Under Color of Religion: Smith, RFRA, Boerne, and the Decline of Religious Freedom in America

The Smith Cases

In 1986, Alfred Smith and Galen Black, two drug counselors working for a private drug rehabilitation organization in Oregon, were fired for smoking peyote, a hallucinogen outlawed in that state. Out of work, Smith and Black filed for unemployment benefits, and the state, not surprisingly, denied their request. The two then sued the state, arguing that they were members of the Native American Church, and smoking the drug was an essential element of their church’s ceremonies. The state of Oregon could not deny them unemployment benefits, the two contested, simply because it did not approve of their sacramental practices. The case went to the Oregon Supreme Court, which ruled that the state could not deny the Native Americans unemployment benefits, because “the purpose of the ‘misconduct’ provision under which respondents had been disqualified was not to enforce the State’s criminal laws, but to preserve the financial integrity of the compensation fund, and . . . that purpose was inadequate to justify the burden that disqualification imposed on respondents’ religious practice.” [1] The Oregon Court based its ruling on a previous Supreme Court decision in Sherbert v. Verner (1963), which dictated that the First Amendment required a state to demonstrate a compelling interest before burdening an individual’s religious free exercise. The state appealed the decision to the Supreme Court, which determined, in Employment Division v. Smith (1988), that the criminality of peyote usage was relevant to the denial of unemployment benefits. If the state could forbid smoking peyote for religious purposes, it could certainly deny unemployment benefits on that basis. Not being certain that the Oregon statute prohibited the sacramental use of peyote, however, the Supreme Court sent the Smith case back to the state. The Oregon Supreme Court examined the state’s prohibition of peyote, found that it made no exception for religious use, and declared the law unconstitutional on that basis. Oregon again appealed to the Supreme Court, and in 1990 Scalia delivered the controversial majority opinion in Employment Division v. Smith (II).

In his opinion, Scalia declared that “the free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires.” Although the right to believe and profess is absolute, behavior motivated by those beliefs is not: “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Scalia continued, “The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’” [2] He pointed out that allowing people to disregard laws at their own discretion, based only on a claim of religious motivation, was an invitation to anarchy. “Conscientious scruples have not,” Scalia summed, “In the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” [3]

RFRA as Response to Smith

The American religious community did not receive the Smith opinion well. Many concurred with Justice Harry Blackmun, who penned the Court’s dissent, exclaiming: “I do not believe the Founders thought their dearly bought freedom from religious persecution a ‘luxury,’ but an essential element of liberty.” [4] Legal scholar William Bentley Ball opined, “Religious liberty has been moved to the back of the constitutional bus.” [5] The general consensus was that the new decision would make religious liberty cases much harder to win. Under Sherbert, states had to go out of their way to demonstrate a compelling interest whenever “neutral” laws became a burden to someone’s religious exercise, and were then forced to demonstrate that the law in question represented the least restrictive means of securing that interest. Now there would be no religious exemption from a generally valid law, regardless of the burdens it indirectly placed on religious exercise.

A few months after Smith, many of these fears appeared to be well founded. Religious freedom cases were becoming more difficult to win, and “even Mother Teresa’s Sisters of Charity Shelter for the Homeless was shut down because it lacked an elevator required by New York City regulations.” [6] On July 26, only three months after the Smith decision, and in response to it, the Religious Freedom Restoration Act (RFRA) was introduced in the House of Representatives. RFRA complained that Smith “virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion,” and so restored “the compelling interest test as set forth in Sherbert v. Verner.” [7] The bill slowly gained steam as a huge coalition of sixty-eight religious and civil liberty groups formed to lobby for its passage. [8] As one national news magazine reported, “An unusually broad range of groups, from Baptists and Buddhists to Mormons and Jews, have joined forces with the American Civil Liberties Union and others to support the law. Some, like Rabbi David Saperstein of the Religious Action Center of Reform Judaism, see the case as a ‘survival issue for smaller religions,’ which are ‘not likely to get protection from legislative majorities.’ But even large denominations are worried. ‘If anyone’s religious faith goes unprotected,’ says the Baptist Joint Committee’s Melissa Rogers, ‘then everyone’s faith is endangered.’” [9] With such massive support from the religious community, the bill passed overwhelmingly in 1993—unanimously in the House, and winning in the Senate 97-3. [10] Clinton signed RFRA into law that November, proclaiming majestically, “Let us respect one another’s faiths, fight to the death to preserve the right of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.” [11]

Those who had fought for its passage hailed the new law as a major victory for religious free exercise. About a year after its passage, “Research by the Baptist Joint Committee found that in 28 cases decided since enactment of RFRA, about half have been decided in favor of religious freedom claims. In the years between the Smith ruling and RFRA’s enactment, such decisions were rare.” [12] In 1996, Christian Century magazine boasted, “It’s become a real bulwark against government intrusion in religious practice.” [13] The law had a few strange side-effects, however. As The New Republic reported, “In the three years since RFRA was passed, it has generated 189 suits by inmates seeking exemptions from prison regulations. Some of these deserve to be taken seriously—prisoners have sued for the right to wear crucifixes, for example—but many do not. In 1996, one prisoner claimed he should be allowed to use drugs because of his membership in the Church of Marijuana; another sought permission to use swords for ‘burnt offerings.’” [14]

The Boerne Case

RFRA’s heyday was not to last for long, however. In Boerne v. Flores, decided in June 1997, the Supreme Court struck down RFRA as a violation of the separation of powers. The case arose when the Archbishop of San Antonio decided that a church in Boerne, Texas needed to be renovated and enlarged to meet the needs of a growing congregation. Unfortunately, the city had designated that building an historic site, and refused to issue a permit for the work. The Archbishop took the city to court, claiming that RFRA required the state to demonstrate a compelling interest in preserving the old church. The city argued that RFRA was unconstitutional, as an attempt by Congress to tell the judiciary how to read the First Amendment.

Justice Kennedy penned the Court’s opinion, asserting that “RFRA was designed to control cases and controversies, such as the one before us; but as the provisions of the federal statute here invoked are beyond congressional authority, it is this Court’s precedent, not RFRA, which must control.” [15] The majority thus struck down RFRA by appeal to the doctrine of the separation of powers, not on the basis of First Amendment jurisprudence. While this was a provoking decision, it takes us far afield from the subject of this paper. Nevertheless, Justices O’Connor and Scalia took the opportunity, in separate opinions, to spar over the Smith ruling.

Justice O’Connor, dissenting from the majority, suggested that the Court rethink Smith II and return to the compelling interest and least restrictive means tests of Sherbert. She presented a lengthy review of free exercise jurisprudence in colonial times, concluding that “when religious beliefs conflicted with civil law, religion prevailed unless important state interests militated otherwise. Such notions parallel the ideas expressed in our pre-Smith cases—that government may not hinder believers from freely exercising their religion, unless necessary to further a significant state interest.” [16]

Justice Scalia responded tartly to O’Connor’s dissent, arguing that the evidence she had marshaled refuted, rather than supported, her conclusion. Of the colonial examples she referenced, a few of which we will examine shortly, Scalia summed: “At the time these provisos were enacted, keeping ‘peace’ and ‘order’ seems to have meant, precisely, obeying the laws.” [17] In other words, what Justice O’Connor read as an exemption from generally valid law, Justice Scalia saw as a proclamation that religious behavior would be secured—until it offended legitimate, generally valid regulations. If O’Connor is correct,  then RFRA was a well-designed law, fit for protecting religious liberty. If Scalia is correct, then RFRA was poorly conceived, representing a radical departure from our Founding Fathers’ understanding of religious exercise. I contend that, on this point, Scalia is correct. The free exercise of religion was never contemplated to require an exemption from a legitimate law of general application.

Free Exercise in Colonial Times

To begin to sort out the tangled knots of free exercise jurisprudence, and to resolve the dispute between Justices Scalia and O’Connor, it is necessary to examine the First Amendment in its historical context. The relevant section of the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Some of the underlying assumptions in this familiar text are made explicit in a similar passages from contemporary state Constitutions. The New York Constitution of 1777, penned by John Jay, who later became the first Chief Justice of the Supreme Court, is a prime example. It asserts, “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed to all mankind. Provided that the liberty of conscience shall not be construed to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state.” [18] Other helpful examples abound. The New Hampshire Constitutions of 1783 and 1792, and the Massachusetts Constitution of 1780 affirmed that “every denomination of Christians demeaning themselves peaceably, and as good subjects of the commonwealth, shall be equally under the protection of the law.” [19] South Carolina’s 1778 Constitution proclaimed similarly: “That all denominations of Christian[s] . . . in this State, demeaning themselves peaceably and faithfully, shall enjoy equal religious and civil privileges.” [20] Ignoring the obvious establishment questions in the examples cited, all reveal an important perspective of religious freedom: acts of “licentiousness,” or those threatening the state’s “peace and safety,” or outside the pale of “good subjects” can be banned without infringing an individual’s right to religious practice. This logic has an essential moral dimension, and the implication is clear: good behavior must be tolerated, bad behavior need not be.

Speeches delivered in 1809 by Jacob Henry and H. M. Brackenridge to their state legislatures take this reasoning one step further. Henry noted in the North Carolina House of Delegates, “If a man should hold religious principles incompatible with the freedom and safety of the State, I do not hesitate to pronounce that he should be excluded from the public councils of the same . . . . But I should really be at a loss to specify any known religious principles which are thus dangerous.” [21] Brackenridge asserted in Maryland that “no person ought by any law to be molested in his person or estate, on account of his religious persuasion or profession, or for his religious practice, unless, under color of religion, any man shall disturb the good order, peace, or safety of the state, or shall infringe the laws of morality, or injure others in their natural, civil, or religious rights.” [22] In this paradigm, probably shared by most Americans in the 18th and early 19th centuries, harmful religious behavior need not be tolerated because it is not truly religious behavior. Henry cannot conceive of dangerous religious principles, and Brackenridge asserts that the laws of morality could be infringed only “under color” of religion. New York’s constitution treats free exercise and liberty of conscience as synonyms because religious behavior is the exercise of conscience; free exercise can only manifest itself in conscientious behavior. Quote

Religious Exercise as Liberty of Conscience

The distinction between moral and immoral behavior would profoundly clarify our free exercise jurisprudence. In all the ink spilled over the free exercise of religion, hardly a drop has been directed towards answering the question, “What is religious exercise?” or, more precisely, “What isn’t religious exercise?” Much confusion could be avoided if, rather than focusing solely on the freedom of religious exercise, we would also take into account the exercise’s religious nature. Unfortunately, this approach is becoming increasingly controversial. Justice O’Connor declared in Boerne that “it would be disingenuous to say that the Framers neglected to define precisely the scope of the Free Exercise Clause because the words ‘free exercise’ had a precise meaning.” [23] As Simon Santiago notes, Congress revealed a similar understanding in drafting RFRA: “RFRA defines religious exercise as ‘the exercise of religion under the First Amendment to the Constitution.’ The definition, itself, is tautological and offers no meaningful framework. In fact, it may reflect the overall fear than any definition may violate the religion clauses of the First Amendment.” [24]

I believe, however, that Justice O’Connor is the one being disingenuous: in the eighteenth century, religious exercise was a technical concept with a clear definition in every sense relevant to the Congress and the Courts. Keeping in mind the linkage of free exercise with liberty of conscience, consider that “Calvin had defined conscience as knowledge (scientia) accompanied by a sense of divine justice, and added ‘it is a kind of medium between God and man.’” William Perkins and William Ames, “Two great English divines, . . . had [further] elaborated the definition in lengthy treatises that placed conscience at the center of Puritan theology. Accepting the idea that it represented the voice of God in man, they found it to be the source of natural knowledge of God’s will by which man as originally created could have known what was right and wrong.” [25] Unfortunately, because of the fall, conscience was subject to error. It was also, however, “subject to correction, for God’s will was made known to man not by conscience alone. God had also revealed his will in the Scriptures in order to help the weak conscience of fallen man.” [26]

Roger Williams, the father of religious liberty in America, understood free exercise as a function of liberty of conscience. Because conscience was the voice of God in man, it could never be coerced. But precisely because it was the voice of God in man, it could never lead to immoral behavior. Anyone justifying immoral actions on the basis of conscience was simply confused. For this reason, Williams “affirmed the duty of the civil magistrate to punish anyone whose conscience led him to undertake actions against the public safety and welfare. And in this category he included people who conscientiously violated conventional morality. It would be proper, Williams said, for the civil government to prohibit human sacrifice, as practiced for conscience’ sake in Mexico and Peru. It was also proper to prohibit prostitution, though practiced ‘even upon the very account of Religion and Conscience.’” [27]

That the linkage between conscience and religious freedom was alive and well a century and a half after Williams’ time is evident in a letter written by Oliver Ellsworth in 1787: “In our country every man has a right to worship God in that way which is most agreeable to his conscience. If he be a good and peaceable person, he is liable to no penalties or incapacities on account of his religious sentiments; or, in other words, he is not subject to persecution. . . . But while I assert the rights of religious liberty, I would not deny that the civil power has a right, in some cases, to interfere in matters of religion. It has a right to prohibit and punish gross immoralities and impieties; because the open practice of these is of evil example and detriment. For this reason, I heartily approve of our laws against drunkenness, profane swearing, blasphemy, and professed atheism.” [28] John Semonche concludes, “Supporters of the separation of religion and government, in the main, did not believe that personal religious conviction afforded any exemption from the general application of civil law, which was granted the task of governing the bodies and goods of man.” [29]

The majority opinion in Smith (II) seems to be in complete harmony with this perspective of free exercise. Scalia’s claim that religious behavior is not exempt from generally applicable laws also has precedent in at least two Supreme Court rulings. In 1879, Justice Waite asked in Reynolds v. United States, a case involving polygamy, “Can a man excuse his practices to the contrary [against a law of the organization of society] because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” [30] Ten years later, in Davis v. Beason, another case addressing polygamy, Justice Field wrote: “However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation. . . . Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect . . . may be carried out without hindrance.” [31]

Religious Exercise as an Inalienable Right

While I believe that Scalia is correct concerning the primacy of legitimate law over the claims of religious deviants, I do not wholly endorse his opinion in Smith (II), or his argument in Boerne. Scalia comes to the right conclusion, but his reasoning has the marks of positivism. As he says in Boerne, “The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of those concrete cases. For example, shall it be the determination of this Court, or rather of the people, whether . . . church construction will be exempt from zoning laws?” [32] He seems to imply that any generally applicable law passed in a democratic manner, as long as it was not directly aimed at religious exercise, would be legitimate, regardless of the burdens it imposes indirectly on religious exercise. I disagree with his implication that the public has the right to pass any “neutral” law that suits their fancy. Legitimate laws reflect the moral and jurisdictional boundaries of our created world.

Congress’s reaction to Smith (II), on the other hand, was equally misguided. The First Amendment says that Congress shall make no law prohibiting the free exercise of religion. Notice the lack of incremental language. The implication is clear—some laws prohibit free exercise, the rest do not. Unfortunately, since the middle of the twentieth century, the terms have changed. Today we speak of “burdening” religious exercise, as if our right to worship God can be calibrated on a sliding scale. RFRA institutionalizes this new, warped perspective of religious exercise, saying that the government shall not substantially burden a person’s free exercise of religion unless “it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” [33] There is a very real sense in which this language can be understood as fundamentally undermining the First Amendment. The free exercise clause is categorical: no law. Now, however, RFRA blesses a state’s interference with religious exercise whenever it can demonstrate a compelling interest.

In his Memorial and Remonstrance, James Madison asserted that “in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance.” [34] Justice O’Connor’s view of First Amendment jurisprudence, shared by those who backed RFRA, is worlds away from this radical hierarchy of rights: “the courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests.” [35] For Madison, religious freedom was an inalienable right, superior to the state’s interests. For the writers of RFRA and for the Justices sitting on the Supreme Court, religious exercise “competes” with the interest of the state. I wonder if the Third Reich felt it had a compelling interest to substantially burden the Jewish exercise of religion! It is true that RFRA is aimed at laws neutral towards religion; laws directly aimed at religious exercise would be unconstitutional regardless of a state’s justification. RFRA’s language makes me uncomfortable nonetheless, because it seems to create a category of laws that legitimately burden religious exercise. I do not believe our Founding Fathers would have endorsed such a compromise.

A Better Approach: Religious Exercise as Moral Exercise

To secure free exercise of religion in America, we must first disabuse ourselves of the relatively new ideas that religion and morality, or morality and the law, can be separated. Religious behavior, by definition, is moral behavior, and can never be harmful. On the other hand, the criminal law reaches only harmful conduct, and so can never legitimately touch religious exercise. Justice O’Connor explicitly rejects this view in Boerne: “Given the range of conduct that a State might legitimately make criminal, we cannot assume, merely because a law carries criminal sanctions and is generally applicable, that the First Amendment never requires the State to grant a limited exemption for religiously motivated conduct.” [36] Unfortunately, her claim is profoundly at odds with our Founders’ conceptions of religion and the criminal law. The criminal law can only prohibit what is wrong, and religious behavior can never involve the betrayal of conscience, and actions that are harmful to society.

When the connection between religious behavior and morality is severed, as in O’Connor’s view, courts are driven to judge free exercise claims not in light of absolute standards of morality, as in Davis v. Beason (quoted above), but by the sincerity with which beliefs are held. When the Court was deciding in Wisconsin v. Yoder whether Amish children could be exempted for religious reasons from a compulsory education law, it “evaluated whether the burdened conduct was a sincere expression of religious belief . . . . The Court realized that determining the sincerity of religious conduct was a delicate process; however, it was necessary to ‘preclude allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.’” [37] If sincere expressions of belief will determine which individuals will be allowed to make their own standards of conduct, free exercise in America will be devastated. Certainly Molech’s worshippers sincerely believed human sacrifice to be a central component of their wicked religious practices.

That the courts might decide free exercise cases on the basis of sincerity should be cause for alarm; that they should decide free exercise cases without appeal to absolute standards of morality should be cause for terror. When the moral nature of religious behavior is denied, there is no absolute standard by which to judge religious conduct, and either the courts (as O’Connor would have it) or the legislature (as Scalia would have it) must determine what will be tolerated. Neither of these, according to Madison, has the authority to judge the conscience. There is only one standard by which these determinations can be made: the Bible.

A Better Approach: Generally Applicable Laws as Legitimate Laws

While the first step to a healthy free exercise jurisprudence is regaining a moral perspective, the second must be recovering a lost jurisdictional perspective of governmental authority. Government not only has moral boundaries, it also has jurisdictional boundaries—there are many arenas into which the federal government should never intrude. If state and federal governments were not engaging in such comprehensive regulation, there would be no need for most of the current religious exercise litigation. O’Connor acknowledged in Boerne that, “Prior to the middle of the twentieth century, the Free Exercise Clause was not a major independent source of protection for religious conduct against governmental interference.” [38] The reason for this fact is not because the Courts were applying the First Amendment incorrectly, but because government was smaller, and there were far fewer instances of conflict. Rather than focusing on how to exempt religious behavior from regulation when drafting RFRA, Congress should have contemplated reducing all regulation that threatens to burden religious exercise.

The case of Wisconsin v. Yoder is again pertinent. The Supreme Court ruled to exempt Amish children from a Wisconsin law that required all children to attend school beyond the eighth grade on the basis of sincerely held religious belief. They were careful to point out, however, that the Amish would not have been eligible for exemption if they had been “motivated by a purely philosophical and personal belief.” [39] While some may see Yoder as a victory for religious freedom, I see it as a defeat for the rights of parents. Determining the upbringing of their children is a fundamental right of all parents. When we designate it a religious right, to be exercised only by those who can demonstrate a sincerely held religious belief in a court of law, we deny the rights of parents to all but a select few, and our society as a whole loses.

The Boerne case is also relevant. Boerne seems to be a case about property rights, not religious exercise. What if the building had not been a church, but a hospital that needed to enlarge in order to serve the community better? The town’s ruling would have been equally unjust. The Sisters of Charity Shelter that was shut down because it had no elevator (referenced above) is another example of unreasonable regulation rather than religious discrimination. As Justice Kennedy remarked in Boerne, “It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals.” In claiming that only the religious should be exempt from the burdens of regulation we miss the more essential truth: no one should suffer under this infringement of freedom. By conflating parental and property rights with religious rights, we deny to the non-religious the rights that our government was created to protect.

In the Virginia Statute of Religious Liberty, Thomas Jefferson wrote that individuals’ “opinions in matters of religion . . . shall in no wise diminish, enlarge or affect their civil capacities.” [40] Unfortunately, enlarging the civil capacities of those who hold religious beliefs is precisely what RFRA was designed to do. While every other building of its kind in New York must have an elevator, the Sisters of Charity should not. While any other group wishing to add on to its building would be prohibited, a church should be free to do so. While all other parents in Wisconsin must send their children to school beyond the eighth grade, the Amish are exempted. The key to securing religious exercise is not to enlarge the civil capacities of the religious, but to protect the rights of all citizens. This will be done not through exempting religious exercise from burdensome regulations, but by returning to a smaller government with clear jurisdictional boundaries.

Conclusion

Freedom of religious exercise is a vital right, and Christians cannot sit complacently while America’s legislatures and courts place restrictions on the full expression of our faith. But neither RFRA nor the democratic process holds the answer to these problems. Instead of speaking to the role of conscience, and the absolute protection every act of conscience deserves, RFRA muddies the religious waters, essentially concluding that any behavior, engaged in under the name of religion, must be tolerated until the state decides that, for its own survival, it simply can take no more. This is not a formula for the flowering of religion, as some have maintained. This is a formula for the flowering of chaos and confusion. Pasting the name “religion” on harmful behavior does not make it religious exercise protected by our First Amendment. The democratic process, left to itself, promises to be equally dangerous. An individual’s liberty of conscience can never be measured against the needs of the modern regulatory state; the state, being far larger, will win every important contest. We must first recover the distinction between freedom of conscience and evil conduct, insisting on giving the former absolute protection; the latter, none at all. Then we must remember that religious exercise is inalienable, and can never be legitimately “burdened.” To make this a reality, we will need to shrink the regulatory reach of our government, not being content with religious exemption for a few, but demanding freedom for all.

 

  1. 1. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).
  2. 2. Ibid.
  3. 3. Ibid.
  4. 4. Edward Gaffney Jr., “Pass the Peyote: the Religious Freedom Restoration Act,” Commonweal, 28 January 1994, 5.
  5. 5. Oliver Thomas, “Is the Religious Freedom Restoration Act Good for America?” Insight, 9 December 1996, 24.
  6. 6. Ibid.
  7. 7. Religious Freedom Restoration Act of 1993, U.S. Code, vol. 42, sec. 2000bb (1993).
  8. 8. Kim A. Lawton, “Congress Restores Protections,” Christianity Today, 13 December 1993, 58.
  9. 9. Jeffrey L. Sheler and Ted Gest, “How Big is God’s Tent?” U.S. News & World Report, 24 February 1997, 45.
  10. 10. Randy Frame, “New Cases Test Limits of Religious Freedom,” Christianity Today, 7 October 1996, 82.
  11. 11. Kim A. Lawton, “Congress Restores Protections,” Christianity Today, 13 December 1993, 58.
  12. 12. “Religious-freedom Law Marks First Anniversary,” The Christian Century, 4 January 1995, 7.
  13. 13. “Religious Freedom Restoration Act Upheld,” The Christian Century, 28 February 1996, 222.
  14. 14. Jeffrey Rosen, “Anti-antidisestablishmentarianism: Too Much Religious Freedom,” The New Republic, 24 February 1997, 10.
  15. 15. City of Boerne v. Flores, Archbishop of San Antonio, No. 95-2074. Argued February 19, 1997 – Decided June 25, 1997. Available on the internet at http://supct.law.cornell.edu/supct/html/95-2074.ZS.html.
  16. 16. Ibid.
  17. 17. Ibid.
  18. 18. Thomas, “Is the Religious Freedom Restoration Act Good for America?” 24.
  19. 19. Taken from David Barton, The Myth of Separation: What is the correct relationship between Church and State? (Aledo, TX: Wallbuilder Press, 1992), 28-29.
  20. 20. Ibid., 29.
  21. 21. Taken from John E. Semonche, Religion and Constitutional Government in the United States (North Carolina: Signal Books, 1986), 109.
  22. 22. Ibid., 113.
  23. 23. Boerne v. Flores, O’Connor dissenting. Available on the internet at http://supct.law.cornell.edu/supct/html/95-2074.ZD.html.
  24. 24. Simon J. Santiago, “Zoning and Religion: Will the Religious Freedom Restoration Act of 1993 Shift the Line Toward Religious Liberty?” Available on the internet at http://www.wcl.american.edu/pub/journals/lawrev/santiago.htm.
  25. 25. Edmund S. Morgan, Roger Williams: The Church and the State (NY: WW Norton & Company, 1967), 130.
  26. 26. Ibid., 131.
  27. 27. Ibid., 134.
  28. 28. Religion and Constitutional Government, 105, 107.
  29. 29. Ibid., 108.
  30. 30. Reynolds v. United States, 98 U.S. 145 (1879), from Gary Amos, Inalienable Rights and Liberties, (Virginia Beach: Class Materials for PPL 515, 1995), 194.
  31. 31. Davis v. Beason, 133 US 333. 333 L.Ed. 673 (1889), from Gary Amos, Inalienable Rights and Liberties, 193.
  32. 32. Boerne v. Flores, Justice Scalia concurring in part. Available on the internet at http://supct.law.cornell.edu/supct/html/95-2074.ZC1.html.
  33. 33. Religious Freedom Restoration Act of 1993.
  34. 34. From Gary Amos, Inalienable Rights and Liberties, (Virginia Beach: Class Materials for PPL 515, 1995), 136.
  35. 35. Boerne v. Flores, O’Connor dissenting.
  36. 36. Ibid.
  37. 37. Santiago, “Zoning and Religion.”
  38. 38. Boerne v. Flores, O’Connor dissenting.
  39. 39. Wisconsin v. Yoder, 406 U.S. 205 (1972).
  40. 40. Religion and Constitutional Government, 103.

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