Enforcing the Law

By Gaffney, Edward McGlynn, Jr. | Commonweal, May 21, 1993 | Go to article overview
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Enforcing the Law


Gaffney, Edward McGlynn, Jr., Commonweal


Ever renowned for its delicacy in the face of human tragedy, and for its superb command of the wide array of theological convictions that stir the soul in American religious groups, the Wall Street Journal told us last month all that they think we need to know about the death of David Koresh and his followers in Waco, Texas. They were "nutty." That settles that. Commonweal's May 7 editorial ("Agents of Apocalypse") took a more subtle approach, raising disturbing questions that cannot so lightly be brushed aside. These questions will have to be sorted out carefully by disinterested fact-finders before responsibility for this tragedy can be assessed more clearly. In the meantime, there are two other points that the WSJ overlooked. Like the First and the Second Amendment.

The First Amendment protects us from governmental interference with free exercise of religion. The religious freedom matter is subtle. I do not suggest that there is or ought to be an exemption from gun control laws grounded in the Free Exercise Clause or that religious adherents should have special license to amass an arsenal as they await the end of the world. Nor would any serious First Amendment scholar argue that the government must sit idly by if there is credible evidence that a religious community believes it has a duty to kill others and is likely to carry out that goal imminently.

That point has been made repeatedly in cases involving the Communist party and the Ku Klux Klan. When ideas get translated into illegal conduct, the government may, of course, take prompt and appropriate action both to prevent and to stop the conduct. But no one has yet adduced credible evidence that Koresh and his followers were likely to have come out of their compound with guns blazing against their fellow Texans. Until that is demonstrated, it seems plausible that the same standards that protect the Communist party and the Klan ought minimally to have governed in the case of the Branch Davidians.

Until the Native American peyote case in 1990, Smith v. Employment Division, the courts allowed religious freedom to be limited only where the state had borne a heavy burden of proof that the limitation was justified not by any ordinary public interest, but by a supreme public necessity, and that no less restrictive alternative to limitation exists. In Smith the Court relegated the less restrictive alternative standard to cases where the government intentionally singles out a religious group for hostile treatment. One could argue that this is precisely what occurred in Waco, but my point is a more general one. Government officials - and too many members of society - have grown out of the habit of thinking seriously about less restrictive alternatives to the way they enforce the law in general. So why bother in Waco, where the stakes - from the government's perspective - seemed so high?

Sober religious leaders like Dean Kelley, the counselor on religious liberty of the National Council of Churches of Christ, and James Dunn, the executive director of the Baptist Joint Committee on Public Affairs, wrote to President Bill Clinton more than a month before the final denouement in Waco, urging him to "demilitarize the confrontation in Waco." "To invade a center of energy [like Mt. Carmel]," they wrote, "is like sticking a finger in a dynamo. Whether it explodes or implodes, the result will be tragic for all." It is sad that no one paid much heed to these voices. The views of the Branch Davidians about the end of the world may seem odd, not only to the Wall Street Journal but to the vast majority of us, but beliefs alone do not justify a government raid.

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