Equality or Inequality?

Bear in mind that in almost all of the religion cases decided by the Court, its rationale is a function of the test in Lemon v. Kurtzman. This test weakly hints of the equality principle when it declares that a law’s principle or primary effect may neither advance or inhibit religion, but it does not rise to consider the controlling principle of equality in the sense the Declaration suggests and Thomas Jefferson’s Bill for Religious Liberty employs, namely: “that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry.” This view of equality was subsequently embodied in state constitutional provisions in a variety of forms and is also part and parcel of the free exercise clause of the first amendment.¹¹⁹

1. RELIGIOUS OPINION NEITHER EXPANDS OR DIMINISHES CIVIL RIGHTS OR CAPACITIES

In addition to education/religion cases, a second type of case is also commonly litigated under the first amendment. This type of case involves fact patterns where an individual’s religious opinions are invoked as a justification for expanding or for diminishing that individual’s non-religious civil rights or capacities. These types of cases almost always involve application of the equality principle and implicate the idea that the law should be no respecter of persons. A court is either called upon to permit the legislature to treat religious individuals the same as non-religious persons, or to permit the legislature to treat them differently by expanding or constricting their civil rights. Different treatment involves either an expansion of rights based on religious belief or a contraction of rights based on religious belief.

Recall that the principle of equality is derived from the laws of nature and of nature’s God and that its universal nature binds all governments to the extent that the principle has been articulated or manifested in written law. Several state Declaration of Rights articulate the relationship between religious liberty and the rule of equality.¹²⁰ Virginia stated the broadest rule of all, not limiting its application to those who acknowledged God or professed Christianity. It declared that “all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”¹²¹ In other words, religious opinions should not affect civil capacities, and by necessary implication non-religious opinions should not affect civil capacities either.

The equality principle prevents state and Congressional infringement or adjustment of civil rights on account of one’s belief or mode of worship.¹²² The principle is part and parcel of both the free exercise clause of the federal Constitution and to the extent the idea is reflected in state constitutions, it constitutes the law of that state as well.¹²³ In a nutshell the law of equality declares that opinion or belief may in no way diminish, enlarge, or affect civil capacities.¹²⁴ Nor does the free exercise of religion conflict with legitimate social and civil obligations.¹²⁵ If a conflict does exist, then either the right or the obligation is incorrectly defined or asserted. The equality and free exercise principle should be construed in a harmonious manner and not in a way that balances one against the other.

2. LITIGATING ACCORDING TO THE EQUALITY PRINCIPLE

a) Equal Access to Public Forums

Several cases in this section consist of a denial of equal treatment and involve discrimination against individuals because of their religion. Such cases include equal access to schools and public places.

For instance in Widmar v. Vincent,¹²⁶ the Court ruled that a public university must grant equal access to university facilities for student-led Bible studies. The University of Missouri at Kansas City had made its facilities available for the activities of student groups, but denied the use of the facilities to religious student groups. In other words, the University had diminished the civil rights of students based on their religious belief.

In holding for the students the Court assumed the legitimacy of the incorporation doctrine, and turned to the first amendment’s free speech clause. The Court indicated that the free speech clause of the first amendment required content-neutrality by the University and thus the University’s denial of its facilities was unconstitutional. The equality principle was not vindicated except indirectly through the content neutrality mechanism of the federal free speech clause.

Missouri’s courts, however, could have reached the same result on the solid legal footing of its own Constitution, rather than through the Supreme Court under its unconstitutional incorporation of the federal free speech clause. Article 1, Section 2 of the Missouri Constitution states in part that “all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.”

University students are persons entitled to equal rights and opportunity under the law. Missouri’s Courts could have made this connection. Article 1, Section 5 states in part that “no person shall, on account of his religious persuasion or belief, be . . . molested in his person or estate” and section 7 observes in part that “no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.” Of course, the University of Missouri at Kansas City had made its facilities available for the activities of student groups, but denied the use of the facilities to religious student groups. Such unequal treatment is “discrimination made against any . . . creed of religion, or any form of religious faith or worship” plain and simple. One should think that Missouri courts could handle this case without the need for incorporation and federalization of all speech claims.

Likewise in Board of Education v. Mergens,¹²⁷ the Court held that public high schools which make their facilities available to student organizations, must also allow equal access to school facilities for student-led Bible studies. The school was prohibited from closing its open forum to religious students. Neither the school’s policy or the federal Equal Access Act,¹²⁸ which required public schools that opened their facilities to students to open them on an equal basis, violated the establishment clause although the Court was not able to agree upon a common rationale.¹²⁹

Citing a split in circuits, the petitioners in Lamb’s Chapel v. Center Moriches Union Free School District,¹³⁰ asked the Court to reverse a lower court’s holding that a New York statute prohibiting religious after-hour use of a public school facility did not violate the free speech or free exercise clause. New York law authorized local school boards to adopt reasonable regulations permitting the after-hours use of school property for 10 specified purposes, not including meetings for religious purposes. Pursuant to this law, the school board issued rules and regulations allowing social, civic, and recreational uses of its schools, but prohibiting use by any group for religious purposes. After the District refused two requests by an evangelical church and its pastor to use school facilities for a religious-oriented film series on family values and child rearing on the ground that the film appeared to be church-related, the Church filed suit claiming that the District’s actions violated, among other things, the First Amendment’s Freedom of Speech Clause. The lower court reasoned that the school property, as a “limited public forum” open only for
designated purposes, remained nonpublic except for the specified purposes, and ruled that the exclusion of the Church’s film was reasonable and viewpoint neutral.

The Supreme Court, however, now finding its purported constitutional footing in the free speech clause rather than the free exercise clause, held that such a policy discriminates on the basis of viewpoint by permitting school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject from a religious standpoint. Denial on this basis violates the First Amendment speech clause when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise included subject. The principle that has emerged, not from the constitution but rather “from our cases” noted the Court, is that “the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.”¹³¹

The Court reached the right result, but for substantially the wrong reasons. First, what is the problem with New York’s Constitution? Does it provide no defense of the principle that “forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others?” Perhaps New Yorkers do not understand their fundamental and cherished rights enough to place them in their own Constitution? Perhaps it is necessary for the Court to unilaterally extend the first amendment’s limits on Congress to the state of New York because the New York courts cannot be trusted to spot an unconstitutional state law under their own Constitution?

Well, as it turns out, Article 1, Section 11 of the New York Bill of Rights states that:

No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state.

Apparently, New Yorkers think that no person, including the pastor of the Lamb’s Chapel, shall because of his religion, be subjected to any discrimination in his civil rights to participate equally in the benefits of access to the Center Moriches Union Free School buildings by the Center Moriches Union Free School District. Apparently, the Court’s purported exigency in extending the first amendment to the states via Cantwell v. Connecticut,¹³² declaring that the “fundamental concept of liberty embodied in [the Fourteenth Amendment’s Due Process Clause] embraces the liberties guaranteed by the First Amendment” is no exigency at all. Why incorporate when it appears that New Yorkers can state the rule regarding free speech even more clearly than the Court can. At least New Yorkers can point to a Constitutional text, whereas the Court can only point to “our cases” as a basis for support. New York has law, the Court has itself.

Even aside from the phoney incorporation of the first amendment speech clause issue, not much in this case is said about the free exercise of religion, or about how a state financed educational establishment itself violates the unalienable rights of New York residents to support only those educational objects which they would volitionally make their own and not be forced to support any other. The construction and maintenance of the Center Moriches Union Free School buildings, paid for as it is from the treasury of the state or its municipal instrumentality, relies upon coercion in the manner of its support. To put it in perspective, if the state forced its citizens to pay for the Lamb’s Chapel educational building, that would be the constitutionally impermissible equivalent of forcing them to pay for the Center Moriches Union Free School buildings.

Of course, after having touted the republican virtues of New Yorkers and illustrated their insight into securing their equal rights by state constitutional means, it must be observed that with regard to the inalienable right of persons to be free from coercion in supporting state sponsored ideas, in financing the teacher unions and educational buildings that propagate them, the people of New York have miserably failed to acknowledge same. Nevertheless, the root principle once again appears to be the principle of equality (not speech), which requires that the state not diminish the equal access rights of its citizens based on their religious belief, speech or association (including religious association).

In Widmar, Mergens, and Lamb’s Chapel, government controlled schools under the cloak of the no-establishment clause, took the position that religious students or organizations were not free to use public and educational facilities like other students or organizations, simply because of their religious belief. The schools argued in effect, that “matters of religion” should diminish the equal civil capacities of their students or organizations seeking to use the government controlled schools after school hours.¹³³ The Court properly rebuffed state and school district arguments that a religious opinion or message should diminish the equal civil rights or capacities of students or participants–to wit, the right to meet on school campus on an equal basis as enjoyed by non-religious students. It did not, however, clearly vindicate the equality principle in doing so.

Of course in Widmar the real issue was not a free speech issue under the federal Constitution, but rather equal rights of religion and speech issue under the Missouri Constitution. The same applies to Lamb’s Chapel under the New York Constitution. And in Mergens the controlling issue was rather whether Congress has the Constitutional power under the enumerated powers doctrine to legislate the Equal Access Act pertaining to educational access in the states. This power is unlikely since Congressional power to interfere with or fund education within the states is historically prohibited.¹³⁴

Equal access to non-educational public places has also been an issue. In Board of Trustees v. McCreary,¹³⁵ a privately financed nativity scene was displayed in a public park. This arrangement was objected to on grounds of violating the establishment clause even though no federal law, land or punishment was involved. An equally divided Court, however, let stand the second circuit’s opinion which upheld expression of religious ideas in a public park. The appeals court found that the creche presented no establishment clause violation. This was not a typical nativity scene case since it involved equal access to public property and the right to express one’s religious opinions. Just because the content was religious, the equal civil capacities of the speaker could not be diminished or adversely affected.¹³⁶

The same rule of equality also illuminated the Court’s decision in Board of Airport Commissioners of Los Angeles v. Jews for Jesus.¹³⁷ The Court was faced with an airport wide ban of “all first amendment activity at Los Angeles International Airport.” The Court ruled that the ban was facially unconstitutional according to the overbreadth doctrine. The ban was challenged by “Jews for Jesus,” an organization which distributed religious tracts—speech banned by the Airport. The Court’s holding recognized that all speech could not be banned whether it was religious or otherwise. Again, just because the content was religious, the equal civil capacities of the speaker could not be diminished or adversely affected.

The Court in McCreary and Jews for Jesus showed more confidence, however, with the content neutral free speech argument, which itself is an expression of the equality principle, than it did with any religious theory, or the principle that the first amendment only applies to Congressional and not state provisions, or the principle it should have recognized—that religious expression does not reduce a person’s civil capacities.

In International Society for Krishna Consciousness, Inc. v. Lee,¹³⁸ however, the Court ruled that airports were not traditionally public forums for speech. It stated that restrictions on speech in nonpublic fora are valid only if they are “reasonable” and “not an effort to suppress expression merely because public officials oppose the speaker’s view.”¹³⁹ Since the owner of the airport, the Port Authority, concluded that its interest in monitoring airport activities could be accomplished by limiting solicitation and distribution to the sidewalk areas outside the terminals, the Court found the ban to be less than a complete ban and also a reasonable ban. Since the Authority did not adopt the restrictions in an effort to suppress expression, because it may have opposed the religious speaker’s view the court upheld the restrictions.

This case indicates that just because the content of speech is religious, the speaker has no more right to speak than if the content were not religious. This is a correct conclusion based on the principle of equality — that religious belief neither expands or contracts civil capacities. However, the equally enjoyed civil capacities—the solicitation and distribution on the sidewalk areas outside the terminals– is not much of a right. But equality is not the whole story.

As far as application of the first amendment is concerned, the Port Authority of New York and New Jersey, which owns and operates the airports in the New York City area and controls certain terminal areas at the airports and which adopted the regulation, is certainly not the Congress and its regulations are clearly not federal statutes. This case should have been brought in State Court and plead under the Constitution of New York. Article 1, Section 3 states that:

The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.

Notice the equality principle embedded in this section—”without discrimination or preference.” What does it mean to enjoy religious profession without discrimination or preference? It means that religious belief neither expands or contracts civil capacities. It is the same bedrock principle. Or consider Article 1, Section 8. It states that:

Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.

When the Port Authority of New York and New Jersey, which owns and operates the airports and controls certain terminal areas at the airports, adopted a regulation forbidding, inter alia, the repetitive solicitation of money within the terminals, it passed a law. And when the police superintendent of the Port Authority of New York who was charged with enforcing the regulation at issue, did so against the petitioners, he enforced a law. And the law which he enforced was a law which restrained the right of citizens to “freely speak . . . sentiment on all subjects” including the solicitation of money within the terminals. There is no doubt that the regulation at issue violated the Constitution of the State of New York and that the case should not have been decided by the U.S. Court on first amendment grounds, but rather by a New York Court on its own Constitutional terms.

b) Equal Access to Benefits

The Court’s tendency to defend the equality principle in the context of content neutral speech or expression found a more muted adaptation in situations where speech is not involved. In Witters v. Washington Department of Social Services for the Blind,¹⁴⁰ the petitioner Witters applied for Washington state rehabilitation benefits because of his blindness. He sought to apply the rehabilitation benefits he would receive from the state to pay tuition at a Christian Seminary. The State of Washington, however, denied him the benefits arguing that the use of the money would improperly advance religion in violation of the first amendment.

The Supreme Court disagreed, holding that Witters was entitled to state benefits the same as any other individual who meets the state’s standards for vocational rehabilitation benefits. In light of the principle of equality, if the state allowed individuals to obtain benefits¹⁴¹ because they are legally blind, then Witters could not be singled out simply because he used those benefits to further his religious training. To single him out on that basis would have wrongfully reduced his civil capacities because of his association with a religious seminary.

In Zobrest v. Catalina Foothill School District,¹⁴² the Court was petitioned to reverse a lower court’s ruling that provision of an Arizona financed sign language interpreter for deaf children who attend a religious school, violated the establishment clause. The school district refused to provide a sign-language interpreter to accompany the child to classes. The petitioner alleged that the Individuals with Disabilities Education Act (IDEA) and the Free Exercise Cause of the First Amendment required the school district to provide the interpreter, and that the Establishment Clause did not bar such relief. The Court stated the touchstone for its analysis: “[W]e have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit.”¹⁴³ Consequently, the Court upheld the Arizona statute.

In Zobrest, the issue should have been at least considered as to whether any state financed educational venture, such as Arizona’s disability act legislation, violates the unalienable rights of parents as defined under Arizona law, to financially support only those educational objects which they would make their own and not be forced to support any other. Here, Arizonians were compelled to pay for educational services rendered to others, irrespective of their consent. Zobrest’s parents demanded that their taxpaying neighbors be compelled to support the education of their deaf child because the state compelled them to support the education of their neighbor’s children in turn.

Perhaps Article 2, section 33 of Arizona’s Constitution is a sufficient declaration of a parent’s unalienable right? It states that “[t]he enumeration in this Constitution of certain rights shall not be construed to deny others retained by the people.” Or perhaps Article 2, Section 12 would lead to the contrary result? It states in part that”[n]o public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.” Was money applied to religious instruction or just to instruction generally? But if no Arizona Constitutional provision can be fairly said to contemplate or generally support a parents right, then the principle of equality would control as it did.

Under an equality analysis—the rule of which is that religious belief neither expands or contracts one’s civil capacities—Zobrest would be entitled to equally participate in a government program that neutrally provide benefits to a broad class of citizens defined without reference to religion. As in Witters, the equality principle requires that the state not diminish the equal rights of its citizens based on their religious belief or association. What is troubling is that the Court failed to articulate the root equality principle. Virginia stated the rule. It declared that “No man shall . . . be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities.”¹⁴⁴ This meaning was built into the First Amendment, yet the Court invokes a neutrality rationale instead.

Widmar, Mergens, Lamb’s Chapel, McCreary, Jews for Jesus, International Society for Krishna Consciousness, Inc. v. Lee, Witters and Zobrest were all decided according to various free speech, free exercise and establishment clause legal rationales. They could have all been much more clearly decided on the legal principle of civil equality—that opinion or conduct should not diminish equal civil rights or capacities. Many of these cases could have been decided with reference to the state constitutional expression of equality such as in Widmar under Missouri law, International Society for Krishna Consciousness, Inc. v. Lee under New York law,¹⁴⁵ Zobrest under Arizona law, and Lamb’s Chapel under New York law.

The legal basis for the state constitutional resolution would be far superior to the contrived pretextual basis of incorporation under Cantwell. Thus, to the extent the equality principle is embodied in state constitutional provisions, a state is precluded from expanding or contracting the civil rights of its citizens based on their religious belief. But to the extent that a Congressional statute passes muster under the enumerated powers doctrine, then it appears that the first amendment’s religion clauses and the content-neutral species of the free speech clause will have to carry water for the equality principle to bar or sustain legislation that expands or diminishes a person’s equal civil capacities.¹⁴⁶

3. LITIGATING ACCORDING TO THE PREFERENTIAL RATIONALE

a) Unemployment Compensation and Rejection of the Equality Principle

Several unemployment compensation cases have come to the Court’s attention based on a variety of state unemployment compensation schemes. There is no unalienable or federal Constitutional right to obtain unemployment compensation and no state must adopt such a program unless its own state constitution requires that result.¹⁴⁷

Like government regulation of education, the idea of the civil government “compensating” a person during periods of temporary unemployment is a relatively recent phenomenon. The use of the term “compensation” carries along with it the idea of earnings or wages for work performed. Strictly speaking this is a misnomer since the concept of compensation is generally based on contractual obligations and its corresponding legal obligation or duty to pay or compensate.

The relationship between the civil government and the unemployed individual, however, is not one defined by contract related concepts. In actuality that relationship is better characterized as one pertaining to works of mercy, benevolence and charity. The civil government “compensates” the unemployed because it is a charitable thing to do. Historically, works of mercy, benevolence and charity were not undertaken by the civil government. These undertakings were moral obligations incumbent upon families and ecclesiastical institutions. Though these institutions nevertheless continue to operate in this arena, it is the civil government which now dominates the field.

While it is beyond the scope of this Article to elaborate upon the moral obligation of families and religious institutions to undertake works of mercy, benevolence and charity, it is appropriate to raise two questions for further consideration. The first is whether the unalienable rights given by God to all human beings, includes the right to freely give of one’s resources to another in the latter’s time of need such as a period of temporary unemployment. The second question is whether by the law of nature and of nature’s God, the right to freely give, falls exclusively under the jurisdiction of families and religious institutions, or whether these matters are also the fit objects of civil government.¹⁴⁸

If works of charity are not within the jurisdiction of civil government under the laws of nature, then the security of the unalienable right of an individual to freely and voluntarily give to such endeavors is violated when the civil government coerces its citizens to “give” through its tax system. To the extent the people are taxed and to the extent that those monies go to works of charity such as unemployment compensation, that individual is deprived of his or her unalienable right to give freely to those persons or charities and only those persons or charities that the individual deems are worthy of his or her support. This argument is not anti-tax for it assumes that the civil government has the power to tax. It questions, however, the notion that the civil government has the power to tax and spend to further the jurisdictional objects of private or ecclesiastical beneficence.

It is the obligation of the courts to examine unemployment compensation laws in this light and determine whether the right to freely give is unalienable and if so, whether the right has been identified by the state legislature and only then, determine if the right is contravened by unemployment compensation laws. With these caveats in mind, examination of the following cases in light of the principle of equality bears out some interesting results.

In Thomas v. Review Board,¹⁴⁹ the Court was faced with the claim of a Jehovah’s witness who was scheduled to work in the production of military equipment after his former assignment was legitimately eliminated by his employer. Thomas refused and applied for unemployment compensation. He claimed that his refusal to work was motivated by his religious beliefs. When he applied for unemployment compensation, he was denied benefits since he quit his job voluntarily. The state of Indiana did not consider voluntary termination a “good cause” that, under the statute would trigger compensation. Benefits were only available to those who could not work, for good cause as defined in the statute. The Court, however, held that “good cause” could include quitting the job where motivated by religious belief.

In light of the equality principle, this conclusion presents problems. Setting aside for the time being the problem of a state law being judged by a Constitutional limitation on Congressional power, and ignoring the a priori issue of the propriety of the state engaging in works of charity and philanthropy, the question becomes one of whether Thomas was treated the same as others receiving unemployment compensation or whether he was treated differently because of his religious beliefs. If the state statute allowed individuals to obtain benefits because they would not work based on belief, then Thomas would be entitled to benefits because of his beliefs. The state, however, would be required to provide benefits to all those who would not work because of their beliefs, irrespective of whether those beliefs were religious or otherwise. The state however, chose not to extend benefits to persons who quit their job on the basis of belief at all.

The Court, however, expanded Thomas’ civil capacities based on his religious beliefs. In doing so, the Court ran roughshod over the idea that religious belief ought not expand or diminish a man’s civil capacities. Thomas’ beliefs entitled him to special treatment not accorded to others who have non-religions beliefs that lead them to quit.

The same rationale would also apply in Hobbie v. Unemployment Appeals Commission.¹⁵⁰ In that case, the Court upheld entitlement to unemployment benefits under Florida law where the applicant had become a Seventh Day Adventist. The Adventist religion prohibits work on Friday which they consider the Sabbath. The applicant refused to work on that day and was consequently discharged. After Hobbie was fired, she sought unemployment compensation but was denied benefits because her refusal to work on Fridays was not considered “unemployment through no fault of” her own as required by Florida law. The Supreme Court, however, held that Hobbie was entitled to unemployment benefits and to deny her the same would be an infringement of the free exercise of religion.

Like Thomas, the Hobbie case allows individuals who elect not to work because of religious belief to obtain unemployment benefits. Any other person, however, who elects not to work on a given day because of any other reason is denied unemployment benefits. These decisions wrongfully expand the civil capacities of some based on their religious belief and consequently contravene the principle that religious belief neither expands or contracts civil capacities. In Frazee v. Unemployment Compensation Commission,¹⁵¹ the Court drew the same conclusion. In Frazee an employee whose personal religious convictions forbid working on Sunday, was entitled to unemployment compensation. Other employees who had convictions against working on any given day (or working at all) were not treated the same.

b) Employment Division v. Smith: Equality Revisited

In Employment Division, Department of Human Resources of Oregon v. Smith,¹⁵² however, the Court rejected the unemployment compensation claim of an American Indian who was discharged from employment for the use of drugs. The use of an hallucinogenic herb (peyote) was part of Smith’s religious ceremony. The use of peyote was also criminal in Oregon. Smith contested a state law which denied unemployment compensation benefits to an individual discharged for the use of certain controlled substances including hallucinogenic herbs such as peyote. The state denied unemployment compensation benefits to individuals discharged for the illegal use of controlled substances. The Court rejected Smith’s plea to, in effect, increase his civil capacities by reason of his religious beliefs and therefore dismissed his free exercise claim.

Again, ignoring the fact that no Congressional statute is involved and therefore the first amendment is irrelevant, and recognizing that the case should have been decided under Oregon’s Constitutional provisions pertaining to religion and equality, the Smith case from an unemployment compensation and from a free exercise point of view, signals a departure from Thomas and Hobbie and even Cantwell itself. From the standpoint of the power of government to restrict religious practices, however, the decision has a wider effect.

(i) The Historical Test of Constitutionality and Reynolds v. United States

Prior to Smith, when the government sought to restrict religious practices directly, the Court examined the history and circumstances surrounding the adoption of the free exercise clause. This history has already been examined elsewhere in this Article in much detail. Previously discussed were the critical underpinnings of recognizing God as the Creator, the impact of that recognition on requiring oaths and prohibiting religious tests and as a point of inquiry, regarding a determination of which rights are given by the Creator and are thereby unalienable.¹⁵³

Nevertheless, it is important to now interject some background regarding the Court’s: 1) early recognition of these underpinnings in its case decision of Reynolds v. United States¹⁵⁴ and its subsequent abandonment of this foundation through; 2) erection of the sincerely held/compelling state interest test announced in Cantwell v. Connecticut¹⁵⁵; and 3) imposition of further limitations on the scope of which sincerely held beliefs will warrant application of the compelling state interest test in Employment Division, Department of Human Resources of Oregon v. Smith.¹⁵⁶ The history of the First Amendment and these three cases are watersheds in the development and decline of Constitutional law.

The test was well stated in Reynolds v. United States as such:

The word “religion” is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is what is the religious freedom which has been guaranteed.¹⁵⁷

Then going back into the history of its adoption, the Court took care to recognize that religion was defined as a duty which is owed to the Creator, not a sincerely held religious belief. It observed that:

Amongst others, Mr. Madison prepared a “Memorial and Remonstrance,” which was widely circulated and signed, and in which he demonstrated “that religion, or the duty we owe the Creator,” was not within the cognizance of civil government. Semple’s Virginia Baptists, Appendix. At the next session, the proposed bill was not only defeated, but another, “for establishing religious freedom,” drafted by Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298. In the preamble of this act (12 Hening’s Stat. 84) religious freedom is defined . . . .¹⁵⁸

After laying this foundation, defining religion in terms of a duty owed to the Creator (and rejecting Reynold’s claim that his religious belief ought to trump the Utah territory’s prohibition on polygamy), the Court then zeroed in on the essence of its historical inquiry. It did not balance Reynold’s admittedly sincere religious belief against the Utah territory’s legislative interest as it would later do in Cantwell. It did not ask if the interest was compelling as it would later ask in Cantwell. It did not discuss the least restrictive means as it would later demand in Cantwell. Nor did it ask if Utah’s law imposed a direct or indirect regulation on Reynold’s. The Reynold’s Court actually wanted to understand what the framers and founders meant, rather than fancy itself as the framers and founders itself.

What the Court did do was to quote Virginia’s Statute for Religious Liberty written by Thomas Jefferson. It confirmed:

to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty, [but] that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.¹⁵⁹

“In these two sentences” declares the Court “is found the true distinction between what properly belongs to the church and what to the State.”¹⁶⁰ Unfortunately, such sentences, however, would play no meaningful role is Cantwell or Smith.

In other words, if Religion is being exercised–if a man is rendering a duty to the Creator–then the government’s interest, whatever it may be, is simply irrelevant. The government may only intervene when Religion is not being exercised—when a duty to the Creator is not involved (or when some other inalienable right is not at issue). Then the government’s interest, compelling or otherwise is sustained. Thus, Reynold’s acts were not regarded as Religion. Polygamy was not so regarded because historically is was not so regarded.¹⁶¹

(ii) The Historical Test of Constitutionality and the Defects of History

Now perhaps you are wondering, “What if history is wrong? What if the historical understanding has not kept pace with our enlightened understanding of religion? Then wouldn’t use of this Creator/Religion/Historical test produce unjust results?” Well that is a good question and one the framers thought about. The rule of construction and interpretation has already been given:

The word “religion” is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted.¹⁶²

If indeed the Constitution, its meaning and protections are behind the times, the remedy for this ailment is to amend through Article V the provision which needs updating. Then the Court, when construing the updated provision, may “ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was [amended] or adopted.” So if history is wrong, then amend the Constitution through the specific constitutional means provided therein, to establish a clearer understanding of what is right and let the Court construe accordingly.¹⁶³

Of course there will always be a Justice or two (or nine) who argue they are better suited to adjust the historical practices to the living constitution simply because they are Justices. We have no living Constitution in this sense. What we have is a Constitution based on the rule of law. Listen to the dissenters, however, rally around their own wisdom.

Certainly, our decisions reflect the fact that an awareness of historical practice often can provide a useful guide in interpreting the abstract language of the Establishment Clause. See, e.g., Walz v. Tax Comm’n, 397 U.S. at 676-680; McGowan v. Maryland, 366 U.S. at 431-445; Engel, 370 U.S. at 425-429. But historical acceptance of a particular practice alone is never sufficient to justify a challenged governmental action, since, as the Court has rightly observed, “no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.” Walz, supra, at 678. See also Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. at 792. Attention to the details of history should not blind us to the cardinal purposes of the Establishment Clause, nor limit our central inquiry in these cases — whether the challenged practices “threaten those consequences which the Framers deeply feared.” Abington School Dist. v. Schempp, 374 U.S. at 236 (BRENNAN, J., concurring).¹⁶⁴

Notice the absence of a thoughtful discussion of the role of the People in changing the Constitution to fit the times. Present is only the self-serving backhanded charge that the clause is “abstract,” that rights guaranteed in 1776, 1788 and in 1791 are not “vested,”and that the framers secretly feared that which they openly embraced. The implementation of such legal assumptions in subsequent case decisions is a textbook example of a Constitutionally impeachable offense committed by the Justices.

(iii) The Historical test of Constitutionality eroded by Cantwell v. Connecticut

The historical/unalienable rights test of the Constitution as expressed by Reynolds lasted until the Court’s decision in Cantwell v. Connecticut. Cantwell made up a test that required the government to show that restrictions on religion were constitutionally acceptable only where they do not “unduly . . . infringe the protected freedom.” The interest of the state was balanced against the religious right of an individual with the scales generally tipping toward the rights of the individual. States have generally had a difficult time in justifying direct restrictions on religious practices under this test since part of the state’s burden was to show that it was unable to meet its legislative objectives in a way that impose the least restriction on the exercise of religious rights.

However, when Cantwell refers to religion, it is not possessed of the same meaning as when the Constitution or Reynolds refers to religion. Moreover, when Cantwell refers to action being limited, it does so in a different context than when the framers and Reynolds refer to conduct. These differences are real and palpable and change the meaning while keeping the words. This is the scam.

As previously examined, Reynolds defined religion as the framers defined it: “that religion, or the duty we owe the Creator.”¹⁶⁵ Cantwell approached religion without reference to a “Creator” or “duties” owed. These terms appear nowhere in the opinion. The Cantwell Court stated:

Thus, the Amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.¹⁶⁶

For Cantwell, religion is freedom to believe and the freedom to act out one’s beliefs. For Reynolds, religion is freedom to believe and freedom to act out those duties owed to the Creator. The difference is that no Creator is necessary to figure out what duties are owed in the first instance, while a Creator and duties are necessary in the second. When it comes down to it, the free exercise of religion without a Creator is a legal non-sequiter. It is simply the practice of practical atheism. The justices are practicing their practical atheism on the American people.

The difference is not over belief versus action. That the state has a limited jurisdiction over certain actions is a given. “Is time enough” wrote Jefferson, “for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.”¹⁶⁷ This is the same principle as Cantwell’s recognition that “conduct remains subject to regulation for the protection of society.” The key is rather that the Creator was declared not essential to a legal analysis of religion.

Cantwell also rewrote the First Amendment and applied it to the states through the Fourteenth Amendment.¹⁶⁸ This subject—the incorporation doctrine– has been dealt with elsewhere.¹⁶⁹

Finally, Palko v. Connecticut¹⁷⁰ decided three years earlier had already eroded the bedrock principle that the free exercise of religion was an unalienable right. Instead, the Court discussed it as a fundamental right or fundamental liberty.

When we are dealing with the Constitution of the United States, and, more particularly, with the great safeguards of the Bill of Rights, we are dealing with principles of liberty and justice “so rooted in the traditions and conscience of our people as to be ranked as fundamental” — something without which “a fair and enlightened system of justice would be impossible.” Palko v. Connecticut, 302 U.S. 319, 325.

And where did this language “so rooted in the traditions and conscience of our people as to be ranked as fundamental” actually come from? To what did it originally refer? It came from Snyder v. Massachusetts, wherein the Court, referring to procedural rules affecting state court trials as posing Fourteenth Amendment due process concerns, stated:

The Commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless, in so doing, it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.¹⁷¹

The idea of ranking the Bill of Rights guarantees as fundamental was concocted from dicta about state trial procedures. That is the illustrious foundational history of “fundamental rights.” The fundamental fairness concept of due process was misapplied to rights—i.e., fundamental rights/fundamental liberties. Thus, when Cantwell comes along, it is quite natural for the Court to observe that “the fundamental concept of liberty embodied in the Fourteenth Amendment embraces the liberties guaranteed by the First Amendment.” One thing is clear—gibberish is easier to articulate than the rule of law.

With this background in mind, let us now examine what really happened in Smith which was meaningful. Recall the Court’s working principles going into Smith—the free exercise of religion needs no Creator; history does not control, need not inform and in fact can be set aside by the Court; and with no Creator unalienable rights must fall thus leaving only fundamental judicially balanced rights. Recall how these principles contradicted the Constitution’s original intention itself–the free exercise of religion presupposes the Creator; history gives weight to meaning but does not control, but if it is to be set aside it should by the will of the people through the amendment process; and with the Creator unalienable rights exist and trump all suppression thereof by the legislature.

Turning to Smith, the case did not change the “compelling state interest” test in situations where the government seeks to restrict religious practices directly. The state must still show a compelling interest that outweighs the religious right being restricted. The Smith decision, however, did change the test as it applies to generally applicable laws that incidentally forbid or require conduct that is contrary to a religious practice. In effect, the Court lowered the level of justification that a state must demonstrate before it can begin to restrict facially neutral practices which may incidentally affect religious conduct.

Under Smith, generally applicable laws are presumed valid if the state can demonstrate a mere rational basis for the legislation. The Court said that when the legislature passes a law which is generally applicable and doesn’t single out religion specifically, (though it may impact religious conduct or religiously motivated conduct) then that law will not violate the first amendment free exercise clause if it has a rational basis for its enactment. Such a law can also be enforced if it is otherwise consistent with the federal Constitution and does not transgress the state’s constitution. Of course, a state law that survives federal review may still violate a state constitutional guarantee. One effect, therefore, of the Court’s Smith test is to throw free exercise litigation back into state courts deciding the matter under state law, provided that the Plaintiff’s attorney understands he or she must first plead that provision. Smith is a backhanded and indirect un-incorporation case, tending to redirect in a primitive sort of way, the flow of indirect religious regulation litigation back to the states.

Some commentators and religious leaders have viewed Smith as a dangerous precedent since the Supreme Court lowered the standard of review to a rational basis test when otherwise valid laws are objected to or sought to be exempted from application by virtue of one’s religion. Real danger, however, does not come from lowering the standard when the new standard is equality. Equality is the correct standard in situations where generally applicable laws incidently affect religion. It is the correct standard, however, only where such laws are themselves consistent with the laws of nature and of nature’s God, and to the extent civil jurisdiction and legislative power are otherwise Constitutional.

There are, however, real dangers which are not recognized. The first is that the Court will continue to apply, and religious leaders will continue to advocate, that the “compelling state interest” test should be invoked and applied to laws which seek to directly restrict religious practices. The danger is that the unalienable right to the free exercise of religion will continue to be regarded as merely fundamental. The danger is that a right which is unalienable and therefore not subject to any balancing whatsoever, is still treated as if it were alienable when the state’s interest is compelling, and thus is regarded as either the weak right of religious toleration or capable of being balanced into oblivion.

Why do religious advocacy organizations such as the Christian Legal Society for instance, continue to insist on less protection from state interference than that which an assertion of unalienable rights would provide? Is it lack of understanding, fear of losing or fuzzy bits and pieces thinking? The Court itself can cite to no credible evidence that permits it to engage in balancing of unalienable rights. It is only able to muster the argument that freedom to act cannot be absolute because the Court itself has said so in previous cases where unalienable rights were not at issue.¹⁷²

Another very real danger which exists is that the rule of equality may be applied to laws which violate the unalienable rights of all persons, not just persons claiming a religious based right. Where the law is equally onerous to all persons in that everyone’s unalienable rights are violated, and the law also has an incidental affect on religious practice or religiously motivated practice, the danger exists that emphasis on the religious practice will overshadow the unalienable rights issue.

For instance, elaborate judicial and legislative arguments may be invoked to protect, what in effect constitutes special preferences or exemptions from otherwise generally applicable laws affecting religious conduct. This is a danger because it will tend to defeat the legitimate though unrefined rule of equality laid down by the Court in Smith.

An example of this well intentioned but self-defeating view is found in “The Religious Freedom Restoration Act. (RFRA)”¹⁷³ The Act legislatively attempted to “overturn” the Smith rationale and codify balancing the state’s interest in facially neutral legislation with an incidental or indirect affect on religion, against a petitioner’s free exercise of religion claim.¹⁷⁴ The codification of the compelling state interest test is perhaps the Act’s most misguided feature because support of balancing is a direct denial that God-given unalienable rights are really unalienable. That religious organizations can advocate or support the codification of the denial of unalienable rights says little about their understanding of the overshadowing principles raised in the previous sections of this Article. It also suggests a lack of understanding about the source of law itself codified in the Declaration of Independence.

However, the Supreme Court struck down the Act in City of Boerne v. Flores.¹⁷⁵ In Boerne, the respondent, the Catholic Archbishop of San Antonio applied for a building permit to enlarge a church in Boerne, Texas. When local zoning authorities denied the permit, relying on an ordinance governing historic preservation in a district which they argued included the church, the Archbishop brought his suit challenging the permit denial under, inter alia, the Religious Freedom Restoration Act of 1993. This is a classic case of a claim that religion ought to expand one’s civil capacities. This line of cases met with doom in Smith and also met its Waterloo in Boerne.

In imposing RFRA’s requirements on the States, Congress relied on the Fourteenth Amendment, which, inter alia, guarantees that no State shall make or enforce any law depriving any person of “life, liberty, or property, without due process of law,” or denying any person the “equal protection of the laws,” and empowers Congress under section 5 of the Amendment “to enforce” those guarantees by “appropriate legislation.” The Court held that although Congress can enact legislation enforcing the constitutional right to the free exercise of religion, its section 5 power “to enforce” the first amendment is only preventive or “remedial.” The Court reasoned that the Fourteenth Amendment’s design and section 5’s text are inconsistent with any suggestion that Congress has the power to decree the substance of the First Amendment’s restrictions on the States.

The Court wrote that:

The “provisions of this article,” to which § 5 refers, include the Due Process Clause of the Fourteenth Amendment. Congress’ power to enforce the Free Exercise Clause follows from our holding in Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), that the “fundamental concept of liberty embodied in [the Fourteenth Amendment’s Due Process Clause] embraces the liberties guaranteed by the First Amendment.”¹⁷⁶

As we have seen the Supreme Court’s source of authority in Cantwell is nothing less than an unsupported assertion that “The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.”¹⁷⁷ What is this “concept of liberty?” Is it the liberty which all persons enjoy in the form of unalienable rights? Is it the liberty which the Creator has extended to all persons? No. Is the Court referring to liberty implicated in a duty owed to the Creator? No. The Court does not discuss the matter with this view in mind. It has no understanding of such concepts or ideas. It states instead its own gospel of belief versus action without the need to discuss duties to one’s Creator.

Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.¹⁷⁸

If a right is unalienable, however, it cannot be duly infringed, balanced or reduced to mere toleration, unduly or otherwise. No, the Court is not talking about freedom of religion as an unalienable right. It is discussing the “right” as something which may be regulated under certain conditions. And what are those conditions? Are they the conditions which the Reynold’s Court noted when it said:

The word “religion” is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is what is the religious freedom which has been guaranteed.¹⁷⁹

Is the Court saying we must go back to the history of the times when the clause was adopted to determine if the regulation or statute at issue is of a kind that the framers regarded as constitutional or not? No. The Court is simply setting up a balancing test free from the historical context.

Having laid this new foundation, the Court then lectures Congress about why it lacks any such power. The Court postures:

Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].¹⁸⁰

In other words, if Congress can change the scope of a Constitutional right by changing what it means, it would not be enforcing the right or the Fourteenth Amendment as it is written. Now this is quite an accurate statement. Indeed, Congress cannot change the meaning of the First or Fourteenth Amendment by legislation. It cannot change what is written. But what is actually written? Does the Fourteenth Amendment due process clause refer to “the fundamental concept of liberty?” Is that written in the amendment? No. Nor is this concept “embodied in that Amendment.” Does the Amendment specifically embrace “the liberties guaranteed by the First Amendment?” Of course not. None of this is specifically written or even implied. The Court’s reasoning is good, but its application of that reasoning is myopic—it only extends it to Congress, not to itself. The Court refuses to see that it too is as subject to the text of the Constitution as Congress.

Is “duplicity” the right word to describe what is going on? Or perhaps the Justices simply do not understand what they are doing? It is perhaps likely that being educated in American ABA approved law schools has not helped them to see this point. Or perhaps they now know that they are as subject to the Constitution as Congress because they have been told so, and the real problem is one of their will, not of their knowledge. Let us put the Court’s umbrage against Congress in context. Let us rewrite the Court’s learned opinion but change the players. If there is a Constitutional principle here, it is equally applicable to Congress as the Court. Thus:

A Judicial Opinion which alters the meaning of the Free Exercise Clause cannot be said to be interpreting the Clause. The Court does not enforce a constitutional right by changing what the right is. It has been given the power “to interprete,” not the power to rewrite what constitutes a constitutional violation. Were it not so, what the Court would be interpreting would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”

If Congress cannot can change the scope of a Constitutional right by changing what it means, neither can the Court. Nor can the Court alter the Constitution’s meaning by judicial interpretation or construction. It is morally hypocritical, even willfully duplicitous for the Court to claim they are doing otherwise. Constitutionally speaking such an expansive approach to the Constitutional limits on judicial power fails the Article III, section 1 “good behavior” requirement and should trigger appropriate Congressional review and impeachment under article I, section 3, clauses 6 & 7.¹⁸¹

RFRA was an effort by Congress to change the meaning of the First Amendment from one which protected unalienable rights to one which protected only fundamental rights which could be balanced. Cantwell was an equally offensive effort by the Court to change the meaning of the First Amendment Religion clause from one which protected unalienable rights to one which protected only fundamental rights of action or conduct which could then be legislatively balanced. In Boerne, the pot calls the kettle black.

Congress also unconstitutionally used Article 5 to try and expand its power contrary to the Fourteenth Amendment’s actual text limiting Congressional power to “enforce[ment]” authority. The Court, however, is also guilty of the same offense. It used the Amendment’s due process clause as a pretext to further expand its power of judicial review into the power of judicial supremacy, contrary to that Amendment’s text which says nothing about application of the first amendment to the states or the “fundamental concept of ordered liberty.” Both Cantwell and RFRA are unconstitutional. Cantwell is an unconstitutional judicial decision and RFRA an unconstitutional Congressional statute. Neither branch is above the law of the land.

c) Employment Division v. Smith: Unalienable Rights and Jurisdiction Revisited

When these types of cases go back to the states and the state constitutions, the legislature and the state courts should not miss the opportunity to eyeball them through the lens of unalienable rights and the jurisdiction extended to them under the law of nature. From the standpoint of unalienable rights, there is no right to do wrong. If the use of hallucinogenic drugs is wrong according to the law of nature and of nature’s God, and that fact is recognized by the legislature in a statute to that effect, then no unalienable right to use an hallucinogenic herb exists. On the other hand, if the use of hallucinogenic herbs is not wrong according to the law of nature and of nature’s God, but that fact is not recognized by the legislature, then an unalienable right to use hallucinogenic herbs may exists and be trampled down by that law.

Clearly there is more here than meets the eye. The use or possession of narcotics or drugs (or alcohol for that matter) is not contrary to the law of nature. No Biblical injunction can be found to condemn such use or possession. The use of alcohol as a recreational drug is simply not condemned, only those who abuse alcohol or strong drink are condemned. The same can be noted for drugs, whether labeled “over the counter,” “by prescription” or as “controlled substances.” The use of drugs by whatever label is not condemned, only those who abuse drugs are condemned. The best argument that can be put forward to the contrary is when alcohol or drugs are employed to produce a stupor or trance intended to move one to a heightened state of consciousness or even spiritual connection with something transcendent, as Mr. Smith sought with his use of peyote. In such a case said use is contrary to law of nature’s prohibition on false worship. It violates the command that one ought not worship any false gods, but only the one true God.¹⁸² But this does not settle the question.

Having discussed the question of drug use from the point of view of right and wrong, the critical question of jurisdiction is not far behind. What authority or jurisdiction does the law of nature extend to any civil government to punish in a criminal court, or treat differently in terms of civil benefits or liabilities, a person such as Smith, who so worships contrary to the law of nature? In fact, in very plain fact, the law of nature extends no such jurisdiction to civil government to criminalize either the possession or use of alcohol (including communion wine) or the possession or use of narcotics. Nor does it empower civil governments with any jurisdiction to treat persons differently in terms of civil benefits or liabilities based on their possession or use of such matters.

This means that state and federal laws, past and present, whether in the days of prohibition and or in modern times dealing with controlled substances, have no basis in the law of nature. Their enactment and enforcement is undertaken contrary thereto. Of course, nothing in this discussion excuses use of alcohol or drugs which injure another. Such injuries ought to be treated like any other tort. They are no different in law than injury produced in any other fashion such as use of a motor vehicle which injures another, either intentionally or negligently.

It should also be noted that while the great mass of modern Constitutional, criminal, civil and regulatory laws surrounding possession and use of alcohol and drugs (excluding taxation on transfers or sales) are contrary to the laws of nature, federal courts do not enjoy a general jurisdiction to articulate and apply the law of nature as a basis to strike them down. Nor do state courts enjoy such a jurisdiction unless a state constitutional provision extends them that scope of review. The remedy for correcting the wrong lies rather with the legislatures of the several states.

Having said all this, the objections must be flowing in the readers’ mind. “How can we use the Bible as a guide in understanding the law of nature?” “That is just your interpretation.” “Do you want the Supreme Court pronouncing what is orthodox as a matter of First Amendment or Constitutional Law?” “Don’t you know that drugs are bad and rot the moral fiber of the user and the Country?”

In answer, all law has to have some source or sources. In the American system, the framers and founders made the decision to base American law on the “laws of nature and of nature’s God.” Until the Declaration is wiped from the pages of our American history and the law of nature and nature’s God is dethroned by the American people acting by their representatives in lawful convention, it remains the steady and sure source of American law. Those who say otherwise, speak and act against the strong legal presumption that this dually expressed single source of law shall be relied upon by the civil government in all of its branches. He who likes it not, may change it by a lawful revolution, but not by Constitutional interpretative judicial fraud.

The law of nature is expressed in nature itself and in the Bible. Without this dually expressed single source of law, to what other sources would the legislature turn—their own writings called statutes and regulations, the private writings of learned scholars from antiquity, or better yet, the opinion polls of the people? Ought these evolving views be our sources of law and not those which claim a fixed, uniform and universal applicability such as the law of nature? How can we use a source which is no more than our own imaginations and experience written down in a statute book or a treatise which has no other foundation? Are not these “sources” just someone else’s interpretation? Do we want the Supreme Court pronouncing what is orthodox as a matter of First Amendment or Constitutional Law, based on such sources, allowing the Court unfettered freedom to roam among these writings and their own opinions as the source of American law? This would make the Court supreme in all matters of law and answerable to none, not to the Declaration and not to the Constitution itself. This approach ought to frighten every free person and send him or her running to the laws of nature and nature’s God for a standard by which the civil governments in this land can be restrained, or simply to find a safe haven from arbitrary and lawless governance.

If one is concerned about interpretation, then all sources should be excluded. If one is concerned about the hegemony of orthodoxy, then legislation based on opinion polls should raise greater concerns about the divinity of arbitrary civil law. What is a federal court but a single branch of a national government established pursuant to that law, a branch whose legitimacy and very existence is indebted to a Constitutional Article which came into existence solely by reason of that very basis of American law. Let him who has issue with the legal authority of the Declaration of Independence and its recognition that the laws of nature and nature’s God is the source of American law step forward and persuade Americans why other sources of law are more worthy of our national obedience. Let them demonstrate from history the superiority of their sources of law in creating a free civil society. Let them persuade Americans if they can, that the sources of law emanating from their dissenting hand are worthy of American blood, of American life, fortune and sacred honor. But we ought not let them put the law of nature away quietly with J.D. or Ph.D. credentialed smug ignorance.

d) Organizational Claims to Preferential Treatment because of Religious Mission

The Court, however, was more consistent with the principle of equality in several other cases, rebuffing a variety of religious organizations which sought to increase their civil capacities or decrease their civil obligations. Thus in Heffron v. International Society for Krishna Consciousness, Inc.,¹⁸³ the Court rejected the petitioner’s plea to increase its civil capacities because of its religious choices. Petitioners sought an exemption from a Minnesota state rule governing the operation of state fairs which restricted the sale or free distribution of literature, merchandise and books to licensed booths. The rule did not prevent verbal communication of any organization’s point of view. Petitioners maintained that because their literature and books were religious, their distribution and selling activities could not be restricted to a booth. The Court disagreed, holding that as long as the rule was applied even handedly to all groups and organizations, it could not be said to contravene the first amendment. The Court properly refused to expand the civil capacities of the petitioner because of its religious content, but continued to wrongly apply the first amendment to state rules and regulations.

Equal application of the law was also at issue in the case of Larsen v. Valente,¹⁸⁴ the Court was faced with the question of whether or not the state of Minnesota could require some religious groups and not others to comply with the state’s charitable solicitation laws. Petitioners sought to share in the exemption accorded to other religious organizations. The state, however, only exempted religious organizations that received more than one-half of their contributions from members. This requirement excluded the Unification Church which consequently sought to have the requirement declared unconstitutional therefore permitting them to also enjoy the religious exemption. The Supreme Court held that the state could not single out some religious charitable groups for special treatment. It ruled that such treatment set up precisely the type of denominational preference that the first amendment was intended to prohibit.

Ignoring the fact that the first amendment only applies to Congressional statutes, and not state laws, and considering the case from the standpoint of equality, if Minnesota’s law requiring registration of charitable organizations is valid on other grounds, then it should apply equally to all charitable organizations, religious or otherwise. Whether the law violates the unalienable right to associate, or whether the state has the legitimate power to prohibit the giving and receiving of gifts is certainly worthy of investigation in light of unalienable rights’ principles. The Court should have considered whether the law contravenes one of these unalienable right, provided that the legislature or Minnesota constitution defined them. This should have been the initial inquiry.¹⁸⁵ But assuming arguendo the legitimacy of the state’s power, the law should not adjust the civil capacities of any non-profit organization because of its religious activities.

At issue in Tony and Susan Alamo Foundation v. Secretary of Labor,¹⁸⁶ was a Congressional provision that adopted an equality approach to application of wage and hour laws. The Alamo foundation was a non-profit religious organization which derives its income from its commercial business. The Secretary of Labor maintained that the foundation must pay its employees a minimum wage (either in cash or other compensation) as required by the Fair Labor Standards Act.¹⁸⁷ The foundation maintained that it was not a business “enterprise” within the meaning of the Act and therefore the Act did not cover the foundation. The foundation also argued that since it was religious, the free exercise clause warranted an exemption from the requirements of the Act. From the standpoint of the laws of nature and the God-given principle of equality, these were certainly not consistent arguments.

The Court, however, rejected these arguments, holding that Congress was not required under the Constitution to exempt religious corporations from the Act. Congressional refusal to increase the civil capacities of the foundation because of its religious beliefs did not run afoul of the Constitution. Under the wage and hour laws Congress had in mind the goal of outlawing from interstate commerce, goods that fall below minimum standards of decency, (i.e., goods made by employees paid less than the minimum wage–a dubious rationale).¹⁸⁸

Assuming arguendo that wage and hour laws violate no unalienable rights and are also an appropriate “commerce clause” regulation under the enumerated powers doctrine (and that is a very large and exceedingly tenuous assumption), then to that extent such laws should apply to all commercial entities. But if the wage and hour laws contravene the unalienable right to associate, or the unalienable right to enter into non-fraudulent arms length contract where the parties to the contract voluntary define its terms including compensation, then to that extent the wage and hour laws should apply equally to no one.¹⁸⁹

In Lyng v. Northwest Indian Cemetery Protective Association,¹⁹⁰ the Court rejected petitioner Indian organization’s contention that the federal government could not build a road on federal property near lands set aside by American Indians for religious rituals. These rituals required silence and privacy which would be interrupted by traffic that a road would bring. In response to a free exercise claim, the Court held that the government may accommodate religion if reasonable alternatives are available, but that the federal government was not required to alter its plans to build a road even if that interfered with the exercise of petitioner’s religion. The Court, therefore did not expand the civil capacities of Indians based on their religious beliefs and convictions. No unalienable rights are involved with respect to government construction of a road on its own land.

A case involving a statutory civil privilege was challenged in Larkin v. Grendel’s Den, Inc.¹⁹¹ In Larkin the state of Massachusetts had given churches and schools a veto power over third party applications for local liquor licenses within a 500 feet radius of that church or school. This practice extended churches and schools a civil capacity which was not possessed by other private entities located within 500 feet of an applicant for a liquor license. The Court found the arrangement Constitutionally defective under the establishment clause. From the standpoint of equality, the Court arrived at the correct conclusion since churches and schools were accorded an increased civil capacity not equally enjoyed by others in the same 500 foot radius. From the standpoint of the first amendment, no Congressional law was involved.

At issue, however, in Church of Jesus Christ of Latter Day Saints v. Amos,¹⁹² was a Congressional statute which exempted religious corporations from the religious prohibitions of Title VII. Title VII prohibits an employer from undertaking certain unlawful employment practices based on race, color, sex, national origin, and religion.¹⁹³ The law, however, does not apply where the employer is a religious organization. Section 702 indicates that this “subchapter shall not apply . . . to a religious corporation . . . with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation. . . of its activities.”¹⁹⁴ This provision was challenged by Amos who was discharged from employment because of his religion. His employer was a non-profit facility operated by the Latter Day Saints.

The Supreme Court upheld the Constitutionality of this amendment under the establishment clause of the first amendment. The Court observed that “Congress acted with a legitimate purpose in expanding the § 702 exemption to cover all activities of religious employers.”¹⁹⁵ Amos dealt with the scope of the government’s discretionary authority to accommodate religious practices with respect to employment discrimination laws. (Recall that in Alamo, Congress did not seek to accommodate religion with respect to the wage and hour laws). In Amos the Court noted that an exemption for religious corporations was not required by the free exercise clause, nor was it prohibited by the establishment clause.¹⁹⁶ The Court’s controlling premise was that Congress was free to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious mission.

The principle that has been applied thus far is that religious opinions or beliefs should not affect equal civil capacities. Applying this rule to the present case indicates that Congress increased the civil capacities of religious corporations because they are religious. Religious corporations enjoy increased civil capacities because they are not bound by the prohibition on religious discrimination imposed by Title VII. They are free from significant governmental interference with their ability to define and carry out their religious mission.

The principle of equality requires either that Congress ensure that all corporations be free from governmental interference with their ability to define and carry out their corporate object vis-a-vis religious discrimination, or that none be free. Moreover, overlooking the questionable commerce power jurisdiction upon which Title VII is founded and its negative implications for the enumerated powers doctrine, the non-discrimination principle when effectuated through government coercion under Title VII, invariably must come into irreconcilable and direct conflict with the unalienable right of free association. One or the other must yield.¹⁹⁷

e) Individual Claims to Preferential Treatment because of Religion

Religious individuals as well as religious organizations have claimed preferential treatment because of their religion. In Goldman v. Weinberger,¹⁹⁸ the Court found no violation of the free exercise of religion in ruling that a Jewish rabbi could be prohibited from wearing his religious cap while on military duty. In Goldman religion would not be used to expand the civil capacities of the adherent. Religion could not be used to alter a regulation which bound all military personnel on an equal basis. But if wearing of certain garments such as a cap is an unalienable right; a duty owed to one’s Creator, then the decision was incorrect. The question turns on whether God has established a universal requirement that military personnel are to wear a specific type of head covering and whether the United States through its legislative or executive arm has recognized that right.

The same type of situation was present in O’Lone v. Shabbazz.¹⁹⁹ Shabbazz was a Muslim inmate who sought to engage in group worship on Fridays. In order to accommodate this request, the petitioner would have to be granted an exemption from a New Jersey rule that prohibited inmates who worked outside of the facility during the day, from returning to the facility at any time other than at the completion of the work detail. Shabbazz sought a special exception allowing him to return earlier in the day to worship. The Court discussed the nature and limitations of incarceration and ruled that as long as all inmates are accorded a time to worship, then the religious belief of some adherents could not be used to provide a special privilege not otherwise accorded to others equally situated.

Since worship involves the direct exercise of religion, there was really no issue that Shabbazz’s belief was being used to expand or reduce his civil capacities. Had Shabbazz not been under confinement, a New Jersey rule that kept him from worshipping at any given time he so desired would have directly impaired his unalienable right to the free exercise of religion. But since he was under confinement and New Jersey had accorded some time to worship, the Court’s conclusion was correct on the grounds that his religious beliefs as to the time of worship could not be used to provide him a special privilege to do so where not also accorded to all other inmates under confinement.

And in Jensen v. Quaring,²⁰⁰ an equally divided Court let stand without opinion, a lower court ruling that permitted a Quaker to be exempt from a photograph requirement on a Nebraska driver’s license. Thus, the Court permitted a civil capacity to be expanded on account of an individual’s religious belief. Religious belief excused meeting the criteria that others who did not so believe were required to meet. The decision is contrary to the equality principle. Nor is any Congressional statute present. Perhaps the Supreme Court was not aware that Nebraskans actually have a Constitution of their own that contains a “‘no preference” provision in Article 1, section 4. Perhaps incorporation is simply impractical as well as legally wrong.

But in Bowen v. Roy,²⁰¹ the Court rejected the claim of an American Indian contesting a federal requirement that he obtain a federal social security number for his children as a prerequisite to receiving child welfare benefits under state law. The Court found that Roy’s free exercise claim must yield to the government’s interest in maintaining a fraud free welfare and social security system. The Court correctly refused to increase the civil capacities of Roy’s daughter based upon his religious belief. Assuming arguendo that the social security and welfare system is a valid exercise of enumerated powers and does not contravene any unalienable rights,²⁰² the requirement that participants must use a social security number should apply equally to all those in the system.

Finally, in Estate of Thornton v. Caldor, Inc.,²⁰³ the Court struck down a Connecticut law which mandated Sabbatarian rights for employees with no recognition of the employer’s rights. The state of Connecticut had passed a law which granted employees an absolute and unqualified right not to work on their chosen Sabbath. This law had the effect of expanding the rights of employees based on their religious belief. Other employees which did not entertain religious beliefs were denied the absolute and unqualified right not to work one day out of the week of their own choosing. The Court found that the law violated the establishment clause. While the equality principle would have reached the same conclusion, it would have done so on the basis that the civil capacities of religious employees were improperly expanded because of their religious belief. Of course, the law at issue was not one adopted by Congress. This case should have been decided under the Constitution of Connecticut, Article 1, section 3 (as well as Article 1, section 20 on equality) which carries with it an equality principle when it allues to “without discrimination.” It states:

The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.

f) Equality, Preferences and The Taxing Power

Several tax related cases also came before the Court in which civil capacities were sought to be expanded in some, and narrowed in others on the basis of religious belief. A tax deduction issues arose in Mueller v. Allen.²⁰⁴ Mueller involved a Minnesota law which provided taxpayers an income tax deduction on their state tax return for expenses incurred in providing “tuition, textbooks and transportation” for their children attending elementary or secondary schools. Since the law permitted deductions by all parents, those whose children attended parochial schools were equally entitled to the deduction the same as other parents whose children attended other schools. A group of taxpayers objected to equal application of the law to the parochial school parents arguing that the deduction constituted an establishment of religion in violation of the first amendment. The Court rejected this claim and sustained the law on Constitutional grounds.

From the standpoint of equality, the petitioners sought to constrict the civil capacities of taxpayers who sent their children to parochial schools presumably for religious reasons. The Court, however, recognized at least by way of its conclusion though not its rationale, that religious belief ought not affect civil capacities. From the standpoint of the first amendment, Minnesota’s law is not a Congressional statute that would trigger first amendment review. Mueller is a state constitutional case, not a first amendment one. It should be obvious by now that this case should have been decided under Minnesota law. Why is incorporation so critical to hang on to? Perhaps the Court thinks Minnesotans can’t figure it out though their Constitution seems on point. Article 1, section 16 states:

The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people. The right of every man to worship God according to the dictates of his own conscience shall never be infringed; nor shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; nor shall any control of or interference with the rights of conscience be permitted, or any preference be given by law to any religious establishment or mode of worship; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state, nor shall any money be drawn from the treasury for the benefit of any religious societies or religious or theological seminaries.

The “no preference” criteria points to the equal nature of how the law should apply without regard to belief.

While the petitioners in Mueller sought to decrease the equal civil capacities of religious parents, an attempt to increase civil capacities was present in Hernandez v. Commissioner of Internal Revenue.²⁰⁵ Hernandez and others sought to deduct as a charitable deduction on their federal income tax return, certain contributions made to their church. Congress provided that charitable contributions made to a variety of qualified organizations, religious, educational and otherwise, may be entitled to be deducted. The “contribution,” however, sought to be deducted was not considered a contribution by law, but rather a payment for services. While contributions are deductible, payments are not deductible. Petitioners argued that since the recipient was religious, that in effect they were entitled to the deduction. The Court, however, properly rejected this claim. The Court, was unwilling to alter the meaning of the statute in order to expand the civil capacities of Hernandez.

The same effort was put forward by the Petitioners in Davis v. United States.²⁰⁶ In Davis, the Petitioners were parents of two missionary sons that embarked upon such work on behalf of thier church. The parents donated money directly to their sons’ bank account for missionary purposes under the auspices and general direction of the church. The United States IRS denied the parents a tax deduction for these contributions and the parents appealed alleging that 26 U.S.C. § 170 allowed a taxpayer to claim a deduction for a charitable contribution. The Court held a deduction allowable only if the contribution is made “to or for the use of” a qualified organization. Since the gift was not under any control or fiduciary oversight of the church, the Court properly denied the deduction on statutory, rather than constitutional grounds.

From an equality point of view the petitioners tried to expand their civil capacities—the option to deduct contributions because of religion, in this case the missionary funding arrangement established by thier petitioners’ church. From an unalienable rights point of view, there is no unalienable right to a tax deduction.

The Court also considered application of the equality principle where tax exemption was at issue in the case of Bob Jones University v. United States.²⁰⁷ Bob Jones University applied for and obtained federal tax exempt status under a broad tax exemption law that provided exempt status for an organization operated “for religious purposes.” The University had promulgated a policy prohibiting interracial dating which it maintained was necessitated by its religious views. The IRS eventually revoked the University’s tax exempt status arguing that the religiously motivated policy of the University was contrary to general principles of charitable trust law. (The University received no federal funds and thus the government invented a historical trust theory).

The Supreme Court held that the IRS could revoke the tax exempt status of the University because the University’s racial policy positioned it outside of the historical purpose of a charitable organization. Consequently, its contributors were not entitled to a tax deduction for contributions made to the University. As long as the “historical purpose of a charitable organizations” test is applied equally across the board to all charitable organizations, religious or otherwise, then the civil capacities of the University are not diminished because of its religious belief or religiously motivated policy.

But if the “historical purpose” test was applied selectively to Bob Jones because of its racial dating policy, then the government wrongfully diminished the equal civil capacities of the University based on its religious belief. Given the background of the case, it is more likely than not that the Court closed a blind eye to the government’s creation and selective application of the “historical purpose of a charitable organizations” test thereby diminishing the civil capacities of the University. The Court had to stretch far beyond the statutory language to reach its result, something it would not ordinarily do with other tax-exempt organizations.

In Jimmy Swaggart Ministries v. Board of Equalization of California,²⁰⁸ a sales tax was at issue. Jimmy Swaggart Ministries sold religious materials at its crusades in California and to California residents through the mail. California levied a sales tax on the sales of tangible personal property. This category included the Ministries’ religious books and materials. California sought to enforce its sales tax law against the Ministry as far as it did business in the state. The Ministry objected arguing that the imposition of a sales tax on religious materials violated the first amendment including the free exercise clause even though California’s tax statute is not a Congressional law that would trigger the first amendment but for the Supreme Court’s incorporation doctrine.

Jimmy Swaggart Ministries in effect, sought to increase its civil capacities because of its religious disposition. It sought to exempt itself from the sales tax because it was religious. The Court rejected this argument holding that the free exercise clause was not violated and that the Ministry was not singled out to be taxed because of its religious beliefs. Thus, in the final analysis the equality principle controlled.

In United States v. Lee,²⁰⁹ the Court rejected the argument presented by an Amish employer that his religious belief necessitated an exemption from withholding social security taxes. In effect the Court refused to expand the civil capacities of a religious employer because of his religious belief.

Finally in Texas Monthly, Inc. v. Bullock,²¹⁰ the Court (applying the incorporation doctrine) struck down a Texas law which exempted religious periodicals from a sales tax. The Court held that the law violated the establishment clause and that the exemption was not required by the free exercise clause. Texas had increased the civil capacity of religious publishers because of their religion. This ran contrary to the idea of equality. Since a sales tax violates no unalienable rights, Texas could either exempt all publications or none from its requirements. The Constitution of Texas, Article 1, section 6 would have reached the correct result striking down the law on both no preference and equality principles. It states:

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.

4. SUMMARY OF EQUALITY AND PREFERENCE SECTION

This subsection on equality has considered various decisions of the Supreme Court as they embraced or rejected the rule that religious belief or practice ought not enlarge, diminish or affect the civil rights or capacities or individuals or organizations. According to this point of view or principle, the Court’s holdings in Larsen (approved on the basis of religious belief, the exemption of a religious organization from a charitable solicitation law), Thomas, Hobbie and Frazee (approved on the basis of religious belief, exemption from an unemployment compensation law which would otherwise deny benefits), Jensen (Quaker was exempt from photograph on Nebraska drivers license based on religious belief), Amos (Religious corporations afforded civil capacity not extended to nonreligious corporations), and Bob Jones (Charitable trust theory selectively applied to diminish equal tax exempt capacities of religious institution) were incorrectly decided. They were incorrect because they sanctioned an increase or decrease in the civil capacities of individuals and organizations on the basis of their religious belief.

Each of the other cases analyzed in this section reached the correct result from the standpoint of the equality principle, but often through wrongful reliance on use of the incorporation doctrine. These cases also involved state laws or local regulations and include Widmar [Bible study at University of Missouri sustained], McCreary [privately financed nativity scene in public park upheld by an equally divided Court], Jews for Jesus [Los Angeles Airport ban impermissible], International Society for Krishna Consciousness, Inc. [Port Authority limited ban on in-airport solicitation and speech]; Witters [Washington rehabilitation benefits available to all on equal basis],Lamb’s Chapel [use of scool facilities available to religious groups after hours on equal basis], Zobrest [Arizona benefits for deaf child]; Thomas [Indiana must increase civil capacities of religious pacifist to unemployment compensation], Hobbie [Florida must increase civil capacities of religious worker to unemployment compensation], Frazee [State must increase civil capacities of religious worker to unemployment compensation], Smith [Oregon does not have to increase civil capacities to religious person to unemployment compensation], City of Boerne [Struck down RFRA, land use exemption for religious purposes not sustained], Heffron [Minnesota state fair regulation sustained], Larkin [Massachusetts liquor veto law struck down], Shabbazz [New Jersey prison rules on worship affirmed], and Caldor [Connecticut exemption for religious workers struck down].

Only Alamo [federal wage and hour laws], Lyng [federal Land use], Amos [Title VII exemption under federal law], Goldman [federal military service dress code], Hernandez and Davis [federal Tax Deduction], Bob Jones [federal tax exemption], Bowen [use of federal social security number in state welfare program], and Lee [federal social security withholding required] dealt with a federal law or controversy and therefore could have presented a first amendment argument provided the statute at issue could be found within Article 1, section 8 or other Constitutional provision and thereby first pass muster under the enumerated powers doctrine.

It should also be observed that many of the cases that were correctly decided do not address the first and controlling issue: whether or not an unalienable right is constitutionally present, and whether or not that right is being violated or encroached upon by the civil government. It does no good to find that the requirements of the equal application of the law are met, when the law is equally violative of the unalienable rights of all. Unemployment compensation, wage and hour cases and laws pertaining to the regulation of association and contract in employment under Title VII are perhaps the most obvious examples of laws that tread upon unalienable rights–rights clearly protected under many state constitutions.

Courts in particular should scrutinize state constitutional and statutory provisions for references to unalienable rights. Where such provisions exist and a state law contradicts unalienable rights, federal courts (in terms of pendent jurisdiction for instance) may construe the state’s unalienable rights provision to strike down the offending state law. Federal courts, however, may not act as super state legislatures in divining and defining the unalienable rights of the people. That is a task for the state legislative body and for state judicial review in state courts. Federal courts do not suddenly entertain jurisdiction simply because states have not written the guarantees of unalienable rights into their constitutions or laws. However, if the claimed unalienable right is enumerated in the federal Constitution or a statute, or the federal courts enjoy jurisdiction by the Constitution’s express terms, then federal courts may construe the unalienable right at issue.