Why the perversion of ‘religious liberty’ and RFRA ticks me off

Alfred Smith got fired from his job as a counselor in an alcohol rehab clinic because he went to church on Sunday and drank wine during communion.

That’s not exactly what happened. But it is exactly parallel to what happened.

Smith, who is Native American, got fired from his job as a counselor at a drug rehab clinic because he participated in Native American religious rituals involving peyote. Then he got turned down for unemployment benefits because peyote is an illegal substance in Oregon.

That seems wildly unjust. Even during Prohibition, sacramental wine was never illegal. How could Oregon’s ban on peyote — even in religious rituals — be viewed as anything other than a clear violation of Alfred Smith’s free exercise rights guaranteed by the First Amendment?

The case went all the way to the Supreme Court. The majority opinion, written by Justice Antonin Scalia in 1990, said “Tough luck, Mr. Smith.”

The court ruled that Oregon’s law prohibiting all use of peyote was a reasonable and generally applicable law. It wasn’t intended to target Native American religions specifically — they were just collateral damage. If a generally applicable law just so happened to have unfortunate side effects for religious minorities, well, then it sucks to be them, I guess.

That struck a lot of us as outrageous. A big messy trans-partisan coalition — the ACLU, everyone mentioned anywhere in the Handbook of American Religions — raised holy hell about this for the next three years. That produced two tangible results.

First was Hialeah — or, more formally, Church of Lukumi Babalu Ay v. City of Hialeah. The Florida city didn’t like having a Santeria congregation around and so, walking through the door that Justice Scalia had opened for them in the peyote ruling, they passed a generally applicable law involving the slaughter of animals that just so happened to also have the side effect of outlawing the religious practices of an unwanted religious minority.

To Hialeah’s dismay, the high court flip-flopped. Lower courts had all upheld the city’s anti-slaughter statute citing the clear precedent Scalia had provided in Employment Division v. Smith (the peyote case). But the Supreme Court blinked and balked and reversed itself, pulling a 180 with a unanimous ruling that the city’s statute was an unconstitutional violation of the First Amendment rights of religious minorities.

The fig-leaf excuse for this reversal was that such discrimination was the transparent intent of Hialeah’s law. That was distinct from the peyote case, the court said, because Oregon’s law hadn’t been specifically intended to burden the free exercise of Native Americans.

As though the link between peyote and Native Americans is supposedly too obscure to have occurred to anyone. As though the history of the western United States were pristine of any hint of bias toward Native Americans.

But it’s churlish to focus on the flimsiness of the pretext. The good news was that the court reversed itself — three years of very loud, very public argumentation had rendered its previous position indefensible. That can happen. It happens a lot, actually.

Later that same year, 1993, Congress passed RFRA — the Religious Freedom Restoration Act — a short, specific legislative response to correct the injustice established by Employment Division v. Smith.

In 1993, no one who supported RFRA believed that it said or meant what Justice Alito and the majority of the Supreme Court creatively discovered it to newly mean in the Hobby Lobby ruling. This inelastic law, tailored to remedy a specific ruling — one the court itself later repudiated (without quite admitting it) in Hialeah — has now been stretched beyond the breaking point.

This is a law that says, clearly, that the rights of religious minorities cannot be erased by “generally applicable laws” that just so happen to make their religious practices illegal. It defends the right of Native American religious groups to use peyote in their religious rituals. It defends the right of Santeria congregations to sacrifice chickens.

Or, rather, it used to do those things. Now it does the opposite.

Now, Alito says, RFRA defends the religious liberty of states who seek to outlaw peyote, and it defends the “religious liberty” of nice little Florida cities who just want the religious freedom to not have those weird Santeros hanging around.

The City of Hialeah should go back to court. Justice Alito has just made it clear that this time they’d win.