In what was widely viewed as a landmark setback for the first amendment, the U.S. Supreme Court struck down a legal precedent protecting first amendment rights. In EMPLOYMENT SERVICE vs. SMITH (1990) the High Court virtually eliminated the "compelling interest" test required to determine when government had the right to burden a person's exercise of religion. In response to that court decision, Congress passed the "Religious Freedom Restoration Act of 1993." This federal law ostensibly restored the "freedom" removed by the Supreme Court. This statute's benevolent sounding name, however, belies the real intent behind the passage of this bill.
EMPLOYMENT SERVICE vs. SMITH arose out of an Oregon case where two Native Americans lost their state jobs because of their ritual use of peyote, an hallucinogenic drug. They sued the state because they were refused unemployment benefits. They claimed that their first amendment rights had been violated because peyote was a part of their native American religion.
When the case reached the Supreme Court, the court sided with the state. In the majority opinion, Justice Scalia wrote that the "compelling interest" test was a "luxury" that this nation could no longer afford because of its increasing religious diversity. He stated that government regulation is neutral and generally applied, and, as long as it was not directed specifically at religion, it did not violate the first amendment.
The "compelling interest" test was established by the Supreme Court in 1963 which declared that government could only burden a person's exercise of religion if it could prove that it had a "compelling interest". For example, if a prisoner claimed that his religion required him to have a gun in his cell, the government could claim a "compelling interest" in burdening that religious expression. It was also established that if the test was met, the government must use the least restrictive means in furthering its "compelling interest." This is the High Court opinion that was reversed in 1990.
Church and civil rights groups lobbied Congress for a law "restoring" the "compelling interest" test. The result was a bill originating in the Senate and claiming Ted Kennedy, Diane Feinstein and Barbara Mikulski among its sponsors. Senate Bill S.578 was entitled the "Religious Freedom Restoration Act of 1993". After acknowledging the constitutional aspects of religious freedom, it specifically restores the "compelling interest" test in a statutory form. Under the heading "Sec. 3. FREE EXERCISE OF RELIGION PROTECTED," it reads:
(a) IN GENERAL - Government shall not burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) EXCEPTION - Government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person -
(1) is in furtherance of a compelling government interest and
(2) is the least restrictive means of furthering that compelling governmental interest."
At this juncture one may conclude that those in Congress have done us all a favor by restoring those first amendment protections so unkindly stripped by the Supreme Court. In light of this government's record of attacking small religious sects whose beliefs they do not understand, flagrantly violating the true spirit of the first amendment, their pretense of protecting first amendment rights appears dubious at best.
The task of interpreting the Constitution has historically been the sacred ground of the judiciary, who, unlike politicians, are insulated from the fickle whims of public passion. If Congress was serious about freedom of religion, it would call for a constitutional convention and amend the Constitution so that the courts would have no trouble deciding this important issue. Instead, Congress has intruded on this sacred ground and usurped the court's role of interpreting the Constitution, turning it over to those elected individuals who are bought and paid for by special interests, and whose convictions are stifled by their lust for power and more power. Congress has thus betrayed the first amendment with a kiss, professing to save it while giving it over to the hands of wicked men.
Unlike the Constitution, federal law is like straw that can be blown away by the first wind that comes along. The "compelling interest" test, that at one time remained in the hands of an independent judiciary, is now codified and in the hands of the President and Congress to use as they will. A "compelling interest" may be anything that challenges their ambitions or the agenda of their handlers, and would thus be reason for squashing dissent based on religious conviction. Since it is merely federal law, the RFRA may also be suspended or repealed by legislative sleight of hand, depending on the political winds and there would be no Supreme Court safety net to save it. EMPLOYMENT SERVICE vs. SMITH still stands, as far as the U.S. Supreme Court is concerned, and the precedent of the "compelling interest" test is no longer binding upon government as it has been in the past.
When Woodrow Wilson was President of the United States, there were several pieces of legislation passed that were hailed by his administration as "the new freedoms." Two of these measures were the federal reserve banking act and the federal income tax. It doesn't take a brilliant economist to know that these two acts robbed the American people of a significant amount of their freedom.
Recently, the U.S. government has offered Americans another red herring. By the deceptively labeled Religious Freedom Restoration Act, Congress has passed off another phony "rights" bill that further undermines the protections of the few and weak from the many and powerful.
In its latest session, opening a couple of weeks ago, the U.S. Supreme Court has agreed to hear a challenge to the RFRA. The city of Boerne, Texas, is challenging Congress' authority to impose such a measure upon the states. If the High Court strikes the RFRA down, it could provoke a Constitutional crisis as this nation's leaders grow impatient with having their agenda challenged.
The government and the media, who faithfully serve the financial elite that own them both, would have us believe that it is in their power to bestow liberty, or to take it away at will. The RFRA is another ruse perpetuating that illusion. God created all men free, and that is an immutable fact. If we are not free, we have believed the system's lie. A wise Prophet once said, "You shall know the truth, and the truth shall make you free." John 8:32.
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