherbert only risked a burden C but
never burdens A and B (as he presupposed she did) as is realized by taking a
closer look at Sherbert: As an employee Mrs. Sherbert was fired from her
job “because of her refusal to work on Saturday in violation of her faith” Thomas v. Review Board [450 U.S. 707,
716 (1981)]. Now as applicant for employment the unemployment compensation
benefits’ board consequently ruled her fired without just cause which in
turn qualified her to become eligible for unemployment compensation benefits
yet pending her answer, “Yes”, to this following question: “Mrs. Sherbert, are
you ready, willing and able to accept work even by accepting a job that would
require you to work on Saturdays in violation of your faith?” In response
thereto Mrs. Sherbert answered “No”. At that point only Mrs. Sherbert was
denied unemployment compensation benefits. In a nutshell Mrs. Sherbert was
denied benefits precisely and accurately because of her refusal to accept the
State’s coercion placed upon her to consent to a proposed temptation to violate
her religion in principle only thus placing a burden on the free
exercise of her religion defined here as burden C, but not burden A or burden
B.
Now
you may ask: Why in principle only? Because arguendo if and when Mrs.
Sherbert answered the question just mentioned above “Yes” then indeed she would
have become eligible for and in turn would have received all the otherwise
available unemployment compensation benefits unless and until, as an applicant
for employment, Mrs. Sherbert was offered a “job” which in turn she could
accept or not. Still arguendo say that above “job” which she was offered
required her to accept a Saturday workday. At this point the question now
becomes this: Would Mrs. Sherbert be obligated to accept the “job” and thereby
work on Saturdays in violation of her faith and in turn be disqualified to
receive unemployment compensation benefits?
The
answer is “No”: As reflected above unemployment compensation benefits are
available only to those who are applicants for employment, not employees! Thus
if Mrs. Sherbert accepted to work on Saturdays, not only would she be choosing
to violate her religion in practice no less but consequently she would be
additionally disqualified to receive benefits as well. On the other hand as a
second necessary and sufficient reason why she was coerced to consent to a
proposed temptation to violate her religion in principle only is because
the unemployment compensation benefits’ board in the first place had already
ruled on the first question that Mrs. Sherbert had to answer concluding that
she was fired without just cause because coerced to show up also on
Saturdays in turn her employer had placed a burden “A” upon her in order to
remain employed which burden “A” the unemployment compensation benefits’ board
ruled that she was always never obligated to accept which was directly
implied by ruling that she was fired without just cause. Thus the
compelling state interest test as established in Sherbert in context
applied only to burden C as proven below, but not to burden A as just
proven above, nor to burden B as proven above that, no less by the High Court
itself yet who for both A and B to the contrary also threw a wrench in the
gears of religious freedom in both of its majority decisions in Sherbert
(1963) affirmed in Thomas (1981) by deceiving the truth for Petitioners,
their attorneys and the judges asked to decide each controversy with 2 clearly
contradictory holdings below: 1st the truth that’s consistent with
all my legal analysis followed secondly by this 50 yrs.’ old judicial fallacy
as follows:
“A similar
argument was made and rejected in Sherbert, however. It is true that, as
in Sherbert, the Indiana law does not compel a violation of
conscience [defined here above as burden C, added]. But ‘this is only the
beginning, not the end, of our inquiry.’ 374 U.S., at 403-404. In a variety of
ways we have said that ‘[a] regulation neutral on its face may, in its
application, nonetheless offend the constitutional requirement for governmental
neutrality if it burdens the free exercise of religion [as is measured by the
above some compelling state interest test as established in Sherbert,
added].’” Thomas v. Review Board, supra,
at 717.
Secondly
the United States Supreme Court, all lower Courts, Congress and State
legislatures, and Federal and State Executives in a catch 22 fashion have been
following a legal or judicial fallacy ever since 1963 based on the majority
decisions in Sherbert and Thomas recited below:
“The ruling
[disqualifying Mrs. Sherbert from benefits because of her refusal to work on
Saturday in violation of her faith]..374 U.S., at 404.” Id. at 716.
On
second glance this fallacy becomes even more obvious by implying conversely
that as an applicant for unemployment compensation benefits, arguendo had she accepted
burden “A” thereby working and violating her religion, then only would she be
otherwise qualified for unemployment compensation benefits!!+?!
Finally
addressing Professor Rienzi’s misplaced reliance on Smith, as did
Professor Charles E. Rice in 2002 as well, I now point out that whatever it was
in Sherbert that the Smith case allegedly overturned was clearly
erroneous in the first place beforehand! Therefore after my legal reasoning
above is known and accepted as a matter of law - as far as reflected in Sherbert,
that is - consequently I will have overturned the Smith case ab
initio thereby also collapsing RFRA because based solely on the fallacy
included in Sherbert that had
been follow ever since regarding burdens A and B yet notwithstanding
Sherbert in context was properly decided resolving a burden C, only, but not A
and B upon which erroneously grounds all HHS mandate lawsuits are based.
CONCLUSION
All
lawyers are blind who (cf. Rienzi) cooperate with the judiciary to
coerce a religious adherent to accept burdens A and/or B because doing so is
the least restrictive means of achieving some compelling state interest
notwithstanding based exclusively on a legal fallacy and religious error no
less. In other words since 1963 all lawyers treat religious freedom as if it
was a privilege instead of a right like I do! Consequently the HHS mandate and
its concession are erroneous and unconstitutional because they clearly deny
religious freedom which is actionable against the Obama Administration and all
Congressional members for adopting similarly situated legislation under 42
U.S.C. 1983 for Civil Rights violations thereby committing federal crimes under
18 U.S.C. 242 as well. Therefore I now ask for a scheduled date to appear
before the HHS to orally make my legal opposition. By observation time is of
the essence! And I dare say that the criminal and civil liability here
mentioned above is enormous!
Lawrence
R. Rosano
See
above on my blog at: http://hhs-mandate-is-unconstitutional.blogspot.com
[n.
#1] “Religious” nature of a practice or belief at 29 C.F.R. 1605.1 is as
follows:
“In most cases
whether or not a practice or belief is religious is not at issue. However, in
those cases in which the issue does exist, the Commission (EEOC) will define
religious practices to include moral or ethical [emphasis, added]
beliefs as to what is right and wrong which are sincerely held with the
strength of traditional religious views. The standard was developed in United States v. Seeger, 380 U.S. 163
(1965) and Welsh v. United States,
398 U.S. 333 (1970)…. The fact that no religious group espouses such beliefs or
the fact that the religious group to which the individual professes to belong
may not accept such belief will not determine whether the belief is a religious
belief of the employee or prospective employee.”
Specifically,
abortion, contraception and sterilization, are the exercises of “the ethical
[emphasis, added] doctrine that virtue is based on utility, and that conduct
should be directed toward promoting the greatest happiness of the greatest
number of persons”, which is the definition of utilitarianism in Random
House-Webster’s Unabridged Dictionary [2nd edition, 1999] inter alia Judaism. On the other hand,
all Prolifers are entitled to follow the Code of Ethics For Government
Service as a religious practice as well which is just one of the claims I
raised in Rosano v. United States [9 Cl.Ct. 137 (1985)] and explained further
in my book ©2004 Lawrence Rocco Rosano.
© 2004 Lawrence R. Rosano
MY DEFINITION:
A BURDEN ON THE FREE EXERCISE OF RELIGION
A burden
on the free exercise of religion under the federal first amendment to the
United States Constitution is created when a religious adherent is coerced to
consent to a proposed temptation to violate religion in principle, only, in
order to receive benefits and/or be eligible for employment, both of which are
not offensive to religion, or else, be punished for not doing so by being
denied the otherwise available benefits and/or employment in question. The intensity of this temptation is that much
stronger when it is always available, instead of proposed, as above, indicated,
and, if always available, consequently, the religious adherent is entitled the
more to the religious freedom in question, accordingly. However, in both cases,
the religious freedom is limited, only, by the government’s showing that the
limitation or restriction on religious freedom is the least restrictive means
of achieving some compelling state interest.
Nevertheless,
to the contrary, the government is prohibited from doing so, whenever the
proposed temptation to violate religion is in practice, instead of in
principle, only, regardless, whatever the intensity is, as above indicated.
