Welcome back to
the Liberty Insider.
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Before the break with
guest Professor Bruce Cameron.
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We've gone up feeling
down then on the Supreme Court
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on this particular
case but we've gone back
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to the future to the Smith case
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which has Antonin
Scalia's fingerprints
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all over it, right?
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Yeah, that's all he had for
comrades who voted with him.
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But I know he is
often been fingered
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as part of the problem there.
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He absolutely was
part of the problem.
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And I think he had
clear opinion on it
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but that put him
in trouble, right?
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That's right, in fact you
know, to explain to the audience
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about this...
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in the normal case involving
a First Amendment right
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of free speech.
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If the state
interferes with your right,
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it doesn't matter whether or
not they intended to interfere,
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if you file lawsuit challenging
the constitutionality
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of the
interference, state has to show
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a compelling state
interest satisfied in a way
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least restrictive on your right.
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That's the classic
first amendment test.
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Justice Scalia and
for other justices said,
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when it comes to
free exercise of religion,
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the government has
to be targeting you,
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that is the
government has to be aiming
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at depriving you
of religious freedom,
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otherwise it's not a violation
of the first amendment right
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of free exercise,
it's a horrible decision.
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I mean, it was just making
problems with people of faith,
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and it makes a
mockery of the first amendment
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that seems to me...
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Well, mockery...
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That the government's
not to be in the religious,
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put his hands off, let it go.
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Yeah, for seventh day Adventist,
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it was cause for real
concern because for example,
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if you are our age, you've seen
the cycles with gas problems
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and imagine if
the government said,
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no one could drive on
the weekend or on Saturday
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because we want to
conserve gas under Smith,
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absolutely
constitutional, it's not...
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Generally
applicable law. That's right.
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Generally applicable
not targeting religion.
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So Congress thankfully
was concerned about this
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and they pass through religious
freedom restoration act
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which at the time...
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What year was that again...
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Was it '96?
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I'm gonna go with
whatever date you say.
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That sounds right.
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I'm on the interpretation site,
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not the historical side.
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But I think it
was round about there
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but and it was declared
unconstitutional unfortunately
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but not for the road,
I don't think it was for
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a reason that disqualifies
the bill, it was a good bill.
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You're exactly right, Lincoln.
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It's not because of the marriage
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through religious
freedom restoration act.
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It has to do with
the basis for passing it.
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It was based upon
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the Fourteenth
Amendment Section 5.
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I won't get in the
constitutional complexity
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of it, but it simply had to
do with Congress's authorization
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to pass the statute.
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It would have
applied to the states.
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Right, not the
merits of the bill
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and it still applies
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to Religious
Freedom Restoration Act,
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still applies to
federal employees.
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And is being quoted
recently in Supreme Court cases.
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That's right.
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In fact, it was the bases
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for the Hobby
Lobby, did decision.
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We'll talk about
another... That's right.
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We need to really settle
on that and discuss it fully.
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What I really want
to mention, I hesitated,
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because we had a program
on it, but it's worth telling
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our viewers, that the
effort to do it state by state,
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which followed on
from the Supreme Court
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disqualifying it as
a federal general law
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applied to the states.
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It's now going
through state by state
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and that was going
fine, I think 20 states
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passed state refers and
then the growing conflict
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between gay rights
and religious rights
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became a public item.
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I think it was Indiana,
remember the Indiana case
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hit the fan big
time, and you may know
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but some
interested inserted some,
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some language there
that gave Christians
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or people of faith
the right to, I think,
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sort of
aggressively exclude gays
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and others in
businesses and that,
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then the war was on, and
I think the future of state
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refers is probably not good.
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Well, it's unfortunate,
because in the past both left
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and the right agreed
on religious freedom.
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They agreed on the Religious
Freedom Restoration Act,
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but as you say, exactly right.
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It is the rising
growth, the homosexual movement
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that has harmed it.
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Now when you say aggressively,
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I think that as a shop owner,
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I should be able
to practice my trade,
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operate my shop
without violating
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my religious beliefs
and what was happening is,
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that states
were passing statutes
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that would protect
sexual orientation and say,
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but you had to
patronize people regardless
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of their sexual orientation.
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Well, I think that
probably most Christians
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would have no idea
about the sexual orientation
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of their
customers, it's not an issue,
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they sell cookies to
whoever wants to buy cookies.
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The problem is,
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when you force someone
that has artistic input,
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someone who is creating
a cake, creating, you know,
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photographer
what have, let's say,
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we're going to force your speech
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to promote a homosexual event.
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That's where the clash
starts. Well, that's true.
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There is a crossover
where it clearly impinges
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upon your individuality
and your views that
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I think from what I've
read, there are some people
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that would like to have
sort of a current version
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of what I saw when I
first came to the U.S.,
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you know, the end of
the Civil Rights movement,
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they were signs up,
you know, certain people,
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we're not gonna serve,
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and that had this
theology of sorts too.
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So, you know, Christianity
and religion is wonderful,
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but like many belief
systems, you can use that
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for personal bigotry.
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Well...
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I'm little afraid
that some people at least
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are getting involved
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just to exclude
the certain category
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rather than in
this very real cases
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were someone can be
personally conflicted
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over an apparent
demand to become part
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of what they
think is morally wrong.
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Let me tell you
the difference between
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the Civil Rights movement
and the gay rights movement...
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Oh, they're not the same at all.
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Christianity...
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Yeah, was at the heart of
the Civil Rights movement.
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I mean, the leaders in
the Civil Rights movement
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were ministers,
Christians supported this idea
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that you shouldn't be
discriminating against people.
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On the other hand,
homosexuality and its movement
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conflicts with
sections of the Bible,
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and so Christians
who are concerned about
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what the Bible say
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are concerned
about supporting it,
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concerned about being
forced to expend their speech,
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their artistic
efforts in support of it.
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Yeah, that's true.
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So, we will talk about refer...
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Right.
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We got off a little...
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So you would asked about
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whether or not
Congress can pass a law,
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which will fix what
the Supreme Court has done
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and the answer is,
its ability is limited.
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This Congress cannot
definitively interpret
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the United States constitution,
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instead, it can pass a statute
that give someone rights,
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or course what's
the parallel to that.
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If Congress can pass a
statute to give those rights,
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Congress can pass a statute
to take away those rights
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or now the statute of the past.
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And then Scalia said
correctly a few times,
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even if congress can't,
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then Supreme Court had
said the constitution says this,
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there is a
mechanism in the constitution
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to amend the constitution.
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Well, that is true.
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Which we don't do
very much but it's...
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Hopefully not often.
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No,
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but that is the strength of it,
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I mean, it started
off with amendments,
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admittedly they were sort
amendments at the beginning,
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a condition of the passage
of the original constitution,
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but in theory it's a document
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that can be adjusted
as the people decide.
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Right, well, I mean,
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I think that
perhaps the last big issue
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was the equal
rights amendment, I mean,
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one that was heavily
debated among the states,
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but here is the
problem in my mind.
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The United States
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is the most
successful country in history.
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Why is it successful country?
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Because I think it's
based on biblical principles
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which are the rule of law,
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free choice and the rule of law,
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and so I think
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that kind of bases
shouldn't be changed.
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You and I might
have a little difference,
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I wouldn't worded that way.
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I don't think it's
based on biblical principles
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but its bases,
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there maybe
distinctive difference
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but it accorded more
closely with biblical principles
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as it came into
its formative period.
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I mean English common law
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and history wasn't all biblical.
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I think it had a
strong Protestant flavor to it
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that clearly put us on
the right side of morality
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and as you and I believe,
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God blesses the nation
that follows his natural law.
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Here is the
historical distinction,
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the French Revolution,
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the American
Revolution are at the same time.
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The French Revolution
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was not based on
biblical principles,
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the American Revolution was.
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In fact, you're right,
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that's a very clear
distinct and in many ways
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the French Revolution
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was an over
rejection of religious freedom.
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Exactly.
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Exactly, and so
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and so many ways
this idea of free choice,
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this idea of free
decisions reflect God's will
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to give us free choice,
when it comes to making things,
00:11:13.37\00:11:18.17
making decisions in our life.
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Even those decisions
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which involve very
direct consequences,
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if we make the wrong ones.
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That's why I say
the U.S. Constitution
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reflects God's
will on free choice.
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To me it's rather axiomatic
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when talking
about religious liberty,
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but you can
discover it in the negative
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anytime there is
compulsion involved.
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When we talk about
religion and the trade unions
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that is the sticking point.
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Are you compelled to join in
such a union against your will,
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and further,
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in this era of some
sort of deferment though,
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are you compel to pay the dues.
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Thankfully that is
largely been resolved,
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but it's worth
remembering this principle.
00:12:06.55\00:12:10.53
When you talk
about unionism per se,
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I think it's easy as
the matter of history.
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To be thankful
in the western world
00:12:14.86\00:12:17.10
that the rights of employees
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and the general
welfare of society
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are being helped by
the dynamic of unions
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working out working conditions
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with their
employee, the employers.
00:12:27.01\00:12:29.41
After all the age of
laissez-faire industrialism
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is long past,
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but never the
age of laissez-faire
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religious accommodation,
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and anybody with a
deeply held faith surely
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needs to have the
ability and the right
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to up doubt of any
coalition that might co-opt
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their freedom of choice.
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For liberty Insider,
this is Lincoln Steed.
00:12:52.53\00:12:55.70