I've never been introduced as Mr. Ph.D before! Thank you very much! [Ha ha!]

My friends, the, uh, religion clauses of the First Amendment, to the Constitution of the United States, say as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." We are here today to celebrate, uh- or to mourn an event- that, uh, involves primarily the free exercise clause of the First Amendment. And my assignment today, is to tell- to talk with you a little bit about how that, uh, clause has been interpreted, throughout the years, since the, uh, since the founding of this nation. I want to say at the outset that, ah, I agree with my colleague, Jim Wood, my good friend Jim Wood from Baylor, uh, completely in what he said a few minutes ago. Uh, in some ways his act is a very difficult act to follow, because he said some of the things that I want to say. But I believe these issues are so important, that some repetition will bear, uh, will, will bear doing.

As we understand what the, Constitutional freedom of religion means, the Constitution-guaranteed freedom of religion means, obviously over the years we have had to look at the Supreme Court. Because it is that court which finally has determined, the interpretation of those clauses. And so I want to review with you very quickly, uh, some of the cases that have, uh, formed our jurisprudence, formed our understanding of the law, about, uh, religious freedom. The first case that I need to mention to you took place in 1879- uh, my good friend Jim Wood said it was 1878, but, uh, that's, that's no problem!

Reynolds. vs. United States. In Reynolds vs. United States, the issue was, whether or not, a person who was a Mormon who- could practice polygamy. Now the background of all of this that I want to say to you simply is this. As Dr. Wood pointed out to you, it is simply not the case, under our system of law, that anything can be done in the name of religion. Even though we have religious freedom, it is the case that it's always theoretically possible, that some things can be done in the name of religion, that would somehow be harmful to others, could be harmful to one's own self, or to the, entire community. And consequently, the cases that I want to talk with you about very quickly this afternoon, have to do with the scope of interpretation of the free exercise clause. When may the government intervene, and when must it stay out? And in Reynolds vs. United States, having to do with a, ah, with the question of whether or not Mormons could practice, polygamy as a, as a feature of their religion- the Supreme Court decided against the Mormons. Uh, Brother Reynolds was indeed a polygamist- but the federal Congress had passed a law saying that, that any, uh, uh, uh, plural marriage or bigamy was against, uh, federal law. And consequently, Reynolds was arrested. And he said, "I am guaranteed by the free exercise clause of the First Amendment the right to, to practice my, uh, m-, my married life the way I want to, because it's a matter of religious belief for me." And the Supreme Court said, no you can't do that. Because the law, must step in, when the practice of religion, has the effect of, in this case, damaging the moral fiber of society. And in that case, the Supreme Court laid out a test, called the belief/action test. In essence the court said, you can believe anything you want to- as Dr. Wood, uh, told us a while ago- you can believe anything you want to. No matter how absurd it may appear to others, no matter how bizarre it may appear to the majority- uh, you're, you have absolute freedom of belief. But you do not have absolute freedom of action. And in fact, any kind of action, that the government considers to be, harmful, or, detrimental to society, can be interfered with. And so the court did not give the government many guidelines, and in fact gave it a good deal of latitude, in how it could interfere with religious freedom.

And from 1879 until 1940, that's the way the law stood in this country. With the government being able to have a great deal of latitude, in when- when it could interfere with religious behavior. However, in 1940, in a case called Cantwell vs. Connecticut, having to do with Jehovah's Witnesses- uh, the court, uh, modified its viewpoint on this issue very much. Uh, without going into all the details of the case, the Cantwells were, uh, uh, accused of inciting to riot, disturbing the peace, because they were preaching their faith on the streets of New Haven, Connecticut. And part of their faith, at that particular time, uh, had some very uncomplimentary remarks to say about Roman Catholicism. And some of the people to whom they spoke were Roman Catholics. And, what happened was, that the Catholics had these two fellows arrested, for inciting to riot, and disturbing the peace. And the, uh, and the Cantwells took their case to the Supreme Court of the United States. And the court modified this belief/action distinction that the court had, handed down in 1879, by saying that only when, only when- religious behavior presents a clear and present danger to society, may the government interfere. In other words, what happened in the Cantwell vs. Connecticut case, was that the Supreme Court of the United States narrowed, significantly and considerably, the options that government had, in interfering with religious behavior. And it broadened, the idea of religious freedom. So it seems to me that one way one can, can, ah, summarize the Cantwell case, is to say, that after Cantwell vs. Connecticut in 1940, in this country religious freedom was the rule, and government interference was the exception.

And that's the way the law remained, for the next twenty-three years. From 1940 till 1963. In 1963, a case came before the Supreme Court of the United States, entitled Schurbert vs. Werner. Which involved a Seventh-day Adventist woman. This is, uh, as a Seventh-day- as you may know, the Seventh-day Adventists believe that, the proper day of worship is Saturday rather than Sunday. Uh, Mrs., uh, Schurbert worked for some textile mills in South Carolina, and their work week was Monday through Friday, and everything was fine. But her employer changed the work week and added Saturday work, and all of a sudden Mrs. Schurbert found herself, in a difficult circumstance, because she could not violate her religious belief, about work- about working on Saturday- And consequently, she went to her employer and said, can you modify your work week in some way. I'd be glad to work evenings, or, or modify my own work habits in some way, and the employer said no. And so Mrs. Cant- Mrs., uh, Schurbert had to quit her job. And she went other places to find employment and was not able to find employment, that would accommodate her religious activity. And consequently she went to the unemployment compensation people in South Carolina, and said, I've got to have unemployment compensation, because I can't work here anymore. And they said no, because you quit your job. Uh, work was available to you, uh, you were not available for work, and consequently you cannot have, uh, unemployment compensation. She took her case to the Supreme Court of the United States. And in that case the Supreme Court found, in favor of Mrs. Schurbert, and against the state of South Carolina, and basically said, that the clear and present danger test, that I mentioned to you a few minutes ago, in fact, is not the test that we will use from now on. But they used rather what is called a compelling state interest test. And the compelling state interest test in a nutshell is this: any time- any time- the government wants to interfere with religion- with religious behavior- it must show, that it, the government, has a compelling interest, that it has a, legitimate goal which it must reach, which is so important- that it can override religious behavior. And so the, the Supreme Court in, in Schurbert vs. Werner, basically said, that the free exercise clause of the First Amendment guarantees the citizens of this nation, the free exercise of religion. And although there is the possibility that the government may interfere- government may interfere with religious behavior only when, the government can show that it has a compelling interest. And that's the way the law stood, for the next, twenty-seven years.

In 1990, in a case called Smith vs., uh, excuse me, called, uh, the Oregon, uh, Employment Division against, uh, Smith- the Supreme Court took a major step back away from the idea of guaranteeing religious freedom. Without going into all the details, it involved a, a Native American, who wanted to take, ah, peyote, as part of the, the worship of the Native American Church. Uh, to oversimplify some, the Native American Church uses peyote, which is a mild hallucinogen, a hallucinogenic drug, as its sacrament. And consequently, uh, Mr. Black, who was an employee of a drug, ah, rehabilitation, uh, uh, operation, had signed as a condition of his employment, the promise not to take drugs. But he went to the Native American Church and worshipped with them, and take, took peyote, and when his employer found out about it, he was fired. And he went to the state employ-, unemployment people and said, I need un-, unemployment compensation. And they said no, because you violated the law. And so he took it to the Supreme Court, and the Supreme Court, in a decision written by Antonin Scalia- said that the compelling state interest test no longer applied. That anytime you have a law of general applicability, the compelling state interest test no longer applies. What that means is, that the government did not any longer have to have a, strong reason to interfere with religious behavior. That the government had great latitude once again, to interfere with religious behavior. In fact, Justice Scalia and his four colleagues in the majority opinion of that case, went so far as to say, that the free exercise clause itself- cannot be applied to a law of general applicability, unless it is joined with some other Constitutional principle, such as freedom of speech, freedom of the press, freedom to, uh, petition the government, etc. That the free exercise clause of the First Amendment was no longer a free-standing, liberty guaranteed to the American, uh, to the citizens of this country.

It was a major setback. A major setback, for religious freedom in this country. Because basically what that decision did was to take us back to 1879. To Reynolds vs. United States. Which did not really, inhibit the government very much at all. In interfering with religious behavior. Unfortunately- the Smith case was in control, the Smith case was the law of the land, at the time, that the tragedy that, tragedy that took place on that hill, took place. However- there's good news. And the good news is that, on, ah, the, 9th of November, I believe it was, 13th of November, of 1993- President Clinton signed into law, a bill called, the Religious Freedom Restoration Act. And the Religious Freedom Restoration Act, restores the compelling state interest test. It nullifies, in essence, we hope at least, the Smith case. So that, today again, the la-, the rule of law is, that the government must show a compelling interest before it can interfere in any way, shape, or form, with religious behavior.

That is, a very quick and oversimplified summary of the, law of free exercise of religion in this country. I want to point out to you that there are two themes that run through this. Through, throughout most of our history, and this is certainly true today- The burden of proof is on the government! That it has the right, to interfere with religious behavior. If the government observes the law correctly- which is always a big if, is it not- that the burden of proof is on the government, to show, that it has a legitimate interest, that would, cause it to interfere with religious behavior. I think that, we would all agree, and certainly my colleague who spoke here just before I did, made it abundantly clear- that the government in this situation at Mt. Carmel, did not actually, spell out, its burden of proof. But acted pretipit- precipitously- and incorrectly- and illegally- in violating the religious freedom of the people who lived on that hill. But that's one theme! The idea is that the government is limited, by the Bill of Rights of this, Constitution- and the government is limited by the free exercise clause of the First Amendment- and the burden of proof is always against the government! To show that it has a legitimate interest, before it can interfere with religious freedom.

The other theme that I want to point out to you simply is this.That, throughout the cases that I have mentioned to you, and some cases that I have not mentioned to you, the people involved have been the following: Mormons. Seventh-day Adventists. Jehovah's Witnesses. Amish. Members of the Native American Church. People who have been on the margin of, what society considers to be, legitimate religion. People who somehow or other have been, marginalized by the society. And have oftentimes been thought of as being strange, or peculiar, or perhaps even crazy or kooky. But the history of Constitutional law in this country, on the, on the free exercise clause at least, is that, it is those people, who have been the heroes. It is those people who have been on the firing line. It is those people who have, gone to the mat. It is those people who have lift, lift, risked life, limb, and property. In order to guarantee for all of us, mainstream religious people- people who do not believe in religion at all- the right to be religious or not religious- and if we're religious, the r-, the right to be religious the way we want to be. It is- [applause]

It has been those people- that the main society, and the media have considered to be- the strange, the peculiar, the marginal, who have really, guaranteed for all of us- the religious freedom that we have. I'm convinced, that as the, tragic events that took place on this property, a year ago- become ever wi-, more widely known- as more scholarly work is done to try to find out exactly what happened here- the Branch Davidians will take their places- with the Mormons, the Seventh-day Adventists, the Jehovah's Witnesses, and the others, who are thought of as the people, who have done heroic work. Who gave their lives, literally in this case- and their property- to guarantee religious freedom for the rest of us. And so let us think, today, and, ah, and in the week that comes, as we observe the, tragic events that happened here- that we live in a great country in many ways. Because we enjoy religious freedom that is unprecedented in the world. And yet we live in a country in which it is possible, for the government to abuse its power- for the government to sometimes, not, uh, live up to the responsibilities that it has, to, provide a legitimate arigun-, argument or burden of proof. Consequently, as our Founding Fathers said as they wrote the Constitution- "the price of liberty is always eternal vigilance." Let us- be rededicated- by our presence here today, and by what happened at that- up on that hill. Let us be rededicated, to try to preserve religious liberty in this country, and try to insist, that our government officials, play only the limited role that they are entitled to play by the Constitution. Thank you very much. [applause]