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This is the kind of ministry that Faith Baptist Church of Louisville,

Nebraska started.

The state of Nebraska, however, claims sovereign jurisdiction over

education.

There was no grant of such authority from the people of the state of Nebraska to the government in this area. In fact, the people of the state have repeatedly voted down compulsory education laws and amendments.

The United States Congressional enabling Act in 1864 which actually created the State of Nebraska, demands the State of Nebraska "harm no inhabitant in person or property because of his religious beliefs." (See appendices _E).

The Constitution of Nebraska, Article 1, Section 4 states "infringement of conscience shall not be tolerated". (See appendices H etc.) The religious conscience of myself and the members of the Faith Baptist Church are two-fold.

1. We must train and educate our children in the Lord.

2. The subjection of our church and our children to the control
of the humanistic religious organization, namely, the Department
of Education, to allow them to determine teachers, methods, and
curriculum violates our conscience as it relates to the education
of our children.

The court order of April 23, 1979 (See appendices K gave us

three choices.

1. To submit our church to the foreign religious cult, the Department of Education.

2. To close the school.

3. To move out of the state.

This court order violated our conscience in exactly the same way

the assumed statutes, rules and regulations violated our conscience.

At all times, the parents offered to supply to the county prosecutor

or county superintendent of schools the names, addresses, ages, test scores, and attendance records of their children to verify education.

The state is obligated to follow the least drastic means to assure its own interests and accomodate the faith of its citizens. At no time did the state show injury to any party. The sheriff testified under oath that no crime had been committed. Test scores (See appendices F clearly show the students academically above national and state norms on California

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Below is a list of the actual violent acts taken by the state of Nebraska against the people of Faith Baptist Church and myself which violated our Constitutional liberties and rights.

1. On September 13, 1981 Faith Baptist Church doors were padlocked and the people forced out of a prayer meeting.

2. On February 18, 1982, I was sentenced to four months of jail in the Cass County Jail.

3. On September 3, 1982, I was arrested from behind my pulpit in
the Faith Baptist Church as I ministered to my congregation and
students in the auditorium,

4. On October 18, 1982, over 100 praying members and visiting people were ejected physically by 18 armed officers and the church doors of the Faith Baptist Church once again were padlocked.

5. On November 29, 1982, I was arrested at the midnight hour while
I and my wife were staying at a local motel in the Omaha area.
This arrest was not legitimate and was proven so in the court room
two days later when the judge released me.

6. I was arrested the fourth time on December 8, 1982, and served 53 days in the Cass County Jail.

7. On November 23, 1983, seven men, parents of students attending the Faith Christian School were jailed the day before Thanksgiving where they spent 93 days behind bars. Their wives fled the state with bench warrants for their arrests and 32 children taken with them. The teacher, Mrs. Tresa Schmidt also fled the state to prevent arrest. She was not allowed to return home until April 26, 1984 at which time the warrant was dropped,

8. On April 26, 1984, I voluntarily surrendered myself to the
court at which time I was arrested and sentenced to eight months
in jail and told I could not be released early unless I forced the
families to put their children in state approved schools. The
sentence also carried a prohibition against my writing any books
or materials while in jail.

I have actively and continuously tried to negotiate this whole matter since 1977. We have met numerous times with different officials trying to find a solution. In December of 1983 such a solution and negotiation was reached. However, the Attorney General of the State of Nebraska adamantly refused his assistant to consumate the negotiated settlement.

the

How did all this happen? In the Nebraska statutes under 79-1701

law states that every teacher in a private parochial or denominational school must be certified (See appendices I however, in the statutes

chapter 79-1703 there is an exception for those teachers who are teaching

religion.

The problem was created when the judge refused to accept our own definition of our own religious faith. We believe that every subject

that we teach is religious. For instance, two plus two equals four is religious because it is truth, and Jesus said I am The Truth or the Source of Truth. Therefore, if two plus two equals four is true, it came from Jesus thus making it religious. However, the court made a willful decision that there were certain truths which could no longer be considered religious. He the judge decided that Math, Science, Social Studies, and History and any other subject which he would call secular would come under the police power of the state. This brings to the forefront one of the major problems causing persecution over religious conscience. The government must not, cannot, and should not define what is acceptable religious practice for another person or any of its

citizens.

If the court had only asked the questions, who is injured and what
Since there is no injury then whatever we believe

property is destroyed?

as our religious faith would have been protected by the First Amendment and the Nebraska State Constitution, Article 1, Section 4.

It is very convenient for the IRS or the Labor Department or for the Education Department or some bureaucratic organization to say we are not persecuting religion because we define this as non-religious. It just so happens though that to thousands and millions of Americans the education of their children is a religious function.

This could be said about almost every act of tyranny being carried out against Christians. It must be understood that actual crime is not protected under our Constitution nor is it protected by the scriptures. Many people have said, well if you're going to allow anything to be religious then someone may kill babies in the name of religion. Well, of course, you and I know that over eighteen million have been killed and no one seems to care about that. However, we do have laws against murder. Anytime there is a common law crime meaning a murder, bodily injury, property damage, infringement on another person's rights, or the disruption of peace and tranquility in the community, all of those actions would be regulatable by the government and punishable by the court. However, in our case and in the case of Rev. Moon and the case

of Bob Jones University and the case of literally thousands of churches

and Christians across America this is not the case. They simply are not

creating a problem.

Therefore, we would plead with this committee to introduce legislation which would prohibit any federal or state government or bureaucracy or agency from infringing on the right of any individual relating to religion as that individual would define his religious beliefs unless it is in the matter of commission of common law crime. We would also beseech this committee to include in that legislation some form of redress of grievance. We have literally spent a million dollars in the courts. Not one time have we ever had a favorable decision; not one time have we had a Writ of Habeas Corpus granted; not one time have we had any decision favorable from the courts. It is obvious that there is a conspiracy between the judges of the State of Nebraska even up to the Federal District level. There must be a removal of this cloak of immunity for judges. There must be a removal of a cloak of immunity from any official. There must be redress of grievance or there will be revolution.

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16. See note 153 & accompanying text infra.

17. The United States Supreme Court has consistently held that government reg
ulation of beliefs is absolutely prohibited. McDaniel v. Paty, 435 U.S. 618, 626
(1978), Cantwell v. Connecticut, 310 U.S. 296, 304 (1940), Reynolds v. United
States, 98 U.S. 145, 166 (1878).

18 Government regulation of actions is permitted to a limited extent. The test
which separates the permissible regulation from the impermissible regula
tion has been referred to both as a "compelling interest" test, Thomas v. Re-
view Bd., 450 U.S. 707 (1981), Wisconsin v. Yoder, 406 U.S. 205 (1972), Sherbert
v. Verner, 374 U.S. 398 (1963), and as an "interests of the highest order" test,
Thomas v. Review Bd., 450 U.S. 707 (1981), McDaniel v. Paty, 435 U.S. 618
(1978), Wisconsin v. Yoder, 406 U.S. 205 (1972). The Court appears to have
made no cognizable distinction between the two.

The "Interests of the highest order" test, as stated in Yoder, mirrers the
compelling state interest test of Thomas and Sherbert. The former test re-
quires that a state interest of "the highest order" and one "not otherwise
served" must be found in order to overbalance a "legitimate" claim to the tree
exercise of religion. This test accurately restated the second, third, and first
tiers respectively of the Sherbert free exercise test. Moreover, the Sherbert
case la cited seven times in the Yoder opinion and the notes as support for
the ruling handed down by the Court.

Nevertheless, a minority of lower courts found a distinction between the
two tests by reading Yoder to set forth a more even-handed balancing test
than the test employed in Sherbert. Marshall v. District of Columbia, 3 F.
Supp. 1012 (D.D.C. 1975), ad per curiam, 559 F.2d 726 (D.C. Cir. 1977), Devis
V.Page, 385 F. Supp. 395 (D.N.H. 1974). Some commentators agreed with
these courts in urging a less rigorous test. Giannella, Religious Liberty,
Nonestablishment, and Doctrinal Development: Part I. The Religious Liberty
Guarantee, 80 HARY, L. REV. 1381 (1967), Shetreet, Exemptions and Privileges
on Grounds of Religion and Conscience, 62 KY. LJ. 377 (1974), Note, An Ex-
pansion of the Free Exercise Clause: Wisconsin. Yoder, 37 ALB. L. Rev. 329
(1973). Other commentators, however, have stated that the test is and should
be more rigorous. Casad, Compulsory High School Attendance and the Old
Order Amish: A Commentory on State v. Garber, 16 KAN. L. Rev. 423 (1968),
Clark, Guidelines for the Free Exercise Clause, 3 HARV. L. REV. 327 (1969),
Kurland, The Supreme Court Compulsory Education, and the First Amend
mens's Religion Clauses, 75 W. VA L. REV. 213 (1973), Marcus, The Forum of
Conscience: Applying Standards under the Free Exercise Clause, 1973 DUKE
LJ. 1217, Pfeffer, The Supremacy of Free Exercise, 61 Geo. LJ. 1115 (1973).
The Supreme Court apparently settled the controversy by its rejection of
the bifurcation of the Sherbert and Yoder renditions of the test in Thomas v.
Review Bd, 450 U.S. 707 (1981).

19. Thomas v. Review Bd, 450 U.S. 707, 713-16 (1981), Wisconsin v. Yoder, 406 U.S. 205, 215-19 (1972), Sherbert v. Verner, 374 US. 398, 403-06 (1963).

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1982)

FREEDOM OF RELIGION

77

for not allowing an exemption for those whose religion the regula-
tion infringes,20 Finally, the state must demonstrate that there are
no less restrictive alternatives available to achieve its compelling
state interest.21 Only then will the state regulation be upheld.
Consequently, the heavy burden resting upon the state when it
seeks to justify an infringement of one's religious practices works
to assure Americans that freedom of individual conscience in reli-
gious matters will be preserved.

That assurance, however, has been shaken by the recent Ne-
braska Supreme Court decision in Douglas v. Faith Baptist
Church, where the court bypassed an excellent opportunity to
further solidify the "unalienable right"23 of the individual to serve
his God as his conscience demands. The case centered around a
private religious school operated by the Faith Baptist Church of
Louisville, Nebraska. From the school's inception in 1977,34 de-
fendants took the position that "the operation of the school is sim-
ply an extension of the ministry of the church, over which the
State of Nebraska has no authority to approve or accredit."25 As a
result, defendants refused to comply with state education regula-
tions. More specifically, they refused to: (1) furnish a list of the

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26. NES. REV. STAT. $79-201 (Reissue 1976) requires children between the ages of
7 and 16 to attend regularly the public, private, denominational, or parochial
day schools each day that such schools are open and in session. Nea. Rev.
STAT. $79-328 (Reissue 1976) gives the State Board of Education the power
and duty to supervise the state school system, id 79-328(5), "establish...
procedures for classifying, approving, and accrediting schools," id, and pub-
lish "laws and regulations governing the schools." Id.

Pursuant to this power, the State Board of Education promulgated a rule
which provided: "Only school systems approved... by the State Board of
Education are considered to be providing a program of instruction which is in
compliance with the compulsory attendance laws." Nebraska State Depart
ment of Education, Rule 14 (May 7, 1976). The Rule further specified curricu
lum requirements and the requirement that a professional staff member
employed by a school must "hold a valid Nebraska certificate... issued by

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