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Jesus H. Christ on a three-month bender, if they'd just let Al Smith use his peyote the way he believed his supreme being meant it to be used, we all might have been spared this trainwreck.

Back in the early 1990's, Smith and another man were denied unemployment benefits by the state of Oregon because they had tested positive for the active ingredient in peyote, which has been a sacrament in various Native American religions since before bread and wine became sacramental in Christianity. Smith pursued his case all the way up to the Nine Wise Souls then sitting on the Most High Bench, who ruled against him. Not yet short-timing his day job, Justice Antonin Scalia who, of a Sunday, takes bread and wine instead of peyote as part of his own religious rituals, wrote the majority opinion in the case, saying, in part:

"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 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, and laws providing for equality of opportunity for the races."

Almost everyone from the religious right to the ACLU popped their corks over this and, in purported response, the Congress passed the Religious Freedom Restoration Act in 1993. (And yes, you are still entitled to ask, "Restoration? Where's it been?") Bill Clinton, just beginning to triangulate himself toward re-election, signed the thing. Since then, a gradual slippage regarding that act has been quietly underway. The RFRA is no longer about peyote. It has become a Trojan Horse, sliding the country toward a de facto kind of established religion, which today's ruling in Burwell v. Hobby Lobby makes eminently clear. Religious freedom exists in the realm of medicine only to those religions that the Court finds acceptable—and, I would argue, only to those religions to which the members of the Court belong. Much will be written, and rightly so, about the boneheaded social subtext of the following nut paragraph in the 5-4 decision read today by Justice Samuel Alito. It is so obviously discriminatory toward ladies and their ladyparts that no explanation seems necessary.

This decision concerns only the contraceptive mandate and should not be understood to mean that all insurance mandates, that is for blood transfusions or vaccinations, necessarily fail if they conflict with an employer's religious beliefs.

But let us look also at the religious discrimination embedded in the Court's logic. There are established religions in this country—Jehovah's Witnesses, to name one—that forbid their members to accept blood transfusions and to resist vaccinations. These are not small things. They are the basis for Christian Science. There have been religious objections to compulsory vaccinations going back to a movement among some clergy in Boston in the late 18th century. Until such time as a Jehovah's Witness owns a multibillion-dollar scrapbooking empire, and thereupon declines to offer blood transfusions to the employees of said company, and until such time as someone pushes that case all the way up the ladder, it looks very much to me like the Court, in limiting today's finding in this way, has decided to define what are acceptable religious beliefs and what it considers to be merely weird ones. And, moreover, the Court's curious limit as described above lends an undue amount of credence to specific manifestations of Christianity—namely a segment of fundamentalist Protestantism, and the conservative elements of Roman Catholicism. There are Christians, both Protestant and Catholic, who have no moral problem with contraception at all. Garrett Epps argued, convincingly, that a ruling like the one handed down today would privilege some religions over others. In fact, I would argue, as a lifelong Papist, that this decision is nothing if it is not the clearest effect of having three conservative RC's on the Court at the same time and, as such, it has privileged conservative (and politically active) Christianity over all other forms of religion, including other forms of Christianity itself.

And it's not like we couldn't see this coming. Harry Blackmun saw it coming in his dissent in the Oregon peyote case, writing:

Finally, though I agree with Justice [Sandra Day] O'Connor that courts should refrain from delving into questions of whether, as a matter of religious doctrine, a particular practice is "central" to a religion, I do not think this means that the courts must turn a blind eye to the severe impact of a State's restrictions on the adherents of a minority religion...

Since its passage 21 years ago, the history of the RFRA has been one in which the Court has narrowed the religious freedom that the law purported to restore. For example, the Court ruled that Quakers could not use the act as a basis for refusing to pay income taxes. Another court rejected an attempt by various Native American tribes—Ah, here's irony for you—to use the RFRA to stop the expansion of a ski resort on federal land that the tribes considered sacred. Right up through the Court's decision today, in practice, the RFRA has been repurposed to establish a privileged position within the law to a certain set of religious beliefs—those beliefs curiously coinciding with the political movement in which several of the Justices were formed. And, again, it's not like nobody saw this coming, either. In his Memorial And Remonstrance Against Religious Assessments, Mr. Madison warned against privileging one set of religious beliefs over the other:

The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

He had their number, in 1785, too.

UPDATE -- If you're thinking that I'm hitting the whole Papist thing too hard, look at these two passages from different documents:

The belief... implicates a difficult and im-portant question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an actthat is innocent in itself but that has the effect of enabling or facili-tating the commission of an immoral act by another.

And...

Neither is it valid to argue, as a justification for sexual intercourse

which is deliberately contraceptive, that a lesser evil is to be preferred to a

greater one, or that such intercourse would merge with procreative acts of past

and future to form a single entity, and so be qualified by exactly the same

moral goodness as these. Though it is true that sometimes it is lawful to

tolerate a lesser moral evil in order to avoid a greater evil or in order to

promote a greater good," it is never lawful, even for the gravest reasons,

to do evil that good may come of it.

The first is from Alito's opinion today.

The second is a section of Humanae Vitae, the 1968 encyclical from Pope Paul VI that restated the Church's opposition to artificial birth control and pretty much blew up the Vatican's teaching authority among a great percentage of the Catholic laity in the United States. I would guess that the percentage in question does not include Samuel Alito.

UPDATE -- Thanks to Garrett Epps for correcting mistakes I made in my account of the Oregon case.

Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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