One must look hard to
find violent suppressions of religious freedom in America.1 Most
of the organizations tracking violations of this fundamental human
right turn their eyes overseas. There they find obvious atrocities
ripe for reporting.
Yet, religious repression
is every bit as real and present here, although it wears the passionless
face of the bureaucrat. When one of our trustees visited a Northern
California church a few years ago, he encountered a sad situation.
Whereas the church had once been a 501(c)(3) institution (i.e.,
tax-exempt), for patriotic reasons its board had decided to rescind
by the IRS from counting their offerings as tax deductions, members
of its congregation soon began leaving for flocks on which Washington
still bestowed its official blessing. At the time of our trustee's
visit, the membership roll had shrunk to half its former size.
Just 10 years ago, only
20 percent of all religious organizations in America had sought
sanctuary in 501(c)(3) status. Today that figure has quadrupled
to 80 percent. Today, various major Protestant denominations and
non-Christian religious institutions even employ "tax compliance
officers" whose duty is ensuring their parishioners toe the
line on taxes or face sanctions from their religious hierarchy.
The tug-of-war between
church and state over taxes is age old: a long-established maxim
of law teaches that the power to tax is the power to destroy.2 By
dictating detailed and changeable rules, which religious organizations
must meet to qualify for and then continue to receive their tax
"dispensations," the federal government accomplishes two
major objectives: it asserts its superiority and it keeps group
leaders distracted. Jumping through the hoops of qualification diverts
their attention away from the heart of the matter: By what authority
does the IRS defy the Constitution by taxing any religious group.
Two recent U.S. Supreme
Court cases offer evidence that the tax collectors are not the only
ones encroaching into this once-staunchly-protected vital area of
a free society,
In Employment Div.,
Dept. of Human Resources of Ore. v. Smith (1990), the court upheld
Oregon's refusal to grant a religious exemption to members of the
Native American Church for the sacramental use of peyote since that
state has a ban on the drug that is "generally applicable"
to all of its citizens.3
The court was severely
divided on the decision, however, as shown by Justice Blackman's
dissenting opinion with which two other justices joined:4
This Court over the
years painstakingly has developed a consistent and exacting standard
to test the constitutionality of a state statute that burdens the
free exercise of religion. Such a statute may stand only if the
law in general, and the State's refusal to allow a religious exemption
in particular, are justified by a compelling interest that cannot
be served by less restrictive means.
Until today, I thought
this was a settled and inviolate principle of this Court's First
Amendment jurisprudence. The majority, however, perfunctorily dismisses
it as a "constitutional anomaly." . . . As carefully detailed
in Justice O'Connor's concurring opinion . . . the majority is able
to arrive at this view only by mischaracterizing this Court's precedents.
. . .
This distorted view
of our precedents leads the majority to conclude that strict scrutiny
of a state law burdening the free exercise of religion is a "luxury"
that a well-ordered society cannot afford . . .
On June 25, 1997, the
high court relied on this troubling decision when ruling on another
highly controversial religious freedom case: City of Boerne v. Flores,
Archbishop of San Antonio, et al. (95-2074; 97 Daily Journal DAR
7973). In doing so, it struck down the Religious Freedom Restoration
Act of 1993 (RFRA), concluding that the statute "exceeds Congress'
power." It summarized RFRA as prohibiting "[g]overnment"
from "substantially burden[ing]" a person's exercise of
religion even if the burden results from a rule of general applicability
unless the government can demonstrate the burden "(1) is in
furtherance of a compelling governmental interest; and (2) is the
least restrictive means of furthering that compelling governmental
In a dissenting opinion,
Justice Sandra Day O'Connor called for a reargument and reexamination
of the earlier case, stating: "If the Court were to correct
the misinterpretation of the Free Exercise Clause5 set forth in
Smith, it would simultaneously put our First Amendment jurisprudence
back on course and allay the legitimate concerns of a majority in
Congress who believed that Smith improperly restricted religious
liberty. . . . "
In Smith, five Members
of this Courtwithout briefing or argument on the issueinterpreted
the Free Exercise Clause to permit the government to prohibit, without
justification, conduct mandated by an individual's religious beliefs,
so long as the prohibition is generally applicable. . .
The decision has harmed
religious liberty. For example . . . [four examples given]. These
cases demonstrate that lower courts applying Smith no longer find
necessary a searching judicial inquiry into the possibility of reasonably
accommodating religious practice. . . . (Emphasis added.)
In Germany, they came first for the
Communists, and I didn't speak up because I wasn't a Communist.
Then they came for the Jews, and I didn't speak up because I wasn't
Then they came for the trade unionists, and I didn't speak up
because I wasn't a trade unionist.
Then they came for the Catholics, and I didn't speak up because
I was a Protestant.
Then they came for me, and by that time no one was left to speak
Pastor Martin Niemoeller
Few Americans use peyote
in their religious rituals or are denied building permits to enlarge
their churches due to local historic-landmark regulations like the
plaintiffs in Smith or City of Boerne. Yet, if the rest of us look
on such cases as isolated anomalies in an otherwise free society,
one day we will regret our dissociation.
The four other federal
cases mentioned above in Justice O'Connor's dissenting opinion in
City of Boerneall of which she believed were unjustly decided
due to inappropriate reliance on Smithconcerned legal questions
and religious groups very different from those involved in City
of Boerne and Smith. Doubtless many similar injustices are already
in progress in the judicial system, while we will likely never hear
of still others: The groups involved will lack the means to defend
their rights and get their day in court. What
do YOU think?
Not until I went into
the churches of America and heard her pulpits flame with righteousness
did I understand the secret of her genius and power.
America is great because America is
good, and if America ever ceases to be good, America will cease
to be great.
Alexis de Tocqueville, Democracy In America
The trend of big government
putting the squeeze on religion, its chief remaining competitor
for the hearts and minds of the people, could easily become more
overt if we allow it to proceed without protest. Certain of America's
most influential social engineers have made it clear that they would
gladly scrap freedom of religion, cherished by most of us, and implement
their own policy instead: practice by permission.
In 1964, the Rockefeller
and Ford foundations commissioned a research project for a "new
constitution" at the Center for Democratic Studies in Santa
Barbara, California. Purportedly just "an educational study,"
this a 10-year, new-constitution project cost them $25 million and,
when complete, it was published as "Proposed Constitution For
the NewStates (sic) of America" in former FDR aide Rexford
Tugwell's book, The Emerging Constitution.
Tugwell told the public,
"Nobody has any notion of moving for a constitutional convention."
Yet that very year, Nelson RockefellerU.S. Vice-President
and scion of one of the families that had funded the studycaused
precisely such a bill to be introduced in the Senate.5
Not only would the Rockefeller-Ford
constitution replace the 50 separate states with 10 large regions
("coincidentally" in place now as the 10 ZIP Code regions),
substitute appointed officials for elected ones and authorize judges
to grant or refuse jury trials; it also proclaims, in Article IA,
Section 8, "The practice of religion shall be privileged."6
A slowly awakening America
has begun to hamper the progress of these thieves of freedom, but
their vast resources and dedication to their long-term plan permit
them patience, flexibility and undue influence with lawmakers.
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