Now, at this point, I’d like to take a quick trip in the time machine back to a time – lo, these many years ago! – to when a different Democratic Messiah sat in office. The year was 1993 and William Jefferson Clinton had just been sworn into office as the Forty-Second President of These United States, to the chagrin of conservatives everywhere. I remember it well as a young military officer in the Marine Corps.
President Clinton was rumored to be considering allowing people who were homosexual to serve openly in the Armed Forces (!!). He had a history of drug use (even though he didn’t inhale!) and he did not. Sleep. With that. Woman. (No, no, not Monica Lewinsky. Gennifer Flowers. In the context of the sexual harassment suit filed by Paula Corbin Jones against Clinton, in which he later admitted that he did, in fact, have sex with that woman, but not Paula Jones.)
Anyway, Conservatives were in a tizzy. The world was going to end. Clinton was the anti-everything that had dominated the 80’s – Ronald Reagan and George H. W. Bush.
Oddly enough, that was also the same year that President Clinton signed into law the federal Religious Freedom Restoration Act (RFRA), passed by both the House and the Senate by near unanimous margins (only 3 Senators didn’t vote for its passage) and President Clinton signed it into law without a peep. It was introduced by that arch-conservative….? Senator Chuck Schumer (D, NY). Yes. Read that again.
Irony knows no limits.
It was also followed immediately by a bill introduced by another well-known conservative politician, the…uh…neo-Con…er… Edward M. “Ted” Kennedy (D, MA).
Ahem.
The legislation’s history is a fascinating glimpse at how Congress and the Supreme Court occasionally don’t get along so well. First, here are the Congressional findings that are the “preamble” to the body of the law.
FINDINGS.—The Congress finds that—
(1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
(2) laws “neutral” toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
Ahhhh, hmmm… what is this Employment Division v. Smith, 494 U.S. 872 (1990), case of which the Congress is speaking? And why it is pissed off at the Supreme Court for “virtually eliminat[ing] the…compelling interest test as set forth in prior Federal court ruling[?]” You know, the “workable” one that Congress evidently liked?
Turns out that in Employment Division v. Smith is, as the old saying, a “hard case that makes bad law.” Smith and Black were two employees of a private drug rehab facility. They both used peyote in a Native American religious ceremony. They were fired. They filed for state unemployment compensation in Oregon and were denied because of the firing for “misconduct.” The case bounced around (it got two tries in front of the SCOTUS) and eventually the Supreme Court held that the religious freedom exemption could not be evaluated under the same standard as the old “compelling interest” test, under which rubric and analysis they likely would have won their case. Instead, a rather conservative Supreme Court justice majority (although it was 6-3, ultimately, with O’Connor concurring, and Marshall, Blackmun, and Brennan dissenting) said, “if you smoke dope, even in a legit, historically verifiable, and otherwise harmless religious ceremony, we can still fire you and call it ‘misconduct’ and it doesn’t violate your First Amendment right to free exercise.” Now, I’m not trying to be too snarky here, because we might all acknowledge that there are limits to what the Free Exercise Clause of the First Amendment will allow. For example, if your religion required you to sacrifice kids as part of its practice, we’re not going to want to hear about your First Amendment rights when you do so. “Fuck you, get in jail and stay there.” However, this seems like the convergence of genuine (and harmless) religious ceremony run up against the Drug War stupidity of the 80’s and 90’s (and still ongoing, but we can shelve that for later.)
And so Democrats – ahem – the People’s Party(!) leapt into action to right this wrong. Republicans went along in no small part because they foresaw a time when it might be some Christian beliefs getting stomped on, and voilà! There’s the law. It enjoyed wide public support from you, my friends. Yes, you, the voting American public.
Now stay with me because it gets even better. Five years later, the RFRA itself would get challenged and its new standard, which was a direct attack on a prior Supreme Court precedent, would wind up back in front of the Supremes. They would invalidate the part of the RFRA that extended to states, finding that the Act was unconstitutional and exceeded its authority in attempting to regulate the States. In response to that decision, many states passed their own, copycat, state-RFRAs.
We fast forward to the present, twenty years later, and Indiana passes another copycat-RFRA that people are screaming about, claiming it will result in widespread discrimination against homosexuals. I should note that Conservatives (generally) continue to support RFRAs, same as they did before. They support it for exactly the same reasons that they supported it back when it was seen as a way to get the Feds and others from violating Native American people’s religious practice rights (You can check me on this. 1994 Amendments to the RFRA also forbade states from arresting Native Americans traveling to or from a religious ceremony with said peyote in their vehicles. Anyone who has driven across the country and been stopped by Border Patrol or Customs Enforcement can well imagine how some Native Americans might get stopped for being, ahem, a little browner than some others and wind up incarcerated over their ceremonial peyote).
NOW, however, the same party that initially passed RFRA legislation, introduced it, supported it, and had the President (from their party) sign it into law, says that these things are evil. EVIL, you hear me!? It would easy to call the Democrats now screaming about RFRAs hypocrites…so I will.
You fucking hypocritical pricks! What is wrong with you people? Do you realize how transparently craven you are? You want to protect the religious rights of Native Americans when they want to smoke peyote during their religious ceremony (as well you should), but you want to fuck those Christians who merely say they won’t participate in actions that violate their Free Exercise rights, namely having to cater a gay religious ceremony (like a wedding).
All of the durm and strang has even hardcore libertarians losing their minds. Penn Jillette, the stand-up comedian/magician/performer and ardent Libertarian and Atheist recently went on TV to proclaim that while he was generally libertarian, he just didn’t see why there should be these RFRA thingies and people should be allowed to “discriminate” against others in whether or not they would cater a gay wedding, or serve a gay couple in their restaurant, etc. In short, he has fallen prey to the narrative put forth by the same people who initially enacted these kind of laws: that we’ll see a return to the Jim Crow South in the Midwest when every bible-toting Protestant, Lutheran, and Episcopalian business owner refuses service to two men who enter his/her store lookin’ kinda gay.
This is so much fucking nonsense that it is laughable once you write it. First and foremost, unlike Jim Crow laws and the obvious distinguishing feature known as skin color, how the fuck is anyone going to know if someone entering their restaurant, hardware store, or TV shop is gay? Short of announcing it on their Mazda Miata with a Rainbow bumper sticker, how does this even come up? ANS: It fucking doesn’t. Second, in the current times, where the military now allows openly gay people to serve, who actually thinks that any business could long survive on its “I won’t serve their kind” principles in this economy? Right now, you get a customer, I don’t care what he or she likes to do in their bedroom, you’ll take them as long as their credit is good, and “twice on Sunday” if they’ve got cash. Third, even if the alleged discrimination takes place, how the fuck will you know? In other words, if I’m some dumb-ass ‘neck and I see me one of dem dar gayuhs, and I refuse to ring him up or I eject him from my gun shop, unless I specifically say, “I refuse you service ‘cuz you’re one of dem dar gayuhs,” how are we going to know?
This brings me to my final point, the asininity of this whole thing. It is a solution to a non-existent problem. And taken to its logical conclusion, what is really happening is another brick in the wall of the new-Left Social Justice Warriors’ thought police. That’s what they’re arguing for. Just give it a moment to sink in…
You come into my small law practice. You’re gay. You’re having a dispute with your domestic partner. It’s over a house you bought as tenants in common. I listen but you think you detect a look of disgust when you mentioned that you were gay. (In actuality, I just hate domestic relations cases and I’m a terrible poker player). I tell you I can’t take your case. You demand to know why. I tell you because I’m not taking your case, that’s why. You say, “it’s because I’m gay!” and make a scene in my office. I get angry and yell, “Yeah, that and you’re an asshole!” and I show you out of the office.
Is this now, under the rubric being screamed about all over the airwaves, actionable “discrimination”? And do I have to go into court when sued and justify why I looked the way I did when we discussed your case? Is the burden now on me to prove I’m not a bigot?? What if I am a bigot, but my motivation for refusing your case is about 30% because you’re gay – and I think it offends my God in the sky – but about 50% because I really do hate DR cases, and 20% because I’m just lazy and I don’t really need the work?
Here’s the thing: some of the best people I work with are gay, both male and female. Most of America doesn’t really care. The generation behind me – my kids, the youngest of whom is 17 – are all very much in the “live and let live” camp (thankfully). They all have gay friends, many of whom came out while in high school, an unthinkable proposition just thirty years ago.
This is another “solution looking for a problem” – except there isn’t one. And the alleged problem – these RFRA laws – were initiated by the same constituency that is now yelling about how horrible these laws are as vehicles for discrimination, rather than domes of religious protection.
Penn Jillette – you fucked up on this one, but you’ve generally been a good libertarian. I know you’re an atheist, but don’t sell out your principles for your own a-religious preferences.
Democrats – you passed these laws in the first place, for a very good reason: to protect the Constitutional rights of those who would like to practice their religion without being “unduly burdened” by Uncle Sam. Don’t be a bunch of hypocritical douchebags when someone with a religion you don’t like seeks the same umbrella of protection. It makes you an unprincipled hypocrite of the most despicable kind. More importantly, if it was a good law for Native Americans, it can’t be a bad one for Christians simply because they may be able to use it to avoid – in a very, very narrow set of hypothetical cases – “catering” to one of your base constituencies.
The LGBT community – stop looking to pick fights and find grievance everywhere you can in order to jam your lifestyle down the throat of those who disapprove of it on religious grounds. In short – quit picking on old people, for fuck’s sake. They have decreasingly less influence on your lives every day. You’re winning this war – and going to – but obtaining equality isn’t about extracting vengeance. Be an example for some other traditionally disenfranchised groups; it might do the whole country a lot of good.
Old people/Conservatives/Business owners – if you’re going to be a bigoted old bastard, at least be polite and provide some other reason for refusing service. And if you do so, I hope your business fails and you’re exposed as the homophobe (and hypocrite) you are. Christ himself chastised the entire community as they prepared to stone a woman for adultery: “Let he who is without sin cast the first stone,” he said. And no one did. At the time, homosexuality was well-known in the ancient world, as was adultery. As between the two of those sexual acts, only adultery was serious enough to get mentioned as a Commandment. Moreover, Christ healed the “pais” of the Roman Centurion in both Matthew and Luke. That happens to be the Greek word for a young male lover, but it is translated in the Bible as “servant.” The Bible is not a prescription for how to treat others shitty – even those you see as sinners. That is the overwhelming message of that book – redemption, forgiveness, and the Golden Rule. You’re embarrassing the good Christians.