Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
Amendment I: Employment Division v. Smith
"Sha’ul . . .  turns to how they [(believers)] should relate to the chief external
institution, the state . . . . His advice . . .  corresponds to Judaism’s ‘Dina dimalkuta
,’ Aramaic for ‘The law of the kingdom is Law,’ Torah to be obeyed as if God
had commanded it . . . ."
"Does this mean that believers should obey the wicked laws of an evil
government – the Nazis, the Communists, other totalitarian regimes?
No, because this rule does not stand by itself in Scripture; it must be set against
Ac[ts] 5:29 (‘We must obey God, not men’) when the will of the state and the will of
God conflict . . . ." 1

Amendment I (cont’d):

The supreme Court’s secular humanist agenda hit a wall around 1990. From the hermeneutical prologue’s perspective, it was doomed long before 1990 to hit a wall. From that perspective, like the Tower of Babel, every form of human government that doesn’t recognize and honor both the progressive revelation and the basic jurisdictional principles that appear in Scripture, is doomed to failure, to be smashed against the wall. The social compact formed through the founding documents of the united States is no exception. Even though adherence to those documents generated a system of social compacts that is the least jurisdictionally dysfunctional in human history, such dysfunction, if not amended, leads inevitably to social decay and ultimate demise. The de facto Protestant establishment has been evidence of such decay. That form of jurisdictional dysfunction showed up in religion clause jurisprudence as the belief-action doctrine. That doctrine manifested a failure by the supreme Court to recognize and adhere to the fundamental distinction between secular social compacts and religious social compacts. As is evident in the chapter above on the de facto secular humanist establishment, the Court attempted to correct the failures of its belief-action doctrine starting with a series of opinions delivered in the 1940s. But that effort at amendment was done on top of a national consolidation that had been well under way since the War Between the States. The national consolidation was doomed from its beginning because such consolidation is inherently built on the assumption that it is possible to expand what is essentially a religious social compact to an almost unlimited degree without giving due diligence to individual consent. In essence, that’s a description of the core reason empires collapse, because of such jurisdictional dysfunction. The religion of this national consolidation has turned out to be secular humanism. To replace the religion of the de facto Protestant establishment with the religion of the new era, under the pretense that the religion of the new era was not a religion, the supreme Court replaced the belief-action doctrine with the three-fold analysis that’s often called the Sherbert-Yoder doctrine. This three-fold test collapsed in about 1990. In fact, this doctrine was utterly repudiated by Justice Scalia’s majority opinion in Employment Division v. Smith (1990), after it had started hitting the wall in United States v. Lee (1982).

While Thomas Jefferson believed that the 10th Amendment was at the core of the Constitution, we, as adherents to the hermeneutical prologue, believe that the two religion clauses of the 1st Amendment are at its core. If the designers and maintainers of a social compact don’t understand the secular religion, and the distinction between secular social compacts and religious social compacts, and don’t likewise commit themselves to the basic jurisdictional principles involved, then their efforts towards good government will be in vain.

As the top of the hierarchy of the general government’s judiciary, supreme Court justices have an obligation more burdensome than what’s on practically anyone else, to interpret the Constitution correctly. That duty requires interpretational policies that keep their decision-making from going awry. Essentially, what hit the wall in about 1990 was their constitutional hermeneutics in general, and their religion clause jurisprudence in particular. That spells a lack of national leadership and a lack of national wisdom. Because of the complexity of Employment Division v. Smith, the supreme Court essentially regressed to the belief-action doctrine and the de facto Protestant establishment. There was national outrage against that decision, and a scramble in subsequent years to legislatively fix the outrageous problems in the Smith decision. That scramble resulted in several general statutes pertinent to church-state relations. Those statutes are important. They ameliorate the symptoms to some extent. But they don’t fix the underlying problems. Those statutes, most prominent among which are the Religious Freedom Restoration Act of 1993 (RFRA) and the American Indian Religious Freedom Act Amendments of 1994 (AIRFAA), have been judicially challenged to some extent. At least three important cases involving the RFRA have reached the supreme Court in the thirty years since Smith. Religion being at the core of the Constitution by way of the secular religion and the metaconstitution that’s based on the secular religion, the disarray in religion-clause jurisprudence since Smith essentially depicts a man afloat in a sea of corruption, the man being the polity of the united States. This man is treading water, with practically no sign of help to keep him from drowning. Over the next several chapters of this inventory, we’ll examine these statutes, these opinions, and this man treading water, starting with Smith. Before concluding this examination of the 1st Amendment, we’ll address a crucial set of issues raised by Smith, specifically, the "parade of horribles". 2

Employment Division v. Smith:

In the early 1980s, Alfred Smith (a Klamath Indian) and Galen Black (a non-Indian) were working as drug abuse counselors at the Douglas County Drug Abuse Prevention and Treatment (ADAPT) center in Oregon. 3 Each considered himself a member of the Native American Church (NAC). NAC uses a controlled substance, peyote, as a sacrament in its services. NAC members have long claimed that use of this "medicine" in the formal setting of an NAC service helps Indians to be rehabilitated from alcoholism and drug abuse. The general government – after many decades of scrutinizing peyote use at NAC services – came to believe that these claims are true enough to give a special exemption to NAC. This exemption has appeared in the Code of Federal Regulations (CFR) since before the Drug Enforcement Administration (DEA) was formed. 4 The exemption is obviously administrative rather than statutory. This section of the CFR states:

The listing of peyote as a controlled substance in schedule I does not apply to the non-drug use of peyote in bona fide religious ceremonies of the Native American Church.

Under this exemption – on "federal" and tribal lands – Indians have been able to use peyote in their services without being hindered by general drug enforcement officers. In other words, peyote was legal in those geographical jurisdictions, and has been since before the controlled substance statutes were enacted in 1970. Prior to 1990, about half the States had followed the general government’s lead by copying the same exemption into their laws, thereby allowing NAC members to use peyote within the geographical jurisdictions of their States, without being hindered by the respective States’ drug enforcement officers. Prior to 1990, Oregon was NOT one of these States that had a statutory, administrative, or judicial exemption. 5

NAC was then (1990) a loose confederation of four subsidiary organizations. Each organization is composed of a number of chapters. Each chapter has its own charter and bylaws. There is significant variation in bylaws from chapter to chapter. One significant variation concerns who is welcomed at church services. Some chapters limit participation to people with at least a quarter quantum of American Indian blood. Other chapters welcome "whosoever will". Many chapters change these bylaws according to shifting pressures from the legal community. 6

All fifty States have controlled substance laws similar to the general government’s laws. Some States have exemptions for NAC similar to the general government’s exemption. But overall, variation from State-to-State is huge on this exemption front: "[T]welve states . . .  have an exemption similar to the federal law, and seven states . . .  have full exemptions for the religious use of peyote. Three states . . .  do not limit the religious exemption to members of the Native American Church but extend exemption to any bona fide religious use of the substance. Idaho exempts peyote use only on reservations. As a result, state legislative exemptions provide only a limited protection for the peyote religion. The remaining two dozen states have laws prohibiting peyote, . . .  even if used for religious purposes. . . .  [S]everal of these laws were challenged in state courts. . . .  In cases where . . .  the religious claimant prevailed, . . .  peyotists were granted a judicially created exemption." 7

In order to keep this overview in context, it’s important to bear in mind that the general and State governments are secular social compacts to the extent that they are de jure, and that to the extent that they deviate from their lawful subject matter jurisdiction (meaning enforcement of the secular religion), they are jurisdictionally dysfunctional. So because peyote consumption is not bloodshed, it should not be illegal within these secular jurisdictions. The fact is that the general government and all the States have had generally applicable laws against peyote possession and consumption, mostly for longer than the Controlled Substances Act (1970) has existed. But the general government and some States had exemptions for the NAC to their respective generally applicable laws. Such exemptions have been administrative (as was the case for the general government before 1970), statutory (as has been the case for the general government since passage of the AIRFAA (1994)), and/or judicial.

When ADAPT management discovered that Smith and Black attended NAC services, and consumed this controlled substance, they fired Smith and Black on the grounds of job-related misconduct. Smith and Black filed for unemployment compensation. They were denied unemployment compensation on the grounds that they had been fired for job-related misconduct. After this initial finding, Smith and Black had separate sets of appeals and law suits which each went from the employment appeals board to the Oregon Court of Appeals to the Oregon supreme Court. In the process the State argued that making an exception for Smith and Black, based on their religion, would violate religious neutrality and prohibitions against establishment of religion. The Oregon Court of Appeals applied the "federal" free exercise clause, mandated an exemption, and ruled that both Smith and Black were entitled to compensation. When the Oregon Attorney General appealed to the Oregon supreme Court, that supreme Court agreed with the Court of Appeals. In both the case of the non-Indian Black (Black v. Employment Division) and the case of the Indian Smith (Smith v. Employment Division), the Oregon supreme Court "determined that the claimants ingested the sacrament in a bona fide religious ceremony . . .  The court also considered, and rejected the contention that the denial of benefits was a violation of the Oregon Constitution". 8

When the Oregon Attorney General appealed the Oregon supreme Court’s decisions to the general supreme Court, the latter court combined the cases into a single case and granted certiorari. When the general supreme Court granted certiorari, it was in essence operating under the assumption that the incorporation doctrine did not apply to this case. If it had acknowledged that incorporation applied, then it would have acknowledged that the Oregon supreme Court’s findings in Black v. Employment Division and Smith v. Employment Division were correct, and it never would have granted certiorari in Smith I. Granting certiorari was essentially an act of "judicial activism", because it was an act by the Court of going out of its way to reverse incorporation as it applied to free exercise. Black v. Employment Division and Smith v. Employment Division were both decided by the Oregon supreme Court not based on the Oregon Constitution, but based on the general Constitution and the long-established incorporation doctrine.

Smith I is like Sherbert in that both Smith I / Smith II and Sherbert involve denial of unemployment compensation. This case differs from Sherbert in that it also involves behavior that might be criminal, namely, peyote consumption. If it is criminal, then denial of unemployment compensation is appropriate according to the general supreme Court. That’s because "federal" law made criminal activity a good reason not to give unemployment compensation, whereas Oregon law did not recognize criminal activity as a reason not to give such compensation. If it is not criminal, then according to the general supreme Court denial is not appropriate. The original Oregon supreme Court decision had dodged the criminality issue as irrelevant. It had likewise dodged the issue of whether "peyote religion was protected under the Oregon constitution." 9 The Oregon Attorney General appealed the Oregon supreme Court’s decision to the general supreme Court, and that appeal was heard and decided in the Court’s 1987-88 term. The general supreme Court remanded the case back to the Oregon supreme Court. The general supreme Court wanted Oregon to address both of these issues: (i)criminality and (ii)possible exemption of NAC from criminality. Oregon addressed the exemption issue by indicating that Oregon law "makes no exception for the sacramental use of peyote, but . . .  outright prohibition of . . .  use . . .  by . . .  members of the Native American Church would violate the First Amendment.". 10 Oregon addressed the criminality issue in a footnote by saying, "Because no criminal case is before us, we do not give an advisory opinion". 11 Oregon essentially told the general court "to take a flying leap". 12 So the Oregon Attorney General again pushed the case to the general supreme Court.

Among other arguments in its brief to the general supreme Court in 1987, Oregon "argued that an exemption . . .  would lead to requests for exemptions for other psychedelic drugs, such as marijuana, LSD, hashish, and heroin. Multiple exemptions, it contended, would ‘cripple’ law enforcement and violate the ‘principle of neutrality’ demanded by the establishment clause.". 13 Oregon went on to argue that giving unemployment compensation to Smith and Black was "going beyond the ‘reasonable accommodation’" of their religious rights, thereby "‘confer[ring] a special benefit on religion under circumstances that intervene with compelling state interests.’ The state believed it should not be required to ‘subsidize’ the use of controlled substances through a grant of unemployment benefits.". 14 — Even though Oregon’s unemployment compensation laws did not forbid the granting of unemployment compensation based on the prospective recipient’s criminal activity, such laws certainly allowed denial of compensation based on job-related misconduct.

When the general supreme Court remanded the case back to the Oregon supreme Court demanding that the latter court decide on the criminality and exemption issues, it changed the complexion of the case. As Oregon Attorney General Frohnmeyer "observed, ‘One has to bear in mind what happened between Smith I and Smith II. The United States Supreme Court on its own volition, changed this from an unemployment compensation case to a criminal case.’" 15

To keep this case in context as we proceed, it’s critical to bear in mind that not only do Oregon and the general government not have lawful subject matter jurisdiction over peyote consumption, but these secular social compacts also have no business dispensing unemployment compensation. In short, if these entities were not jurisdictionally dysfunctional, then they would not have drug laws, they would not have unemployment compensation, and the State’s counties, including Douglas County, would not have tax-payer funded drug abuse prevention and rehabilitation services. So this case could have never come into existence if the county, State, and general government were not jurisdictionally dysfunctional. Drug abuse treatment and unemployment compensation could both be functions of lawful religious social compacts, but not of lawful secular social compacts.

Briefs & Oral Arguments:

In Oregon’s brief in Smith II, the State focused first on how dangerous drugs are. Then it focused on "whether the government should accommodate religious drug use". The brief stated, "‘In actual practice this Court has found no room for ‘accommodating’ religion-by-religion exemptions from neutral laws of general applicability when those laws directly serve health, safety or public order interest.’". 16 Of course cases like Sherbert and Yoder stand as contradictions to these claims. The attorneys for Oregon’s Employment Division were certainly aware of Sherbert, Yoder, and other cases like them. If we give them the benefit of the doubt, then we can speculate that they probably interpreted Sherbert as a legitimate exemption to a neutral, generally applicable law. They probably saw it as legitimate because granting exemption to allow people to worship on Saturdays was not seen by them as an affront to "health, safety or public order". In other words, unemployment compensation, to them, doesn’t "directly serve health, safety or public order". They probably saw the exemption granted in Yoder as legitimate because it allowed the Amish to educate their children the way they wanted, and mandatory education, to them, doesn’t "directly serve health, safety or public order". These attorneys almost certainly saw allowing an exemption to neutral, generally applicable laws for people who wanted to do illegal drugs as absolutely intolerable. They accordingly claimed that exemptions for Smith and Black would "weaken the entire fabric of the nation’s controlled substance laws". 17 Even if such intolerance in a secular setting were acceptable, these attorneys wandered into a fascist wilderness that surpassed such intolerance. They did so by making the following claim: "In matters of religion, the Constitution does not permit cracking the door open in such a way as to permit one government-favored religion to pass through, and to deny passage to all others. Under settled Free Exercise and Establishment Clause principles, government cannot show partiality to any one religious group or promote one religion over another." 18 Now they’re speaking pure polemics, evidenced by the fact that precisely such "partiality" was shown to the Seventh Day Adventists and the Amish in Sherbert and Yoder, respectively. We see such exemptions as admittedly violations of the establishment clause. But such justifiable exemptions do not impugn the Free Exercise or Establishment Clauses as much as they impugn the bad laws for which the exemptions are created. A secular social compact has no business dispensing unemployment compensation, and if such compact had ridded itself of such laws, there would have been no reason for an exemption for Sherbert. A secular social compact has no business foisting education on anyone; so Yoder would not have needed an exemption if Wisconsin had been a lawful secular social compact. If Oregon had been a lawful secular social compact, it would not have had drug statutes; so Smith and Black would not have needed an exemption to them. If Oregon had been a lawful secular social compact, Smith and Black would have been doubly relieved, from bad drug laws and bad Welfare laws.

According to both the Oregon State Court of Appeals and the State supreme Court, Oregon’s failure to exempt NAC was unlawful. When the Department of Human Resources / Attorney General appealed the second time to the general supreme Court, the latter court voted 6-to-3 to hold that, "The Free Exercise Clause permits the State to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use" (494 U.S. 872). — Again, there is no "rational basis" for making peyote illegal under a secular social compact, because its voluntary use is not bloodshed, and because there are no prior contracts that obligate parties to avoid using peyote. 19 Again, if the general government of the united States claims to be secular, as it obviously does in the 1st Amendment, then it is obligated to be a secular social compact, with extremely limited subject matter jurisdiction. Since the 1st Amendment has been incorporated to the States via the 14th Amendment, the States are also secular social compacts. In fact, the States have been nominal secular social compacts all along. But incorporation has made that fact unavoidably obvious. But when the "federal" supreme Court holds 6-to-3 that "The Free Exercise Clause permits the State to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use" – thereby contradicting long-established "federal" administrative law – the Court is clearly engaging in "judicial activism" that overrules free exercise incorporation, through whatever motivation.

The critical issue in Smith came down to whether Smith and Black’s alleged job-related misconduct was protected by the 1st Amendment. The 14th Amendment says that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". Seeing this case from the perspective of the 1st and 14th Amendments, it’s only by a tortured piece of judicial sophistry that any Court could find against Smith and Black. — From the hermeneutical prologue’s perspective, a secular social compact has no business dispensing unemployment compensation. It’s certain that the framers did not envision either unemployment compensation or the Welfare State. So if the Court had found in favor of the Employment Division on this ground that welfare is unlawful under a secular social compact, then the Court’s 6-to-3 decision would be perfectly reasonable. But if their 6-to-3 decision had been based on this principle, then the Court would have been going against a century of laws upholding the entitlement system. The Court itself has a multitude of other opinions that support these entitlement programs. So this was not the ground for deciding against Smith and Black.

This case has much more in common with Reynolds v. United States than it does with any other Free Exercise Clause case. That’s because the Court blatantly decided to rule somebody’s religion illegal – at least within those non-exemption States. 20 But this case is worse than Reynolds in some respects. In Reynolds, part of the Mormon religion, polygamy, was repudiated. In Smith, ALL of the religion of the Native American Church was repudiated. That’s because the sacrament is so central to the church. It’s as if the Court ruled that wafers and wine were illegal, and the Roman Catholic church could therefore not have mass. These things are so crucial to the Roman Catholic church that making them illegal would essentially make the church itself illegal. The Mormons have been able to survive Reynolds, albeit without one of their doctrines. But the very existence of NAC was threatened by this decision. Only extraordinary subsequent efforts have kept NAC legal. The Court in Smith was essentially claiming a police power for the States, to nullify John Q. Citizen’s religion, any time the State chooses, even when John Q. Citizen’s religion harms absolutely no one.

At the oral arguments in Smith II, Oregon’s attorney "emphasized the state’s three compelling interests: [(i)]protecting the ‘health and safety interests of its citizens,’ [(being traditionally known as municipal powers)] [(ii)]providing a uniform ‘regulatory scheme as a whole, so that law enforcement does not face a patchwork of exemptions of other drugs on a drug-by-drug, religion-by-religion, believer-by-believer basis,’ and [(iii)]the need to meet the state ‘constitution’s heightened requirements of neutrality in our jurisdiction, [which] requires it to avoid giving the preference to one church over another.’". 21 — If Oregon were a lawful secular social compact instead of an at least partially unlawful de facto government, these three compelling interests would look radically different. Compelling interest #1 would not exist because these are religious police powers that should never be executed by secular social compacts. Compelling interest #2 would not exist because drug laws could not exist because such laws are outside the lawful purview of secular social compacts. Compelling interest #3 would not exist because the state constitution’s heightened requirements of neutrality is not offended because the state doesn’t have any laws that offend neutrality, i.e., it doesn’t have such bad laws. — In repudiation of the secular religion, Oregon’s attorney insisted that "the only way the state could meet these compelling interests was in the neutral application of its drug laws." 22

After Oregon finished it’s oral argument, Smith’s attorney, Craig Dorsay, took his turn. Among other things, he said, "‘I think if . . .  Indian people were in charge of the United States . . . , you might find that alcohol was the Schedule I substance, and peyote was not listed at all. And we are getting here to the heart of an ethnocentric view . . .  of what constitutes religion in the United States. And I think that needs to be looked at very hard before determining what is a dangerous substance and what is not.’". 23 — Scalia interrupted Dorsay’s argument by making a comment. He stated, "‘a law against human sacrifice would, you know, would affect only the Aztecs’", 24 thereby indicating that a neutral, generally applicable law against human sacrifice would have an impact on a very narrow range of the general population. Here Scalia showed how dangerously ignorant he was about reliable human law. He didn’t even take into account the fact that human sacrifice, as practiced by the Aztecs, was a gross delict perpetrated by one party against another, while peyote consumption is not a delict at all. — It’s telling that after Scalia’s Aztec remark, Dorsay started talking about "the handling of poisonous snakes", saying "‘I don’t think there is any dispute about the harm that rattlesnakes can cause’", to which Scalia responded, "‘I don’t think there is any dispute about the harm that peyote can cause.’" This exchange indicates that neither lawyer nor justice distinguished delict-perpetration from self-inflicted harm. It makes one wonder if all lawyers have lost their bearings in civil actions by way of the merger of law and equity, and have lost their bearings in criminal actions by way of the mass-criminalization of acts for which there is no corpus delicti.

The Opinion / Background:

In Smith II Justice Scalia wrote the majority opinion, with Rehnquist, White, Stevens, and Kennedy concurring. Justice O’Connor wrote a lengthy alternative to Scalia’s opinion. She disagreed with practically everything Scalia said, except his conclusion. In other words, she disagreed with the majority in the reasoning used to reach their conclusion, while agreeing with their conclusion. Justice Blackmun wrote a dissent with which Brennan and Marshall concurred. These dissenters agreed with O’Connor’s logic, but rejected her weighing of the State’s compelling interest against the interests of the burdened parties. They agreed with O’Connor’s application of the extant Free Exercise doctrine (Sherbert-Yoder). But they believed that Oregon’s interest in controlling peyote did not legitimate its refusal to make an exemption for the Native American Church. — Scalia’s majority opinion essentially "rewrote the Supreme Court’s free exercise jurisprudence", 25 abandoning not only Sherbert-Yoder but also balancing itself, reverting to the belief-action doctrine.

Many people were shocked by Scalia’s opinion. But there were signs prior to Smith that the Rehnquist Court was leaning in the belief-action direction. In 1981, before Rehnquist became chief justice, the Court decided a free exercise case, Thomas v. Review Board of the Indiana Employment Division (1981), in which Rehnquist produced an ominous dissent. This case was similar to Sherbert v. Verner in that it was a free exercise claim arising from denial of unemployment benefits. Chief Justice Burger wrote the majority opinion, using the compelling interest test developed by way of Sherbert and Yoder. He found in Thomas’s favor. But Rehnquist wrote a solitary dissent in which he said, "We cannot afford the luxury of deeming preemptively invalid . . .  every regulation of conduct that does not protect an ‘interest’ of the highest order." 26 In his dissent Rehnquist "argued that the free exercise clause did not require exemptions to neutral, generally applicable laws. . . .  In a memo to Blackmun regarding Rehnquist’s dissent . . .  the chief justice [(Burger)] admitted that he . . .  had ‘concerns’ with Sherbert, which he believed was difficult to reconcile with some of the Court’s establishment clause cases where the Court was unwilling to give preferential treatment to religion.". 27

In 1982, Justice Stevens wrote a concurring opinion in another free exercise case, U.S. v. Lee. In this case an Amish man sought exemption from withholding or paying Social Security taxes. The majority "concluded that the fiscal vitality of the Social Security system was a compelling interest, and that religious exemptions could lead to numerous claims that would ultimately undermine the integrity of the . . .  fund.". 28 Stevens not only agreed with the denial of exemption, but also "expressed concern about the appropriateness of the Court’s use of strict scrutiny analysis in free exercise cases. He believed that the test was overly stringent and placed a high burden on government to justify the constitutionality of its laws. This burden, he suggested, ‘should be shouldered by the religious claimant who must demonstrate that there is a unique reason allowing him a special exemption from a valid law of general applicability.’". 29

Similar to believing that people are guilty until proven innocent, Stevens believed that a person’s religion is justifiably burdened until proven worthy of exemption from the burden. This is just another sign that the supreme Court has failed, from day one up to the present, to discern the difference between an allowable religion and an un-allowable religion. The secular religion defines what religious practices are not allowable (like Aztec sacrificial murder) and what religious practices are allowable (everything that doesn’t involve bloodshed). If laws are good, then they should be generally applicable without any exemptions. If there need to be exemptions, then those exemptions are a sign that the law should not be generally applicable at all, and should not exist at all.

After a free exercise claim was granted certiorari in Goldman v. Weinberger (1986), Rehnquist was able to convince a majority to avoid even applying the compelling interest test. He did this by writing a majority opinion that was deferential to the military. Such deference is reasonable, given that when people voluntarily join the military, it’s obvious that the joiner is surrendering and subordinating rights to military objectives. The same kind of rationale was used in Rehnquist’s majority opinion in O’Lone v. Estate of Shabazz (1987). The latter was a free exercise challenge by a prison inmate of the prison’s regulations. When prisoners are incarcerated for lawful reasons, i.e., for perpetrating a delict, they surrender their rights proportionally with the severity of the delict. In both the military and the prison cases, the government has a good reason to refuse to use a balancing test. 30 In the case of military personnel, if their religion conflicts with military objectives, then they should not join the military. In the case of prison inmates, if they do not want their free exercise impeded by prison regulations, then they should not perpetrate delicts. — The point here is to show that the Rehnquist Court was leaning away from using the compelling interest test, and towards finding any mechanism available – including "rationality review" and regression to belief-action – to avoid using strict scrutiny in free exercise cases.

In Bowen v. Roy (1986), another free exercise case, American Indians sued the State of Pennsylvania because they wanted to receive Welfare benefits without use of a Social Security number. The Court used the compelling interest test to repudiate the Indian claim. But in repudiating the claimant, the Court indicated that the claimant had failed to satisfy the first tier of the Sherbert-Yoder test. Their case had failed to prove that their religion was burdened, according to Burger’s majority opinion. In the process Burger claimed that in order to satisfy the burden requirement, the law must actually force the party to behave "contrary to . . .  religious beliefs". 31 — Forcing people to not act in a certain way and forcing people to act in a certain way can be equally as hideous. Forcing a person not to eat is as bad as forcing a person to eat. So this criterion concocted by Burger, and still available for further abuse by other supreme Court justices, is essentially nonsense. But this is precisely the kind of nonsense that one should expect when the mega-state legally establishes itself as the world’s biggest udder. The justices justifiably writhe under such conditions, because they’re being forced by the circumstances under which they voluntarily operate to make up law out of thin air. Presumably, the more erudite they make it look, the more authority it might carry. Burger’s concoction in this case is sometimes called a "heightened burden requirement", or "heightened threshold". Even with erudite labels, this idea is deeply offensive to reason and rights. The Social Security Act should have never been passed because it violates the secular religion. It should have been repealed long ago. Forcing people to bear its numbers is massive delicts perpetrated by a tyranny. Supreme Court justices, if they deserve to be called "justices", should repudiate such laws, not protect them.

Two years after Bowen, the Court passed judgment on another free exercise case involving American Indians. In Lyng v. Northwest Indian Cemetery Protective Association (1988), three Indian tribes in northern California challenged a Forest Service plan to build a paved logging road through their sacred land. In her majority opinion, O’Connor leaned on the newly defined burden requirement established by Burger in Bowen v. Roy. She essentially claimed that the free exercise claimant’s claim to being religiously burdened by Forest Service regulations was not met. She admitted that their religion would be destroyed. But she said that since the claimant was not being coerced "to act contrary to . . .  religious beliefs", 32 there was no burden. Since no burden was proved at the first tier of the Sherbert-Yoder test, there was no reason to go to the next tier. It’s essential to start with the understanding that the government claims to own the land, and to have a "right to the use of its own lands". This ownership is almost never questioned. It should be, because land ownership is generally outside the lawful jurisdiction of secular social compacts. It was obvious – and the Court even admitted as much – that the road would damage the Indians’ religion. But O’Connor claimed that this didn’t constitute a "burden" because the government was not forcing the Indians to act contrary to their religion. This is both perverse and obtuse. Coercing someone to not act in a certain way is as perverse as coercing someone to act in a certain way. The Burger-O’Connor burden qualification is worse than judicial sophistry. The only justification for coercion, ever, is (i)to enforce a positive law by which the party being coerced is consensually, voluntarily obligated through his/her prior consent; or (ii)to enforce the global mandate against bloodshed.

The Opinion:

Smith provided a prime opportunity for the Rehnquist Court to rationalize dumping free exercise strict scrutiny entirely. Scalia’s opinion came in two major parts: (a)a claim that exemptions had never been created for neutral, generally applicable laws, based on free exercise claims; and (b)an explanation for why neutral, generally applicable laws should not be subjected to strict scrutiny on free exercise grounds.

(a)Scalia’s claim: No exemption for neutral, general laws — Echoing the belief-action doctrine created in Reynolds (1879), Scalia claimed that the free exercise clause only protects beliefs, but not actions. He claimed that it protects actions only when a law is targeted at a specific religion, i.e., "specifically directed" at behavior motivated by religious belief. If a law that he claims is otherwise valid happens to burden someone’s religious exercise, the exercise is not protected. — It was evident in their brief that Smith and Black did "not seriously dispute that Oregon has a compelling interest in prohibiting the possession of peyote by its citizens" (494 U.S. 872; O’Connor’s opinion, Part III-A). In fact, some NAC members believe that non-Indians cannot learn how to use peyote properly. Virtually all NAC members believe that it is a "medicine" that should be used only under specific conditions and settings, like all medicines. They generally condone "federal" and State drug laws that prohibit non-sacramental use of peyote. They generally believe that non-Indians do not understand such conditions and settings, and that non-Indians are prone to abuse NAC’s sacrament. — Scalia acknowledged Smith and Black’s failure to object to the neutral, generally applicable drug law. But he claimed that Smith and Black "contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice". He claimed that the supreme Court "never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.". — Clearly, Scalia and company conceive of "valid law" in a way that is at odds with a reliable interpretation of Scripture.

This case was largely an argument between the majority on the bench who wanted to discard free exercise strict scrutiny and thereby return to the belief-action doctrine, and a minority who desired to keep strict scrutiny. Even though they agreed on the final outcome of this case, O’Connor vigorously disagreed with Scalia about the method used in deciding it. She demanded that the Court follow the Sherbert-Yoder doctrine. She was claiming that Smith had more in common with Sherbert than with cases that were decided based on the belief-action doctrine (cases like Reynolds). She and the Blackmun minority were demanding that the Court use strict scrutiny and the compelling interest / least intrusive means test to adjudicate Smith. By refusing to use strict scrutiny, the majority abandoned the trend of the de facto secular humanist establishment and reverted to the belief-action doctrine of the de facto Protestant establishment.

In arguing against the majority’s approach, O’Connor claimed that the "First Amendment does not distinguish between religious belief and religious conduct". She claimed that the majority interpreted the Free Exercise "Clause to permit the government to prohibit . . .  conduct mandated by an individual’s religious beliefs, so long as that prohibition is generally applicable . . . . It is difficult to deny that a law that prohibits religiously motivated conduct . . .  does not at least implicate First Amendment concerns". But, the "Court responds that generally applicable laws are ‘one large step’ removed from laws aimed at specific religious practices". She indicates that the First Amendment "does not distinguish between laws that are generally applicable and laws that target particular religious practices . . . . Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice. If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice" (494 U.S. 872; O’Connor’s opinion, Part II-A). — Given that bloodshed and violation of prior consent are the only grounds for any secular government to interfere with anyone’s religious practices or beliefs, who can argue with her, except people who refuse to acknowledge that secular government has these specific limitations? Strict scrutiny and the compelling interest test may be valuable tools in determining whether bloodshed or violations of prior consent exist. But if these tests don’t make these determinations, then the tests themselves are worthless, because bloodshed and violation of contracts are the only subject matter that should ever be before the Court. If the Court applies strict scrutiny and the compelling interest test, and finds that a law burdens someone’s religion, and that party’s exercise of religion doesn’t violate his / her contractual obligations or perpetrate delicts, then the law is an establishment of some other religion (some religion other than the secular religion), and enforcement of this established religion is government-perpetrated bloodshed.

O’Connor explained that "Under our established First Amendment jurisprudence, we have recognized that the freedom to act, unlike the freedom to believe, cannot be absolute". From the hermeneutical prologue’s point-of-view, people can believe whatever they like, but their actions in the secular arena are lawful only when they don’t constitute bloodshed or violation of a contract. So there is some consistency between this claim of O’Connor’s and our tempered commitment to First Amendment absolutism. First Amendment absolutism claims that both beliefs and actions are protected by the Free Exercise Clause. We temper that by claiming that the Free Exercise Clause protects all beliefs, and all actions that do not constitute bloodshed. She claimed that the intent of the First Amendment was to require "the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by a means narrowly tailored to achieve that interest". This requirement constitutes the "compelling interest test". The compelling interest test says that the government has no right to interfere with a person’s religiously motivated conduct unless there is some "clear and compelling governmental interests ‘of the highest order’" (494 U.S. 872; O’Connor’s opinion, Part II-A). Of course, in our view, the only compelling governmental interest ‘of the highest order’ pertains to prosecuting bloodshed, and to nothing else. In fact, that’s the only "governmental interest".



She continued by saying, "Given the range of conduct that a State might legitimately make criminal, we cannot assume, merely because a law carries criminal sanctions and is generally applicable, that the First Amendment never requires the State to grant a limited exemption for religiously motivated conduct" (494 U.S. 872; O’Connor’s opinion, Part II-B). — Here, we must take serious issue with her claim. To us, "the range of conduct that a State might legitimately make criminal" is far more limited than she assumed. Therefore, the need for "limited exemption for religiously motivated conduct" is far more rare than she assumed.

Blackmun said that "The State proclaims an interest in protecting the health and safety of its citizens from the dangers of unlawful drugs. It offers, however, no evidence that the religious use of peyote has ever harmed anyone. The factual findings of other courts cast doubt on the State’s assumption that religious use of peyote is harmful. . . .  The fact that peyote is classified as a Schedule I controlled substance does not, by itself, show that any and all uses of peyote, in any circumstance, are inherently harmful and dangerous. The Federal Government, which created the classifications of unlawful drugs . . .  apparently does not find peyote so dangerous as to preclude an exemption for religious use. . . .  The carefully circumscribed ritual context in which respondents used peyote is far removed from the irresponsible and unrestricted recreational use of unlawful drugs. The Native American Church’s internal restrictions on, and supervision of, its members’ use of peyote substantially obviate the State’s health and safety concerns. . . .  (‘The Administrator [of DEA] finds that . . .  the Native American Church’s use of peyote is isolated to specific ceremonial occasions,’ and so ‘an accommodation can be made for a religious organization which uses peyote in circumscribed ceremonies’)" (494 U.S. 872; Blackmun’s opinion, Part I). 33

Although Blackmun agreed with O’Connor’s approach, he "disagreed with her conclusion that the state’s interest in the uniform application of the law was compelling. Instead, he characterized this interest as ‘symbolic’ because the state did not present clear evidence that it consistently enforced its drug laws against religious users of peyote, and its interest in protecting the health and safety of its citizens as ‘speculative’ because there was no evidence religious peyote use caused harm. . . .  [B]ecause the state had not proven that it had a compelling interest . . .  Oregon could not . . .  deny the respondents’ unemployment benefits.". 34

To reinforce his argument, Scalia cited a number of cases to show how the Court had always "rejected requests for exemptions to otherwise neutral, generally applicable laws". 35 Among these cases was Minersville School District Board of Education v. Gobitis (1940). In Gobitis, "The Court held that a Jehovah’s Witness’s child could constitutionally be expelled from public school for refusing to participate in the daily ceremony of saluting the American flag and pledging allegiance to it, even though saluting the flag or reciting the pledge violated the child’s religious beliefs against serving gods other than the Almighty.". 36 This case was argued purely on free exercise grounds, and the Jehovah’s Witnesses lost. But Gobitis was overturned three years later in West Virginia State Board of Education v. Barnette (1943). Jehovah’s Witnesses also brought the latter case in objection to mandatory flag salute and pledge of allegiance in public school. But this case was decided primarily on Free Speech grounds rather than free exercise grounds. In Barnette, the Court "framed the case more broadly to include freedom of conscience, and determined that one’s conscientious objection to the flag salute implicated the free speech clause . . . , a preferred freedom that required greater protection". 37 — Scalia may have cited Gobitis as evidence that the Court had not been as friendly to cases argued purely on free exercise grounds, versus cases argued on both free exercise and some other grounds. But the fact that he was citing a case that had so clearly and obviously been overturned shows that he was scraping the bottom of the proverbial barrel.

Scalia used Gobitis as part of his invention of a new class of cases, "hybrid rights" cases. O’Connor was not favorably impressed. She said the majority opinion extracted "from our long history of free exercise precedents the single categorical rule that ‘if prohibiting the exercise of religion . . .  is . . .  merely the incidental effect of a generally applicable . . .  provision, the First Amendment has not been offended.’". She says that because this "criminal prohibition against possession of peyote" is both criminal and generally applicable, the majority claims that the "usual free exercise jurisprudence does not. . . apply.". She says that in order to reach this sweeping result, "the Court must not only give a strained reading of the First Amendment, but must also disregard our consistent application of free exercise doctrine to cases involving generally applicable regulations that burden religious conduct." (494 U.S. 872; O’Connor’s opinion, Part II). — To O’Connor, the "hybrid rights" argument was clearly a rather pathetic veneer.

To bolster his "hybrid rights" argument, Scalia cited several previous free exercise cases. He claimed that (i)Cantwell v. Connecticut (1940) was a hybrid press / free exercise case; (ii)Barnette (1943) was a hybrid speech / free exercise case; (iii)Wisconsin v. Yoder (1972) was a hybrid free exercise / 14th Amendment freedom of parents to orchestrate their children’s education case; and (iv)etc. Scalia contrasted such "hybrid" cases with Smith, claiming that Smith relied only on free exercise, and was therefore less "preferred". He claimed that "religious action is unprotected by the free exercise clause unless government targets religion or coerces an individual to act against their religious beliefs.". 38 He stated in no uncertain terms, "The rule to which we have adhered ever since Reynolds plainly controls.". — In contrast to Scalia, we’re convinced that religion is the most preferred of all the 1st Amendment preferred freedoms. We’re convinced that violation of free exercise alone is ample grounds for repudiating a bad law.

O’Connor claimed that the majority adopted a position in Smith that had been "expressly rejected" in earlier decisions. The majority claimed that "[w]e have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law . . . ". She claimed that in prior cases, "we have in fact interpreted the Free Exercise Clause to forbid application of a generally applicable prohibition to religiously motivated conduct". As an example, she quoted the decision in Wisconsin v. Yoder as saying, "there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability . . . ". She said that the "hybrid rights" argument that the majority used "to escape from [their] decisions in Cantwell and Yoder" – their claim that they were "hybrid" decisions – is a mere contrivance. According to Scalia’s "strained" opinion, "the First Amendment does not protect the free exercise of religion unless some other First Amendment right, such as speech or association, is involved.". 39 O’Connor contended that "we have consistently regarded those cases [(Cantwell and Yoder)] as part of the mainstream of our free exercise jurisprudence". She said that in each of the cases cited by the majority – in which the interests of the state were taken as superior to those of the burdened party – the compelling interest test was nevertheless applied. 40 "That we rejected the free exercise claims in those cases hardly calls into question the applicability of First Amendment doctrine in the first place. Indeed, it is surely unusual to judge the vitality of a constitutional doctrine by looking to the win-loss record of the plaintiffs who happen to come before us." (494 U.S. 872; O’Connor’s opinion, Part II-A) — In other words, in each of these cases (Prince, Braunfield, and Gillette), the compelling state interest balancing test was used. The opinions in those cases were that the State’s compelling interest justified the burden the State put on the burdened party. Her point was that the compelling interest test was used.

In short, O’Connor contended justifiably that "the Court invoked this high level of scrutiny either explicitly or implicitly in each of the religion cases since Cantwell v. Connecticut.". 41 She acknowledged that the Court had not used this "high level of scrutiny" in "the two special circumstances" of military and prisons (Goldman v. Weinberger and O’Lone v. Shabazz). But she reasoned justifiably that such cases were "distinguishable because they arose in the narrow, specialized contexts in which the Court had not traditionally required the government to justify a burden on religious conduct by articulating a compelling interest" (494 U.S. 872; O’Connor’s opinion, Part II-B).

Although positive law under a secular social compact should generally be neutral and generally applicable, being neutral and generally applicable, by itself, is thoroughly inadequate to justify the existence of a law. Scalia’s opinion made such laws "talismanic". But the conversion of an ordinary legal category or class of laws into a "talisman" is nothing new in supreme Court jurisprudence. In fact, it’s standard practice and a very shoddy way to run a country. For example, Burger (in Bowen v. Roy) had turned laws that are "positive"– meaning that they are each "Thou shalt" as opposed to "Thou shalt not" "negative" law – "talismanic" in an effort at heightening the burden threshold of the Sherbert-Yoder test. In other words he said that only such a "positive" law (not to be confused with positive law) can trigger acknowledgment of a burden. Coercion not to do something can be as evil as coercion to do something. The more basic and controlling question is whether a given law coerces justifiably. It’s clear that if a law is essentially religious, and is enforced under a secular social compact via the presumption that it is secular, and it is not related directly to enforcement against bloodshed, then it violates basic jurisdictional principles and coerces without justification, making the state itself the criminal.

O’Connor indicated that the "respondents [(Smith and Black)] invoke our traditional compelling interest test to argue that the Free Exercise Clause requires the State to grant them a limited exemption from its general criminal prohibition against the possession of peyote. The Court today, however, denies them even the opportunity to make that argument, concluding that ‘the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the [compelling interest] test inapplicable to’ challenges to general criminal prohibitions. In my view, however, the essence of a free exercise claim is relief from a burden imposed by government on religious practices or beliefs, whether the burden is imposed directly through laws that prohibit or compel specific religious practices, or indirectly through laws that, in effect, make abandonment of one’s own religion . . .  the price of an equal place in the civil community". — O’Connor claimed that regardless of whether a prohibition is criminal or civil, "positive" (not to be confused with positive law) or "negative", if government is putting a burden on a person’s religion, the compelling interest test pertains. "A State that makes criminal an individual’s religiously motivated conduct burdens that individual’s free exercise of religion in the severest manner possible, for it ‘results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution . . .  I would have thought it beyond argument that such laws implicate free exercise concerns . . . . [A] neutral criminal law prohibiting conduct that a State may legitimately regulate is, if anything, more burdensome than a neutral civil statute placing legitimate conditions on the award of a state benefit . . . . Once it has been shown that a government regulation or criminal prohibition burdens the free exercise of religion, we have consistently asked the Government to demonstrate that unbending application of its regulation to the religious objector ‘is essential to accomplish an overriding governmental interest’ . . .  or represents ‘the least restrictive means of achieving some compelling state interest’." (494 U.S. 872; O’Connor’s opinion, Part II-B)

Here O’Connor appears to be a great defender of free exercise. But in "her majority opinion in Lyng, O’Connor resolved that the building of a road through federal land considered sacred by three Indian tribes for thousands of years did not place a burden on the free exercise of their religion because the government action did not coerce or penalize the Indians for practicing their religion. Because the high threshold requirement first introduced in Bowen . . .  was not met in Lyng, the high level of scrutiny was never triggered." 42 — This shows that O’Connor is as vulnerable to being entranced by the latest talisman as Scalia and company.

Scalia further claimed that free exercise strict scrutiny had been applied only in unemployment compensation cases. He claimed that since Smith involved "drug use", it fell outside the purview of this class of unemployment compensation cases. He cited Bowen v. Roy, Lyng v. Northwest Indian Cemetery Protection Association, Goldman v. Weinberger, and O’Lone v. Estate of Shabazz as examples of cases that fell outside this special unemployment scope, that therefore were not subject to strict scrutiny, and that therefore had the state as winner. He claimed that strict scrutiny applied "in the unemployment context was the exception to the rule that religious challenges to neutral, generally applicable laws do not implicate the free exercise clause.". 43 — One of the big problems with these claims is that some cases in which the state won were won after application of strict scrutiny. So strict scrutiny was applied to these cases like Bowen v. Roy and Lyng v. Northwest Indian Cemetery Protection Association, cases that were not unemployment cases. It’s true that strict scrutiny was not applied in Goldman and O’Lone, neither of which was an unemployment case, but these cases didn’t deserve strict scrutiny for the reasons given above. 44 But it’s a fact that numerous other non-employment free exercise cases were decided via strict scrutiny, including Gillette v. United States (1971), Wisconsin v. Yoder (1972), U.S. v. Lee (1982), Bob Jones University v. United States (1983), and Tony and Susan Alamo Foundation v. Secretary of Labor (1985). Scalia’s claims ventured beyond mere straining into the realm of unjustifiable lying.

O’Connor claimed that contrary to the majority opinion, the Court has "not ‘rejected’ or ‘declined to apply’ the compelling interest test in our recent cases.". — Our research indicates that this claim is true. After Cantwell v. Connecticut (1940), the belief-action doctrine was used to some extent in lower courts. But the combination of Ballard, Sherbert, and Yoder inclined the entire judiciary incrementally towards the compelling interest test, and away from the belief-action doctrine. Cases like United States v. Lee are not exceptions. They are merely cases in which the presumably burdened party lost. — She continued by claiming that "The cases cited by the Court signal no retreat from our consistent adherence to the compelling interest test. . . .  The Court today gives no convincing reason to depart from settled First Amendment jurisprudence. There is nothing talismanic about neutral laws of general applicability or general criminal prohibitions, for laws neutral toward religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion. Although the Court suggests that the compelling interest test, as applied to generally applicable laws, would result in a ‘constitutional anomaly’ . . .  the First Amendment unequivocally makes freedom of religion . . .  a ‘constitutional norm’, not an ‘anomaly’" (494 U.S. 872; O’Connor’s opinion, Part II-B). — We believe her claims here are true, and her attacks on the majority’s opinion are well founded. In the same vein, she continues by saying, "[A]n individual’s free exercise of religion is a preferred constitutional activity [(a preferred freedom)]. . . .  A law that makes criminal such an activity therefore triggers constitutional concern . . .  even if it does not target the particular religious conduct at issue" (494 U.S. 872; O’Connor’s opinion, Part II-B).

To see how hollow Scalia’s claim that free exercise strict scrutiny is a "luxury" and an "anomaly", consider these facts: "As late as 1990, the same term as Smith, the Court applied the Sherbert standard in Jimmy Swaggart Ministries v. Board of Equalization of California (1990). This higher level of scrutiny was also used in two free exercise cases the previous term: Texas Monthly, Inc. v. Bullock (1989) and Hernandez v. Commissioner of IRS (1989). Although the state did prevail in each decision because the free exercise claimants were unable to fulfill the threshold requirement . . . , the fact remained that the petitioners lost their case only after the Court applied Sherbert to religious challenges to neutral, generally applicable laws outside of the unemployment compensation context.". 45

Almost the entirety of O’Connor’s opinion was a scathing refutation of "Scalia’s misguided interpretation of the Court’s free exercise jurisprudence.": 46 She emphatically rejected Scalia’s claim that neutral, generally applicable laws were somehow outside the scope of the free exercise clause:

But a law that prohibits certain conduct–conduct that happens to be an act of worship for someone–manifestly does prohibit that person’s free exercise of his religion. A person who is barred from engaging in religiously motivated conduct is barred from freely exercising his religion. Moreover, that person is barred from freely exercising his religion regardless of whether the law prohibits the conduct only when engaged in for religious reasons, only by member of that religion, or by all persons. It is difficult to deny that a law that prohibits religiously motivated conduct, even if the law is generally applicable, does not at least implicate First Amendment concerns. (494 U.S. 872; O’Connor’s opinion, Part II-A)

(b)Scalia: Why neutral, general laws escape strict scrutiny — In explaining why a Sherbert-like balancing test was, in his opinion, inapplicable to free exercise challenges to neutral, generally applicable laws, Scalia made the following claim: "To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’–permitting him, by virtue of his beliefs, ‘to become a law unto himself,’–contradicts both constitutional tradition and common sense." (494 U.S. 872, at Scalia’s Part II-B) Here Scalia is quoting Justice Waite’s opinion in Reynolds (1879), when he claims that such free exercise appeals would allow the appellant "to become a law unto himself." — Such free exercise may indeed contradict "constitutional tradition". But "constitutional tradition" has often violated both a reliable reading of the Judaeo-Christian Bible and common sense. Therefore it’s reasonable that we would be extremely suspicious of the Court’s reliance on "constitutional tradition". This is especially true given that it’s undeniable that at least some of the current justices claimed on one hand to be "originalists", but on the other made it clear that they did not recognize the moral foundations for the human laws that were commonly recognized during the founding era. 47 — Regarding "common sense": It’s more a function of beliefs commonly held than of rational, reliable perception. The fact is that Christians during the de facto Protestant establishment practically never used a hermeneutic in studying Scripture that was reliable with regard to discerning Godly human law. Because of this failure, they were unable to distinguish globally prescribed human law from locally prescribed human law. Because of this failure, they mis-imposed Biblical standards of morality onto people who did not believe in the Bible. This is what happened in Reynolds. The Protestant Court imposed human law that the Bible prescribes for those who volunteer to participate in the local covenants upon people who did not thus volunteer. Polygamy is not a delict, and is therefore not subject to globally prescribed human law. A secular social compact therefore has no business making it illegal. The same is true for Smith and Black’s use of peyote. It’s not a delict. A secular social compact has no business making it illegal. Does this mean that every peyotist and polygamist is always "a law unto himself"? — Since the Noachian Covenant, no one is a law unto himself. Anyone who thinks he is a law unto himself is deluded, and is aimed at self-destruction. Anyone who advocates either anarchy or out-of-bounds government blunders, and that’s putting it kindly. Like everyone else, peyotists and polygamists are subject to globally prescribed human law, as well as any other positive law for which they may volunteer.

Clearly Scalia, the Court, "constitutional tradition", and the legal community as a whole did not understand these basic jurisdictional principles. They were therefore like the lawyers of the New Testament that Jesus rebuked for being so ignorant of such basic jurisprudential facts. When they impose their ignorance on other people disguised as positive law, that’s when their ignorance is genuinely evil. They are guilty of calling evil good, and good evil, because they are accessories to the perpetration of bloodshed, and Scalia and company claimed that’s a good thing.

Even though it’s clear to us that what Justice Waite and company did in Reynolds was evil, and even though it’s clear that what Justice Scalia and company did in Smith was evil, we haven’t placated their primary concern. Their primary concern is apparently that if they allow people like Smith and Black to have free exercise, government will become dysfunctional and anarchy will reign. Scalia claimed, "Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs . . .  [W]e cannot afford the luxury of deeming preemptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order." (494 U.S. 872, at Scalia’s Part II-B). Scalia then goes on to list a "parade of horribles" that would result from such free exercise. We’re convinced that the parade of horribles is a scarecrow, a vapid bogeyman. 48 — If he couldn’t parse Scripture correctly and he couldn’t parse the law correctly, then what is reliable might have looked impossible to him. Under such circumstances he should have recused himself as incompetent.

As a consolation prize for people whose religions have been repudiated by misconceived human law, Scalia suggests that such oppressed lobby their legislature. Scalia admitted that relieving religious burdens by lobbying the legislature would put smaller religions to "a relative disadvantage". But he claimed that this "unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs." (494 U.S. 872; Scalia’s opinion, Part II-B). — Responding, O’Connor said that "the Court today suggests that the disfavoring of minority religions is an ‘unavoidable consequence’ under our system of government and that accommodation of such religions must be left to the political process. . . .  In my view, however, the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility" (494 U.S. 872; O’Connor’s opinion, Part II-B). She quoted Justice Jackson’s opinion in West Virginia Board of Education v. Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts (319 U.S., at 638).

She said, "The compelling interest test reflects the First Amendment’s mandate of preserving religious liberty to the fullest extent possible in a pluralistic society. For the Court to deem this command a ‘luxury,’ . . .  is to denigrate the ‘very purpose of a Bill of Rights.’" (494 U.S. 872; O’Connor’s opinion, Part II-B).

According to the Court’s majority opinion, if the government damaged a minority religion, that was just too bad, because such damage is "unavoidable". On this front, O’Connor and Blackmun were in complete agreement. Blackmun indicated that Scalia’s majority opinion "effectuates a wholesale overturning of settled law concerning the religion clauses of our Constitution" (494 U.S. 872; Blackmun’s opinion). He continued by saying, "I do not believe the Founders thought their dearly bought freedom from religious persecution a ‘luxury,’ but an essential element of liberty–and they could not have thought religious intolerance ‘unavoidable’ for they drafted the Religion Clauses precisely to avoid that intolerance." (494 U.S. 872; Blackmun’s opinion).

Conclusion to Smith:

According to our analysis, all nine justices were wrong in this case. The minority dissent’s conclusion was right, but for the wrong reasons. O’Connor’s conclusion was wrong, and she used wrong-but-admirable logic to reach it. The majority’s conclusion was wrong, and they used the worst kind of judicial sophistry to reach it. Secular social compacts do not have license to make peyote consumption illegal. That’s because what people voluntarily eat is rarely bloodshed. 49 Furthermore, no government has ever produced meaningful evidence to prove that peyote "‘pose[s] some substantial threat to public safety, peace or order’" (494 U.S. 872; O’Connor’s opinion, Part III-A, quoting Yoder at 220). Peyote is not like a nuclear suitcase bomb that demands a standing injunction. The harm, if there is any, is to the person who uses it, and not to anyone else. If any given individual wants to harm himself, secular government is virtually never warranted in interfering.

By ultimately siding with the majority, O’Connor showed that she had been duped by several generations of government-sponsored, United Nations-sponsored propaganda against "drugs", because she caved in to the mass hysteria created by people who have a vested interest in establishing and maintaining black markets. So O’Connor concluded by saying "that uniform application of Oregon’s criminal prohibition is ‘essential to accomplish’ . . .  its overriding interest in preventing the physical harm caused by the use of a Schedule I controlled substance." (494 U.S. 872; O’Connor’s opinion, Part III-B). So she weighed the issue: State’s interest in controlling peyote versus individual’s religiously motivated conduct. She came down, without any consideration of further evidence, on the side of the State, and claimed that the State’s interest in controlling peyote would be threatened if any exemptions were made. She decided that "the prohibition against peyote did place a burden on Smith and Black’s free exercise of religion, which triggered heightened scrutiny.". 50 — She decided the burden was justified. "[S]he used the compelling government interest test and concluded that the state’s interest in eradicating drug abuse was compelling enough to outweigh the burden on Smith and Black’s religious freedom." 51 — O’Connor explained why she ultimately sided with the majority, by quoting from Sherbert. She said, "religiously motivated conduct may be regulated where such conduct ‘pose[s] some substantial threat to public safety, peace or order’". After all this, she concurred with the majority decision, even though she found their logic reprehensible. She got duped by black market propagandists.

In accordance with the hermeneutical prologue, we agree most with the minority in this case. But we believe that the process of exemption-creation is itself suspicious, because the need for an exemption indicates that the law itself is bad. If the religion is not guilty of bloodshed, then secular government has no business burdening religion, or making an exemption for a burdened religion (and thereby simultaneously establishing the exempt religion while persecuting the non-exempt religions). Even so, no justice in this court gave any credence to First Amendment absolutism, which is closest to being the correct doctrine in such cases, under a secular social compact.

Scalia’s "parade of horribles", his list of things that the majority envisioned – that they speculated, futuristically and presumptively, as happening – if the Court were to apply the compelling interest test to this case, indicated that the Court could not afford the "luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The [compelling interest test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind-ranging from compulsory military service . . .  to the payment of taxes . . .  to health and safety regulation . . .  compulsory vaccination laws . . .  drug laws . . .  traffic laws . . .  social welfare legislation . . .  child labor laws . . .  animal cruelty laws . . .  environmental protection laws . . .  laws providing for equality of opportunity for the races . . . ". The majority claimed that "The First Amendment’s protection of religious liberty does not require" allowance for this "parade of horribles". (494 U.S. 872; Scalia’s opinion, Part II-B) — Given the extent to which this position violates the standard discovered by the hermeneutical prologue, we’re driven inevitably to conclude that the majority must have been extremely deluded, misguided, overwhelmed, callous, uncaring, irresponsible, foolish, and/or duped (by exponents of black markets). But even though the position discovered by the hermeneutical prologue is clear, and even though the majority opinion is wrong from that perspective, this "parade of horribles" is probably in the mind of everyone fearful of what the hermeneutical prologue portends. 52 So before leaving this examination of the 1st Amendment, we’ll address each of the issues in Scalia’s parade of horribles. 53 Until then, please remember: "Justice Scalia argued that America’s religious diversity had become a ‘luxury’ that a pluralistic society could no longer ‘afford’". 54

In the immediate aftermath of Smith, the general population continued snoring as though the loss of an unalienable Right meant nothing. But among those conscious of what had just happened, there was outrage.


1Jewish New Testament Commentary, p. 429 — This excerpt is from Stern’s comments on Romans 13:1-7.

2Regarding the "parade of horribles" cited by the court in Smith, URL: ./0_8_6_Am_I_(Parade_of_Horr).htm​#AmendI.

3The fact that Smith was Indian while Black was non-Indian was not significant in the Smith case. By following the case in all it’s ramifications, into the first decade of the 21st century, it’s clear that this ethnic distinction is important. Indians have acquired legal protection for their "non-drug use of peyote in bona fide religious ceremonies of the Native American Church". Non-Indians have not acquired such free exercise.

421 CFR § 1307.31, URL:​fdsys/​browse/​collectionCfr.action?​collectionCode=​CFR.

5By studying the record, it’s clear that there was an administrative exemption in Oregon for several weeks in the summer-fall of 1987, but this had no impact on Employment Division v. Smith (1990). See To an Unknown God, pp. 152-157.

6These claims can be confirmed at Religious Freedom and Indian Rights, p. 15.

7Religious Freedom and Indian Rights, pp. 16-17.

8Religious Freedom and Indian Rights, p. 101.

9To an Unknown God, p. 188.

10To an Unknown God, p. 187.

11To an Unknown God, p. 188.

12To an Unknown God, p. 187.

13Religious Freedom and Indian Rights, p. 117.

14Religious Freedom and Indian Rights, p. 118.

15Religious Freedom and Indian Rights, p. 157.

16Religious Freedom and Indian Rights, pp. 159-160.

17Religious Freedom and Indian Rights, pp. 159-160.

18Religious Freedom and Indian Rights, pp. 159-160.

19Clearly, if Bible-believing Christians follow a hermeneutic that leads them to believe that peyote consumption is un-Godly, then under a compact theory of government that’s compatible with the hermeneutical prologue, these Christians (or anyone else for that matter) are at liberty to form a religious social compact that bans peyote consumption to its parties – at least within the geographical jurisdiction governed by the religious social compact. Likewise, if Bible-believing Christians follow a hermeneutic that leads them to believe that peyote may be – as NAC members claim – a valuable "medicine", then these latter Christians (or anyone else for that matter) are at liberty to form a religious social compact that allows peyote consumption to its parties.

20The Court might claim that it did no such thing, claiming that it merely allowed the States to exercise their 10th-Amendment prerogative (URL: ./0_7_Am_X.htm​#TenthAmendment) of making so-and-so’s religion illegal. But all courts exist to find and render justice. If the supreme Court allows a State to repudiate someone’s religion, when such Court has the power to stop the State from doing this unlawful act, then the egg is on the supreme Court’s face, as much as it’s on the State’s. Religion repudiation is a power reserved to the people, not to the States because the States are secular, and therefore should neither repudiate nor promote any religion other than the secular religion.

21Religious Freedom and Indian Rights, p. 181.

22Religious Freedom and Indian Rights, p. 182.

23Religious Freedom and Indian Rights, p. 183.

24Religious Freedom and Indian Rights, p. 184.

25Religious Freedom and Indian Rights, p. 186.

26Rehnquist’s dissent in Thomas v. Review Board of the Indiana Employment Division. This quote also appears at Religious Freedom and Indian Rights, p. 59.

27Religious Freedom and Indian Rights, p. 130.

28Religious Freedom and Indian Rights, p. 60.

29Religious Freedom and Indian Rights, pp. 130-131.

30A good reason, that is, if the military personnel entered the military voluntarily, and if the prisoner is in prison for a delict, rather than for a mala prohibita.

31This quotes Burger’s opinion in Bowen. The quote also appears at Religious Freedom and Indian Rights, p. 132.

32Religious Freedom and Indian Rights, p. 144.

33The DEA’s posture appears at 21 C.F.R. § 1307.31, URL:​fdsys/​browse/​collectionCfr.action?​collectionCode=​CFR. It’s critical to note in passing that Blackmun’s claim that the "Federal Government . . .  created the classifications of unlawful drugs" is not entirely true. In fact, the Controlled Substances Act is the statutory implementation of at least two United Nations treaties, the Single Convention on Narcotic Drugs of 1961 and the Convention on Psychotropic Substances of 1971.

34Religious Freedom and Indian Rights, pp. 194-195.

35Religious Freedom and Indian Rights, p. 187.

36The Oxford Companion to the Supreme Court of the United States, p. 551, "Minersville School District v. Gobitis", by Leo Pfeffer.

37Religious Freedom and Indian Rights, p. 53.

38Religious Freedom and Indian Rights, p. 187.

39One Nation Under God, p. 136, "The Legal Tango: The Native American Church v. The United States of America", by James Botsford and Walter B. Echo-Hawk.

40(i)Prince v. Massachusetts: "state interest in regulating children’s activities justifies denial of religious exemption from child labor laws"; (ii)Braunfield v. Brown: "state interest in uniform day of rest justifies denial of religious exemption from Sunday closing law"; (iii)Gillette: "state interest in military affairs justifies denial of religious exemption from conscription laws"; etc. — Each of these is a case in which government-perpetrated bloodshed is rationalized as appropriate by the Court, based on the compelling interest test. Whether each is a "hybrid rights" case or not is essentially irrelevant.

41Religious Freedom and Indian Rights, p. 192.

42Religious Freedom and Indian Rights, pp. 221-222.

43Religious Freedom and Indian Rights, p. 188.

44Prison inmates and military personnel were asking for free exercise exemptions, when the nature of their respective institutions vitiated such exemption claims. See Goldman and O'Lone above (URL: #OLoneVShabazz), and at "1st Amendment (De Facto Secular Humanist Establishment)" (URL: ./0_8_2_Am_I_(De_Facto_Sec_Hum_Est).htm​#GoldmanvWeinberger).

45Religious Freedom and Indian Rights, pp. 199-200.

46Religious Freedom and Indian Rights, pp. 191-193.

47To see how clear this is, see "1st Amendment (Boerne v Flores)", URL: ./0_8_2_Am_I_(De_Facto_Sec_Hum_Est).htm​#GoldmanvWeinberger.

48URL: #ParadeOfHorriblesList.

49It’s bloodshed only if someone else has put poison in his or her food, or if they’ve stolen the food, or something of that nature.

50Religious Freedom and Indian Rights, p. 193.

51Religious Freedom and Indian Rights, pp. 221-222.

52See "The Emperor’s Parade of Horribles", URL: ./0_8_6_Am_I_(Parade_of_Horr).htm​#AmendI.

53URL: ./0_8_6_Am_I_(Parade_of_Horr).htm​#ParadeOfHorriblesConcl.

54One Nation Under God, p. 136, "The Legal Tango: The Native American Church v. The United States of America", by James Botsford and Walter B. Echo-Hawk.