JUDGE BRORBY: DISSENTING OPINION

Because I do not believe it is the proper role of the

court to establish a factor-driven test to be used to define

what a religion is, I respectfully dissent from my colleagues.

The ability to define religion is the power to deny freedom of

religion. The ethereal and personal nature of religion has

posed problems for most courts that have attempted to define

it. See Wiggins v. Sargent, 753 F.2d 663, 666 (8th Cir. 1985)

("The determination of whether a belief is religious or not is

an extremely delicate task which must be approached with

caution."); Africa v. Pennsylvania, 662 F.2d 1025, 1031 (3rd

Cir. 1981) ("judges are ill-equipped to examine the breadth

and content of an avowed religion"), cert. denied, 456 U.S.

908 (1982); United States v. Kauten, 133 F.2d 703, 708 (2d

Cir. 1943) (recognizing that the definition of religion "is

found in the history of the human race and is incapable of

compression into a few words"); see also Brown v. Dade

Christian Schools, Inc., 556 F.2d 310 (5th Cir. 1977) (judges

filed two concurrences and two dissenting opinions in a case

attempting to define religion in order to determine whether a

religious school's policy of racial discrimination was

religious or social or political in nature), cert. denied, 434

U.S. 1063 (1978).

In Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972), the

Supreme Court held that religious beliefs are distinct from

philosophical and personal choices but failed to provide a

test or a definition against which lower courts could hold the

religious claims of petitioners to determine whether the

claims warrant constitutional protection. Many courts have

felt compelled by the distinction made in Yoder to establish

a definition of religion. See United States v. Ward, 989 F.2d

1015, 1017 (9th Cir. 1992); Quaring v. Peterson, 728 F.2d

1121, 1123 (8th Cir. 1984), aff'd, 472 U.S. 478 (1985);

Africa, 662 F.2d at 1031. We, however, had declined to do so

until now. In Werner v. McCotter, 49 F.3d 1476, 1479 n.1

(10th Cir.), cert. denied, 115 S. Ct. 2625 (1995), we

recognized the distinction in Yoder and then found "a

plaintiff, however, need not hew to any particular religious

orthodoxy; it is enough for the plaintiff to demonstrate that

a government has interfered with the exercise or expression of

her or his own deeply held faith." Id. at 1480. I believe an

approach that prevents the courts from evaluating the

orthodoxy and expression of the individual is the approach

most in keeping with the mandates of the Constitution and the

Supreme Court. For, it seems to me that the free exercise of

religion which we are all guaranteed by the First Amendment

necessarily includes the rights of individuals to define their

own religion. Accordingly, it is an unproductive and

unnecessarily invasive exercise for the courts to attempt to

evaluate an individual's religious claims and practices

against any set standard of preconceived notions of what types

of religious beliefs are valid of being recognized by the

courts. In fact, in the conscientious objector context, the

Supreme Court has held

    "Men may believe what they cannot prove.  They may 
     not be put to the proof of their religious doctrines 
     or beliefs.  Religious experiences which are as real 
     as life to some may be incomprehensible to others." 

Local boards and courts in this sense are not free to reject

beliefs because they consider them "incomprehensible."

United States v. Seeger, 380 U.S. 163, 184-85 (1965) (quoting

United States v. Ballard, 322 U.S. 78, 86 (1944)). By

attempting to evaluate another's religion with a factor-driven

test we have essentially gutted the Free Exercise Clause of

its meaning and are ignoring the Supreme Court's cautionary

words that a person's views can be "incomprehensible" to the

court and still be religious in his or her "own scheme of

things." Id.

In an early opinion addressing the Constitutional meaning of

"religion," the Supreme Court first recognized that the word

religion is not defined in the Constitution and then turned to

Thomas Jefferson's views that "religion is a matter which lies

solely between man and his God; that he owes account to none

other for his faith or his worship; that the legislative

powers of the government reach actions only, and not opinions,

— I contemplate with sovereign reverence that act of the

whole American people which declared that their legislature

should 'make no law respecting an establishment of religion or

prohibiting the free exercise thereof,' thus building a wall

of separation between church and State. Adhering to this

expression of the supreme will of the nation in behalf of the

rights of conscience, I shall see with sincere satisfaction

the progress of those sentiments which tend to restore man to

all his natural rights, convinced he

has no natural right in opposition to his social duties."

Reynolds v. United States, 98 U.S. 145, 164 (1878). The Court then held that Jefferson's

words "may be accepted almost as an authoritative declaration of the scope and effect of

the amendment thus secured. Congress was deprived of all legislative power over mere

opinion, but was left free to reach actions which were in violation of social duties or

subversive of good order." Id.; see also, Ballard, 322 U.S. at 87 (noting the intent of the

"fathers of the Constitution" to provide for the "the widest possible toleration of

conflicting views" and protection of religious beliefs, even those deemed incredible or

preposterous by most people); Davis v. Beason, 133 U.S. 333, 342 (1890) ("with man's

relations to his Maker and the obligations he may think they impose, and the manner in

which an expression shall be made by him of his belief on those subjects, no interference

can be permitted"). The Court expressed the same sentiment in Cantwell v. Connecticut,

310 U.S. 296, 303-04 (1940), when it held

The constitutional inhibition of legislation on the subject of religion has a

double aspect. On the one hand, it forestalls compulsion by law of the

acceptance of any creed or the practice of any form of worship. 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.

The absoluteness of the freedom to believe and the freedom to exercise a chosen form of

religion is significantly diluted by a court sponsored inquiry into what the individual

believes and how he or she expresses those beliefs. Although the factors provided by the

majority opinion arguably are content neutral, they still require an individual to provide

evidence concerning what he or she believes and how he or she expresses those beliefs so

that the courts may then judge whether the beliefs and practices are acceptable enough to

be labeled a "religion" under our definition. Such scrutiny clearly usurps the individual's

right to believe and to express those beliefs however he or she chooses.

The Supreme Court has also cautioned that a determination of what is a religious

belief or practice is "not to turn upon a judicial perception of the particular belief or

practice in question; religious beliefs need not be acceptable, logical, consistent or

comprehensible to others in order to merit First Amendment protection." Thomas v.

Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981). Furthermore,

"it is no business of courts to say that what is a religious practice or activity for one group

is not religion under the protection of the First Amendment." Fowler v. Rhode Island,

345 U.S. 67, 70 (1953); see also Hernandez v. Commissioner, 490 U.S. 680, 693 (1989)

("under the First Amendment, the IRS can reject otherwise valid claims of religious

benefit only on the ground that a taxpayers' alleged beliefs are not sincerely held, but not

on the grounds that such beliefs are inherently irreligious"). By applying a broad factor-

driven test as advocated by the majority opinion, the subjective perceptions of the court

are necessarily invoked in evaluating whether what the individual claims to be religious is

indeed religious. It also requires the court to judge the practices of the individual to see if

they are indeed "religious." This test clearly violates the spirit, if not the intent, of the

First Amendment.

The Second Circuit relied on the works of American philosopher William James to

define religion as:

"the feelings, acts, and experiences of individual men in their solitude, so

far as they apprehend themselves to stand in relation to whatever they may

consider the divine." W. James, The Varieties of Religious Experience 31

(1910). In referring to an individual's relation to what he considers the

divine, Professor James used the word 'divine' in its broadest sense as

denoting any object that is godlike, whether it is or is not a specific deity.

Id. at 34. Therefore, under the Religion Clauses, everyone is entitled to

entertain such view respecting his relations to what he considers the divine

and the duties such relationship imposes as may be approved by that

person's conscience, and to worship in any way such person thinks fit so

long as this is not injurious to the equal rights of others.

United States v. Moon, 718 F.2d 1210, 1227 (2d Cir. 1983), cert. denied, 466 U.S. 971

(1984). I believe this definition comes the closest to capturing the inherently elusive,

spiritual and personal nature of religion. I also believe that under such a definition it is

inappropriate, if not impossible, to evaluate or analyze the religious beliefs of an

individual under a factor-driven approach. The appropriateness of the above definition

lies in its openness, which also makes it unworkable as a standard for those seeking

concrete guidance in this area.

It seems to me the better practice is not to engage in any type of an attempt to

define religion and instead to assume, without deciding, the validity of an individual's

sincerely held religious beliefs for purposes of constitutional protection. See Smith v.

Board of Sch. Comm'rs of Mobile County, 827 F.2d 684, 689 (11th Cir. 1987) (assuming

secular humanism is a religion for purposes of the Establishment Clause); United States v.

Middleton, 690 F.2d 820, 824 (11th Cir. 1982) (assuming Ethiopian Zion Coptic Church

is a valid religion), cert. denied, 460 U.S. 1051 (1983); see also Jones v. Bradley, 590

F.2d 294, 296-97 (9th Cir. 1979) (assuming members of the Universal Life Church are

entitled to First Amendment protection). Under this approach if an individual makes a

claim that a government law substantially burdens his or her sincere religious beliefs I

would assume the validity of the religion without analyzing the tenets or practices of the

religion to see if they fit some preconceived vision of what a religion is. This approach

may seem radical; however, it is the only way we can assure an individual the absolute

freedom to worship what he or she chooses in the way in which he or she chooses. It is

important to note that such a practice would not send us down a "slippery slope" or create

a mass shield which any criminal could use to thwart prosecution for crimes done in the

name of religion. It has never been the law in this country that religious beliefs prevent

the government from regulating criminal or other harmful actions of individuals.

Cantwell, 310 U.S. at 303. Under the Religious Freedom and Restoration Act, after

raising the defense of religion, the individual must show that his or her religious beliefs

are sincerely held and were substantially burdened. If this showing is made, then the

government may still prevail if it shows that such burden is necessary to further a

compelling government interest and that the law is the least restrictive means of

furthering that interest. 42 U.S.C.  2000bb-1. This law enforces the absolute freedom of

the individual to believe and worship whatever he or she chooses, but clearly prevents

him or her from freely acting on these beliefs in ways that are harmful to others.

In this case, I would assume the validity of Mr. Meyers' religious beliefs and

affirm the district court's findings that these beliefs are sincerely held and substantially

burdened by the laws in question. Although I am confident that the government will have

no problem meeting its burden of proof, Olsen v. DEA, 878 F.2d 1458, 1462-63 (D.C.

Cir. 1989) (government has a compelling interest in regulating the use of marijuana and is

not required to accommodate sacremental use), cert. denied, 495 U.S. 906 (1990), it has

not yet been given an opportunity to do so. Therefore, in accordance with the

requirements of 42 U.S.C.  2000bb-1, I would reverse the district court's findings that

Mr. Meyers' sincerely held beliefs are not religious and I would remand to allow the

government an opportunity to meet its burden of showing that the laws involved serve a

compelling government interest and are the least restrictive means of meeting that

interest. See United States v. Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996).