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  • Religious Freedom Restoration Act

    This is an article written for anothe publication. It will be slightly edited when it is published in a few weeks.

    Religious Freedom Restoration Act(s)
    __________________________________________________ ____________________

    Legal definitions of ?religion?
    Religious Freedom: Within Constitution (al) (First Amendment) embraces not only the right to worship God according to the dictate of one?s conscience but also the right to do, or forebear to do, any act, for conscience sake, the doing or forbearing of which is not inimical to the peace, good order, and morals of society. Batnette v. W Va St Board of Education, DCW, VA., 47 F Supp 251.253,254

    Religion??includes all forms of belief in the existence of superior begins exercising power over human beings by volition, imposing rules of conduct. Nikulnikof v. Archbishop etc of Russian Orthodox Greek Catholic Church, 142 Misc. 894, NYS. 353,663

    The test of religious belief: is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of (those admittedly qualified for a conscientious objector exemption*). ?is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by parallel positions in the lives of their respective holders we cannot say that one is ?in relation to a Supreme Being and the other is not.? Skepticism or disbelief in the existence of God did not necessarily mean lack of faith in anything whatsoever; that his was a ?belief in and devotion to goodness and virtue for their own sake, and a religious faith is a purely ethical creed.? Rev. John Holmes definition of religion as ?the consciousness of some power manifest in nature which helps man in the ordering of his life in harmony with its demands. ? Both morals and sound policy require that the state should not violate the conscience of the individual ?nothing short of self preservation of the state should warrant its violation. Justice Douglas concurred but added ?For then those who embraced one religious faith rather than another would be subject to penalties, and that kind of discrimination as we held in Sherbert v. Verner would violate the Free Exercise Clause of he First Amendment and result in the denial of equal protection by preferring some religious over others - an invidious discrimination that would run afoul of the Due Process Clause of the Fifth Amendment.

    * (author?s description)
    U.S. vs. Seeger, 380 U.S. 163 (1965)

    __________________________________________________ ____________
    Background:

    Prior to 1989 free exercise of religion claims brought under the First Amendment to the US Constitution were analyzed under the ?strict scrutiny? analysis. This is the highest level of protection courts provide. Strict scrutiny means the government cannot substantially burden a person?s exercise of religion unless the government demonstrates that application of the burden of the person in the furthering that compelling government reason.

    1990: US Supreme Court Abandons Strict Scrutiny. The US Supreme Court abandoned this test in the case of Employment Division v. Smith, 494 US 872 (1990). The Court adopted a new test for free exercise of religion claims which provided much lower level of protection for religion. Under the new test general laws of neutral applicability which burdened religion were still constitutional. For examples go to: www.lc.org/OldResourses/rfra.htm.

    Resulting from this Senators Orin Hatch (R. Utah and Edward Kennedy D.Mass) introduced the federal Religious Freedom Restoration Act which passed the Congress virtually unanimously. In June 1997 the US Supreme Court struck down that act holding that Congress lacked the authority to impose additional requirements on the States. This seems quite odd in light of the explicit language of the 14th Amendment which specifically provides in paragraph 5 that ?The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.? Thereafter at least 13 States have adopted their own acts and it is believed that the State Supreme Courts in about a dozen more have retained the Strict Scrutiny test which the Religious Freedom Restoration Act imposes.

    This discussion is limited to Florida (but essentially applies to many states)

    Florida became the Second State to adopt a Religious Freedom Restoration Act. It was supported by many groups including the American Civil Liberties Union. It became law without the signature of Governor Lawton Chiles. In 1998.

    Title XLIV Civil Rights, Chapter 761, Religious Freedom
    The Florida Religious Freedom Restoration Act is quite simple. It essentially does what was common practice until the 1990 US Supreme Court decision. However, it now legislates affirmatively and it should be binding. Let?s discuss some of its provisions. Unlke some acts such as Texas which gives government officials up to 60 days to correct a problem, the Florida Act gives no time so it would seem that common sense would apply.

    Government includes any branch, department, agency, instrumentality, or official or other person acting under color of the state, a county, special district, municipality, or any other subdivision of the state. (That?s every entity we would have to deal with).

    ?Demonstrates? means to meet the burden of going forward with the evidence and of persuasion. This would then have to be interpreted to mean that the government must prove through evidence that nudity is so damaging to society that is has to be outlawed. Most of us are aware that there are absolutely no reliable studies that would or could demonstrate this while many concluding the opposite. In the Hillsborough hearings on the nudity ordinance there was much discussion on the need to demonstrate ?secondary effects? to outlaw nudity. Though I had raised the issue of the RFRA, it was not discussed though it will certainly be brought up before it comes back to the council.

    ?Exercise of religion.? means an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief. A religious belief doesn?t have to be one held by a ?church?; it can be a religious belief held by one. And based on the US Supreme Court?s determination of what constitutes a religion, religion is essentially any strongly held belief system. I would therefore assume that every member of TNS, AANR, SFFB, BEACHES has religious beliefs -- I certainly hope so. Some of us may base our religious beliefs on more traditional Christian beliefs, others may hold to other forms of religious belief systems. But the government cannot discriminate and must treat all ?religious ? beliefs systems equally.

    761.03 Free exercise of religion protected

    The government shall not substantially burden a person?s exercise of religion (Naturism was normal is primitive Christianity; naturism is a proper life style for Naturists, Naturism is a major part of a ?religious belief system? of every naturist I know regardless of specific faith.) even if the burden results from a rule of general applicability (overturning the language of the US Supreme Court which allowed this) except that the Government may substantially burden a person?s exercise of religion only if it demonstrates that application of the burden to the person:

    1. Is in furtherance of a COMPELLING governmental interest; and
    2. It the LEAST RESTRICTIVE MEANS of furthering that compelling governmental interest.

    Now here is where they might try to attack us. The banning of nudity is a ?compelling? government interest.? Why? What government interest except to restrict a religious view? We protect the rights of all minorities. 19% of the public acknowledge that they would utilize clothing optional facilities and nearly 80% approve. So what compelling government interest can be argued or shown? It?s not national security. It?s not (though some would argue) protecting the Morality or religious views of others. Our views are entitled to equal protection too.

    And wouldn?t a ?least restrictive? means be to provide a proportional amount of beaches and parks where persons would use them nude ?in accordance with the religious belief system?. Wouldn?t any reasonable person agree that that would be the least restrictive. And let?s remember that this act doesn?t stand alone. We must take and utilize every positive court decision we have including the Florida Supreme Court?s decision that nude is not lewd and conduct must be lewd and lascivious to be actionable under Florida Statues.

    I think it is very important to combine initial demands for approval of Clothing Optional beaches with a declaratory statement that initially they will be ?religious? demonstrations. Pursuant to the February 13, 2003 Federal Court decision of US District Court Judge Donald M Middlebroks. Nude demonstrations couldn?t not be restricted. Religious demonstrations can be the mere act of a first use of an area for nude recreation (demonstrations) or perhaps the reading of ?religious? positions supporting the dignity of the human body - or the carrying of signs supporting naturism - I?m certain that the readers can come up with many means of lawful demonstrations.

    But let?s return to the Florida Religious Freedom Restoration Act

    I had to use the RFFA for a very silly matter just a few weeks ago. I regularly visit a prisoner in the Sarasota County Jails. The Chaplain determined that only the New International Version of the Bible would be made available to prisoners. This particular person wanted a King James Version. I complained to the jail to no avail except to receive a complaint that I have overstepped my ?clerical? boundaries in requesting a King James Bible. To say the least I was irate when the Chaplain called me to complain -- and I complained right back and assured him that the prisoner would receive his Bible. I immediately sat down and faxed a formal demand on the Sheriff, giving him 24 hours before I entered the court system (at his expense) and under the RFFA. Twenty-two hours later the Sheriff ordered the Chaplain to modify his policy. An irate Chaplain called me to tell me that he had been overruled -- but he wanted me to know that I had just made it possible for the WICCANS to come into the jail. I ignored him.

    There appears to be several ways of achieving justice. Obviously, I recommend working with or trying to work with officials first (on a short time frame). One could go out onto a beach nude, refuse to get dressed, tell the officer that you were exercising your religious rights and still probably be arrested. Then the law says that under the Religious Freedom Restoration Act you may assert the RFFA as a defense in a judicial proceeding and obtain appropriate relief. At least to me, it would be best to meet with and give reasonable notice -- and even better to do so in a group of perhaps 25. Without the RFRA, we had two arrested last year in Venice for sunbathing in the nude on the beach and with the help of BEACHES and Ken Thomas (President of Suncoast Naturists), the charges were dropped when the Prosecutor was presented with case law.

    If you prevail, the State (government) must pay your legal fees.

    Once you give notice and have to employ counsel (which I would recommend immediately -- if possible get an attorney on a contingency basis) , the County or State must pay the prevailing plaintiff?s (or defendant?s) legal fee. You also have the right under the act to seek injunctive relief such as occurred in the federal case in February and the State must pay your fees. Do you think the voters of a county are going to want to be saddled with large legal fees for something like this. In Hillsborough County On May 7, the 3 members voting against the anti nudity ordinance warned that all they were doing is getting prepared to have to spend millions of tax dollars they don?t have on this anti-nudity legislation.

    Miscellaneous:

    FS 761.05 states that the act applies to all state law, whether statutory or otherwise. (3) Nothing in this act shall be construed to authorize the government to burden any religious belief (Seems stronger than the original language which allows for a compelling government reason to burden).

    My Conclusion:

    The Religious Freedom Restoration Act of Florida affords great opportunities for all Naturists as well as other religious groups to protect their rights. Based on the accepted legal definitions of religion, I believe that virtually every human being is ?religious? even though I have my preference for Christianity. Groups should work together and take reasonable time to coordinate with our State groups so that the right governments might be approached first -- but we should not delay. Try the ?little? things first -- use of remote beaches, but demand equal protection in that we want a portion of the best beaches -- even accessible for handicapped persons (might as well throw in another protected group) If there are bathrooms for many of the beaches, we must demand equal treatment and demand bathrooms too.

    You can access all of the documents which I have referred to above by going to www.naturist-christians.org Then go to the Links. Choose Legal and you will find everything mentioned and more including laws from many more States.

    Bill Martin, www.naturist-chritians.org
    [email protected]

  • #2
    This is an article written for anothe publication. It will be slightly edited when it is published in a few weeks.

    Religious Freedom Restoration Act(s)
    __________________________________________________ ____________________

    Legal definitions of ?religion?
    Religious Freedom: Within Constitution (al) (First Amendment) embraces not only the right to worship God according to the dictate of one?s conscience but also the right to do, or forebear to do, any act, for conscience sake, the doing or forbearing of which is not inimical to the peace, good order, and morals of society. Batnette v. W Va St Board of Education, DCW, VA., 47 F Supp 251.253,254

    Religion??includes all forms of belief in the existence of superior begins exercising power over human beings by volition, imposing rules of conduct. Nikulnikof v. Archbishop etc of Russian Orthodox Greek Catholic Church, 142 Misc. 894, NYS. 353,663

    The test of religious belief: is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of (those admittedly qualified for a conscientious objector exemption*). ?is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by parallel positions in the lives of their respective holders we cannot say that one is ?in relation to a Supreme Being and the other is not.? Skepticism or disbelief in the existence of God did not necessarily mean lack of faith in anything whatsoever; that his was a ?belief in and devotion to goodness and virtue for their own sake, and a religious faith is a purely ethical creed.? Rev. John Holmes definition of religion as ?the consciousness of some power manifest in nature which helps man in the ordering of his life in harmony with its demands. ? Both morals and sound policy require that the state should not violate the conscience of the individual ?nothing short of self preservation of the state should warrant its violation. Justice Douglas concurred but added ?For then those who embraced one religious faith rather than another would be subject to penalties, and that kind of discrimination as we held in Sherbert v. Verner would violate the Free Exercise Clause of he First Amendment and result in the denial of equal protection by preferring some religious over others - an invidious discrimination that would run afoul of the Due Process Clause of the Fifth Amendment.

    * (author?s description)
    U.S. vs. Seeger, 380 U.S. 163 (1965)

    __________________________________________________ ____________
    Background:

    Prior to 1989 free exercise of religion claims brought under the First Amendment to the US Constitution were analyzed under the ?strict scrutiny? analysis. This is the highest level of protection courts provide. Strict scrutiny means the government cannot substantially burden a person?s exercise of religion unless the government demonstrates that application of the burden of the person in the furthering that compelling government reason.

    1990: US Supreme Court Abandons Strict Scrutiny. The US Supreme Court abandoned this test in the case of Employment Division v. Smith, 494 US 872 (1990). The Court adopted a new test for free exercise of religion claims which provided much lower level of protection for religion. Under the new test general laws of neutral applicability which burdened religion were still constitutional. For examples go to: www.lc.org/OldResourses/rfra.htm.

    Resulting from this Senators Orin Hatch (R. Utah and Edward Kennedy D.Mass) introduced the federal Religious Freedom Restoration Act which passed the Congress virtually unanimously. In June 1997 the US Supreme Court struck down that act holding that Congress lacked the authority to impose additional requirements on the States. This seems quite odd in light of the explicit language of the 14th Amendment which specifically provides in paragraph 5 that ?The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.? Thereafter at least 13 States have adopted their own acts and it is believed that the State Supreme Courts in about a dozen more have retained the Strict Scrutiny test which the Religious Freedom Restoration Act imposes.

    This discussion is limited to Florida (but essentially applies to many states)

    Florida became the Second State to adopt a Religious Freedom Restoration Act. It was supported by many groups including the American Civil Liberties Union. It became law without the signature of Governor Lawton Chiles. In 1998.

    Title XLIV Civil Rights, Chapter 761, Religious Freedom
    The Florida Religious Freedom Restoration Act is quite simple. It essentially does what was common practice until the 1990 US Supreme Court decision. However, it now legislates affirmatively and it should be binding. Let?s discuss some of its provisions. Unlke some acts such as Texas which gives government officials up to 60 days to correct a problem, the Florida Act gives no time so it would seem that common sense would apply.

    Government includes any branch, department, agency, instrumentality, or official or other person acting under color of the state, a county, special district, municipality, or any other subdivision of the state. (That?s every entity we would have to deal with).

    ?Demonstrates? means to meet the burden of going forward with the evidence and of persuasion. This would then have to be interpreted to mean that the government must prove through evidence that nudity is so damaging to society that is has to be outlawed. Most of us are aware that there are absolutely no reliable studies that would or could demonstrate this while many concluding the opposite. In the Hillsborough hearings on the nudity ordinance there was much discussion on the need to demonstrate ?secondary effects? to outlaw nudity. Though I had raised the issue of the RFRA, it was not discussed though it will certainly be brought up before it comes back to the council.

    ?Exercise of religion.? means an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief. A religious belief doesn?t have to be one held by a ?church?; it can be a religious belief held by one. And based on the US Supreme Court?s determination of what constitutes a religion, religion is essentially any strongly held belief system. I would therefore assume that every member of TNS, AANR, SFFB, BEACHES has religious beliefs -- I certainly hope so. Some of us may base our religious beliefs on more traditional Christian beliefs, others may hold to other forms of religious belief systems. But the government cannot discriminate and must treat all ?religious ? beliefs systems equally.

    761.03 Free exercise of religion protected

    The government shall not substantially burden a person?s exercise of religion (Naturism was normal is primitive Christianity; naturism is a proper life style for Naturists, Naturism is a major part of a ?religious belief system? of every naturist I know regardless of specific faith.) even if the burden results from a rule of general applicability (overturning the language of the US Supreme Court which allowed this) except that the Government may substantially burden a person?s exercise of religion only if it demonstrates that application of the burden to the person:

    1. Is in furtherance of a COMPELLING governmental interest; and
    2. It the LEAST RESTRICTIVE MEANS of furthering that compelling governmental interest.

    Now here is where they might try to attack us. The banning of nudity is a ?compelling? government interest.? Why? What government interest except to restrict a religious view? We protect the rights of all minorities. 19% of the public acknowledge that they would utilize clothing optional facilities and nearly 80% approve. So what compelling government interest can be argued or shown? It?s not national security. It?s not (though some would argue) protecting the Morality or religious views of others. Our views are entitled to equal protection too.

    And wouldn?t a ?least restrictive? means be to provide a proportional amount of beaches and parks where persons would use them nude ?in accordance with the religious belief system?. Wouldn?t any reasonable person agree that that would be the least restrictive. And let?s remember that this act doesn?t stand alone. We must take and utilize every positive court decision we have including the Florida Supreme Court?s decision that nude is not lewd and conduct must be lewd and lascivious to be actionable under Florida Statues.

    I think it is very important to combine initial demands for approval of Clothing Optional beaches with a declaratory statement that initially they will be ?religious? demonstrations. Pursuant to the February 13, 2003 Federal Court decision of US District Court Judge Donald M Middlebroks. Nude demonstrations couldn?t not be restricted. Religious demonstrations can be the mere act of a first use of an area for nude recreation (demonstrations) or perhaps the reading of ?religious? positions supporting the dignity of the human body - or the carrying of signs supporting naturism - I?m certain that the readers can come up with many means of lawful demonstrations.

    But let?s return to the Florida Religious Freedom Restoration Act

    I had to use the RFFA for a very silly matter just a few weeks ago. I regularly visit a prisoner in the Sarasota County Jails. The Chaplain determined that only the New International Version of the Bible would be made available to prisoners. This particular person wanted a King James Version. I complained to the jail to no avail except to receive a complaint that I have overstepped my ?clerical? boundaries in requesting a King James Bible. To say the least I was irate when the Chaplain called me to complain -- and I complained right back and assured him that the prisoner would receive his Bible. I immediately sat down and faxed a formal demand on the Sheriff, giving him 24 hours before I entered the court system (at his expense) and under the RFFA. Twenty-two hours later the Sheriff ordered the Chaplain to modify his policy. An irate Chaplain called me to tell me that he had been overruled -- but he wanted me to know that I had just made it possible for the WICCANS to come into the jail. I ignored him.

    There appears to be several ways of achieving justice. Obviously, I recommend working with or trying to work with officials first (on a short time frame). One could go out onto a beach nude, refuse to get dressed, tell the officer that you were exercising your religious rights and still probably be arrested. Then the law says that under the Religious Freedom Restoration Act you may assert the RFFA as a defense in a judicial proceeding and obtain appropriate relief. At least to me, it would be best to meet with and give reasonable notice -- and even better to do so in a group of perhaps 25. Without the RFRA, we had two arrested last year in Venice for sunbathing in the nude on the beach and with the help of BEACHES and Ken Thomas (President of Suncoast Naturists), the charges were dropped when the Prosecutor was presented with case law.

    If you prevail, the State (government) must pay your legal fees.

    Once you give notice and have to employ counsel (which I would recommend immediately -- if possible get an attorney on a contingency basis) , the County or State must pay the prevailing plaintiff?s (or defendant?s) legal fee. You also have the right under the act to seek injunctive relief such as occurred in the federal case in February and the State must pay your fees. Do you think the voters of a county are going to want to be saddled with large legal fees for something like this. In Hillsborough County On May 7, the 3 members voting against the anti nudity ordinance warned that all they were doing is getting prepared to have to spend millions of tax dollars they don?t have on this anti-nudity legislation.

    Miscellaneous:

    FS 761.05 states that the act applies to all state law, whether statutory or otherwise. (3) Nothing in this act shall be construed to authorize the government to burden any religious belief (Seems stronger than the original language which allows for a compelling government reason to burden).

    My Conclusion:

    The Religious Freedom Restoration Act of Florida affords great opportunities for all Naturists as well as other religious groups to protect their rights. Based on the accepted legal definitions of religion, I believe that virtually every human being is ?religious? even though I have my preference for Christianity. Groups should work together and take reasonable time to coordinate with our State groups so that the right governments might be approached first -- but we should not delay. Try the ?little? things first -- use of remote beaches, but demand equal protection in that we want a portion of the best beaches -- even accessible for handicapped persons (might as well throw in another protected group) If there are bathrooms for many of the beaches, we must demand equal treatment and demand bathrooms too.

    You can access all of the documents which I have referred to above by going to www.naturist-christians.org Then go to the Links. Choose Legal and you will find everything mentioned and more including laws from many more States.

    Bill Martin, www.naturist-chritians.org
    [email protected]

    Comment


    • #3
      "19% of the public acknowledge that they would utilize clothing optional facilities and nearly 80% approve."

      I agree with most everything you said there but this one phrase. Those numbers were taken from a poll that was worded to get the best possible result. I hate using it because the results really aren't honest.

      Also there are a lot of people who don't believe in any religion or only do so in a very vague way. Would it stand up if it were someone that doesn't practice religion but just has a general belief in a god?

      Comment


      • #4
        The law should (and does) protect those religions that do not use a god concept, such as Buddhism and Confucianism.

        Comment

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