Amendment I (cont’d):
Legislative Response to Smith:
Although the supreme Court demolished the Sherbert-Yoder doctrine in Employment Division v. Smith (1990), and thereby returned the Court to the belief-action doctrine that arose out of the Reynolds (1879) polygamy case, that return to belief-action would not necessarily entail the return of the nation to the de facto establishment of Protestantism. The belief-action doctrine simply interpreted the Free Exercise Clause to say that people can believe whatever they want, but if their actions are repugnant to whatever majority happens to be in power at any particular time, then even if those actions are an expression of the actor’s religion, then those actions can be prohibited by generally applicable law. It so happened that at the time of the polygamy decision, the Court was dominated by nominally Christian Protestants. In the many decades between Reynolds and Smith, the religious complexion of the country in general, and of the Court in particular, had changed radically. The country in general was much more pluralistic. So was the supreme Court. If the belief-action doctrine reigned under such pluralistic circumstances, then the majority judging a case by way of the belief-action doctrine was likely to be far more random and unpredictable than it would have been if the majority were strictly Protestant. The thought of random repudiation of various facets of various religions under the dominant secular humanist majority made many people extremely uncomfortable. Christians should not want a return to the de facto establishment of Protestantism because that regime entailed the imposition of biblical standards of morality on people who were not Christian, and were not even interested in the Bible. Christians should impose the secular religion on Christians and non-Christians alike. They should not impose Christian standards of morality in general on people in general.
After Smith, many religious leaders, academics, politicians, and others were so outraged that they sought relief in Congress. But before Congress could do anything to correct the damage done by Smith, lower courts were actively using the Smith decision to do to other religions what Reynolds had done to the Mormons, and what Smith threatened to do to the Native American Church. The majority in Smith had in effect made the free exercise clause a nullity again by making it clear that the judicial system could nullify whatever free exercise of religion they wanted. — Example: In a case in Maryland, a Roman Catholic teaching hospital refused to perform abortions. In response, secular courts adhering to Smith cancelled the hospital’s accreditation. The hospital stopped teaching. Another example: Hmong religion holds that an autopsy prevents the dead from having an afterlife. Even so, a State court used Smith to force autopsies upon Hmong dead, to conform to State law. 2 So the Smith ruling, before Congress could do anything, was indirectly affecting numerous other religions. But it was a "direct hit" on the Native American Church.
In the legal community, criticism of the Smith decision focused on five things: (i)Scalia’s misuse of judicial precedents (amply documented in Justice O’Connor’s opinion); (ii)the "judicial activism" the Court indulged in (for example, even granting certiorari in Smith I, then converting the case from civil to criminal); (iii)Scalia’s claim that a legislative remedy was more appropriate for burdened religions (like Marie Antoinette’s alleged "Let ‘em eat cake."); (iv)Scalia’s claim that strict scrutiny was too difficult in free exercise cases, and that it would lead to the alleged "parade of horribles"; and (v)the fact that Smith made it too easy for governments to persecute small religious groups ("as occurred in the past, when majoritarian institutions either directly or indirectly forced unpopular minority religious groups to conform to majoritarian opinion" 3).
The Smith decision made it obvious that given the right case, the supreme Court would totally eliminate all exemptions for the Native American Church. That would obviously leave all NAC members in a precarious position. They would either have to give up their religion and their church, or break the law. One thing that law professor Michael W. McConnell correctly claimed was that there would always be some people who would rather break the law than violate their conscience. 4 The framers’ natural-law orientation clearly held that there are higher laws in the universe than human law. The supreme Court appears to have totally abandoned that belief. One horrible aspect of this situation was that the Court was misguiding that vast majority of people who would rather have their conscience conformed to secular positive law than to eternal law. In other words, the Court – in effect by stealth – had been imposing a crude, ad hoc blend of nominal "Christianity" and secular humanism, making this blend the national religion. In doing so, the courts were repudiating all churches and religions whose guiding principles conflict with the Court’s crudely concocted religion. By following the supreme Court’s lead, lawyers and judges at every level of the federal and State judiciaries were essentially making secular government god, and pretending that God is either it’s obedient servant, or irrelevant. This is an important part of what McConnell was describing.
In contrast to McConnell’s view, and to the view of these circumstances based on the hermeneutical prologue’s metaconstitution, another law professor, Marci Hamilton, claimed that "McConnell’s is not the only theological explanation of the system set into motion by the framers of the First Amendment’s religion clauses. A far more compelling explanation is provided by the Presbyterian view, dominant at that time, which holds that believers exercise free will and that the law is part of God’s law and therefore binding on all believers.". 5 By making this claim, this law professor misconstrued the theology of old-time Presbyterians. 6 She also made the common blunder of claiming that (i)the founders of Christianity blindly obeyed human laws, and (ii)that the founders of this nation did the same. That belief is contradicted profoundly by the fact that the president of the Presbyterians’ preeminent seminary, what’s now known as Princeton Theological Seminary, was a signer of the Declaration of Independence. Also, Hamilton’s claims are impossible to square with (i)the fact that Peter said "We must obey God, not men" (Acts 5:29), and (ii)the fact that the founders seceded, thereby violating England’s laws. There is something deeply sick about the elevation of human laws to a par with God’s laws. But many people in the mainstream denominations these days appear to have the same commitment to the defamation of their denomination’s foundations, and blind obedience to bad laws. The conflation of biblically prescribed human laws and de facto human laws that are not de jure, has been a bane to humanity for millennia. Hamilton exalted the same conflation.
While the judicial branch was busy repudiating churches, religions, and communities, a coalition of diverse organizations formed to lobby Congress to correct the problem. More than sixty religious and civil liberties groups formed an umbrella association, the "Coalition for the Free Exercise of Religion" (CFER). The Coalition included Native Americans, Jews, Humanists, Christians, Muslims, Sikhs, Scientologists, and others. It included both "liberals" and "conservatives": "Americans United for the Separation of Church and State", "Traditional Values Coalition", "American Civil Liberties Union", "American Center for Law and Justice", "Concerned Women for America", "People for the American Way", "Baptist Joint Committee on Public Affairs", "AJ Congress", "National Association of Evangelicals", "Christian Legal Society", "Home School Legal Defense Association", etc. CFER was aimed narrowly at restoring strict scrutiny in free exercise cases. The restoration of strict scrutiny would not satisfy the needs of Native Americans because even if strict scrutiny were restored, the mega-state could still find, as O’Connor found, that the mega-state had a compelling interest in keeping Native Americans from using peyote. 7 Because CFER had such a narrow focus, it was necessary to form two coalitions: CFER to restore the compelling interest test via RFRA, 8 and Native American Religious Freedom Project to remedy oppression of NAC via AIRFAA. 9 — NAC was given a dilemma: Become established or die. None of the other RFRA Coalition members had this dilemma.
Law professor McConnell argued against the Smith decision in an article in the Harvard Law Review. In that article, McConnell warned his audience that there had been a seismic shift in the Court’s treatment of the Free Exercise Clause:
What once appeared to be a jurisprudence highly sympathetic to religious claims now appears virtually closed to them. Chief Justice Rehnquist and Justice Stevens have openly declared their opposition to the doctrine [of exemptions for free exercise]. Chief Justice Rehnquist has contended that when a "State has enacted a general statute, the purpose and effect of which is to advance the State’s secular goals, the Free Exercise Clause does not . . . require the State to conform that statute to the dictates of religious conscience of any group." Justice Stevens has stated that there is "virtually no room for a ‘constitutionally required exemption’ on religious grounds from a valid . . . law that is entirely neutral in its application." 10
McConnell’s article gave ample evidence to prove that both the States and the general government of the early republic sometimes made exemptions to "neutral", "generally applicable" laws. Exemptions were made for people who had religious objections to (i)military conscription, (ii)payment of taxes to support a State-established church, and (iii)the taking of oaths. — We are convinced that secular government exists to protect property rights, and to do nothing else. So everyone, regardless of whether they are involved in an organized religion or not, deserves to have their free exercise rights protected by secular government. McConnell was correct in his claim that serious damage was done to free exercise jurisprudence via Smith. Open "opposition to the doctrine [of exemptions for free exercise]" by a majority of the Court was a serious deviation (i)from existing jurisprudence, (ii)from the framers’ original intent, and (iii)from the circumscribed First Amendment absolutism that is demanded by the hermeneutical prologue.
A justifiable sense of urgency existed in the Coalition for the Free Exercise of Religion in the early 90s. Fear that the supreme Court was plunging us all into a regime far more oppressive than the de facto Protestant establishment was palpable, and unacceptable, for many. Even Bible-believing Protestants feared it. Those who were most justifiably concerned were members of the Native American Church.