Religious Rights in Context
Part I
by Phil Geiger
July 25, 1997
INTRODUCTION
The following is an attempt to broaden the discussion a bit over the religious rights issue. My central thesis is that recent U.S. Supreme Court rulings regarding the Free Exercise Clause of the 1st Amendment represent further evidence and confirmation of the Revelators warnings about the dangers of secularism, as seen in Paper 195:8 "Secular Totalitarianism". (An expanded treatment of this theme will be published separately).
Included will be a brief look at the historical intent of the 1st Amendment to the US Constitution ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"), and how it relates to the increasing sovereignty of the Supreme; how the Free Exercise Clause effects dissemination issues related to the Fifth Epochal Revelation; and how the subtle but powerful forces of secularism have negatively affected both the Urantia Foundation and the Fellowship's relationship to the Fifth Epochal Revelation (FER), as well as to each other.
RECENT LEGAL DEVELOPMENTS
Last month's Supreme Court ruling in the Boerne Case (disallowing the Catholic Church's claim to a religious exemption under the Free Exercise Clause (FEC). [FN1] had the effect of overturning the 1993 Religious Freedom Restoration Act (RFRA), passed overwhelmingly by Congress and signed by the President in 1993. The latter legislation was in turn created in response to another Supreme Court ruling, the Smith case in 1990 (disallowing the sacramental use of peyote by members of the Native American Church. [FN2] This ruling effectively removed the special consideration religion had heretofore received in trying to balance the rights of religionists with the demands of civil law, when those laws significantly impacted a given religious practice.
Known in legal lingo as "the compelling interest test" [FN3] and by its critics as "religious favoritism", this legal principle had heretofore been the standard applied when religious practice collided with Caesar's laws. In recent decades Caesar has, for the greater part, been the winner. According to Professor Michael McConnell (the constitutional expert cited by Justice O'Connor in her dissenting opinions in both of the above cases), the compelling interest test had, over time, become a "Potemkin Doctrine"- a pretty facade, guilty perhaps of rhetorical excess ("compelling"), but nevertheless encapsulating a fundamental intent of the Founding Fathers to afford special protection to religious belief and practice. [FN4]
But in McConnell's opinion, the Smith case represented a total abandonment of the compelling interest test. (Instead of rebuilding the test engine, the Court junked it altogether). He refers to the decision as "undoubtedly the most important development in the law of religious freedom in decades"; and, in its various parts, as "risible in its onesidedness", "strange and unconvincing", "bordering on the shocking." [FN5] Justice O'Connor in her dissent, characterized the Court's ruling as denigrating the very purpose of the Bill of Rights, especially in light of the Court's holding that "the disfavoring minority religions is an "unavoidable consequence" under our system of governance", noting that the Court referred to religious liberty as a "luxury". [FN6]
LEGAL CRITIQUE OF THE SMITH CASE
Professor McConnell included many more subtler digs at the illogical arguments the Justices fashioned in the Smith case. He begins his critique with the observation that having found the 1st Amendment "ambiguous", the Justices simply dispensed with the need for interpreting the text altogether; completely avoided employing an historical analysis in overturning a long settled principle of law, without so much as calling for legal briefs or reargument; distinguished prior Court rulings in a most contorted fashion, citing cases for principles that they subsequently overturned; that the Court "baldly" stated that it had "rejected" or "declined to apply" the compelling interest test in recent cases when in fact they most certainly had (contradicted also by Justice O'Connor with numerous examples in her dissent [FN7]; that the Court, during its second hearing of the case, ended up deciding a question that was purely hypothetical, irrelevant to the outcome of the Smith case as a matter of state law, and throwing into question whether "the entire discussion of free exercise discussions was beyond the Court's jurisdiction" to begin with. [FN8] All in all, not an ideal test case on which to overturn a major legal doctrine like the compelling interest test.
(In response to one of the Court's defenders in the Smith case, McConnell says of the arbitrary application of differing legal standards to the two symmetrical, mutually reinforcing clauses of the 1st Amendment, the FEC and the (anti) Establishment Clause: "This combination...is a powerful instrument for the secularization of society. It is hard to see anything "neutral" about it." [FN9]
Having abandoned the need for religious accommodations (at least at the Federal level), the Supreme Court opened the door for situations in which, for example, wine served to minors as part of a remembrance sacrament in a church or a synagogue might result in their closures; or allowing Catholic women to sue under Title 7 for employment discrimination for being refused entrance into the priesthood. Thus it should be apparent why 68 different organizations, including mainline churches and the ACLU, had lobbied for the passage of the RFRA. And why we are likely to see a vigorous political effort, perhaps even a holy war against secularism, aimed at restoration of the religious accommodation principle. (Should Urantians be supporting this effort?)
HISTORICAL ORIGINS OF THE FREE EXERCISE CLAUSE: JAMES MADISON - DESTINY RESERVIST?
In his "The Origins and Historical Understanding of Free Exercise of Religion", Professor McConnell states; "The settlers of New England (outside of Rhode Island) were predominantly English Calvinists called "Puritans or "Congregationalists". They moved to the wilderness of the New World in order to establish a Christian commonwealth where, for the first time in history, society would be directed by the revealed word of God." [FN10] Intolerance of other Christian sects was intense, however, forcing the likes of the Quakers to concentrate in Pennsylvania and Delaware, the Catholics in Maryland, and followers of Locke's Enlightenment principles of tolerance to settle in Carolina. Meanwhile, the Church of England maintained a strong presence in Virginia, later spreading throughout the South.
It was from Virginia that James Madison enters the picture, nearly a century removed from the early settlers. Madison was one of the prime architects of the FEC, the draftsman and floor leader in the House in support of the Bill of Rights. He later was a member of the joint House-Senate Conference Committee that finalized the language of the FEC of the 1st Amendment. In trying to balance the competing claims of the many different religious groups that abounded in the Colonies, he finally accepted the argument of the Evangelicals who weren't satisfied with phrases like "the free exercise of conscience" and who insisted on singling out religious rights of belief and practice for special protection. [FN11] Though no written records exist of the conference debates, the final product was consistent with Madison's own thinking, as reflected in his "Memorial and Remonstrance Against Religious Assessments" (emphases mine):
"Before any man can be considered as a member of Civil Society, he must be considered as a subject of *the Governor of the Universe*. And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to *the Universal Sovereign*." [FN12]
By making surrender to "the Universal Sovereign" the goal, Madison provided a means for the reconciliation of differences amongst the colonists, especially the religious minorities whose very diversity helped create a natural set of checks and balances. This tended to prevent any one religion from becoming dominant, enforced by application of the other essential pole of the 1st Amendment, the (anti) Establishment Clause.
COSMIC IMPLICATIONS OF THE FREE EXERCISE CLAUSE
But beyond its role in forging unity among the colonists, Madison and the Evangelicals established a principle whereby even nations and diverse races might one day surrender their sovereignties to ever higher revelations of Universe Power and Authority. Such surrenders of sovereignty define the very Path of Ascent, a Jacob's Ladder, that allows the group to expand from family to clan, to ..."world citizens" (see below), to galactic citizens, ad infinitum.
As the Urantia Book puts it: "Each new and forward evolution of political sovereignty is (and has always been) embarrassed and hampered by the "scaffolding stages" of the previous developments in political organization. And this is true because human loyalties, once mobilized, are hard to change. The same loyalty which makes possible the evolution of the tribe, makes difficult the evolution of the supertribe--the territorial state. And the same loyalty (patriotism) which makes possible the evolution of the territorial state, vastly complicates the evolutionary development of the government of all mankind." (134:5:8)
Growth, identity expansion, is the very fuel that powers the completion of the Supreme. Only by successive stages of sovereignty surrender do we bootstrap ourselves into ever more inclusive relationships with the Mother Supreme.
NATURAL AND UNALIENABLE RIGHTS: BALANCING LOYALTY TO GOD AND THE STATE
Religious freedom should be a constitutionally protected right..."unalienable also; because what is here a right towards man, is a duty towards the Creator." So says Madison. [FN13]
The Urantia Book tells us that: "Worship is the highest privilege and first duty of all created intelligences (27:7:1); and that: "The temporal relation of man to the Supreme is the foundation for cosmic morality, the universal sensitivity to, and acceptance of, *duty*." (117:4:7). How then does one balance these two fundamental allegiances to God and to the State?
>From the secular perspective, those who argue against the uniquely religious treatment of the FEC believe that it is essentially anarchic, leading to actions potentially disruptive of the public peace by allowing lawbreakers to argue, in effect - "Deity made me do it". They argue that there should be no "special privilege", or accommodations, accorded to religious practice. They maintain that such special treatment is, in actuality, a back door establishment of religion at the expense of purely secular (and very often moral) beliefs, and thus violative of other constitutional doctrines like free speech (elevating religious content over secular content), and equal protection laws. [FN14]
Professor McConnell answers these objections in part by using the term "dyarchic" to describe the true interplay between these apparently conflicting demands of duty:
"The individual is not free from law; he is subject to two potentially conflicting sources of law, spiritual and temporal. This is an important distinction, because the established tenets of a religious tradition have their own dynamic safeguards of order and good sense, superior to individual will." [FN15]
Just as morontial reality is a blending of the physical and the spiritual, and the soul the interactive product of the personal self and the indwelling Adjuster, the resolution of duty between the spiritual and the temporal is a blending of two distinct realities. Such a 'constructive interference pattern' (to use a holographic analogy) creates a 'standing wave pattern' of blended religious and temporal duty, coexisting and mutually reinforcing each other. The Master describes the result in his discourse on Sonship and Citizenship (Paper 178:1, emphases mine):
"You should be made all the better citizens of the secular government as a result of becoming enlightened sons of the kingdom; so should the rulers of earthly governments become all the better rulers in civil affairs as a result of believing this gospel of the heavenly kingdom. The attitude of unselfish service of man and intelligent worship of God should make all kingdom believers better *world citizens*, while the attitude of honest citizenship and sincere devotion to one's temporal duty should help to make such a citizen the more easily reached by the spirit call to sonship in the heavenly kingdom."
CHRIST MICHAEL PROPHESIES
In this discourse, The Master anticipates the separation of church and state after centuries of turmoil and persecution:
"But the very light which you bear to the world, and even the very manner in which you will suffer and die for this gospel of the kingdom, will, in themselves, eventually enlighten the whole world and result in the gradual divorcement of politics and religion." (178:1:9).
The main issue in His day was the priestly arrogance of the Sanhedrin working in collusion with the Roman civil authorities in an unholy alliance of church and state. Nearly 2000 years later his words about the separation of church and state would come to fruition in the 1st Amendment to the U.S. Constitution.
Jesus continues the discourse, exhorting his disciples to appreciate the hand that has been dealt to them, pointing out the silver lining in what must of looked to them like a very dark cloud:
"Under the soon-coming persecutions by those who hate this gospel of joy and liberty, you will thrive and the kingdom will prosper."
But in a statement directed at future generations, he warns of the dangers of complacency, of a time when political leaders are no longer hostile to the message of the kingdom (emphases mine):
"But you will stand in *grave danger* in subsequent times when most men will speak well of kingdom believers and many in high places nominally accept the gospel of the heavenly kingdom. Learn to be faithful to the kingdom even in times of peace and prosperity."
To the many armchair evangelists among us, content to sit on our lotuses, reflecting on our good fortune of living in an era of relative wealth and freedom, privileged to be blessed with the 5th Epochal Revelation, such words may sound hollow. But the early history of the Urantia Movement shares much in common with the early apostles, both of whom wasted precious time jostling for proximity to the source of their respective revelations. And in an eerie resonance with the results of the recent legal battles that have torn asunder our fledgling community of believers, the Master speaks to us from across the centuries, bluntly, like he did to the apostles:
"Tempt not the angels of your supervision to lead you in troublous ways as a loving discipline designed to save your ease-drifting souls."
It would seem that the present generation of Urantia Book readers have so challenged our seraphic planetary supervisors, and are currently enjoying the fruits their loving discipline.
Your Fellow Penitent in Christ,
Brother Philip Geiger
End Part I.
Part II will include: Secular Totalitarianism, Current Status of the Urantia Movement, Religious Persecution Around the World, The Organismal Brotherhood
Footnotes
1. CITY OF BOERNE, PETITIONER, V. P.F.FLORES, ARCHBISHOP OF SAN ANTONIO AND UNITED STATES No. 95-2074. Decided 1997.
2. EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON, et al., PETITIONERS, V. ALFRED L. SMITH, et al. No. 88-1213, 494 U.S. 872. Decided 1990. Hereinafter SMITH.
3. A purely hypothetical example of how the compelling interest test might be used: Say a county ordinance requires large bright orange triangles on all non-motorized road vehicles, such as horse buggies. Under the previous standard, if a religious group like the Amish objected on religious grounds that such a symbol is a blasphemous use of their sacred symbol for the Trinity, the courts would be obligated to investigate a less intrusive alternative, such as vertical reflector strips. Under the old standard, both the intent of the law - public safety - and the religious beliefs of a small group otherwise negatively impacted by Caesar's law are preserved.
4. Michael W. McCONNELL, FREE EXERCISE Revisionism AND THE SMITH DECISION, 57U. Chi. L. Rev. 1109 (1990). Hereinafter FREE EXERCISE.
5. Id.
6. SMITH, 494 U.S. 872, 902-903. Justice O'Connor writes: "The compelling interest test reflects the 1st Amendment's mandate of preserving religious liberty to the fullest extent possible in a pluralistic society. For the Court to deem this command a "luxury", ante, at 1605, is to denigrate "[t]he very purpose of the Bill of Rights."
7. Id., at 900; and FREE EXERCISE at 1120-1121. In addition to WISCONSIN v. YODER, McConnell notes: "The Court reiterated the compelling interest test no less than three times in the year preceding Smith, including in two unanimous opinions. Prior to Smith, some Justices disagreed with the precedents...but none denied the existence of those precedents. Chief Justice Rhenquist and Justice Stevens had authored several separate concurrences and dissents...taking the Court to task for doing precisely what the Smith opinion now denies the Court has ever done."
8. FREE EXERCISE, at 1113
9. MICHAEL W. McCONNELL, A RESPONSE TO PROFESSOR MARSHALL, 58 U.Chi.L.Rev 329, 330 (1991).
10. MICHAEL W. McCONNELL, THE ORIGINS AND HISTORICAL UNDERSTANDING OF FREE EXERCISE OF RELIGION, 103 Harv. L. Rev. 1409, 1482-1483 (1990). Hereinafter ORIGINS.
11. In Madison's day, there was little practical difference in understanding between "rights of conscience" and religious duty. The first Federal FEC case to be tried didn't even occur until 1845, two generations after the Bill of Rights was approved. Though McConnell finds no direct evidence of Madison's own religious beliefs as an adult, his evangelical sympathies can be seen in a letter he wrote to a friend while a student at Princeton, urging him to become a "fervent Advocate of the cause of Christ." ORIGINS at 1452.
12. JAMES MADISON, MEMORIAL AND REMONSTRANCE AGAINST Religious ASSESSMENTS, in 2 THE WRITINGS OF JAMES MADISON 183, 188 (G. Hunt ed. 1901), hereinafter MEMORIAL AND REMONSTRANCE; also reprinted as an appendix to Justice Rutledge's dissenting opinion in EVERSON V. BOARD OF EDUCATION, 330 U.S. 1, 28 app. at 63 (1947)
13. Religious rights were considered *unalienable rights*, given to humanity by Deity, to whom we owe a higher allegiance. Said Madison "It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent in both in order of time and degree of obligation, to the claims of Civil Society". MEMORIAL AND REMONSTRANCE.
14. WILLIAM P. MARSHALL, IN DEFENSE OF SMITH AND FREE EXERCISE Revisionism, 58 U. Chi. L. Rev. 308). (1991). Though Marshall agrees with the overall philosophical conclusion of the Smith decision, he refers to the Court's reasoning as "neither persuasive or well crafted"; "its use of precedent borders on fiction"; "a paradigmatic example of overreaching", Id., at 308.
15. FREE EXERCISE, FN 182. Note: The Supreme Court has ruled that only members of organized religious groups can qualify for protection under the FEC, individuals cannot.