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David Alan Carmichael
April 8, 2008
The Federal Religious Freedom Restoration Act expressly states: The Congress finds that -
(1) the framers of the Constitution, recognizing free exercise
of religion as an unalienable right, secured its protection in the
First Amendment to the Constitution;
(2) laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and (5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
(b) Purposes
The purposes of this chapter are -
(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
(2) laws "neutral" toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and (5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
(b) Purposes
The purposes of this chapter are -
(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
The conflict of religion and government practice that is at issue here is – The religious prohibition some people have from identifying with a number that is used universally as a man’s identifying number. In America, like in nearly every country of the world, that number is the Social Security Number. The Employment Division v. Smith, 494 U.S. 872 (1990) case inspired Congress and thirteen State legislatures to enact versions of the Religious Freedom Restoration Act. That Smith case relied strongly on Bowen v. Roy, 476 U.S. 693 (1986), a SSN case.
In cases where this was at issue prior to Bowen v. Roy, the claimant who had a religious prohibition against identifying with such a number prevailed against the government. See Stevens v. Berger 428 F.Supp. 896, U.S. Dist. Ct., E.D. N.Y (1977) (pdf) for a detailed analysis of the religious practice. In Stevens v. Berger, the Stevens' wanted to apply for welfare benefits. The Court ruled on behalf of the Stevens', and it is a very instructive case. A similar situation occurred in Callahan v. Woods, 736 F.2d 1269, US Ct. App., 9th Cir. (1984). It too is a very instructive case.
Then, when a religious objection to conveying SSN to obtain welfare benefits case came before the U.S. Supreme Court in Bowen v. Roy, the Court in a divided opinion said, “The Social Security number requirement clearly promotes a legitimate and important public interest. No one can doubt that preventing fraud in these benefits programs is an important goal….” At other place in the opinion, the Court seemed to flip-flop in its opinion of the scrutiny that should be applied in different types of government/religion conflict cases.
But even in Roy, the Court said that a “good cause” exemption possibility secured the application of the strict scrutiny standard. The Court said, ““We reject appellees' contention that Sherbert and Thomas compel affirmance. The statutory conditions at issue in those cases provided that a person was not eligible for unemployment compensation benefits if, "without good cause," he had quit work or refused available work. The "good cause" standard created a mechanism for individualized exemptions. If a state creates such a mechanism, its refusal to extend an exemption to an instance of religious hardship suggests a discriminatory intent. Thus, as was urged in Thomas, to consider a religiously motivated resignation to be "without good cause" tends to exhibit hostility, not neutrality, towards religion.””
More instructive in this debate is a driver’s license application SSN religious objection case that came after Bowen v. Roy. Leahy v. District of Columbia, 833 F.2d 1046 (D.C.Cir. 1987). Look at what the Appeals Court, D.C. Circuit said:
““Were it not for a misreading of Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986), the most relevant recent Supreme Court opinion, the district court would have adhered to the compelling state interest test enunciated in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and reaffirmed in Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), as it did in its Memorandum Opinion of July 3, 1984 denying the District of Columbia's motion to dismiss. There the district court correctly observed: "[A] burden on religious liberty may be justified ... by showing that it is the least restrictive means of achieving some compelling state interest; only those interests of the highest order can overcome legitimate claims to the free exercise of religion." Leahy v. District of Columbia, No. 83-2907, slip op. at 6 (D.D.C. July 3, 1984) (denying motion to dismiss).””
““Apparently because of the fragmented character of the Supreme Court's disposition in Roy, the district court took that case to have limited the application of Sherbert and Thomas and to have announced a less rigorous standard of scrutiny ("reasonable means of promoting a legitimate public interest") under which Leahy's claim would fail. This standard, proposed by Chief Justice Burger in a portion of his Roy opinion joined by only two other Justices (Justices Powell and Rehnquist), 106 S.Ct. at 2149, 2153-58, was expressly rejected by five Justices. See 106 S.Ct. 2158-60 (Blackmun, J.), 2164-69 (O'Connor, J., joined by Brennan, J., and Marshall, J.), 2169 (White, J.).5 As the Court restated with unmistakable clarity in Hobbie v. Unemployment Appeals Comm'n of Florida, --- U.S. ----, 107 S.Ct. 1046, 1049-50, 94 L.Ed.2d 190 (1987), the compelling state interest test of Sherbert and Thomas continues to define the Supreme Court's free exercise clause jurisprudence. Under that test, on the current record, the District of Columbia has failed to show that it is entitled to prevail; the District has not demonstrated that requiring a religious objector to provide his social security number in order to obtain a driver's license is the least restrictive means of achieving the concededly vital public safety objective at stake.””
The Leahy v. District of Columbia case is very important. The Idaho and Federal religious freedom statutes were instituted to invoke the same scrutiny.
Stay informed about what we are doing by visiting www.christianliberty.org
Donations to the ACLS Trust are
currently being gathered to prepare a 2nd phase of attack on 42 USC
§666 on the basis of Religious Freedom Acts.
Contact David Alan Carmichael @ 757-850-1245
Gifts to the Trust Can be paid to:
ACLS Trust
P.O. Box 4096
Hampton, Va. 23664-0096
IRS Pub 1586 - Reasonable Cause for Tax Reporters Not Obtaining an SS#
download the IRS pub
Contact David Alan Carmichael @ 757-850-1245
Gifts to the Trust Can be paid to:
ACLS Trust
P.O. Box 4096
Hampton, Va. 23664-0096
Documents
Available For Non-Disclosure of SSN
IRS Pub 1586 - Reasonable Cause for Tax Reporters Not Obtaining an SS#
download the IRS pub
Important Links
June 23, 2005 Ruling in the Court of Federal Claims
(843 Kb PDF)
Links to Articles
& Court Cases
Phone: (757) 850-1245
ACLS
P.O. Box 4096
Hampton, Virginia
23664-0096
