Whenever you hear from a weaseltwat like Governor Mike Pence defend Indiana’s odious Religious Freedom Restoration Act, they inevitably point to the original RFRA, a 1993 law signed by President Bill Clinton. In the Senate, the bill was sponsored by Democrat Ted Kennedy and Republican Orrin Hatch. It was supported by everyone from the National Association of Evangelicals to the American Civil Liberties Union. And it passed the House by a unanimous voice vote and the Senate by a 97-3 margin. It was not, in any way, controversial.
And that’s because it was designed to undo the fuckery of the Supreme Court in a couple of cases, most specifically the 1990 decision in Employment Division v Smith. In the 6-3 majority’s decision, the Court held that the state of Oregon could deny unemployment benefits to two drug counselors who had been fired because they had taken peyote as part of a Native American religious ceremony.
The Court especially had issue with the idea that the state might not have a “compelling interest” in using drug laws against the two men. Said the Court, “If the ‘compelling interest’ test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if ‘compelling interest’ really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because ‘we are a cosmopolitan nation made up of people of almost every conceivable religious preference’…and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”
The decision goes on to list these obligations, like “compulsory military service,” “health and safety regulation such as manslaughter and child neglect laws” even minimum wage laws. In some ways, the decision makes a great deal of sense. It’s just in the case of the Smith defendants, the overreach is kind of stunning.
By the way, you know who wrote this decision that smacked down religion as a reason to violate laws? Antonin Scalia, motherfuckers. History will fuck up your nice narrative every time. Of course, one could argue that what the Court was really responding to was the drug war hysteria and not so much the religion part of it. Still, it pissed a lot of people off.
So, with nearly the entire Congress on board, the Religious Freedom Restoration Act made it to President Clinton’s desk. The New York Times editorialized in support of the bill: “The bill, which President Clinton says he will gladly sign, would instruct government not to ‘burden a person’s exercise of religion,’ even if the ‘burden’ results from a law that is aimed at everyone and not meant to interfere with religious practice — unless there is a ‘compelling interest.’ If religious exercise must be limited, the bill says it must be done in the least restrictive way possible.”
At the White House signing ceremony, Vice President Al Gore said, “Those whose religion forbids autopsies have been subjected to mandatory autopsies. Those who want churches close to where they live have seen churches zoned out of residential areas. Those who want the freedom to design their churches have seen local governments dictate the configuration of their building.” The law would end these infringements upon religious liberty.
You’ll notice that “Those who bake cakes have been forced to bake them for gay couples” is not included in there. Now, of course, the times being what they were, gay marriage wasn’t even on the radar, let alone the law of the land in the majority of the country. But you can bet that had Ted Kennedy, Carl Levin, Paul Wellstone, and Patrick Leahy, all of whom voted for it, had thought that it could be used to discriminate against gays and lesbian, the RFRA wouldn’t have stood a chance in a majority Democratic congress.
So, really, fuck off with your comparisons between the intentionally discriminatory Indiana law and what was done over 20 years ago.
Editor’s Note: This essay originally appeared on March 30, 2015, on The Rude Pundit, a website featuring commentary by Lee Papa. It was reproduced here with the consent of Mr. Papa.
Image Credit: www.independent.co.uk