How the Religious Freedom Fight Started as a Drug War Debate

The debate about religious freedom, prompted by controversy over legislation in Indiana and Arkansas, is actually a debate that started with drugs. Most specifically, peyote.

In the 1980s, Alfred Smith and Galen Black were ironically fired from a private drug rehabilitation clinic for ingesting peyote. Why were two employees of a drug rehabilitation clinic tripping on peyote? They were both members of the Native American Church, which has used peyote for religious purposes since before the United States ever existed. The clinic they worked at learned about this, fired them, and refused them unemployment insurance payments. Smith and Black then sued. That led to a 1990 Supreme Court case, Employment Division vs. Smith.

“What they were asking the Supreme Court to do was order the state to pay them unemployment insurance,” Garrett Epps, a law professor at the University of Baltimore, told ATTN:. “That's all the case was about. The Supreme Court went through and changed the case and sort of insisted that it become a case about criminal law. It wasn't even clear that taking peyote was criminal under Oregon law, but that's the way the Supreme Court chose to interpret it.”

Epps explained that the court decided the employer firing them and refusing to pay unemployment did not infringe on the free exercise clause of the First Amendment because the employer hadn't singled out a specific religion.

“That basically meant that because the Oregon legislature didn't even know there were any peyote practitioners in Oregon at that time, because of that, they were not aiming at suppressing the Native American Church,” Epps said.

Strangely enough, considering America's history, this Supreme Court decision outraged religious groups that had nothing to do with the Native American Church. Christian churches, Jewish groups, and a wide array of other religions saw the Supreme Court decision as an affront to religious freedom, and they began to lobby Congress to create a law that would prevent religious groups from being persecuted for their practices.

Once this coalition of religious groups began pressuring Congress, Native Americans, who initially sparked this debate by standing up for their rights, expressed interest in having peyote protected as well. They were ignored. The resulting Religious Freedom Restoration Act of 1993 did not include the peyote protections.

“If you read the legislative history of the Religious Freedom Restoration Act [of 1993] you will find language in the committee report basically saying, 'Well, of course this doesn't mean that state or the federal government can't outlaw peyote religions, because that probably passes the compelling interest test.'” Epps said. The compelling interest test is the legal precedent that states must meet to ban protected rights, such as speech and religious practice, under the First Amendment. “It was very disappointing to the native people involved and not surprising particularly, but disappointing because it was kind of a classic response from white culture concerning Native American rights. They were basically saying, 'We want our rights, but we think you should take a back seat,'” Epps said.

So the first RFRA was born—a law that would make sure the “interests in religious freedom are protected” as long as you're not Native American. It wasn't until the middle of 1994, when Native Americans were able to push to amend the American Indian Religious Freedom Act of 1978 to make religious use of peyote legal for qualifying Native American religious groups.

The RFRA of 1993 was ruled unconstitutional in the Supreme Court case City of Boerne v. Flores in 1997, which said Congress had “exceeded the scope of its enforcement power,” but only as it applied to states so the federal rules remained. And that's how we have laws like the Indiana law popping up -- because states are still trying to get their religions protected at the state level.

What's interesting about Indiana and Arkansas' laws is the change in focus from protecting religious practices from state law to protecting businesses or individuals who do not want to service gay people.

“In general, the motivation of [previous religious freedom] laws has been to protect the religious freedom of individuals and minority religious groups against laws that are going to be excessively burdening their religious practice,” Bernadette Meyler, a law professor at Stanford University, told ATTN:. “There are a bunch of these early statutes on the state level that do something of that kind. Now, the more recent set of statutes, in the past year and a half or so, a lot of them have come up right after decisions either allowing gay couples to use various kinds of public services or public accommodations under state nondiscrimination laws, or in the case of Indiana, the seventh circuit had recently invalidated Indiana's ban on same-sex marriage.”

Meyler said that the major religious groups, despite their size, likely feared the idea of same-sex couples coming into their businesses and made a move to stop it. But it's not just the religious organizations. “They came out in the context of an attempt to ensure that not only religious individuals but also corporations that could allege a religious purpose wouldn't have to accommodate LGBT individuals or same-sex couples,” she said.

The Burwell v. Hobby Lobby case in 2014, Meyler said, changed the national tone. The Supreme Court ruled that for-profit corporations could be exempt from certain laws if it was based on the owner's religious beliefs. “Here we have the possibility that corporations with only a tenuous relation to religious beliefs will be arguing religious justifications against assertions of rights by others,” she said.

Barrett Epps said that it's very strange a for-profit corporation would get a religious exemption, because religious corporations have always had an exemption. “Religious corporations were clearly always intended to be covered [by religious freedom legislation], because it's not just individuals that have freedom to exercise rights,” he said. “It wouldn't make sense if it was that way, because the exercise of religion is generally something that is done within a group... As far as applying to for-profit corporations, that I think caught a certain amount of people by surprise.”

Epps said the Supreme Court likely won't be challenging any religious freedom laws that affect same-sex couples until they make their decision on same-sex marriage in general. Oral arguments on that matter start at the end of the month.

On its face, religious freedom laws look to be religious people saying they need protection from being forced to make a pizza or a burger for a gay couple. While to many that might seem to be an almost laughable argument, religious freedom laws have a strange and intricate past, from not acknowledging Native American religious beliefs to letting large corporations claim to be Christian without actually being a religious organization. Once the Supreme Court makes its same-sex marriage decision, it will likely get even more intricate. We'll just have to wait for the other shoe to drop.