Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
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  Amendment I: Legislative Response to Smith — Introduction  
"I observe, that the Will . . .  is, That by which the mind chooses any thing. The faculty of the Will, is that power, or principle of mind, by which it is capable of choosing: an act of the Will is the same as an act of choosing or choice. . . .  With respect to the grand inquiry, ‘What determines the Will?’ it . . .  is sufficient to my present purpose to say, It is that motive, which, as it stands in the view of the mind, is the strongest, that determines the Will." 1

Amendment I (cont’d):

Legislative Response to Smith:

After Smith, many religious leaders, academics, politicians, and others were so outraged by the supreme Court’s opinion that they sought relief in Congress. But before Congress could do anything to correct the damage done by Smith, lower courts were actively using the Smith decision to do to other religions what Reynolds had done to the Mormons. The majority in Smith had in fact reinvigorated the belief-action doctrine, and the free exercise clause was again a nullity. — Example: In a case in Maryland, a Roman Catholic teaching hospital refused to perform abortions. In response, secular courts adhering to Smith cancelled the hospital’s accreditation. The hospital stopped teaching. Another example: Hmong religion holds that an autopsy prevents the dead from having an afterlife. Even so, a State court used Smith to force autopsies upon Hmong dead, to conform to State law. 2 While the Smith ruling was indirectly affecting numerous other religions, it was a "direct hit" on the Native American Church.

In the legal community, criticism of the Smith decision focused on five things: (i)Scalia’s misuse of judicial precedents (amply documented in Justice O’Connor’s opinion); (ii)the "judicial activism" the Court indulged in (for example, even granting certiorari in Smith I, then converting the case from civil to criminal); (iii)Scalia’s claim that a legislative remedy was more appropriate for burdened religions (like Marie Antoinette’s alleged "Let ‘em eat cake."); (iv)Scalia’s claim that strict scrutiny was too difficult in free exercise cases (and would lead inevitably to the "parade of horribles"); and (v)the fact that Smith made it too easy for governments to persecute small religious groups ("as occurred in the past, when majoritarian institutions either directly or indirectly forced unpopular minority religious groups to conform to majoritarian opinion" 3).

The Smith decision makes it clear that given the right case, the supreme Court would totally eliminate all exemptions for the Native American Church. This would leave all NAC members in a precarious position. They would either have to give up their religion and their church, or break the law. One thing that law professor Michael W. McConnell correctly claimed was that there will always be some people who would rather break the law than violate their conscience. 4 The framersnatural law orientation clearly held that there are higher laws in the universe than human law. The supreme Court appears to have totally abandoned that belief. The horrible aspect of this situation is that the Court is misguiding that vast majority of people who would rather have their conscience conformed to secular positive law than to eternal law. In other words, the Court – in effect by stealth – has been imposing a crude, ad hoc blend of nominal "Christianity" and secular humanism, making this blend the national religion. In doing so, the Court has been repudiating all churches and religions whose guiding principles conflict with its crudely concocted religion.

Lawyers and judges are following the justices in destroying the nation’s moral and spiritual backbone, by making secular government god, and pretending that God is either it’s obedient servant, or irrelevant. For example, another law professor claims that "McConnell’s is not the only theological explanation of the system set into motion by the framers of the First Amendment’s religion clauses. A far more compelling explanation is provided by the Presbyterian view, dominant at that time, which holds that believers exercise free will and that the law is part of God’s law and therefore binding on all believers.". 5 By making this claim, this law professor besmirches the memory of old-time Presbyterians. 6 She also makes the common blunder of claiming that (i)the founders of Christianity blindly obeyed human laws, and (ii)that the founders of this nation did the same. Such claims are impossible to square with the facts that (i)Peter said "We must obey God, not men" (Acts 5:29) and (ii)the founders seceded, thereby violating England’s laws. There is something deeply sick about the elevation of human laws to a par with God’s laws. But many people in the mainstream denominations these days appear to have the same commitment to the defamation of their denomination’s foundations, and blind obedience to bad laws. On the other hand, "Christian" "conservatives" have theocratic inclinations that are justifiably scary to many of us.

While the judicial branch was busy repudiating churches, religions, and communities, a coalition of diverse organizations formed to lobby Congress to correct the problem. More than sixty religious and civil liberties groups formed an umbrella association, the "Coalition for the Free Exercise of Religion" (CFER). The Coalition included Native Americans, Jews, Humanists, Christians, Muslims, Sikhs, Scientologists, and others. It included both "liberals" and "conservatives": "Americans United for the Separation of Church and State", "Traditional Values Coalition", "American Civil Liberties Union", "American Center for Law and Justice", "Concerned Women for America", "People for the American Way", "Baptist Joint Committee on Public Affairs", "AJ Congress", "National Association of Evangelicals", "People for the American Way", "Christian Legal Society", "Home School Legal Defense Association", etc. CFER was aimed narrowly at restoring strict scrutiny in free exercise cases. The restoration of strict scrutiny would not satisfy the needs of Native Americans because even if strict scrutiny were restored, the mega-state could still find, as O’Connor found, that the mega-state had a compelling interest in keeping Native Americans from using peyote. 7 Because CFER had such a narrow focus, it was necessary to form two coalitions: CFER to restore the compelling interest test via RFRA, 8 and Native American Religious Freedom Project to remedy oppression of NAC via AIRFAA. 9 — NAC was given a dilemma: Become established or die. None of the other RFRA Coalition members had this dilemma.

Law professor McConnell argued against the Smith decision in an article in the Harvard Law Review. In that article, McConnell warned his audience that there had been a seismic shift in the Court’s treatment of the Free Exercise Clause:

What once appeared to be a jurisprudence highly sympathetic to religious claims now appears virtually closed to them. Chief Justice Rehnquist and Justice Stevens have openly declared their opposition to the doctrine [of exemptions for free exercise]. Chief Justice Rehnquist has contended that when a "State has enacted a general statute, the purpose and effect of which is to advance the State’s secular goals, the Free Exercise Clause does not . . .  require the State to conform that statute to the dictates of religious conscience of any group." Justice Stevens has stated that there is "virtually no room for a ‘constitutionally required exemption’ on religious grounds from a valid . . .  law that is entirely neutral in its application." 10

McConnell’s article gives ample evidence to prove that both the States and the general government of the early republic sometimes made exemptions to "neutral", "generally applicable" laws. Exemptions were made for people who had religious objections to (i)military conscription, (ii)payment of taxes to support a State-established church, and (iii)the taking of oaths. — We are convinced that secular government exists to protect property rights, and to do nothing else. So everyone, regardless of whether they are involved in an organized religion or not, deserves to have their free exercise rights protected by secular government. McConnell is correct in his claim that serious damage was done to free exercise jurisprudence via Smith. Open "opposition to the doctrine [of exemptions for free exercise]" by a majority of the Court is a serious deviation (i)from existing jurisprudence, (ii)from the framersoriginal intent, and (iii)from the First Amendment absolutism that is demanded by the investigation.

A justifiable sense of urgency existed in the Coalition for the Free Exercise of Religion in the early 90s. Fear that the supreme Court was plunging us all back into the de facto Protestant establishment was palpable, and unacceptable, for many. Even Bible-believing Protestants feared it.


1The Works of Jonathan Edwards, vol. 1, pp. 4-5, "A Careful and Strict Inquiry into the Prevailing Notions of the Freedom of the Will", Part I, Sections I-II. — See it at Calvin College, URL:​ccel/​edwards/​works1.iii.html.

2To an Unknown God, pp. 225-227, has a more detailed account of the abuse suffered by the Hmong.

3Religious Freedom and Indian Rights, p. 201.

4Harvard Law Review, May 1990, Vol. 103, Num. 7, p. 1409, "Origins and Historical Understanding of the Free Exercise of Religion", by Michael W. McConnell.

5Marci Hamilton ("Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University"), "Punishing John Walker, the ‘American Taliban’: Has Walker’s Religious Quest Convinced the Administration To Go Easy?" (URL:​hamilton/​20020103.html);

6Old-time Presbyterian saints like John Knox and Charles Hodge would be disgusted to hear that someone claiming to be one of their followers exalted the concept of "free will" in a clear effort at rationalizing anti-Biblical law. They both had strong commitments to the sovereignty of God. The modern concept of human "free will" derives from theologies that relegate God to a diminished position in the universe, in a misguided attempt at exalting humanity.

7Not to mention keeping Native Americans from exerting free exercise claims to being free from needing Social Security numbers (as in Bowen v. Roy, 1986) and keeping Native Americans from exerting free exercise claims to keeping religious sites free from desecration (as in Lyng v. Northwest Indian Cemetery Protective Association, 1988).

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

9AIRFAA URL:​uscode/​text/​42/​1996a.

10Harvard Law Review, May 1990, Vol. 103, Num. 7, p. 1417, "Origins and Historical Understanding of the Free Exercise of Religion", by Michael W. McConnell.

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