jmcnrick at EROLS.COM
Fri Aug 7 03:09:51 PDT 1998
I have waited for a while to see what the thrust of this list was
before commenting on these topics. But now I quit lurking with some
comments on the various issues.
But does a parole restriction banning a woman from coming within 500
feet of an abortion clinic pass strict scrutiny? Is it really the
least restrictive means
of serving the admittedly compelling interest in preventing
and blockades? That strikes me as a tough claim to defend.
As a legal representative of the Religious Left, I have
consistently found that the courts (especially the kind of judge who
would let the woman continue to harass people who are exercising
their own right of abortion) have had no problem concluding that
probation banning protesting in a certain local passes
constitutional muster. As we are often told by the Prosecutors:
"If you can't do the time, don't do the crime." And, indeed many of
my clients, including 80 year old women who felt God compelled them
to try to end nuclear weapons and apartheid and other such
travesties HAVE done the time.
So yes, I think placing a ban during probation is the least
restrictive means of meeting the compelling interest. Not imposing
the ban does not meet the compelling interest at all. You have not
suggested a lesser restrictive means and nor, apparently, did she.
The only time that my clients religious beliefs were actually
taken into account in a criminal trial (other than the token--"the
defendants have deeply held sincere religious beliefs, but that is
not an excuse for . . . . :) was when an older Irish Catholic judge
was sentencing approximately 150 priests and nuns and others who
sat in at the Capitol Building on Pentecost. He was giving time
served, two years probation and plus 300 hours community service.
When he got to the priests he said: "Well, Father, I am not going to
give you community service because your whole life is community
service which the court recognizes, so I am just going to give you
time served." So, when he got to the nuns he said, "Time served,
two years probation and 300 hours community service."!
I vastly prefer that the court apply the human law and let God
take care of God's law.
It has been earlier suggested that it is weak, at best, to
suggest that God might affirmatively lead a person to have an
abortion. My personal experience as a Quaker is that that is not
so. As many of you may know, Quakers do not have what we call
"hireling ministers" and so we each carry the heavy responsibility
of determining the Way that God leads us. Since there is so much
room, as mere humans, for error in our understanding as to what
God's will is for us, Quakers have devised a system by which elders
of a Meeting [church] are asked to sit in a Clearness Committee
with an individual who is trying to discern God's will for them. I
remember not too many years ago a very young woman approached me
after meeting for worship to ask me to gather such a committee for
her to discern what was the right choice for her as a 19 year old
unmarried, unemployed college student. After much prayer and
discussion [ten of us met for four hours with her and her boy
friend], she felt clear that the abortion was the right choice for
her at that time. There is no question in my mind about that
decision, as well as many others, having come from a true leading.
That there are some of you who would not feel so lead does not
negate the depth and sincerity of those religious beliefs.
This, of course, is the problem with the government, rather than
religious groups, trying to decide which are true leadings. Of
course, as Quakers, we can generally convince most any court we are
following true leadings, we are considered such heavy hitters.:-)
But I worry a great deal about other persons whose church doesn't
recognize the continuing revelation of God as a central doctrine "He
wrote. I believe it, That settles it." How do they manage to come
off without looking like crazies?
But, of course, the reality is that they don't have to worry.
For example, a case out of Louisiana concerning the use of a Social
Security number as identification where the religious claim seem
tenuous at best, Steckler v. United States, 1998 WL 28235 (E.D.La.),
the court took the standard position of accepting the religious
claim on face value. This has always superficially worked to my
client's advantage. In other words, I have personally never seen
a judge use his or her intuition as to whether something is a deeply
held religious belief except for Conscience Objectors cases where
the person was in the military before they realized that they were
unable to act. [Although doubts were always expressed when I
represented Rastafarian's for possession of marijuana.]
Interestingly enough this brings me to
Third, Jim Maule (whom I thank for pointing me to this list)
asked in the context of the discussion of child custody and the
religious upbringing of the children, about whether a change of
heart could affect a voluntary contractual relationship.
It is not unheard of for young men and women to be persuaded by
military recruiters that being a doctor in the military is like
being a doctor in civilian life except in uniform. Unfortunately,
this is not true. In the first place, a doctor in the military
must, if ordered, perform in battle zones regardless of
specialties. But more significantly, military doctors MUST provide
treatment for military personal first regardless of the relative
seriousness of the need of a competing civilian. Thus, if a
civilian is dying and a soldier comes in with a hang nail, the
military doctor is required to deal with the hang nail first even if
that means that the civilian dies. Well, some doctors feel this is
a violation of everything they believe and, therefore, cannot in
good conscience continue as military doctors. Unfortunately, this
issue usually comes up in Officer Training camp in the second summer
after medical school. So the doctor usually has been paid for two
or more years of education for which they are legally (and
contractually) are bound to serve in the military in their residency
level. If they approach their commanding officer or their chaplain
they are generally told that there is no recourse. This is true
where there is no recruiter fraud or religious beliefs. But CCCO,
NISBCO and others have successfully taken this issue to court and
they have been released from their contract in exchange for paying
back the money with payments beginning after residency training.
(Anything else would result in the un-just enrichment of these young
people according to the JAGs I have talked to.) Some of these cases
have been based on the doctors gaining a better understanding of
what is required of them; but some of these cases have been based on
a change of heart of the individual as they have become more
involved in religion. So to the broader question of the religious
change of heart and contracts, I would say the answer is yes, a
religious change of heart may well be the basis for nullification of
So I thank you for all the illuminating discussion so far and
introduce myself as
J. E. McNeil
McNeil & Ricks, P.C.
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