Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
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  Amendment I: De Facto Secular Humanist Establishment  
 
 
"I think that when statesmen forsake their own private conscience for the sake of their public duties, they lead their country by a short route to chaos." 1
 
 

Amendment I (cont’d):

The De Facto Secular Humanist Establishment:

The secularization of America after the War Between the States, especially escalating during the first half of the 20th century, led large segments of the population to question the de facto establishment of Protestantism. "In the early twentieth century, this cultural trend was reinforced by the professionalization of American higher education that saw theologians and clergymen replaced by secular degree-holders as university faculty and administrators. Law itself was significantly influenced by the legal realists, who rejected theologically resonant natural law as the source of optimal legal rules for a society, believing instead that such rules could be discovered by pragmatic reasoning and careful empirical investigation." 2 — Since the national consolidation of the New Deal era, anyone with half a brain can see that the godless empiricism of the legal realists has serious limitations. It’s leading the united States by the nose to the Tower of Babel. To avoid that fate, it’s absolutely essential for Bible-believing Christians to rediscover the secular religion that is the lawful foundation for this confederate republic, and to simultaneously swear off any more of this de facto establishment of their religion.

The backlash against the de facto establishment of Protestantism has led to the secularization of most American institutions – to a huge extent, even including churches. In the jargon we use in the investigation and in this inventory, secularization is not the same as secularization. 3 Secularization says there is no religion, and God is negligible. Secularization says there IS a set of religious principles that encompasses all religions, at least as far as government is concerned. We claim that the secular religion that is foundational to this confederate republic is the positive law prescribed by the global covenant. — In keeping with the theories of the legal realists, the leaders of most of America’s secular institutions believe that science is king, and people need to keep their personal religious beliefs and practices to themselves. In contrast, we believe that science is a legitimate subset of a natural law philosophy that is implicit in the global covenant. 4

One of the biggest advances in the secularization of America has come to us by way of Everson v. Board of Education (1947). "In Everson, the Supreme Court considered whether a city could pay for the bus transportation of school-aged children to parochial as well as to public schools." 5 Claiming that such a transfer of tax money for that purpose was legitimate, the Court went into an explanation of why paying for the bus to either type of school was OK. In the process, the Everson opinion included a review of the Virginia statutes from the 1780s that are cited in "1st Amendment (Introduction and Original Intent)". 6 "[T]he Court stated in unequivocal terms that the Establishment Clause required an absolute neutrality on the part of government, both as between particular religions and as between religion and nonreligion." 7 The Court’s Everson opinion also includes quotations from Jefferson’s now-famous letter to the Danbury Baptists, in which the Establishment Clause was presumed to "erect a ‘wall of separation’ between Church and State" (p. 16). 8 — This whole controversy could have been easily avoided, by recognizing that no secular government has any business (1)running a bus system, (2)collecting taxes to run a bus system, (3)giving free rides on a bus system, or (4)running an educational system.

In Everson, the Court incorporated the "establishment clause to the states under the due process clause of the Fourteenth Amendment". 9 This establishes beyond a reasonable doubt that the States are intended to be secular social compacts. In a classic case of Orwellian double-speak, Justice Hugo Black cited the "wall of separation", thereby raising the First Amendment absolutist standard, then he claimed that the Everson breed of government aid did not violate "the wall of separation". In his dissent, Justice Robert Jackson wrote, "the undertones of the opinion, advocating complete and uncompromising separation of Church and State, seem utterly discordant with its conclusion yielding support to their commingling in education matters.". 10

Compulsory education laws did not exist in the united States until one was passed in Massachusetts in 1852. From then until the middle of the 20th century, the supreme Court rarely became involved in education disputes, even though compulsory education laws eventually abounded. There were three important education cases in the 1920s. In Pierce v. Society of Sisters (1925), the supreme Court held that even though compulsory attendance laws were legitimate, a State could not force parents to send their children to public schools. In Meyer v. Nebraska (1923) and Farrington v. Tokushige (1927), the Court maintained that a State "may not regulate private education in such an intrusive manner as to convert private schools into public schools in all but name". 11 — From the perspective of the global covenant, education compelled by a secular social compact is bloodshed perpetrated by the government against its people. Not only that, but it is also obviously de facto establishment of some belief system, and therefore of some religion, probably either nominal Christianity or secular humanism. Under the secular religion based on the global covenant, the issues covered in Pierce, Meyer, and Farrington don’t even exist.

"The Court has recognized only one limited exception to the proposition that all children may be required to attend public school or a reasonably regulated private school. In Wisconsin v. Yoder (1972) the Court held that a Wisconsin law, requiring all children to attend public or private school until age sixteen, violated the First Amendment’s Free Exercise Clause as applied to Amish parents and children . . . ." 12 This decision in Yoder was part of the supreme Court’s temporary repudiation of its belief-action doctrine.

The Court started abandoning the belief-action doctrine in Cantwell v. Connecticut (1940). This case arose when a Jehovah’s Witness was door-to-door proselytizing in a Catholic neighborhood. "The Jehovah’s Witness was convicted for failing to obtain the required approval by the secretary of public welfare." 13 The fact that the Court granted certiorari signifies that the free exercise clause was considered by the Court at that time to be incorporated. The Court overruled the lower court’s conviction of the Witness. The decision allowed States to continue regulating such door-to-door behavior, but indicated that the State could not ban it entirely. The decision repudiated the belief-action doctrine because it provided that the free exercise clause protected religious action, as well as religious belief. "[T]he Court stated for the first time in its history that some religiously motivated actions were constitutionally protected." 14 Although the belief-action doctrine was thus repudiated, there was still enough ambiguity about the status of the newly incorporated free exercise clause for lower courts to continue application of belief-action. So the Court was being forced by circumstances to clarify free exercise.

The Court further clarified its post-belief-action free exercise doctrine in United States v. Ballard (1944). 15 In Ballard, there was an appeal to the supreme Court to reverse a lower court decision that convicted "an offbeat religion" of mail fraud. The Court majority remanded the case to the Circuit Court of Appeals with instructions for the latter court to answer some obscure questions. In his dissenting opinion, Justice Jackson said, "I would dismiss the indictment and have done with this business of judicially examining other people’s faiths" (p. 95). 16 — The majority largely agreed with Jackson about "judicially examining other people’s faiths", but they allowed the indictment to stand pending a subsequent ruling by the Circuit Court of Appeals. Together the majority and Jackson in Ballard "foreclosed judicial inquiry into the sincerity and reasonableness of religious beliefs.". 17

After Ballard, but before Yoder, was Sherbert v. Verner (1963). Sherbert "completely reformulated free exercise doctrine. For the first time a majority on the Court declared that the free exercise of religion was a preferred freedom". 18 At last, the preferred freedoms doctrine that Justice Holmes had started developing in the early 20th century was applied to the free exercise clause. This meant that free exercise cases were subject to strict scrutiny. Strict scrutiny is a "multitiered [balancing] test" in which the Court (1st)determines whether the claimant’s religion has been burdened by the State; (2nd)(if there is a burden) determines whether the "uniform application of the regulation [(law)] served a compelling government interest, achieved in the least restrictive manner"; and (3rd)determines whether an exemption to the law "would undermine this compelling interest". 19

These three cases – Ballard, Sherbert, Yoder, a.k.a. Sherbert-Yoder doctrine – together added up to a free exercise clause doctrine that "appeared to require that a constitutional exemption from compliance with the law be granted to any religious objector who asked for one.". 20 In other words, these three cases appeared to totally eliminate the belief-action doctrine by allowing exemptions that Reynolds v. United States refused to allow.

In Sherbert a Seventh-day Adventist filed for State unemployment compensation. The State refused to give her unemployment benefits because she refused to work on her Sabbath (Saturday). The supreme Court "held that government could burden a fundamental right like the free exercise of religion only if it was protecting a compelling interest by the least intrusive means possible, and found the state’s interest insufficient to justify the infringement.". 21 — From the perspective of the global covenant, the State, since it’s a secular social compact, has no business whatever supplying "welfare" of any kind, including "unemployment compensation". So this case doesn’t exist. 22 — While the Court in Sherbert demanded that the State prove that it had a compelling interest in imposing the burden, the Court in Yoder demanded that the State give a good reason to refuse to give Yoder an exemption. "Thus, the effect of Yoder was to raise substantially the government’s burden of justifying any law that incidentally burdened the free exercise of religion." 23"[B]eginning with Sherbert v. Verner (1963), the Court began carving out constitutional exemptions exclusively for religious believers." 24 After Yoder, the burden on the State to prove it had a compelling interest was still higher. 25

Ballard, Sherbert, and Yoder combined to protect religious freedom by making it possible for a religious person to participate in a religion that was exempt from certain bad laws. Isn’t this a colossal piece of insanity? Why not just get rid of the bad laws?

For about two decades after Everson v. Board of Education (1947), the measure that the supreme Court used to determine whether government power was being exercised without violating rights under the Establishment Clause, was to scrutinize "whether such action was secular in its purpose and primary impact". 26 Secular by definition is the absence of religion. So in order to ascertain whether something is secular or not, the supreme Court is required to have a viable definition of "religion". One sad fact is that not only does the Court not have a workable definition of "religion", but it’s also incapable of developing or finding one within the framework of the national consolidation. 27 Ever since Reynolds v. United States (1879), the Court has been doing little more than making jurisprudential mud-pies in all its Religious Clause jurisprudence.

In Lemon v. Kurtzman (1971) the supreme Court modified it’s test of government impropriety under the Establishment Clause by creating a "three-pronged test": "To escape constitutional invalidation under the Establishment Clause, governmental action must (1)have a secular purpose that neither endorses nor disapproves of religion, (2)have an effect that neither advances nor inhibits religion, and (3)avoid creating a relationship between religion and government that entangles either in the internal affairs of the other." 28 This is generally called the Lemon test. Examples of how the general government uses this test are readily seen in its application to education. Prior to George W. Bush’s "faith-based initiative", parents could use private schools to teach religion to their children, but States were not allowed to fund that teaching because it violated the Establishment Clause. Still, parents who send their children to such private schools are thereby required to pay twice for their child’s education, once through confiscatory taxation, and once out of pocket to the private school. The parent’s alternative is to send their child to a public school, thereby paying only once, but having their child indoctrinated into secular humanism, rather than into the religion of their choice. The supreme Court’s Establishment Clause test is inherently fouled up, in part because it refuses to fully acknowledge that secular humanism is a religion. In essence, the Lemon test says that "governmental action must" (1)be inherently ungodly, (2)not advance any religion other than secular humanism, and (3)avoid aligning itself with any sect other than secular humanism.

In 1972 Congress passed the Education Amendments Act, Title IX of which prohibited "many forms of sex discrimination in public schools.". 29 Some Americans may claim that that was a glorious day for women’s rights. But we who believe in the secular religion know that this was another instance of the general government foisting its bizarre religion on the general population in the name of secularism. The supreme Court locked arms with Congress on this front in Mississippi University for Women v. Hogan (1982), when it "construed the Equal Protection Clause as placing a substantial burden of proof on school authorities to demonstrate the necessity of discrimination by sex or gender". 30 — There’s no doubt that before God, men and women are equal in rights. The same should be so before all the positive laws of mankind. But men and women are not equal in privileges, and no government should try to make them so. Men and women have radically different natural disabilities. As long as the general government lacks a clear understanding of the differences between rights, privileges, and disabilities, it is not capable of inserting itself into such issues as gender differences without committing bloodshed against someone. At present, it lacks such clear definitions. When it discarded the compact theory of government and the principle that government exists by the consent of the governed, it discarded even a decent starting place for finding them.

"In the public sphere, the Court has held that it is unconstitutional for public schools to seek to indoctrinate students to religion, though teachers may teach about religion in its historical and social context. School prayer and some forms of moments of silence are not permissible (Abington School District v. Schempp, 1963; Wallace v. Jaffree, 1985), and a state may not require the teaching of creationism or a balanced curriculum between creationism and evolution (Epperson v. Arkansas, 1968; Edwards v. Aguillard, 1987). In this context, the Establishment Clause acts as a substantive limitation on the messages that public schools may convey to students. Conversely, lower courts have held that curricula and textbooks emphasizing secular values do not constitute an unconstitutional establishment of a religion or a violation of the Free Exercise Clause (Smith v. Board of School Commissioners, 1987; Mozert v. Hawkins County Board of Education, 1987)." 31 — So "lower courts" are claiming, like Big Brother, that secular humanism is not a religion.

One of the big problems in the supreme Court’s Establishment Clause jurisprudence is the pretense that the general and State governments are capable of simultaneously being "neutral" and distributing benefits to all churches, religions, and Americans, as though the government were some grand Santa Claus. For every benefit it distributes, government is simultaneously (1)violating the linkage between taxing and spending and the associated limit on spending that are both implicit in the global covenant; and (2)necessarily obligating government to give exactly the same benefit to all the other wards in the nest. It must inevitably do the latter in order to maintain its pretense of neutrality. In order to prove its neutrality, it must necessarily keep accounts on every benefit, every beneficiary, etc., which makes the accounting practically impossible. In other words, these governments are not capable to running a Welfare State and being neutral at the same time. It’s an effort at the impossible. If taken to its logical extreme, the end will be Babel. — So much for the Court’s Establishment Clause.

The apparent religious freedom guaranteed by the Free Exercise Clause via the Sherbert-Yoder doctrine started hitting the wall in 1982. Based on Sherbert-Yoder, some Amish people asked to be exempted from paying Social Security (United States v. Lee). The Court used the compelling-interest test to tell the Amish that they would not be exempted. This is obviously because the Court was afraid that if they granted an exemption to the Amish, then myriad other people would want exemptions, and the Social Security trust fund would become notoriously bankrupt. — This is evidently another case of government perpetrating bloodshed (via confiscatory taxation and mandatory withholding) against a massive number of people, then pretending that the error is not with government, but with someone else. — After negating the Amish in Lee, the supreme Court (i)repudiated a Native American who didn’t want his daughter to have a Social Security number (Bowen v. Roy, 1986), and (ii)repudiated Native American tribes "that sought to prevent construction of a federal highway that would prevent them from worshipping" 32 (Lyng v. Northwest Indian Cemetery Prot. Assoc., 1988). These were both Free Exercise Clause cases. — By taking these positions, the supreme Court showed an undeniable disregard for the unalienable Right of every adult human being to practice his/her religion without being molested by the government. But the supreme Court was just getting started on a binge of religion repudiation that has not stopped yet.

Before 1990, there were certainly free exercise cases in which the State won. 33 But in each case the compelling interest test was used. Perverse reasoning may have led the Court to repudiate the claimant’s religion, but at least the Court was pretending to force the government to prove that it had a compelling reason to have the burdensome law. In 1990, the Court abandoned even this pretense, and regressed to its belief-action doctrine.

Conceptual Recapitulation:

Largely because Barron v. Baltimore (1833) held that the Bill of Rights did not apply to the States, 34 there were very few supreme Court religion cases between 1789 and 1940. Since the incorporation doctrine has been adopted, there have been numerous establishment and free exercise cases. Inevitably, any justice writing an opinion in a religion clause case must have preconceived opinions about What constitutes establishment of religion? and What constitutes a valid prohibition against free exercise of religion?. Without a viable definition of religion, the Court’s religion clause garden has become a briar patch.

This subject, religious freedom, is the core of all conflict. This is because any religion that serves its practitioners well will posit opinions about practically everything under the sun. This means that the potential for conflict between government and religion is huge. In order to resolve such conflicts satisfactorily, it’s absolutely critical for the final arbiter of such conflicts to have a reasonable definition of religion. The supreme Court, and American jurisprudence in general, have failed miserably in supplying such a definition. This is evident to anyone who considers the religion clauses in the 1st Amendment: (i)"Congress shall make no law respecting an establishment of religion", and (ii)"Congress shall make no law . . .  prohibiting the free exercise thereof". One obvious question: Are these two limits on the power of Congress themselves expression of a religion? Given the anemic nature of the supreme Court’s definition of religion, it’s reasonable that the Court has never rationally answered this question. But if it had a robust definition, it’s not reasonable that the supreme Court would not thoroughly examine whether the religion clauses themselves are religious. This being the case – and since we believe we are using a robust definition of religion by using a specific hermeneutical agenda with respect to the Christian Bible – we hereby answer this question: Yes! These two limits on Congress are expressions of a religion. Not only that, they are establishment of a religion. If the Constitution is lawful, then this established religion is the only secular, global religion that is capable of being a solid foundation for a secular government. The religion that gives lawful birth to the establishment and free exercise clauses is the global covenant. Only the global covenant prescribes human law that applies to all human beings and simultaneously protects each person’s religion from violation by other people, including from violation by government officials. — So this much must be conceded. If the 1st Amendment is lawful, it must be understood and interpreted as being the establishment of the human law prescribed by the global covenant, and it must be interpreted as meaning that establishment of any religion other than the global covenant is anathema. If the Constitution is lawfully interpreted, the Constitution establishes positive law that is consistent with the global covenant. If the religion clauses of the 1st Amendment are lawfully interpreted, "Congress shall make no law establishing [any] religion [that violates basic jurisdictional principles implicit in the global covenant]". The corollary to this establishment clause: "Congress shall make no law . . .  prohibiting the free exercise [of anyone’s religion, so long as such religion doesn’t violate the basic jurisdictional principles implicit in the global covenant]".

With the establishment clause, the framers were clearly attempting to avoid setting up a national church. They didn’t want to be like the European nations, each of which had adopted and established some national church. They wanted to operate under the natural law that applies to all human beings, and to establish human law utterly consistent with such natural law. They started with the assumption that this project was do-able, and with a belief that they had a good framework for starting the project. Over time, an almost inaudible question posed itself to the project: In order to operate under the natural law that applies to all human beings, and thereby under positive law that should be established by the general government, should the pursuit of such natural law be confined strictly to pursuit by way the physical senses and logic, or should the pursuit of such natural law be open to input from divine law? This question was largely unarticulated until legal realists started demanding that all hints of divine law be eliminated from jurisprudence. Now we are articulating the question again, but answering it in opposition to the legal realists. We – as Christian adherents to a specific hermeneutical agenda – demand that it be acknowledged (i)that there is always inevitably some religion that gets established whenever human law is established; (ii)that any pretense that all religion can be eliminated from government is folly; and (iii)that the global covenant is the only reliable foundation for global positive law. So the answer to this latest question is this: In order to operate under the natural law that applies to all human beings, and thereby the human law that should be established by the general government, the pursuit of such natural law should be informed by (i)the physical senses; (ii)logic; and (iii)divine law, where the latter is understood by way of this specific hermeneutical agenda.

Now that it’s clear, in general terms, what it’s lawful to establish, and what it’s not lawful to establish, we can look at the other side of the coin, free exercise. These days it’s common for the supreme Court to distinguish laws that are "neutral and generally applicable" – meaning that they apply equally to everyone – from laws that are not "neutral and generally applicable". It’s common to compare and contrast such neutral, generally applicable laws to laws that specifically target a specific religion. The idea is this: It’s lawful to assume that if a law is neutral and generally applicable, then it must be automatically understood to be lawfully established. According to the global covenant, this is not a lawful assumption. The government could make a law that says that all Americans must be naked when they go outside during the summer. That would be a neutral, generally applicable law. It would also be translation of a very stupid idea into positive law. Just because a majority of the people believe something stupid, and are able to convince legislators to translate their stupidity into positive law (even a neutral, generally applicable positive law), that doesn’t mean that such a stupid positive law is lawful. Such a law may not be establishment of a religion – in the conventional sense of the word religion – but it is nevertheless establishment of some religion.

In contrast to the troubles of the framers, we have different troubles with establishment. Practically no one in America is overtly attempting to establish a clearly identifiable religion. But on the other hand, practically everyone wants some parts of his or her religion to be established as positive law. So the American people are like pigs at the trough, all oinking for Congress to implement their special fragments of their private religions.

In addition to being prone to treating laws that are neutral and generally applicable as lawfully established, the supreme Court also gives special attention to laws that specifically target a specific religion. For example, if Congress passed a law that made it illegal for Seventh Day Adventists and Jews to travel on Saturday, this might not be establishment in the sense that the framers understood establishment, because it’s not establishment of Seventh Day Adventism or Judaism as the national religion. But it is certainly establishment of a fragment of these two belief systems, at least as they pertain to Seventh Day Adventists and Jews. Some leaders among the Adventists and Jews might not want their people to travel on Saturdays, and these leaders might be able to persuade Congress – maybe through back-room payoffs to political hacks – to pass such a law, thereby making the general government a glorified security guard for these two religions. The Court would say that such a law is not neutral and generally applicable because it targets a specific set of people. It would thereby violate the equal protection clause of the 14th Amendment. The leaders of these two religions would be using an avowedly secular government to enforce inherently religious laws. This would NOT be ok according to existing jurisprudence.

Here’s another example of a law that targets a specific religion, in contrast to a law that is neutral and generally applicable: Suppose the people in control of the government hate "fundamentalist Christians" (f.C.). Suppose they hate these f.C. so much that they contrive a plan to destroy the f.C. religion. The means by which they choose to destroy the f.C. is intentionally long-term and based on multi-generational behavior modification. They will force the f.C. to surrender their children to be indoctrinated into a belief-system that is utterly inimical to the f.C. They will continue this indoctrination of f.C. children until the f.C. no longer exist. — The supreme Court would consider such a law to be targeted against a specific group, the f.C., and would automatically assume that since it is not neutral and generally applicable, it’s not lawfully established. But if the same f.C.-hating government chose to apply the same child-indoctrination law against everyone, then it would be neutral and generally applicable. Then the Court would take it as lawfully established. But from our perspective, such a law would be evil regardless of whether it targeted a specific religion or was neutral and generally applicable.

The distinction between neutral, generally applicable laws, on one hand, and laws that are specifically targeted, on the other, is not new. These ideas were embodied in the common law. But the way these ideas have been applied to free exercise cases in recent decades is new. — The oldest doctrine arising from free exercise cases is the belief-action doctrine. This doctrine was created when the supreme Court held that religion was strictly a matter of belief. They held that such religious belief "was constitutionally protected but that conduct was outside the purview of the First Amendment. . . .  ‘Religion’ was defined solely as having reference to one’s view of relations with the creator and to the obligations they imposed.". 35 In other words, religion was defined by the justices as something inherently disembodied. You could believe whatever you wanted, and your beliefs were protected. But if you put your religious beliefs into action, such actions were inherently subject to general positive law. — This doctrine essentially nullified the free exercise clause. "[E]xercise" is inherently an action. By saying that "Congress shall make no law . . .  prohibiting the free exercise [of religion]", the 1st Amendment is saying, "Congress shall make no law . . .  prohibiting the [manner in which people act out their religious beliefs]". In the Mormon polygamy cases that gave rise to the belief-action doctrine, the supreme Court was essentially interpreting the free exercise clause like this: Congress shall make no law . . .  prohibiting people from believing whatever they want unless they put those beliefs into action. OR Congress shall make no law . . .  prohibiting the free exercise of religion unless such exercise is literally exercise, i.e., unless it’s a belief put into action.

Although the polygamy decision that gave rise to the belief-action doctrine still stands, the Court must have become apprehensive about having gutted the free exercise clause, because in 1940 it adopted a different approach to free exercise. In the 40s the Court started applying tests that it developed in "speech" and "press" cases to "religion" cases. The "quintet of First Amendment guarantees" were once treated either through First Amendment balancing or First Amendment absolutism. The latter is a position developed by Justice Hugo Black. First Amendment absolutism claims that "the enumerated First Amendment guarantees are absolute in and of themselves and . . .  they cannot be infringed by any governmental action that would inhibit their exercise.". 36 In contrast to this First Amendment balancing holds that "the quintet of rights . . .  are not regarded as absolute . . .  Accordingly, a ‘balancing’ between individual and societal rights seems a logical compromise between those who would brook no governmental regulation of First Amendment rights whatsoever, and those who readily support stern, sometimes draconian, measures". 37 The "absolutist stance requires a reading of First Amendment rights that permits no ‘balancing’ . . .  of individual and societal rights". 38 Generally, the Court treats absolutism as untenable and unworkable. So the courts generally use balancing. From our perspective, balancing leads to serious abuse of authority by governments because it presumes that secular governments have religious police powers. If secular governments are understood to be confined to secular police powers, meaning a purview limited almost exclusively to enforcement against delicts, the absolutist position becomes viable, and balancing becomes manifestly a mechanism for insidious abuse.

Even though Jefferson wrote his notorious "wall of separation" letter to the Danbury Baptists in the early 19th century, no serious attempt at applying this standard was undertaken by the supreme Court until the 1940s. Strict separation was then adopted as a nominal standard, but it was never seriously exercised. Accommodation to religion by State and general governments was long-standing. Such accommodation was much subtler than England’s established Anglican Church, but it was still far from strict separation. After the Court adopted the "wall of separation" as a nominal standard in the 40s, the Court eventually developed the Lemon test to apply in establishment clause cases. The Lemon test says that when a law is challenged on establishment clause grounds, the law "must (1)have a secular [(meaning secular)] purpose that neither endorses nor disapproves of religion [(meaning religion)], (2)have an effect that neither advances nor inhibits religion [(meaning religion)], and (3)avoid creating a relationship between religion [(meaning religion)] and government that entangles either in the internal affairs of the other." 39 In other words a law that is secular humanist and doesn’t cross-entangle ostentatiously will pass muster. Example: Virtually every church in the nation is deeply entangled with government by way of their 26 USC § 501(c)(3) tax-exempt status. 40 This entanglement is apparently negligible to the Court, even though it’s obvious to anyone who cares to study it. Incentive to the Court to neglect the entanglement exists in the form of the secularization of religion that exists when the "tax-exempt" church commits itself to avoid "carrying on propaganda". 41 In other words, by adopting a few precepts of secular humanism, churches gain the benefit of having the judiciary ignore the church’s tax-exempt entanglement. 42

Starting early in the 20th century, the supreme Court started developing its preferred freedoms doctrine. "This doctrine holds that some constitutional freedoms, principally those guaranteed by the First Amendment, are fundamental in a free society and consequently are entitled to more judicial protection than other constitutional values.". 43 The supreme Court established various levels of judicial scrutiny that they apply to such "preferred freedoms". 44 If government is going to put restrictions on someone’s religion (or speech, press, etc.), then government had better have a good reason ("compelling") for imposing the restriction, and government had better impose the restriction in the "least intrusive" means possible, i.e., they’d better impose it "closely". In "strict scrutiny", the Court starts from the assumption that the law is unconstitutional, and the government takes on the burden of proving that the law exists for a compelling reason, and that it is imposing its burden on the burdened party in the least restrictive, least burdensome, means possible. For example, if religion Z requires practitioners to swing chickens by their necks on Saturday nights, and a local law makes that illegal, strict scrutiny would demand that the local government prove that they have a compelling reason for making chicken-swinging illegal. If the Court finds that the locals do have a compelling reason, then strict scrutiny demands that the local government burden religion Z in the least intrusive means possible.

All laws are required under the 14th Amendment equal protection clause to be neutral and generally applicable. To a large extent the laws of the general government are neutral and generally applicable. But there are exceptions. One set of exceptions revolves around American Indians, because they have a special status. 45 Other exceptions arise whenever strict scrutiny is applied in a case and the government loses. For example, if religion X requires its practitioners to capture squirrels and rabbits, and hang them on backyard clotheslines until birds eat them, and this practice is illegal under animal cruelty laws, a practitioner of religion X might appeal a case to the supreme Court on free exercise grounds. If the Court found in the appellant’s favor, then the decision would create an exemption for religion X from the burdensome animal cruelty laws. This process of exemption-creation could be challenged on the grounds that government is establishing the exempted religion. Challengers would claim that the exemption violates the equal protection clause of the 14th Amendment, and establishes at least some portion of religion X. For example, religion Q might demand the same treatment of squirrels and rabbits, but religion Q might have given up this practice because of the law. When religion Q discovers that religion X has an exemption, religion Q might sue the government demanding that it either receive the same special treatment as religion X, or have religion X’s exemption nullified.

There are two requirements that a strict scrutiny appeal must meet before even being considered as a strict scrutiny case: (i)The burdened party must prove that a burden genuinely exists. This is sometimes called the "burden requirement" or the "threshold requirement". (ii)The burdened party must pass "rationality review". "Rationality review" has been used recently in prison and military cases. For example, in Goldman v. Weinberger (1986), an Orthodox Jew in the Air Force appealed to the supreme Court, on free exercise grounds, claiming that his religion required him to wear a yarmulke with his uniform. The Court found that the case didn’t pass the "rationality review". — We agree with the Court’s conclusion in this case, even if we don’t agree with their "rationality". The fact is that when people join the military, they contractually surrender some of their rights. Their rights become subservient to the overall function and purpose of the military. Likewise, people who go to prison for perpetrating delicts automatically surrender their rights proportionally with the severity of the delict. — So this second requirement that a strict scrutiny appeal must meet before the Court actually exercises strict scrutiny, is that the burden must pass this "rationality review".

It will become obvious, if it isn’t already, that the secular legal community’s ongoing assumption that positive law can somehow exist without moral foundations, is inherently untenable and irrational. In this specific instance – the purview of the religion clauses of the 1st Amendment – it leads to a false dichotomy between establishment and free exercise. If no religion whatsoever can be established, then positive law cannot exist because it’s impossible for one person or one set of people to impose positive law on other people without making moral judgments about how to do it. Such moral judgments are inherently religious. So establishment is unavoidable. Once it’s accepted and acknowledged that establishment is unavoidable, then the next big question becomes this: What is the nature of the religion that it’s valid to establish? The supreme Court never gets to this question because they cannot bring themselves to acknowledge that establishment is unavoidable. They cannot bring themselves to accept this because they’re fixated on obsolete and unworkable definitions of religion. In contrast, we have a different definition of religion, and we have a specific definition of what type of religion it’s valid to establish in a secular social compact, i.e., the human law prescribed by the global covenant, and whatever positive law that’s rationally consistent therewith.

Because of the Court’s inadequate definitions of religion, consent, jurisdiction, secular, etc., etc., etc., they are faced regularly with situations in which some religion has been established to some extent, and some set of people are burdened by such establishment, and are driven to file free exercise complaints in "federal" courts. The Court resorts to the pathetic set of legal tools that it has at hand, and it either turns a deaf, hardened heart to such complaints, or decides that the burdened party deserves to be exempted from the law. 46 If it’s the latter, then those who have been obedient to such law resent the exemption and complain that the exempted religion has been established by getting special treatment in violation of the equal protection clause of the 14th Amendment. — This is a morass. It’s a false dichotomy between establishment and free exercise. The false dichotomy is resolved by establishing the correct religion, and only the correct religion. The correct religion is the human law prescribed by the global covenant, which says emphatically that all lawful government is by the consent of the governed. It says that any deviation from this is deviation into the unlawful.

The dichotomy is true to this extent: Whenever a religion is established, any other religion whose exercise is at odds with this established religion, will be burdened by such establishment. This is true even if the global religion is established. But in the case of the global religion, the only other religions that are burdened are those that practice or espouse bloodshed. When the global religion is the only religion established immediately under a secular social compact, the dichotomy between establishment and free exercise becomes false for all religions except those that practice / espouse / promote bloodshed. It’s a false dichotomy for all religions that don’t promote bloodshed because no religion ever gets established except the global religion, and any religion that’s at odds with the global religion deserves the dichotomy. That’s the lawful way within a secular social compact. The secular social compact establishes the global, secular religion, and only the global, secular religion.

Footnotes

1Spoken by Thomas More to Cardinal Wolsey in A Man For All Seasons. — It’s interesting to compare More’s posture with Machiavellism, because the latter is the far more accepted and popular political philosophy:

def. Machiavellism — "A political principle according to which every act of the state (or statesman) is permissible – especially with reference to foreign relations – which might be advantageous for one’s own country." — Dictionary of Philosophy, p. 202, "Machiavellism", by Walter Eckstein.

2The Oxford Companion to the Supreme Court of the United States, p. 717-718, "Religion", by Frederick Mark Gedicks. — For more on the legal realists, see the 10th Amendment, URL: ./0_7_Am_X.htm​#LegalRealism.

3See an introduction to the difference between secular and secular in the Preface, URL: ./#Secular.

4Unlike the legal realists, we believe that science can never be a useful starting place for jurisprudence because science (i)is not a coherent axiomatic system; and (ii)lacks reliable premises for a reliable legal system. For jurisprudence to be viable, i.e., for it to assist in the pursuit of health, safety, welfare, and morality – without it being a perpetrator of bloodshedjurisprudence must be an axiomatic system. But here’s an important fact regarding axiomatic systems: Gödel’s Incompleteness Theorem says that "all logical systems of any complexity are incomplete in that each of them contains more true statements than can be proved according to its own defining set of rules." — Dictionary of Scientific Literacy, p. 131. — So if science or secular humanism claims to be an axiomatic system, then it suffers Gödel’s limitation as surely as any axiomatic system that’s based on ancient texts. Since it suffers this same limitation, it has no a priori advantages over an axiomatic system that’s grounded in a religion. The question then becomes this: What axiomatic system has the most explanatory power? — All of science is easily subsumed under a natural law philosophy. In other words, a natural law philosophy is rationally consistent with both the compact theory of government as posited here by way of the global covenant, and with science. It is consistent with the principle that people have a right to consent in their relations with other people, or dissent, and such decisions should be respected. This principle derives in no meaningful way from science. — Once science is subsumed under a natural law philosophy, the main problem at issue pertains to how the concept of chance is treated. If chance is treated as something non-existent (as some religious extremists might contend), then science cannot be continued in any meaningful manner as a subset of such natural law philosophy. If chance is treated as something that exists in nature, rather than merely as a construct of the human mind, then this is a maintenance of the status quo, because this is precisely what the majority in the scientific community believe now (Chance is legitimate as a mental construct that goes into the design of an experiment. But big problems arise when the findings of such an experiment are reported to the public without first eliminating the assumption of chance as part of the reporting process. The findings of such experiments thereby become secular humanist propaganda.). But if chance is treated as a construct of the human mind that has no real existence in nature (i.e., outside the human mind), then science can continue without caring. The big advantage in the assimilation of science by a natural law philosophy is that by properly defining chance, science ceases to do damage to jurisprudence, theology, and the social fabric as a whole.

5The Oxford Companion to the Supreme Court of the United States, pp. 718-719, "Religion", by Frederick Mark Gedicks.

6URL: ./0_8_0_Am_I_(Intro_-_Orig_Intent).htm​#ThomasJefferson.

7The Oxford Companion to the Supreme Court of the United States, pp. 718-719, "Religion", by Frederick Mark Gedicks. — Before the end of the de facto Protestant establishment that was heralded in part by Everson, the general government was largely able to maintain "neutrality" between the mainline Protestant denominations. But after Everson, the agenda expanded to "absolute neutrality" "between Protestants and non-Protestants and between believers and atheists", etc.

8"Much has been made of a gracious letter from President Thomas Jefferson on January 1, 1802, in response to a request of the Danbury Baptist Association that he proclaim a day of prayer. Jefferson did not formally deny the request, neither did he formally grant it. He said to his petitioners, ‘Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.’ — Koch’s Jefferson 332-333. It has been maintained that this shows the Establishment Clause, founded on the Virginia Statute of Religious Freedom as drafted by Jefferson, renders unlawful any religious act or utterance of government, or any magistrate thereof. Nothing of the sort is even vaguely suggested by the Virginia Statute of Religious Freedom. And, on November 14, 1814, President James Madison, who had initially conceived the Establishment Clause in his Remonstrance on General Assessment, issued a proclamation which read, ‘The two houses of the national legislature having by a joint resolution expressed their desire in the present time of public calamity and war a day may be recommended to be observed by the people of the United States as a day of public humiliation and fasting and of prayer to Almighty God for the safety and welfare of these States, His blessing on their arms, and a speedy restoration of peace, I have deemed it proper by this proclamation to recommend that Thursday, the 12th of January next, be set apart as a day on which all may have an opportunity of voluntarily offering at the same time in their religious assemblies their humble adoration to the Great Sovereign of the Universe, of confessing their sins and transgressions, and of strengthening their vows of repentance and amendment.’ — 1 Richardson’s Messages 558. When this proclamation was issued, Fort McHenry had been bombed, the city of Washington had been burned, and the war had turned completely against the United States, yet before the day of fasting and prayer set by the President Madison, the Treaty of Ghent had been negotiated, the Battle of New Orleans had been won, and peace had been restored." — Principles of Confederacy, endnote #26, pp. 565-566.

9Religious Freedom and Indian Rights, p. 63.

10This quote of Jackson’s dissent also appears at Religious Freedom and Indian Rights, p. 63.

11The Oxford Companion to the Supreme Court of the United States, pp. 243-244, "Education", by Mark G. Yudof.

12The Oxford Companion to the Supreme Court of the United States, pp. 243-244, "Education", by Mark G. Yudof.

13The Oxford Companion to the Supreme Court of the United States, p. 117, "Cantwell v. Connecticut", by Leo Pfeffer.

14Religious Freedom and Indian Rights, p. 49.

15The Oxford Companion to the Supreme Court of the United States, p. 724, "Religion", by Frederick Mark Gedicks.

16The Oxford Companion to the Supreme Court of the United States, p. 444, "Jackson, Robert Houghwout", by Gregory A. Caldeira.

17The Oxford Companion to the Supreme Court of the United States, p. 724, "Religion", by Frederick Mark Gedicks.

18Religious Freedom and Indian Rights, p. 55.

19Quotes are from Religious Freedom and Indian Rights, p. 55. — The types of scrutiny that the Court uses are normal (a.k.a. "ordinary"), intermediate (a.k.a. "heightened"), and strict. — The Oxford Companion to the Supreme Court of the United States, p. 845, "Strict Scrutiny", by Harold J. Spaeth. — Strict scrutiny is the most demanding on the Court’s powers to adjudicate.

20The Oxford Companion to the Supreme Court of the United States, p. 724, "Religion", by Frederick Mark Gedicks.

21The Oxford Companion to the Supreme Court of the United States, p. 724, "Religion", by Frederick Mark Gedicks.

22Some people might wonder how she would survive without a job, and without unemployment compensation. If she’s a part of a reliable religious social compact, this compact will have the wisdom to set aside funds to help its parties in such situations.

23The Oxford Companion to the Supreme Court of the United States, p. 724, "Religion", by Frederick Mark Gedicks.

24The Oxford Companion to the Supreme Court of the United States, p. 926, "West Virginia State Board of Education v. Barnette", by Leo Pfeffer.

25"The next time the multitiered Sherbert standard was formally used was in Wisconsin v. Yoder (1972) . . .  at the beginning of the Burger Court. This heightened level of scrutiny was then applied to all the free exercise challenges that came before this [(Burger)] Supreme Court. There were three decisions where the Burger Court ruled in favor of the free exercise claimant." — Religious Freedom and Indian Rights, p. 57 — These three cases were Yoder, McDaniel v. Paty (1978), and Thomas v. Review Board of the Indiana Employment Security Division (1981).

26The Oxford Companion to the Supreme Court of the United States, pp. 718-719, "Religion", by Frederick Mark Gedicks. — It’s interesting to compare this scrutiny regarding religion cases with the general balancing approach to the quintet of First Amendment rights. Justice Hugo Black’s "bitter dissenting opinion" in Barenblatt v. United States (1959) says that the balancing test in effect makes the First Amendment say, "Congress shall pass no law abridging freedom of speech, press, assembly and petition, unless Congress and the Supreme Court reach the joint conclusion that on balance the interest of the Government in stifling these freedoms is greater than the interest of the people in having them exercised". Even though Black made this First Amendment absolutist claim in Barenblatt, he was on the side of the stifling government in Everson. We believe First Amendment absolutism is the correct posture to take regarding "the quintet of First Amendment guarantees", but we also believe that without robust definitions of religion, rights, property, etc., absolutism fails the viability test. — See The Oxford Companion to the Supreme Court of the United States, p. 301, "First Amendment Balancing", and pp. 299-300, "First Amendment Absolutism", both by Henry J. Abraham.

27That’s because the consolidated national government is in fact trying to be a religious social compact, while it has overtly committed itself via the establishment clause to be a secular social compact. So the general government is immersed in its own religion, a witch’s brew of secular humanism and nominal Christianity, under the pretense that secular humanism and this witch’s brew are not religions.

28The Oxford Companion to the Supreme Court of the United States, p. 719, "Religion", by Frederick Mark Gedicks.

29The Oxford Companion to the Supreme Court of the United States, p. 245, "Education", by Mark G. Yudof.

30The Oxford Companion to the Supreme Court of the United States, p. 245, "Education", by Mark G. Yudof.

31The Oxford Companion to the Supreme Court of the United States, pp. 243-244, "Education", by Mark G. Yudof.

32The Oxford Companion to the Supreme Court of the United States, pp. 724-725, "Religion", by Frederick Mark Gedicks.

33Besides Lee, Bowen v. Roy, and Lyng, there were also Gillette v. United States (1971), Tony and Susan Alamo Foundation v. Secretary of Labor (1985), and Bob Jones University v. United States (1983).

34"Bill of Rights" URL: ./0_6_Bill_of_Rights.htm.

35The Oxford Companion to the Supreme Court of the United States, p. 220, "Davis v. Beason", by Paul L. Murphy.

36The Oxford Companion to the Supreme Court of the United States, p. 299, "First Amendment Absolutism", by Henry J. Abraham.

37The Oxford Companion to the Supreme Court of the United States, p. 300, "First Amendment Balancing", by Henry J. Abraham.

38The Oxford Companion to the Supreme Court of the United States, p. 299, "First Amendment Absolutism", by Henry J. Abraham.

39The Oxford Companion to the Supreme Court of the United States, p. 719, "Religion", by Frederick Mark Gedicks.

4026 USC § 501(c)(3), URL: https://www.law.cornell.edu/​uscode/​text/​26/​501.

41Quoting 26 USC § 501(c)(3), URL: https://www.law.cornell.edu/​uscode/​text/​26/​501.

42Under a face-value reading of the 1st Amendment, churches are inherently non-taxable. By choosing to be tax exempt, they inherently abandon any claim to this lawful, face-value, 1st Amendment protection.

43The Oxford Companion to the Supreme Court of the United States, p.663, "Preferred Freedoms Doctrine", by C. Herman Pritchett.

44Example: "In Footnote Four of his opinion in United States v. Carolene Products (1938) Justice Harlan Stone argued that legislation restricting the political processes or hostile to ‘discrete and insular minorities’ must be subjected to ‘more exacting judicial scrutiny’.". — The Oxford Companion to the Supreme Court of the United States, p. 845, "Strict Scrutiny", by Harold J. Spaeth.

45We examine the reasons for that special status in 1st Amendment (Legislative Response to Smith: AIRFAA), URL: ./0_8_4_2_Am_I_(Leg_Response--AIRFAA).htm​#StatusOfAmerInds.

46Of course other alternatives are (i)to find the neutral, generally applicable law unconstitutional (which the Court practically never does in such cases); or (ii)to find the non-neutral, targeted law unconstitutional (which it does occasionally – for example, Lukumi v. Hialeah (1993) – but such targeted laws are not so common or so pervasively obnoxious).

 
 
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