Amendment I (cont’d):
Legislative Response to Smith (cont’d) / RFRA of 1993:
With help from people in Congress, the Coalition for the Free Exercise of Religion (CFER) developed legislation known as the "Religious Freedom Restoration Act" (RFRA). 2 This legislation was sponsored in the House by Stephen J. Solarz (D.–N.Y.). Solarz called April 17, 1990 – the date of the Court’s Smith decision – "a day that will live in constitutional infamy". He said Smith was a "devastating blow to religious freedom in the United States.". 3 In spite of his obvious passion for this issue, Solarz’s RFRA failed to provide a remedy for the Native American Church. That’s because the RFRA was narrowly aimed at restoring strict scrutiny in free exercise cases, i.e., at restoring the "compelling governmental interest" / "least restrictive means" test. O’Connor’s opinion in Smith made it clear that even if the test were restored, NAC would still flunk it. To relieve this defect a two-pronged approach to a legislative remedy was necessary, one for Indians, the other for everyone else. We’ll examine the remedy for NAC after examining the RFRA’s generally applicable remedy.
The strategy adopted by the CFER was essentially to use legislative authority to overturn the Smith decision. There were signs that use of legislation to remedy Smith might be a strategic, and not merely a tactical, mistake. But given the circumstances,, the coalition saw few alternatives. CFER developed the RFRA legislation, 4 and committee hearings on the original bill, HR5377, started in September, 1990. Committee hearings on this legislation would continue for about three more years. The debates focused on three problems: (i)the possible effect of the act on the tax-exemption and public funding of religious organizations; (ii)what the effect of the legislation would be on "abortion rights"; and (iii)whether Congress had the authority under the Constitution to pass the bill.
During the three years of legislative debates, there were numerous decisions in the lower courts that were modeled after the Smith decision. On July 2, 1992, the chairman of the CFER, Oliver Thomas, submitted a memorandum to the Senate Judiciary Committee, where the memorandum "listed . . . cases . . . that had been decided, because of Smith’s new standard, against plaintiff’s religious claims. Thomas concluded, ‘While we have been haggling . . . more than fifty cases have been decided against religious claimants.’.". 5 Later that year, William Yang, a representative from the Hmong community, personalized Thomas’s claims by testifying before the same Judiciary Committee. He told the committee about how autopsies had been forced by government agents on Hmong, in violation of their religion.
One of the three major concerns in the congressional debates – concern about the impact of RFRA on religious organizations that were receiving tax exemptions, funding, and other benefits from government – focused on possible establishment clause challenges that might result from RFRA. 6 If a religious organization received an exemption from a neutral, generally applicable law – based on RFRA’s statutory codification of the compelling interest test – some part of the exempted religion would in essence become established, in violation of the 14th Amendment equal protection clause. Established churches would theoretically then abound even more than without RFRA. (By way of tax-exemption, they were and are already abounding.) Such established churches would be vulnerable to establishment clause suits. Wherever a burdened party could prove their burden, they would also be vulnerable to free exercise suits. To remedy this vulnerability, a section was added to RFRA to ensure that this act would not be used for establishment clause claims. 7
Regarding abortions: Theoretically, a woman could claim that her religion allows or encourages abortions. Any law that impeded her ability to procure an abortion would therefore be vulnerable to a free exercise / RFRA suit by her against the State. 8 People who believed that abortion was murder, and people inclined to some degree in that direction, would therefore fear the free exercise potential in RFRA. In actual fact, RFRA would not have enabled abortions any more than the pre-Smith free exercise jurisprudence, which had little impact in the "abortion rights" arena. That’s probably why "right to life" groups supported RFRA enough to help it to pass.
Regarding whether Congress had power to pass RFRA: 9 Without a doubt Congress has constitutional, and even metaconstitutional, power to pass laws. It also clearly has power to revise its own laws after they’ve been enacted. "Legislative revision is common in cases interpreting statutes: the theory is that Congress wrote the statute, and it has the authority to amend it when, in the members’ judgment, the Court gets it wrong.". 10 But Smith was not about statutes. There were no statutes controlling Smith and Black’s free exercise complaint. The supreme Court’s own free exercise jurisprudence was controlling. So Smith was a "constitutional decision", and according to the doctrine of judicial review promulgated in Marbury v. Madison (1803), which had rarely been disputed, "the Court is supposed to have the final word on interpretation of the Constitution.". 11 So there was concern in Congress that since RFRA was so obviously a response to Smith, the Court might see RFRA as an invitation to a turf war. But confidence of the congressmen was bolstered on this front by 14th Amendment § 5: "Congress shall have power to enforce, by appropriate legislation, the provisions of this article.". Since the "article" pertains to basics, like privileges or immunities, due process, and equal protection, it must also pertain to RFRA, or so the thinking went.
In October of 1993, the RFRA finally graduated from committees and subcommittees onto the floor of the Senate. 12 Senator Alan Simpson brought up another fear of RFRA, the fear that prison inmates would use the law to manipulate prison regulations. He cited "a letter written by . . . executive director of the Utah Department of Corrections, that included the example of members of the Church of the New Song (CONS) who made a free exercise argument that their religion required a special diet of Porterhouse steak and Bristol Cream Sherry". 13 Other senators allayed this fear as unfounded. Before the end of October, the Senate passed the RFRA by 97 to 3. RFRA passed the House of Representatives via unanimous voice vote on November 3. The President signed it into law on November 16, 1993. The following is the crux of it:
Sec.3.(a)In General: Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b)Exception: Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person –
(1)is in furtherance of a compelling governmental interest; and
(2)is the least restrictive means of furthering that compelling governmental interest.
Sec.6.(a)In General: This Act applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of this Act.
This law was aimed at nullifying the elimination of strict scrutiny in free exercise cases, where such nullification occurred by way of Scalia’s opinion in Employment Division v. Smith (1990). It’s important to notice that "This Act applies to all Federal and State law", because that claim was later repudiated by the supreme Court in City of Boerne v Flores (1997). We’ll address that repudiation in "Subsequent Cases".
In Smith, the Court essentially said that it refused to use strict scrutiny in free exercise cases, at least regarding neutral, generally applicable laws. By default, it continued to recognize other 1st Amendment rights as preferred freedoms. It thereby in essence claimed that it would continue using strict scrutiny in race-based discrimination cases, mandatory education laws, cases that burdened some other right, etc. But from Smith forward, the Court’s expressed intent was to refuse to use strict scrutiny in free exercise cases, because free exercise was no longer a preferred freedom. In RFRA, 14 Congress attempted to mandate that the Court use strict scrutiny in free exercise cases, regardless of whether the burden arises from a State or "Federal" law, regardless of whether the law is "neutral" or aimed at a specific religious group, and regardless of whether the law was statutory, administrative, constitutional, or the product of the Court’s own case law.
The need for RFRA was emphasized not only by numerous lower court decisions, but also by a supreme Court decision of June, 1993. In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993), members of a Santeria church sued Hialeah on free exercise grounds. This was the Court’s first free exercise decision since Smith. The Court ruled unanimously in favor of the Church of Lukumi. Superficial evaluation would incline the Court observer to think the Court had become friendly to free exercise claims, and had abandoned its stance on free exercise strict scrutiny. More thorough reading would make it clear that this was not so. Hialeah had implemented city ordinances that burdened Santeria. On their face, they were neutral, generally applicable laws. But when the Court studied the record, they found that the city government intended to specifically target Santeria. Because these ordinances specifically targeted Santeria, and were not neutral, generally applicable laws (even though they appeared to be), the Court found that they did not trigger Smith’s negation of the religious claimant. The Court found that where a law specifically targeted a religion, the Sherbert-Yoder compelling interest test applied. The Court claimed emphatically that the Smith standard still applied where the law was genuinely neutral and generally applicable. For CFER members, the need for RFRA was as emphatic as ever. 15
Our Metaconstitutional Perspective:
To keep perspective, it’s critical for us to step back from all these details and look at the RFRA from the hermeneutical prologue’s perspective. First, when RFRA says that "Government shall not substantially burden a person’s exercise of religion", it’s important to understand that "religion" is left largely undefined. There is no recognition in the de facto government of the secular religion, and therefore no recognition of how the vernacular’s "religion" might fall in part within the subject matter jurisdiction of the secular religion. For example, if a "religion" required the sacrifice of human babies, the secular religion would have subject matter jurisdiction over that act, and would demand prosecution of whoever was responsible for murdering the babies. In fact, the federal government’s existence, under the secular religion, is only lawful to the extent that such government enforces the secular religion. To whatever extent it operates outside those narrow boundaries, it is unlawful. This is because the federal government is inherently a secular social compact to whatever extent it is not jurisdictionally dysfunctional. Without this understanding of the limits on religion, Senator Simpson’s concern about the "Church of the New Song" is well founded.
Second, when the RFRA says that "Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest", "compelling governmental interest" is left essentially undefined. That means that the courts are left with the responsibility of defining such compelling interest. Of course the courts base their definition of such compelling interest on whatever agenda the legislature, the executive, the administrative agencies, and the court’s own precedents have established as being "compelling". If the government’s compelling interest is in taking over the world, in addition to taking over churches, schools, families, businesses, farming, etc., then the courts will find that any religious activity that hinders that compelling interest is an obstacle to that interest. The "least restrictive means" simply means that as government steamrolls over the obstructionist religion, it will do it in such a way that minimizes the screams of those being steamrolled. — The only compelling governmental interest secular government can ever lawfully indulge is the exercise of the secular religion. If every facet of secular government does not grasp this fact, then secular government is out of control, and is jurisdictionally dysfunctional. That, in fact, has been incrementally true as the general government has gone further and further into national consolidation, so much so that it is now being swallowed up in the UN’s Agenda 2030 movement towards global consolidation.
In order to clarify the hermeneutical prologue’s metaconstitutional perspective, it should help to include examination of the Roman Catholic pedophile scandal. During this same period in which the RFRA was being developed, the early 90s, another set of potential free exercise cases started arising in the form of the Roman Catholic sex abuse scandal. In more recent years, victims of this abuse by clergy have more fully exposed the extent of this bloodshed. One of the facts that this scandal makes clear to all but the most obstinate, is that churches – as they presently exist in America – are not qualified to police themselves. 16 With rare exceptions, theology is in such disrepair throughout the country – regardless of religion – that churches are generally not able to police themselves, even when their clergy are accused of grievous criminal acts. — Although there has always been some suspicion by many non-Catholics of the Catholic tendency to adhere to the Church’s "canon law", obedience to the nation’s laws – by individual Catholics – has never been much doubted. Circumstances have pressed the Catholic Church to make a decision about What is Caesar’s?, and What is God’s?. To what extent does the Catholic Church adhere to its canon law, and to what extent does it submit to secular authorities?
In many of these clergy sex abuse cases, the Catholic Church has claimed adherence to what they call the "Church Autonomy Doctrine". This is not a doctrine that is recognized in American jurisprudence. On the contrary, it has always been assumed that this is a nation of laws, and no one, not even an esteemed church, is above the law. The doctrine that no one is above the law is a precious protection against would-be tyrants. On the other hand, the "Church Autonomy Doctrine" is in some respects a legacy from the days when Roman Catholicism was an established religion in some nations. Even so, when laws are bad, for whatever reason, shouldn’t there be an exemption, regardless of whether the exemption is called "exemption", "exception", "Church Autonomy Doctrine", or partial establishment? To answer that question clearly and thoroughly, it’s necessary to put the question into the perspective of the hermeneutical prologue.
As is proven in the exegesis of Genesis 9:6 in the hermeneutical prologue, and in the subsequent exposition of the implications of that exegesis, there are two basic types of global human laws that are lawful: laws against delicts and laws enforcing contracts. This is because bloodshed can arise either ex delicto or ex contractu, but by no other means. Bloodshed is malum in se, meaning that it’s evil in itself. Bloodshed is always, always, always evil. There are no exceptions. Child molestation, like rape of an adult, is malum in se. It is NEVER good. It is never anything but evil. It is always bloodshed. All bloodshed is malum in se, but not everything that is malum in se is bloodshed. For example, from the hermeneutical prologue’s perspective, meaning the Bible’s perspective, fornication with animals is malum in se, evil in itself, but it is not bloodshed. Bloodshed exists when one person (or set of people) damages another person (or set of people). So there are, according to Genesis 9:6, at least two people involved in bloodshed. Genesis 9:6 calls for a third person (or set of people) to execute justice against the perpetrator. So while both bloodshed and fornication with animals are malum in se, fornication with animals is not bloodshed because it doesn’t meet the at-least-two-people requirement. Bestiality also doesn’t leave an obvious dead, damaged, or injured person the way bloodshed does, because the perpetrator of bestiality generally doesn’t consider himself / herself to be dead, damaged, or injured by the act.
In contrast to human actions that are mala in se, some actions are mala prohibita, meaning that they are bad simply because so-and-so says they’re bad. In other words, they are bad by convention. People have adopted a convention that thus-and-such a thing is bad. It’s bad by agreement, not necessarily because it’s evil in itself. For example, in the united States, driving on the left side of the road is malum prohibitum. It’s bad by convention, because we have a convention that we drive on the right, and if people don’t stay on the right side of the road, accidents are more likely to happen. In England, driving on the right side of the road is bad by convention. The English have a convention that says, "We English drive on the left side of the road.". In every circumstance, without exception, if a society considers something evil, but this evil thing is not bloodshed, then this "evil" thing is bad by convention, i.e., by agreement. Bloodshed is always malum in se, but not everything that is malum in se is also bloodshed. Everything that is malum in se is evil in itself because it violates the moral-law-leg of the natural law. The secular religion demands that all people recognize that bloodshed is malum in se. But those things that are malum in se that are not bloodshed are left to individuals to decide for themselves whether those things are genuinely malum in se or not. For example, Bible-believing Christians generally agree that bestiality is malum in se. But whether such a non-bloodshed malum in se gets prosecuted or not depends upon whether such an act is also malum prohibitum. If a group of people form a social compact, where the terms of such social compact require that any non-bloodshed malum in se be mala prohibita, then as long as they run their social compact through consent, such mala prohibita are lawful, meaning that such laws are lawful while the prohibited acts are unlawful within the social compact’s jurisdiction. So mala prohibita can be (i)mala in se that are bloodshed (like murder); (ii)mala in se that are not bloodshed (like bestiality); or (iii)acts that are neither mala in se nor bloodshed (like driving on one side of the road or the other). Only mala in se that are bloodshed fall within the subject matter jurisdiction of the secular religion.
With these classifications of prohibited or mandated acts in hand, it’s possible to return to the free exercise disputes from the perspective of the hermeneutical prologue. Child molestation is both malum in se and bloodshed. It damages the child. Peyote consumption is generally malum prohibitum in the united States, but whether it’s malum in se or not is debatable. Members of the Native American Church certainly don’t think it’s malum in se. Furthermore, even if it’s malum in se, there’s no way it can be bloodshed, unless the consumption is involuntary. Because that’s practically never the case, it’s reasonable to claim that peyote consumption is generally never bloodshed. Because it’s never bloodshed, such consumption is outside the subject matter jurisdiction of the secular religion, and of all lawful secular social compacts. As a matter of fact, all controlled substances are non-bloodshed mala prohibita. They, by themselves, are NEVER bloodshed. One of the reasons this is true is that there are always exceptions to the claim that drugs are bad. For example, morphine is a controlled substance. But morphine is sometimes used in medical circumstances in a good, beneficent, and beneficial way. Morphine use is not always bad. So it’s not malum in se, and if it’s self-administered, it’s never bloodshed.
The conclusion to this line of reasoning is that there should never be an exemption given for any law against a human act that is clearly bloodshed. No human being is above such a law. No human being is above laws that proscribe bloodshed. The enforcement of such laws is the only reason for the existence of any lawful secular social compact. The enforcement of such laws defines the subject matter of the secular religion. In contrast to this, contractual positive laws only apply to parties to the contractual agreement. People who are not party are automatically exempted. They have neither the benefits nor the duties that go with the contract. The existence of an exemption to a generally applicable law is an indication that the law exists in violation of the secular religion. If some person, or group of people, chafe under the burden of some law, and this person or group is not guilty of bloodshed, and this person / group has not given prior consent to the law, then the law itself is wrong. The law itself needs modification or repeal. Exemptions should be allowed as a safety valve against bad laws. They should also be allowed in situations like this: A cop needs to drive on the left side of the road in order to enforce a law against bloodshed. Compared to the plethora of licenses, privileges, permits, etc., which are common exemptions these days, justifiable exemptions should be rare.
Under these circumstances, the lawful, morally sound, course of action for the Catholic Church has been for the Church to first recognize that child molestation is bloodshed. Second, it should go the closest, most resolute jural society available, and invite such jural society into its midst to eradicate the pedophile pestilence. If the Roman Catholic Church were Biblically sound, it would take a ruthless approach to eliminating this kind of bloodshed from its midst. It would set up forums within itself to expose and prosecute this bloodshed, and it would cooperate to the extreme with any outside jural society that would do the same. It would absolutely NOT cover up the abuse, or pretend that it didn’t exist. Sadly for the reputation of the Roman Catholic Church in America, it has done precisely the opposite. It has turned inward, cloaked itself in its "canon law", allowed this bloodshed to fester without justice for decades, and allowed the victims to pile up like corpses at a concentration camp. The Church has become a criminal, a perpetrator of bloodshed, by aiding and abetting perpetrators of bloodshed. — Bloodshed cases belong primarily to Caesar, not to the community of God. 17 That’s because all the religions that derive from the divine law (with the possible exception of religions based exclusively on the global covenant, if there are such things) are entered voluntarily, and all manifestations of their underlying covenant are local. But Caesar’s calling and endeavor is to create and enforce global human law. The Bible’s global covenant contains the only Biblical prescription of global human law, and that law is against bloodshed. So Caesar has lawful jurisdiction over bloodshed, and over nothing else, unless it’s by consent devoid of duress. The Roman Catholic Church, on the other hand, is essentially a religious social compact, because it’s primary vocation is the ministry to people according to their consent. Like all people, it has an obligation to abide by the bloodshed mandate. The Church therefore needs to have a nominal jural society within its religious social compact, just to make sure that the Church is abiding by the bloodshed mandate. But its primary focus is ecclesiastical, in the broad sense of that word.
Instead of having this Biblically sound orientation and organization, some of the clergy in the Roman Catholic Church – like many American lawyers, judges, and leaders of other churches – have been straining gnats and swallowing camels. This propensity to strain gnats and swallow camels results from an inability or unwillingness to properly distinguish human law from the moral sphere. Those who scoff at the thought that there is a higher law than human law – that is, people who scoff at the notion that obedience to God trumps obedience to secular government or obedience to man-centered church – swallow a herd of camels. Many seemingly good people claim – in agreement with Reynolds v. United States (1879) – that secular government rightly allows no one to be a law unto himself. Further, such people claim that secular government rightly allows no religion to be a law unto itself. They claim that Employment Division v. Smith (1990) was a righteous declaration to the entire world that generally applicable, "neutral" laws, apply to everyone, regardless of whether they involve bloodshed or not. Such people claim that Smith was a good decision because it lets everyone know that if you live in this society, you have no choice but to live by this society’s rules. According to such people, the right to freely exercise one’s religion stops where secular positive law starts. So if secular positive law makes your religion totally illegal, and your religion has no bloodguilt on its hands whatsoever, these people claim that the Free Exercise Clause is still functional, and is still doing its job just fine. They claim that freedom is no license to break secular positive law, even if such positive law is vile in God’s sight. Such people even claim that their religion supports such claims. — Don’t tell us that secular government is not actively establishing a witch’s brew of secular humanism and nominal "Christianity" as the national religion. There are so many people who make such draconian claims that their existence says clearly that that’s a lie.
For Bible-believing Christians who know that God’s law is higher than any human law, our religion demands that we put obedience to God before obedience to man. If that makes us laws unto ourselves, then God is apparently calling a multitude of people to be laws unto themselves. But in fact, it doesn’t make us laws unto ourselves. We each attempt to be obedient to the Law manifest in Jesus Christ. Jesus Christ is the only person who has ever lawfully been a law unto Himself. People who hold obedience to man-made governments (or religious institutions) as paramount over obedience to Jesus Christ, and the Holy Spirit, are blind people who lead others to ditches. — Any church in the united States that commits itself to a refusal to cooperate with the legal authorities who are investigating some criminal action, should first search itself thoroughly to make sure that it is not guilty of bloodshed. The Native American Church had no bloodguilt at the time of the Smith decision, and it has no bloodguilt up to the time of this writing. It should continue its services as usual, regardless of what secular government does. Bible-believing Christians should assist them in every way possible, as surely as it was right for Corrie ten Boom to help Jews during World War II. On the other hand, Bible-believing Christians should help secular government in every way possible to bring retribution and restitution for the victims of Catholic clergy. During the period between the RFRA’s ratification in 1993, and its being partially overruled in 1997, the Catholic Church tended to use the RFRA to cover up its bloodshed. Perhaps it was a good thing that Boerne v. Flores did the damage it did to the RFRA. 18
Besides the possible abuse of RFRA, there were three other things wrong with the way that RFRA left things: (i)The compelling interest test, regardless of whether it derived from RFRA or directly from supreme Court free-exercise jurisprudence, was a prescription for elevating minority religions into violations of the establishment clause. (ii)The RFRA brought back the compelling interest test for neutral, generally applicable laws, but it still allowed courts to claim governments had a compelling interest in ruling NAC’s sacrament illegal, and in doing similar things to other religions. (iii)Even after RFRA became law, many States still had statutes making NAC’s sacrament illegal.