concurring:
I concur in Judge Ferguson’s opinion, but write separately to express some concerns about the reasoning he has been required to employ.
In my opinion, the Supreme Court began to light the way to a proper construction of the First Amendment’s clauses on religion when it decided Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). I do not agree with this court’s crabbed view of that case, which suggests that it is limited to criminal matters. See American Friends Serv. Comm. Corp. v. Thornburgh, 961 F.2d 1405, 1407 (9th Cir.1991); NLRB v. Hanna Boys Ctr., 940 F.2d 1295, 1305 (9th Cir.1991), cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 686 (1992). That simply overlooks the general principles established in Smith, which point to the dangers of attempting to analyze the validity of neutral laws from the vantage point of some individual’s religious beliefs. See 494 U.S. at 882-89, 110 S.Ct. at 1602-06. In other words, in Smith the Supreme Court reminded us that laws of general application do not run afoul of the religion clauses; rather, those clauses assume and require an evenhanded neutrality both toward and on behalf of religious belief. Were there any doubt about the accuracy of this observation it was laid to rest when the Court decided Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). There the Court said, again and again, that what the religion clauses demand is “neutrality.” See, e.g., id. at 531, 533-34, 541, 113 S.Ct. at 2226, 2227, 2231. The Court also insisted upon general applicability, but as Justice Scalia pointed out, that and neutrality greatly overlap. Id. at 557-58, 113 S.Ct. at 2239 (Scalia, J., concurring). Neutrality points to a requirement that the laws be evenhanded “by their terms”; general applicability to a requirement that they be so in “design, construction [and] enforcement.” Id. at 557, 113 S.Ct. at 2239. I use the single word “neutrality” to refer to both facets. That approach would easily resolve this case in favor of the University. Cf. Smith v. Fair Employment & Housing Comm’n, 12 Cal.4th 1143, 1161-65, 913 P.2d 909, 919-21, 51 Cal.Rptr.2d, 700, 709-12 (1996) (FEHC) (neutrality approach easily decides First Amendment issue).
Moreover, I have serious doubts about the constitutionality of Congress’s attempt to overrule Smith and to reinstate (or instate) a flawed view of the scope and proper construction of the religion clauses. In this I am not alone. See, e.g., FEHC, 12 Cal.4th at 1179-92, 913 P.2d at 931-39, 51 Cal.Rptr.2d at 722-30 (Mosk, J., concurring); Christopher L. Eisgruber and Lawrence G. Sager, Why the Religious Freedom Restoration Act Is Unconstitutional, 69 N.Y.U. L.Rev. 437, 444-45, 452-60 (1994); Scott C. Idleman, The Religious Freedom Restoration Act: Pushing the Limits of Legislative Power, 73 Tex. L.Rev. 247, 285-302 (1994). Nevertheless, we have already at least tacitly decided that the provisions of the RFRA should be fol*1307lowed.1 See Cheema v. Thompson, 67 F.3d 883, 885-86 (9th Cir.1995); Droz v. Commissioner, 48 F.3d 1120, 1122-24 & n. 2 (9th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 698, 133 L.Ed.2d 656 (1996); Vernon v. City of Los Angeles, 27 F.3d 1385, 1392-95 & n. 1 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 510, 130 L.Ed.2d 417 (1994). The parties do not argue to the contrary.
Justice Mosk has outlined some of the problems which are subtended when courts undertake decisions about whether certain views are “central” to a person’s religion or religious beliefs. See FEHC, 12 Cal.4th at 1189-90, 913 P.2d at 938, 51 Cal.Rptr.2d at 728-29 (Mosk, J. concurring). Moreover, once we wander off the lighted neutrality path we are in the midst of a dense bog, and our reason for doing so hardly matters. Nor does it matter that we wandered to one side or the other. In either case, we are in danger of being sucked into a mire of confusion or overcome by a miasma of dubiety. In this area we find ourselves parading out complex tests and reasons, none of which are particularly logical or convincing.
We have to explain why members of one religion can carry knives to school when no one else can. Cheema, 67 F.3d at 885-86. We find ourselves struggling to explain why people who have a particular belief must still pay their taxes, even though those taxes will be used to foster programs that are antithetical to their beliefs. See Droz, 48 F.3d at 1122-24; see also United States v. Lee, 455 U.S. 252, 259-61, 102 S.Ct. 1051, 1056-57, 71 L.Ed.2d 127 (1982). We find ourselves spilling a good deal of ink trying to explain just why, or how, a police department can examine the activities of a high-ranking officer to see if he is properly performing his job. See Vernon, 27 F.3d at 1392-95. Finally, we find ourselves trotting out the same complex for-mulae to tty to explain to Goehring why he must pay his student fees, even if they will be used to fund projects that are anathema to him. In each case, however, the answer should be that the governmental action in question is perfectly neutral and evenhanded. Any restriction or mulct is evenly applied to all and only falls upon the particular believer in the way that it falls on everyone else. That is why taxes and fees must be paid. That is why performance can be examined.2 If we cannot say that a law or practice is evenhanded, the law or practice itself should fall, and that is an end to it.
In fine, in my opinion the proper approach to all of these issues is to treat religion, non-religion, religious belief, and other beliefs absolutely equally. The proper coign of vantage for the government is a promontory of neutrality. That would yield a simple and correct answer to this ease — Goehring must pay his fees just as everyone else must. He may not like a particular use of those fees by the University, but then others might not like other uses. That is not the point. The point is that the fees must be paid by all who attend the University, without respect to sect or belief. However, our precedent forces us into the more complicated approach we have taken in this ease, an approach which fortunately arrives at the same right answer.
Thus, I concur.
. Flawed construction of the religion clauses may not be the only reason to question the RFRA. See, e.g., Flores v. City of Boerne, 877 F.Supp. 355, 357 (W.D.Tex.1995), rev'd, 73 F.3d 1352, 1363 (5th Cir.1996); Jay S. Byhee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act, 48 Vand.L.Rev. 1539, 1624-33 (1995); Daniel O. Conkle, The Religious Freedom Restoration Act: The Constitutional Significance of an Unconstitutional Statute, 56 Mont.L.Rev. 39, 60-79 (1995). However, for purposes of this opinion those theories are not important.
. Of course, this approach would also require that knife carrying hy children in school will not be permitted, religious beliefs notwithstanding.