Religious Use
Law Review
Number 1
Introduction
This is the inaugural issue of the
Religious Use
Law Review. We will
be looking first at the Religious Freedom Restoration Act of 1993 (RFRA) (42 U.S.C.
section 2000bb et al). Then we will look at the published decisions of the
federal and state courts that relate to that law, its precedents and derivatives.
In 1990 the Supreme Court issued its decision in the Employment Division v. Smith, 494
U.S. 872 (1990) case. Alfred Smith (a Native American) and Galen Black
(a Caucasian American) were fired from their jobs as drug addiction counselors because
they consumed peyote at meetings of the Native American Church in Portland, Oregon.
Peyote is classified as a Schedule I drug under federal drug laws. The State of
Oregon had adopted the federal drug law scenario as its own law. Under federal
regulation, peyote is exempt from prohibition when used in the religious exercise
of the Native American Church (21 CFR section 1307.31). However, the Oregon
State statute failed to follow that federal regulation.
After Smith and Black were fired they were denied unemployment benefits because
the agency said that they were fired for good cause - using prohibited drugs.
The Oregon State Supreme Court using the federal Supreme Court decision making process
set forth in Sherbert and Yoder ruled that such an interpretation of
the state law would be an unconstitutional infringement of Smith and Black's religious
exercise.
Oregon State appealed that to the US Supreme Court. They ruled that in this
case a legislature had enacted a law that does not mention religion (religion neutral),
and which applies to all persons (generally applicable). They ruled that such
a law is not subject to the "Strict Scrutiny"
examination defined in the Sherbert and
Yoder cases.
In Sherbert and Yoder, the Supreme Court had stated that any conflict
between law and religious exercise must be examined under the "Strict Scrutiny"
standard. Under that standard, the jury must find an actual threat to public
health and safety, which causes a "Compelling Interest"
(CI) on the part of a government agent to prohibit the act. In addition,
the fact of the "Least Restrictive Means" (LRM)
of regulation must be found.
What all this means to us is that when the government attempts to interfere in or
prohibit our religious exercise, the government has to prove that the law must be
enforced in order to prevent an injury to someone other than the church members.
That injury must be proven as a fact not just a possibility. In addition the
government must prove the fact that the injury can only be prevented by total prohibition.
The government cannot prohibit religious exercise
that does not hurt anyone.
Even if a person in the church might be injured by the religious exercise, that
fact alone is not enough to justify the law. The injury must be proven to
someone outside the church, a member of the general public, in order to justify
a "threat to public health and safety".
In order to reach that finding, it is necessary to start with the facts of the actual
religious exercise and its effects on the church participants in order to begin
the proof of a "threat to public health and safety".
Once we have entered the actual facts about the religious exercise into the court
record, then we can challenge the government to prove that there is any "Actual
Injury" to the persons in the church. If they prove an injury, it is
only that injury that must then be proven to always threaten the public who are
not in the church.
So, with that in mind lets examine the RFRA.
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The text of the RFRA is:
107 Statute 1488 Public Law 103-141 - November 16, 1993
Public Law 103-141
RELIGIOUS FREEDOM RESTORATION ACT OF 1993
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An Act To protect the free exercise of religion.
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Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
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Sec. 1. Short Title.
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This Act may be cited as the 'Religious Freedom Restoration Act of 1993'.
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Sec. 2. Congressional Findings and Declaration of Purposes
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(a) Findings: The Congress finds that--
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(1) the framers of the Constitution, recognizing free exercise of religion as an
unalienable right, secured its protection in the First Amendment to the Constitution;
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(2) laws 'neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
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(3) governments should not substantially burden religious exercise without compelling justification;
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(4) in
Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
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(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
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(b) Purposes: The purposes of this Act are--
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Sec. 3. Free Exercise of Religion Protected.
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(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).
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(b) Exception: Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--
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(1) is in furtherance of a compelling governmental interest; and
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(2) is the least restrictive means of furthering that compelling governmental interest.
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(c) Judicial Relief: A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
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Sec. 4. Attorney's Fees
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(a) Judicial Proceedings: Section 722 of the Revised Statutes (42 U.S.C. 1988) is amended by inserting 'the Religious Freedom Restoration Act of 1993,' before 'or title VI of the Civil Rights Act of 1964'.
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(b) Administrative Proceedings: Section 504(b)(1)(C) of title 5, United States Code, is amended--
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(1) by striking 'and' at the end of clause (ii);
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(2) by striking the semicolon at the end of clause (iii) and inserting ', and'; and
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(3) by inserting '(iv) the Religious Freedom Restoration Act of 1993;' after clause (iii).
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Sec. 5. Definitions.
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As used in this Act --
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(1) the term 'government' includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State;
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(2) the term 'State' includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;
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(3) the term 'demonstrates' means meets the burdens of going forward with the evidence and of persuasion; and
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(4) the term 'exercise of religion' means the exercise of religion under the First Amendment to the Constitution.
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Sec. 6. Applicability
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(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.
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(b) Rule of Construction.--Federal statutory law adopted after the date of the enactment of this Act is subject to this Act unless such law explicitly excludes such application by reference to this Act.
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(c) Religious Belief Unaffected.--Nothing in this Act shall be construed to authorize any government to burden any religious belief.
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Sec. 7. Establishment Clause Unaffected
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Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the 'Establishment Clause'). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this Act. As used in this section, the term 'granting', used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.
Approved November 16, 1993.
(emphasis and underline added by Rev. Tom Brown).
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So folks, notice that some of the words in the law above are underlined. Pending
correction from any one of you, those are the critical terms for our examination
and future use.
Notice that Congress cites the Declaration of Independence as to the fact that certain
rights are "unalienable". At my sentencing on February 10, 1994,
the federal judge bickered that the term in "inalienable". Is anyone
surprised that a sitting federal judge didn't know the difference?
Now lets examine the more substantive issues.
The first critical term is "compelling interest", (CI hereafter).
The second critical term is "least restrictive means of regulation" (LRM
hereafter). Both these terms are referenced to the
Sherbert and Yoder cases. That
means we look into those federal Supreme Court decisions to see what the terms mean
and how they are used.
Note that I am citing the pages from the court report published in the 10th book
of the Lawyers Edition Second (2d), which starts on page 965. This was published
in 1963. If you go to the law library you want to find my page references
in that book. The actual RFRA cites the report published in the United States
edition. Both reports are identical except for page numbers.
Sherbert states that: "A
Seventh-Day Adventist was discharged by her employer for her refusal to work on
Saturday, the Sabbath Day of her faith, and was refused unemployment compensation
. . .".
Ms. Sherbert appealed the denial of her application for unemployment benefits and
the Supreme Court found that at the trial there was no CI or LRM demonstrated by
the government. Therefore, she was granted her unemployment claim. That
was 1963.
In 1990, the US Supreme Court issued its ruling in the
Smith case.
It was the Supreme Court decision in
Smith that overturned the way the courts adjudicate religious exercise cases
since the Reynolds case in 1878,
and most importantly in
Sherbert.
(See Smith in Religious
Freedom Restoration Act listed above in section 2, (a), (4))
(See citations listed in Religious Use Law Review Issue - Number 2 for
George Reynolds v. United States, 25 L. Ed. 244.)
Reynolds was the first
case where the Supreme Court set forth the fundamental tests for CI and LRM.
The Sherbert case is the first
where the government failed to prove the fundamental facts of a threat to public
health and safety of such dimension as to substantiate a CI regulated in the LRM.
We will examine several other federal court decisions to evaluate the CI and LRM
tests, but first we look at
Sherbert.
On page 970 the Court states that religious exercise is not totally free from legislative
restrictions where, "The conduct or actions so regulated have invariably posed
some substantial threat to public health and safety."
On page 972 the Court states that, "It is basic that no showing
merely of a rational relationship to some colorable
state interest would suffice. . . Only the gravest abuses, endangering paramount
interest, give occasion for permissible limitation."
Note the issue of "rational relationship". The government always
tries to claim, and the courts have consistently tried to rule, that the drug laws
are rationally related to a legitimate purpose for legislation and therefore they
cannot be questioned. The government will try this first. The quote
above answers that assertion and defeats it. Since RFRA specifically cites
the CI and LRM tests as set forth in
Sherbert and Yoder, and not some
rational relationship test, the court must go with those rulings and not some other
tests or standards.
Having stated the 'bottom line', the
Sherbert court goes on to examine the specifics of Ms. Sherbert's claims
to see if she is posing some "substantial threat to a paramount interest".
On page 972 the court reports that, "The appellees (government) suggest no
more than a possibility that the filing of fraudulent claims by unscrupulous claimants
. . . might not only dilute the . . . fund but also hinder the scheduling of necessary
Saturday work." The court states, "it would plainly be incumbent upon
the appellees to demonstrate that no alternative forms of regulation would combat
such abuses."
Note that the Sherbert decision demands
factual proofs from the government and by its example provides
you the chance to rebut such proofs with contrary evidence or interpretation.
If the court refuses to demand such proofs from the government, or refuses to allow
you to provide such proofs and argument, then the court has clearly violated RFRA's
reference to Sherbert.
You should have filed a motion to dismiss the complaint immediately after being
arrested, citing RFRA. If the court refuses to hold a hearing on the motion,
that is grounds for an appeal to the higher court - an interlocutory appeal.
Point out to the court that RFRA requires that the government prove the CI and LRM
issues prior to enforcing a law against you - not after. See RFRA section
6(a).
We must hold the court to the factual proofs of the first test for CI. If
we don't, then there is no factual record upon which to base the LRM issues.
In a subsequent issue I will show the positive proof in law and in fact as to CI
and LRM of marijuana. But, always force the government to make every factual
proof about every particular circumstance of your case.
Under RFRA each case must be independently evaluated and previous findings of CI
and LRM do not necessarily control your individual case. See RFRA section
2(b).
On page 973 the court outlines the LRM test that we must overcome when making the
proofs. The court states that a statute can be justified where the exemption
to the statute would "present an administrative problem of such magnitude,
or to afford the exempted class so great a competitive advantage, that such a requirement
would have rendered the entire scheme unworkable."
Therefore, it is vital that we force the government to stringent proofs of fact
of CI so that we can challenge their inevitable claim on LRM that exempting us will
make the whole of the law unworkable.
Caution, your court is obligated
to hold pre trial hearings on motions you make. As to whether or not a fact
is true, don't allow the court to make that decision - insist on a jury trial.
In the pre trial phase, the court only properly evaluates the evidence offered into
the record in order to rule on whether or not
there is a disagreement between the government and you on the facts.
The court does not decide the final truth about the fact decisions unless you allow
that - and you should not, that is the jury's job.
For instance, you don't want the judge deciding whether or not you are sincere in
your religious exercise or whether or not your religious exercise hurts anyone.
Hold those questions of fact for the jury.
We will look at a motion to file where the judge can decide as a matter of law that
marijuana does not hurt anyone - period - which would be the end of that trial,
but that is the exception that proves the rule about reserving fact issues for the
jury.
Go to the law library and photocopy the
Sherbert decision or have your lawyer provide you with a copy. Evaluate
every page for the individual factual proofs that
Sherbert and the government offer into evidence.
Look at your own case and begin to prepare the individual fact proofs that you will
enter into evidence. You have the power to subpoena witnesses and evidence
to illustrate these facts. More on that later.
The Government cannot prohibit a religious exercise
that does not hurt anyone!
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