The Backlash

In 1983, in Oregon, two men, Alfred Smith and Galen Black, were fired from their jobs as substance abuse counselors at a drug rehab clinic. A supervisor got wind that the men had been using peyote, a powerful psychoactive drug made from a small cactus said to trigger hallucinations and feelings of deep introspection.

Disgruntled and jobless, the drug counselors applied for unemployment benefits, but the state rejected their claim, citing work-related misconduct. Taking peyote is illegal in Oregon, as it is in most states. But the men were both members of the Native American Church, where peyote is used in religious ceremony, and the Oregon Court of Appeals reversed the decision, stating that to deny the men unemployment benefits based on the religious use of a controlled substance violated the men’s First Amendment right to free expression of religion.

Oregon appealed, and the case went to the U.S. Supreme Court twice. The final 5-4 decision, in 1990, ruled in favor of the state and against religion. Writing for the majority in what is now known as the Smith decision, Justice Antonin Scalia, still one of the court’s staunchest conservatives, wrote:



The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, aand laws providing for equality of opportunity for the races.



Simply put, the court said, if people are allowed to pull the God card when they break a law, absolute anarchy awaits everyone. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,” the decision read.

It’s difficult to imagine Scalia would have felt the same had the case involved something like underage Catholics drinking wine at communion rather than Native Americans using peyote. What’s more difficult to imagine, in today’s political context, is the aftermath. The Smith decision was widely decried as a devastating blow to First Amendment rights and jolted all sides of the political spectrum into action. As a response, in 1993, New York Democratic congressman Chuck Schumer introduced the Religious Freedom Restoration Act (RFRA). It passed unanimously in the House and picked up only three dissenting votes in the Senate.

Christian media moguls Jerry Falwell and Pat Robertson joined ACLU chief Nadine Strossen in support of RFRA as President Clinton signed it into law, guaranteeing, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” as the law states, mandating strict scrutiny when determining whether religious freedom has been violated by the state and acknowledging that even a religiously neutral law can significantly burden a religion.

Now, the legislation born from that bag of peyote has set the legal stage for what’s being called the “partial-birth abortion” era for LGBT rights as lawsuits and conservative state governments, under the guise of protecting the religious freedom of Christians, attempt to chip away at the extraordinary surge forward of legal protections for queer people.

In 2015, Texas, Oklahoma, Arkansas, Indiana, West Virginia, Georgia, and Wyoming have moved bills through their state legislatures that would either ban anti-discrimination laws from protecting LGBT people or legalize the so called religious-freedom exemption for private businesses to deny service to LGBT people (also known as “turn away the gays” laws).

Last year Tennessee, Arizona, Mississippi, Maine, and Idaho all attempted to pass legislation aimed at removing protections for LGBT people.

In Kansas, this February, Governor Sam Brownback rescinded existing protections for LGBT state employees, saying they created additional “protected classes” that were unnecessary.

In North Carolina, after that state’s marriage discrimination law was invalidated last October, ten magistrates resigned rather than agree to issue marriage licenses to same-sex couples. In the spring, lawmakers there began to draft a religious freedom restoration act for the state. South Dakota and Kentucky pushed bills to target the rights of transgender people and bathroom use.

Then, on March 26, as many of these bills hobbled through state governments or stalled, Indiana governor Mike Pence signed that state’s RFRA bill into law. The outcry was swift and paralyzing, as protesters took to the streets in Indianapolis and elsewhere and organizations like Walmart, NASCAR, and the NCAA expressed distaste for the new law.

At the private signing ceremony — where roughly 70 guests, including religious leaders and anti-abortion activists, convened to ring in the new law — three of Indiana’s harshest anti-gay conservative lobbyists loomed over Pence as his pen dashed across the page: Micah Clark of the American Family Association of Indiana, Curt Smith of the Indiana Family Institute, and Eric Miller of Advance America. The three have quite a track record: Clark, in reference to the Boy Scouts accepting gay youth, once said, quoting scripture, that it’s “better to have a millstone tied around your neck and thrown in the sea” than to “cause a child to stumble into sin.” Smith has been known to equate homosexuality with bestiality, also quoting scripture, and Miller, besides comparing LGBTs to pedophiles, once distributed fliers claiming pastors could be jailed for preaching against homosexuality.

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