Religious Liberty Law Preempted By §666

H. Lance Freeman
November 30, 2006
(Updated October 31, 2007)

      The Idaho Supreme Court refused to review an Idaho Court of Appeals ruling that Section 666 of the Federal Social Security Code (42 USC §666) preempts Idaho’s Free Exercise of Religion Act (FERA) .  Section 666 ‘appears’ to mandate that every State force everyone to identify with a SSN in order to obtain a professional, occupational, recreational, driver’s or marriage license.  The Appellant, Larry Lewis, his associate David Alan Carmichael, and their lawyer Dr. Herbert W. Titus, all intend to do something about it.

      Some people, like Larry Lewis in Idaho, are prohibited from identifying with a national identification number on the basis of their religion.  Revelation, Chapter 13, of the Bible warns of a beast that requires every person to identify with a number in order to engage in livelihood.  The Idaho Court ruling menaces their hopes that the First Amendment’s protection (Congress shall make no law…prohibiting the free exercise [of religion]) will effectively protect their right to not identify themselves with what they believe is the “number of the beast.” 

      The United States Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 as a measure to check both Federal and State government intrusion on religious practices.  However, United States Supreme Court held that, due to principles and limitations of a “federal” government, the Federal Government did not have the authority to make RFRA apply to the States.  See Boerne v. Flores, 117 S.Ct. 2157 (1997).   In response to the Court’s ruling in Boerne v. Flores, legislators in Idaho and several other States passed statutes much like the Federal RFRA.  Idaho Legislature declared in its Statement of Purpose regarding Idaho Code Section 73-402, Free Exercise of Religion Protected, that:

“A widely recognized principle of law is that states are free to protect an individual's right with a much higher standard than the U.S. Constitution itself affords. Thus, in light of this principle in conjunction with the Boerne decision, states are free to enact their own RFRA's thereby choosing to apply the higher "compelling interest test" standard in their own religious freedoms cases.”

The specific Idaho Code Section 73-402, provides:

      FREE EXERCISE OF RELIGION PROTECTED.

(1) Free exercise of religion is a fundamental right that applies in this state, even if laws, rules or other government actions are facially neutral.

(2) Except as provided in subsection (3) of this section, government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.

(3) Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person is both:

(a) Essential to further a compelling governmental interest;

(b) The least restrictive means of furthering that compelling governmental interest.

      In the Lewis v. Idaho Department of Transportation case, the Idaho Court ignored Idaho’s statutory Free Exercise of Religion Protected (FERP) standard that the State government must prove that it cannot sustain dead-beat-dad enforcement, or maintain driver’s license records, if it issues Larry Lewis a driver’s license without forcing him to identify himself with a SSN.  To justify its disregard for Idaho’s FERP, the Idaho Court of Appeals ruled that Federal 42 USC §666(a)(13) is an absolute mandate that requires every State to identify every person with a SSN, and that neither the Idaho Free Exercise of Religion Protected statute, nor the Federal Religious Freedom Restoration Act, provides for an exemption for religious reasons.  Contrasting the Idaho Court’s ruling, the official statement of the Social Security Administration is “The Social Security Act does not require a person to have a Social Security number to live and work in the United States, nor does it require a Social Security number simply for the purpose of having one.”  April 11, 2003 letter from Charles A. Mullen, Social Security Administration, Associate Commissioner, Office of Public Inquiries to a member of the American Christian Liberty Society.  None-the-less, Section 666 of the codified Social Security Act effectively denies everyone in America the right to earn a livelihood if the Idaho Court’s decision stands.

      Larry Lewis fought his case alone for several years until he asked David Alan Carmichael to help him.  David had founded the American Christian Liberty Society as a mechanism to provide ministry to those who have a religious conviction that prohibits them from identifying themselves with a national identification number, or through biometric identification.  In response to Larry’s request, David contacted his own lawyer, Dr. Herb Titus, and asked him to come to Larry’s aid.  Herb offered to provide his services to Larry at a significant discount.  After filing a reply brief, a supplemental brief, an oral argument in the Idaho Court of Appeals, and a petition for review to the Idaho Supreme Court, David and a handful of supporters have helped Larry pay for about $25,000 in legal fees.

      There are many people throughout the country who are facing dilemmas similar to Larry Lewis’.  They are caught between the prohibitions of their faith and State demands that they comply with 666 of the Social Security Code (42 USC §666) requirement to identify themselves with a SSN in order to renew their professional licenses, occupational licenses, and driver’s licenses.  An architect in Oregon, a dentist in Illinois, a crop duster in Texas, a Mennonite truck driver in Pennsylvania, and many others are all trying to renew their professional, occupational, and driver’s licenses.  Texas and Illinois have their own Religious Freedom Acts.  Illinois even has a provision for religious exemption to SSN identification in its driver’s license law.  Yet, the Illinois dentist cannot get the government to reply to his request for religious accommodation.  The architect, the dentist, the crop-duster, and the truck driver are not dead-beat-dads.  However, they are in grave jeopardy of losing their ability to support their families because of demands which State officers maintain are imposed by 42 USC §666.  

      Since Larry’s Petition For Review to the Idaho Supreme Court has been denied, Larry, David and Herb believe that Larry Lewis’s case is ripe for United States Supreme Court scrutiny.  Since the Boerne v. Flores ruling, there have been further decisions by the United States Supreme Court that are more favorable to their cause.  In Cutter v. Wilkinson, 544 US 709 (2005), the Court ruled that the Federal Religious Land Use and Institutionalized Persons Act (closely related to the RFRA) applies to State governments in those cases where the States are implementing a Federal program for which they receive Federal funds.  In Gonzalez v. O Centro Espirita Beneficiente Uniao Do Vegetal (UDV), et al, 546 US (2006); 389 F.3d 973 (Feb 2006), the Court ruled unanimously in lock-step with the argument that Herb Titus gave in the first brief that he had written on behalf of Larry Lewis in the Idaho Court of Appeals. 

      The Lewis case begs many questions that must be ruled upon definitively with regard to the use of a national identification number and religious prohibitions against the practice.  It also begs questions with regard to the separation of powers, and the subjugation of the States or the People to Federal edicts.  Does the administratively convenient provisions of 42 USC §666 override every State law that might conflict with it, including laws explicitly requiring respect for religious liberty?  Where numerous rulings handed down by various State and Federal Courts throughout the country conflict with one another, how is a State Court in a particular case to rule?

<>      <>They considered taking the case to the U.S. Supreme Court.  After drafting a rough brief for a Petition of Certiorari, Larry's team decided it was not yet the best course of action.  Herb Titus suggested that another case, separate fom the Lewis case, be brought before the United States District Court for the District of Columbia on behalf f several people who ar in danger of losing their livelihood and their right to travel due to States misapplying 42 USC §666.  <>Before any other action was taken in Larry Lewis's case, Larry was cited when he was found driving without a license.  Larry's team intends to reframe his case in his criminal defense, to make sure the Idaho courts cannot flippantly skirt the issue as they did in Larry's previous civil action. 

      The Idaho Court of Appeals ruling in Larry Lewis v. Idaho Department of Transportation is found at http://www.isc.idaho.gov/opinions/lewis8.pdf.  Larry, David or Herb can be reached through the American Christian Liberty Society, P.O. Box 4096, Hampton, Virginia  23664-0096; by telephone – 757-850-1245 by internet – www.christianliberty.org; by email – acls@christianliberty.org.