Participants: Lincoln Steed (Host), Bruce N. Cameron
Series Code: LI
Program Code: LI000169B
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00:03 Welcome back to the Liberty Insider.
00:05 Before the break with guest, Bruce Cameroon, 00:08 we were talking about Supreme Court 00:10 and it particularly has a table, 00:13 which is the most recent significant case 00:16 for religious freedom went very well, didn't it? 00:18 It was a glorious decision. 00:20 Not only did it do the things we've just been discussing, 00:23 but it did something that's very critical 00:25 and I look forward to seeing how the law develops. 00:29 Many years ago, the United States' 00:31 Supreme Court decided a case, 00:33 which was called Smith versus 00:35 Unemployment Division of Oregon. 00:38 And this case, I think, 00:40 is one of the worst cases 00:43 that could be imagined with regard to religious liberty. 00:46 What the US Supreme Court said in Smith is that 00:49 the free exercise of religion is not entitled 00:52 the same kinds of protection that freedom of speech, 00:55 the freedom of association are entitled, 00:58 instead its essentially, second class rights. 01:01 Now, how did they do that? 01:03 Normally if you've got a statute 01:05 that infringes upon your speech rights 01:08 and in the old days, on your religion rights, 01:11 you could go to court and say look, 01:13 my religion freed-- 01:15 my religious freedom has been impaired. 01:17 My free speech has been impaired. 01:19 And that would trigger an obligation 01:20 on the part of the government to show 01:22 that there was a compelling State interest 01:24 in inhibiting your religious freedom 01:26 or your first amendment rights. 01:28 And not only that they had a compelling State interest, 01:31 but they had done it in a way that has accomplished 01:34 their interest in a way 01:36 that was least intrusive 01:38 on your religious believes that is-- 01:41 they call the least restrictive alternative. 01:43 So that was the standard. 01:45 Well, I should interject just to catch 01:47 the interest of viewers that this will concern 01:50 the native American smoking peyote, 01:53 but it wasn't much natural sympathy 01:55 from society to this religious activity. 01:59 I think that's what got in the way of it. Right? 02:01 Well, that's one of the problems, 02:03 although you could say-- The underlying principle 02:06 was important for all people of faith. 02:08 Well, that's exactly right. 02:09 Because the new principle was this, 02:12 the Supreme Court said that if Congress passes 02:15 or any legislature passes a statute, 02:17 which has general applicability, 02:20 even if it violates your religious beliefs, 02:23 it's not unconstitutional. 02:25 So the key was, is it generally applicable. 02:28 If it is, then it's all over. 02:30 So for example Congress could-- 02:31 Well, if Sunday law could easily 02:33 pass muster on that places. Absolutely. 02:35 You and I are thinking the very same thing. 02:37 I was gonna give that example. 02:39 That if they said that is Congress said, 02:41 we've got a gas problem. 02:43 We don't want to be importing foreign oil. 02:46 No one can drive on Saturday. 02:48 Absolutely, positively constitutional. 02:51 It's, I mean, under Smith. 02:53 Well, Hosanna Tabor was a problem under Smith 02:58 because the anti-discrimination laws, 03:01 the laws against the discrimination based 03:03 on disability are uniformly applicable. 03:07 And I've always been very interested 03:09 in how the Court of Appeals would get around 03:12 that problem since it was the Supreme Court 03:14 that had had handed down Smith. 03:16 Well, when Hosanna Tabor came to the United States' 03:19 Supreme Court, they specifically 03:21 commented about Smith. 03:23 They commented on the uniform applicability 03:26 and they said we're not following Smith in this case. 03:30 And they made a distinction in Smith. 03:32 They talked about Smith being a control over 03:37 these overt acts and that this was something different. 03:41 I look forward to other courts saying, 03:43 we don't have to follow Smith anymore 03:45 because the Supreme Court has now opened the door. 03:49 Opened the door, but they really 03:50 didn't disavow the Smith. 03:52 They didn't disavow it. 03:53 No, no, but they lend out. 03:54 I would have loved to have them say, 03:56 that's not good law. 03:59 They wouldn't have had everyone agree 04:02 if they had repealed Smith or said Smith is no longer-- 04:07 Now, you and I have a major difference 04:09 and we haven't entered into it yet on this program even. 04:13 I know I've made Statements, which I've made 04:15 to some of our other religious liberty workers 04:18 that while there were many problems 04:20 on the religious liberty front, 04:22 many changes and suicidal attitudes, 04:24 many governmental actions, I've not tended to see 04:29 the Supreme Court as the leader in the problem. 04:32 Oh, they're definitely a huge problem. 04:34 But as I've listened to you, I think, 04:38 even though, you have a big problem with them, 04:40 it's in a certain area where I see the Supreme Court 04:43 as viewing a good line 04:48 is on separation of Church and State. 04:51 Like under the pledge of allegiance, 04:54 on the good news club type thing and, you know, 04:59 the use of religious clubs in the schools and so on. 05:03 They seem to separate pretty well, 05:05 but some of the cases you've cited. 05:07 Yes, they set some bad precedents 05:10 in how religion is in, maybe, on free exercise. 05:17 This case as you just mentioned, 05:19 I agree with those, 05:21 but in the workplace context, 05:24 the Supreme Court has been-- 05:25 Let's more free exercise, isn't it? 05:27 Well, it is free exercise, 05:30 of course, the constitution doesn't apply 05:33 to private employees 05:36 so I can't say it's free exercise 05:37 for private employees but their rules 05:40 are with regard to construing Title 7, 05:43 have been very, very bad. 05:45 I tell you one of the worst decisions, 05:47 they decided in 2006, it was called 05:50 14 Penn Plaza versus a Pyett 05:53 and just briefly put some managers of offices 05:58 in New York made an agreement with organized labor 06:03 that all the employees who were serving 06:06 as night watchmen would now no longer do that. 06:10 They were gonna bring in some contractors 06:12 and the people have been sitting around 06:14 reading novels at night 06:16 found that they are involved now in dusting, 06:19 and house cleaning, and carrying stuff, 06:21 they didn't like it. 06:22 So they filed an EEOC charge 06:26 saying they are discriminating 06:27 against us on the basis of age. 06:30 It could've been a discrimination 06:31 based on religion if there were different facts 06:33 but they said age. 06:35 So it went up to the US Supreme Court 06:37 and the US Supreme Court said this, 06:39 the collective bargaining agreement 06:41 'cause there is a union involved in this case 06:43 says that any Title 7 claims are subject 06:48 to arbitration under the contract. Now get this. 06:52 These employees have sued the union 06:54 and they would sue the employer. 06:55 So, both of them were their litigation opponents. 06:58 The US Supreme Court said, 07:00 "Oh! If your employer and your union have agreed 07:03 that this goes to arbitration, 07:05 then you only have the right to go to an arbitrator. 07:08 You no longer have a right to go to the EEOC. 07:11 You no longer have a right to go to court. 07:12 Now here is the punch, Lincoln. 07:18 Who chooses the arbitrator? 07:21 The employer and the union. 07:23 Who pays the arbitrator? The employer and the union. 07:27 So the next time, you and I have a dispute 07:30 and you wanna sue me, I say great. 07:33 We will take this to arbitration, 07:35 and arbitration in which I select the judge, 07:37 and arbitration which I pay the judge 07:39 and if this judge wants to continue to be employed 07:42 and get paid, he knows I will pay him in the future. 07:45 I've read a lot of material 07:47 not religious liberty oriented about this trend 07:50 toward arbitration and it seems clear 07:52 that it always works in the favor 07:56 of the moneyed interest or the power party 08:00 not an individual worker or a citizen. 08:04 This is why-- And I wonder myself. 08:06 I don't know the answer to this, 08:08 but I'll be interested in your comment. 08:09 I wonder if it's the move toward it 08:12 apart from some other things may not be just a system 08:15 that's choking on all sorts of litigation and cases 08:18 and that's a way to streamline it, 08:20 just as there's a belief in the US, 08:22 which I think is dangerous to get rid of jury trials 08:26 and to just streamline the legal process 08:28 where you gaveled into jail or under the street. 08:31 I don't think there is any indication 08:33 that the Title 7 cases are choking the judiciary-- 08:36 But is it the same way they just try to streamline 08:39 it to simple because they can't be bothered, maybe. 08:45 Well, that's the argument that it streamlines things 08:50 but it takes away 08:51 the fundamental rights of the employees. 08:53 I don't like arbitration, 08:54 the idea of arbitration myself. 08:56 I think I had said earlier when we were talking 08:59 that organized labor and collective bargaining 09:02 agreements are poison for employees of faith 09:05 because they cut off the obligation 09:08 of the employer or the union 09:09 to accommodate the employees. 09:11 Here's an example where the collective bargaining 09:13 agreement completely eliminates your ability 09:16 to go to the EEOC or go to court. 09:19 You couldn't imagine a more poisonous you know-- 09:23 And there's not usually any redress 09:24 from arbitration, isn't it? That's right. 09:26 You basically cannot-- you have to show fraud 09:30 or show that this issue 09:31 wasn't submitted to the arbitrator. 09:34 Right, you cannot do this. Now here's the thing. 09:37 There are set group of arbitrators, 09:40 and there are a lot of the articles 09:42 on this that indicate that these arbitrators 09:44 who are paid by the employer 09:46 and the union make their decisions 09:48 in large part based upon acceptability. 09:50 That's why you will see in many arbitrations, 09:52 they just cut the baby right down the middle. Why is that? 09:55 It's because the arbitrator has children 09:57 that he or she wanted to send to college. 10:00 They have mortgage payments to make, 10:01 car payments to make 10:03 and they want to be chosen next time for a case. 10:05 They want to be thought well by the one 10:06 that really is paying their way. 10:08 That's right, so if you're an individual employee 10:12 and you never have the opportunity 10:13 to choose the arbitrator in the future, 10:15 guess how they are going to decide in the case 10:18 against the union and the employer. 10:21 So, what's the conclusion of this? 10:23 We don't have much time. 10:25 I've told people, not soliloquy, 10:28 but it sort of waked them up 10:30 that the constitution is a wonderful document. 10:33 We are lucky in the US 10:35 to live under such good protections. 10:36 But it's not a divine document. 10:39 It is both perhaps fallible in the certain obvious way. 10:44 But at the end of the day, we serve God. 10:46 We do what God requires 10:48 and we can't always expect the Lord to save us. 10:51 We certainly can't expect arbitration 10:53 to come to our rescue. 10:56 Lawyers like you and there's chance 10:59 to work on our behalf 11:00 certainly need to follow normal procedures 11:02 but shouldn't we ultimately have trust in God 11:05 and not expect all of the way to be cleaned before us? 11:07 That is the only thing on which the Christian can rely. 11:11 I think it's Psalms 75 that says, 11:13 promotion comes neither from the east, 11:15 nor form the west, nor from the south. 11:17 It's God who sets one up and puts another down. 11:21 And so if the Christian says, 11:22 I am determined to obey God, I want to do his well. 11:26 They can rest in the confidence 11:28 that God in fact would bless them, 11:30 and guide them, and help them. 11:32 If God doesn't rescue their job here now, 11:34 he will rescue them eternally. 11:39 For those of our viewers living in North America, 11:42 you know very well that 11:43 the Supreme Court is criticized regularly. 11:46 One presidential candidate recently said 11:49 that he would demand that justices appear 11:52 before the legislators from time to time 11:55 to explain their decisions. 11:57 That I think is probably unconstitutional 12:00 as well as ill advised. 12:02 But from time to time, we wonder 12:05 why the High Court brings down 12:07 some of the decisions that it does. 12:10 This recent time was not 12:11 one of those moments of questioning. 12:14 It's very gratifying to hear from the High Court 12:18 that they have confirmed for now. 12:23 And I hesitate because we're in a dynamic situation 12:26 that the Church should have an exception 12:29 from some of the requirements of the State 12:32 because as Jesus said, 12:33 "My kingdom is not of this world." 12:36 And we are not to deal with the criteria 12:39 that the world applies. 12:40 The Church should be above petty requirements. 12:44 The Church should be about proclaiming 12:47 the kingdom of God here on this earth, 12:51 the Church should be about Proclaiming justice 12:54 and we thank and applaud those secular justices 12:58 who have accepted and acknowledged 13:00 this reality through Hosanna Tabor. 13:04 For Liberty Insider, this is Lincoln Steed. |
Revised 2014-12-17