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  Amendment I: Legislative Response to Smith — RFRA  
"The state is given the overall jurisdiction and sovereignty over church, school, family, business, farming, and all things else which belong only to God. The essential function of the social gospel is to render all things to Caesar and nothing to God." 1

Amendment I (cont’d):

Legislative Response to Smith (cont’d) / RFRA of 1993:

With help from people in Congress, the CFER developed legislation known as the "Religious Freedom Restoration Act". 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 shortly. It’s critical because it impacts all of us.

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 modelled 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 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, RFRA might be seen by the Court as 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 Representabives 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 presumed to nullify Employment Division v. Smith (1990).

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, or the product of the Court’s own case law. This congressional mandate would later provide the Court with an excuse to find RFRA unconstitutional.

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 make the Court observer think the Court had become friendly to free exercise claims, but more thorough reading would make it clear that this is 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 more emphatic than ever. 15

Catholic sex abuse:

During this same period, 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. But when the laws are bad, for whatever reason, shouldn’t there be an exemption, regardless of whether the exemption is called "exemption", "exception", or "Church Autonomy Doctrine"? — Maybe!

There are two basic types of human laws that are lawful: laws against bloodshed and laws enforcing contracts. 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. 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 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, not because it’s malum in se. Child molestation is malum in se. Peyote consumption is malum prohibitum. As a matter of fact, all controlled substances are mala prohibita. They are NEVER mala in se. That’s because 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. It is rather malum prohibitum, bad by agreement, by convention. The same can be said about marijuana, evidenced by the fact that some States have recently passed "medical marijuana" laws. — Conclusion: There should never be an exemption given for any law against a human act that is malum in se. No human being is above such a law. No human being is above laws that proscribe bloodshed. On the other hand, generally, there should be little need for exemptions to laws against acts that are mala prohibita. That’s because laws against acts that are mala prohibita are positive laws that derive from agreements, compacts, contracts, conventions, etc. In other words, such contractual positive laws only apply to parties to the 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 basic nature of the underlying contract is being ignored. The in personam jurisdiction of the contract, compact, etc., is being overlooked. So 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., that 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 go the closest, most resolute jural society available, and to invite such jural society into its midst to eradicate this 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 (other than religions based exclusively on the global covenant) are entered voluntarily, and all manifestations of their underlying covenant are local. But Caesar’s calling and endeavor is to create and enforce global positive law. The Bible’s global covenant contains the only Biblical prescription of global positive 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.

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 – are 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 positive 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) is a righteous declaration to all the world that generally applicable, "neutral" laws, apply to everyone, even to people who claim they’re breaking the law for religious purposes. They claim that the religious clauses of the 1st Amendment are still functional under Smith jurisprudence, and they claim that Smith did no damage to such clauses. They claim the Court did the right thing in Smith, and that the RFRA was totally misguided, and would have resulted in the demise of American civilization if RFRA had continued to stand. 18 They 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 has no bloodguilt. 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 ruled unconstitutional in 1997, the Catholic Church tended to use the RFRA to cover up its bloodshed. Perhaps it was a good thing that RFRA was ruled unconstitutional. 19


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. (iii)Even after RFRA became law, many States still had statutes making NAC’s sacrament illegal.


1Rushdoony, R. J.; The Foundations of Social Order: Studies in the Creeds and Councils of the Early Church; pp. 134-135.

2RFRA URL:​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf. — 42 USC § 2000bb, et seq. URL:​uscode/​text/​42/​2000bb.

3Spectrum, Vol. 21, Num. 4, "Congress vs. the Court: Rescuing Religious Liberty", S. Solarz.

4RFRA URL:​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

5Religious Freedom and Indian Rights, p. 234.

6RFRA URL:​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

742 USC § 2000bb, et seq. URL:​uscode/​text/​42/​2000bb.

8RFRA URL:​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

9RFRA URL:​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

10To an Unknown God, pp. 229-230.

11To an Unknown God, pp. 229-230.

12RFRA URL:​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

13Religious Freedom and Indian Rights, p. 239.

14RFRA URL:​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

15RFRA URL:​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

16This is intuitively obvious, and obvious on numerous other accounts as well. Consider this: Virtually all churches – Jewish, Christian and otherwise – have abdicated most legal responsibilities that are inherently part of each respective religion. They’ve abdicated such responsibilities to secular governments under the incentive of their 26 U.S.C. §501(c)(3) status (URL:​uscode/​text/​26/​501). Such status is huge motivation to avoid developing and practicing theologies that pertain specifically to human law. In orthodox Christianity, the Bible is in many respects a Law Book, and this refusal to interpret and apply Scripture with respect to law is an ancient heresy known as antinomianism. Even the so-called "Social Gospel" that presumes to apply to politics is deeply antinomian, due to its anti-Biblical inclinations.

17This doesn’t mean that Caesar has original jurisdiction. It just means that Caesar’s lawful scope is exclusively secular, i.e., it’s over the secular religion, the human law prescribed in the global covenant. Even though the community of God may have original jurisdiction over a case of bloodshed, and even though they have an obligation under the global covenant to confront that bloodshed, their primary concern is not for the secular, and not for confronting bloodshed, because their primary concerns are those of a religious social compact. They are obligated to cooperate with Caesar; so they are obligated to avoid obstructing Caesar’s efforts at executing justice against bloodshed. They should have an internal jural society, and their internal jural society should be deferential to Caesar’s whenever Caesar clearly has lawful jurisdiction.

18RFRA URL:​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

19RFRA URL:​103/​bills/​hr1308/​BILLS-103hr1308eas.pdf.

copyright © 2013 Charles Raleigh Porter, III
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