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by Kevin Clauson

This article will demonstrate that the United States Supreme Court in the latter part of the Twentieth Century is utterly confused, logically contradictory, and morally bankrupt in its interpretations regarding the matter of religious liberty. The article will also show why this is so and what the ultimate solution is. An assumption running throughout the article is that the U.S. Supreme Court actually has jurisdiction in State religious liberty litigation. This is not true according to the plain words of the First Amendment (quoted below), however it is assumed in order to deal with the immediate legal issue, namely the understanding of religious liberty (instead of dealing with a "federalism" issue also, as important as that is in its own right). It will be clear from the outset that the issue of "religion" strictly belongs to the States, not the federal government, if the Tenth Amendment and the First Amendment (the first few words) are construed faithfully. Now on to the central issue.

The Constitution of the United States says the following about "religion" in the First Amendment:

Congress [note it does not say the States] shall make no law respecting an Establishment of Religion, or prohibiting the Free Exercise thereof,..

Much has been written about the Establishment Clause (the first part of the phrase) and rightly so; relatively little has been written about the relationship between church and state in the context of religious freedom. Perhaps most Americans (and most evangelical Christians) assume that religious freedom should be absolute, or nearly so. Perhaps they do not think about it until some "bizarre" religious practice or group manifests itself. (Of course "bizarre" could apply to evangelicals in the minds of the unregenerate.) The U.S. Supreme Court has spoken on the issue of religious liberty on numerous occasions over the last 30 years (and a few times since the late nineteenth century).

This article will focus on a few significant representative case decisions which clearly indicate the chaos in this field. The brief historical background to the modern judicial constructions of "Free exercise of religion" begins with Reynolds v. United States (98 U.S. 145 [1879]). This case dealt with the Mormon practice of polygamy and a federal statute outlawing the practice in the federal territory (at that time) of Utah. The Supreme Court had no trouble upholding the ban by reasoning that the Free Exercise clause could not have meant that Congress had no power over practices that were basically immoral.

Even with the introduction of "incorporation" (the federal judiciary applying the Bill of Rights to State laws even though the original and unaltered wording of the Bill of Rights applied only to the national government), "free exercise" was still more or less looked on in this way for decades, until a landmark decision in 1972. At that time, the Court decided Wisconsin v. Yoder (406 U.S. 205 [1972]). That case involved several Amish families who refused to comply with the State's compulsory school attendance law (the kind of law which adherents of biblical law would find most unwarranted; but that is not the central issue). The parents argued that their religion forbade them to send their children to a school past the eighth grade. The Court sided with the parents, and the result is not in itself inconsistent with Scripture. It is the reasoning of the Court which is profound here. Essentially, the Court allowed a "conscientious objection" status on the part of the Amish parents, although the State law was not unconstitutional per se. Thus, the Amish were in effect granted an exemption from obeying this law based on the Free Exercise of Religion.

This "exemption concept" was a very important theme which ran through most religious liberty law for about the next two decades. A State could overcome the "exemption" by showing some "compelling State interest" for not allowing relief; however, that proved to be very difficult in many cases, and besides, "compelling State interest" was itself subjective and had no more basis in the Constitution than the exemption.

In 1990, the Court introduced another religious liberty theme in the case Division of Oregon v. Smith (494 U.S. 872 [1990]). Two Native American Indians were fired from their jobs as drug rehabilitation counselors, and thereafter denied unemployment compensation because they had used the hallucinogenic drug peyote as part of a religious ritual. The use of the drug violated the State's anti-drug laws. The Court sided with the State here, relying upon very interesting reasoning.

Justice Scalia was concerned about the unbridled effects of the older "conscientious objector" concept. In fact, he stated that to allow religious belief to control in all circumstances would cause the individual "to become a law unto himself." So Scalia did away with the older rule. He went on to say that if a person had his religious freedom curtailed by the operation of a general, "non-discriminatory" State law (that is, a law aimed at a practice generally, not at its religious use) then the State law prevailed. The Oregon anti-drug law was such a general law, and not a law aimed specifically at the religious or ritualistic use of drugs. So the law, even as it applied to the Indians, was acceptable even though it did have the effect--not the purpose--of interfering with their religious practices (likewise if a State hypothetically were to institute statewide prohibition of alcohol with no exceptions, a church which used real wine in the Lord's Supper would violate the law and would not be able to look to the Free Exercise clause for redress).

There was a short-lived effort to roll back this new theory by Congressional act, the Religious Freedom Restoration Act of 1993; however, it was ruled unconstitutional, more out of a desire by the Court to retain its primacy as sole interpreter of the Constitution than out of religious freedom principle. It should also be noted that a short time later the Court was called upon to apply its own new rule in a case with bizarre facts, Church of the Lukumi Bubalu Aye v. City Hioleah, Florida (508 U.S. 520 [1993]). In that case, a city tried to ban the religious sacrifice of animals by a strange cult called the Santaria. The Court, bound by the logic of its own Smith decision, was "forced" to declare the city action unconstitutional since it was not general in its aim and purpose (that is, the city's actions were very specifically and very intentionally directed at the Santaria cult and its ritualistic animal sacrifices).

So what is the state of religious liberty law today? Aside from the specific practices involved in the cases cited above (polygamy, drug use, non-attendance at school, animal sacrifice), what we are left with are two contradictory and equally dangerous theories of religious freedom. The first, the exemption theory, would allow some people to escape obedience to a law (good or bad) based on a religious claim. One can understand why Justice Scalia might fear that the logic of this position is anarchy cloaked in religion. The other theory, the generality theory, would not allow anyone to escape obedience to any law so long as the law is generally applicable and not "picking on" a religion. One can understand why Congress, in trying to nullify this theory, might fear that the logic of this position is tyranny. Nevertheless, both theories are still "floating about" in the federal judiciary (with the newer one, the General Applicability theory, now more dominant).

Both are completely at odds with one another and with the Bible. The only escape from seeing religious freedom cases bounce back and forth without any objective criteria (only what seems reasonable to the Court, the government, and the individual) is to look to the Scriptures.

It might be argued strategically that in the short-run the Exemption theory (or even its more extreme cousin, the Absolutist view of religious liberty--total "pluralism") might be more useful for the church because the church can use this theory to keep itself free also. Aside from this being a utilitarian argument (and thus not principled), it also seems to be naive. There is no particular reason to believe that the federal courts would necessarily exempt Christians or Christian practices. They have been utterly reluctant to give any kind of "special protection" to what is still seen as the dominant religion. Many recent Establishment Clause cases (church-state cases) have been predicated upon protecting society from Christianity (not from religion generally), as Christianity is seen as a powerful political force to be countered on behalf of minorities.

Now it might also be said, at this point, that the Constitution itself was born with this problem since it did not contain any provision recognizing the supremacy and kingship of Christ and of the Revealed Law of God over all human law. This is true. However, with or without such an amendment, the solution to the dilemma described above remains the same--the Court and governments using the Scriptures to define proper freedom of religion. What does this mean?

Only the Word of God can give us an objective and principled distinction between those religious practices (freedoms) which are "good" and those which are "bad." (Those who would say none are "bad" of course are naive and anarchistic--eventually they would die by the hands of those whose murderous "religious practices" they sought to protect.) There cannot be any such thing as absolute freedom of religion, nor should there be a complete absence of religious liberty.

How do we draw the line in the "right" place? Biblical law tells us exactly which freedoms are good and permissible (indeed, required by the true God), and which ones are punishable as crimes (there may be some which are "bad" but not criminal; we will leave the discussion of details for another time). For example, if we rely on Scripture, we readily see that the use of wine in the Supper is quite allowable and legal while polygamy is not, even though polygamy may be part of some peoples' religion. It may be argued that, practically, this is where we already are. The courts have not allowed polygamy, even where it has been based on sincere religious beliefs; nor have the courts allowed ritual human sacrifice. Some might say, then, that is absurd to fret over outcomes that are not "realistic."

However, that is precisely the point of this article. These things have not been protected--yet! The lack of a principled (biblical) basis upon which to make distinctions is the real problem. So far the courts have been fairly "reasonable" for pragmatic reasons, or out of cultural preference. Can we have faith that this kind of reasoning will hold back the flood of religious anarchy in perpetuity? I think not! (Remember the Anabaptist antinomians of the Reformation period; these people, in their extremes--e.g., Munster--were opposed by Protestant and Roman Catholic alike!) Non-biblical reasoning ultimately has no real grounds upon which to make a stand. Without biblical law defining the concept of "free exercise of religion," there can be no guarantee that eventually either the floodgates are opened (polygamy, human sacrifice, "temple prostitution," etc.) or legitimate Christian liberty will be stamped out (perhaps along with all manner of other unbiblical practices--small comfort).

Thus, we see one more example of how the unbelieving world cannot create a "workable," "realistic" answer to a genuine problem. The only tool the Supreme Court (and Congress) has left when it rejects biblical law is some kind of "reasonableness" test. Anarchy or tyranny. Tyranny or anarchy. Only biblical law is up to the task of avoiding this modern Scylla and Charibdis of constitutional religious freedom.

Kevin L Clauson, M.A., J.D. is president of Christ College, and The Patrick Henry Institute, and chairman of the Government Department of Liberty University in Lynchburg, Virginia.

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