How the War On Drugs Helped To Destroy The Free Exercise of Religion

113356__strokes_lMajor Premise: Hard cases make bad law.

Minor Premise: The Supreme Court deals with hard cases.


Back in  1990, the Supreme Court had a hard case. (Employment Division vs. Smith) If someone was using drugs because their religion required it (the Native American Church uses Peyote for religious purposes), does the law protect their free exercise? In 1990 we were only 2 years removed from the Reagan presidency. The First Lady’s signature issue had been “So No to Drugs.” (She had even appeared in an episode of Different Strokes to explain what she was talkin’ about to Arnold and the gang.) Drugs were bad. The war on drugs was good. We were going to defeat this menace as surely as we defeated the evils of alcohol with prohibition.

Eisenhower_d-dayBut you see, to win a war, you must commit to winning the war.  There are casualties in a war. And you can’t allow fear of casualties get in your way, if you are really serious about winning that war. (Eisenhower was told that the casualty rate for paratroopers on D-Day could be as high as 70%. He ordered them to go in anyway, to help soften the beaches for the ground troops. Fortunately, the predictions were incorrect.)

In the war on drugs, there couldn’t be exceptions. If people could smoke Marijuana for medical reasons, then everyone would come up with a medical reason. If people who were members of The Native American Church could use Peyote, as long as it was for religious purposes, then everyone would claim that their religion required them to use illegal drugs. So, the Supreme Court, very rationally, ruled that because the law against drug use was not specifically targeted against religion, but had a legitimate public interest, it was constitutional.

In response Congress overwhelmingly and bi-partisanly passed the Religious Freedom Restoration Act. (How overwhelmingly? Out of 535 members of congress, only 3 voted no. That’s 1/2 of 1%) According to RFRA, if any law would interfere with a person’s religion, it had to be a “compelling” government interest (the highest standard), and the law had to use the least restrictive means to achieve that interest. In other words, if a law would infringe on the free exercise of religion (which the constitution specifically says it shouldn’t do), it would have to tread as lightly as possible.

But, of course, that would not stand in the new, secular, America. RFRA has been condemned for allowing discrimination, when it’s intent is to prevent that very thing. You see, individuals can discriminate as much as they want. You can be a racist scumbag, and join the Illinois Nazis if you want. (For the Record, I hate the Illinois 5_illinoisNazisNazis.) But the government can not discriminate. Without RFRA, the town council can pass a law saying that any organization that hosts gatherings of greater than 15 people and has a membership list must pay a $10,000 license fee each year. In my town, this would apply only to churches. We have a lot of churches. It would raise a bunch of money. It’s viewpoint neutral. But its effect on churches would be devastating.

We now have SCOTUS saying (and our freedom-loving Republican Candidates agreeing) that a woman should resign her government position if she will not do something that was not even legal until 5 seconds ago, that specifically contradicts the black and white text of the Kentucky Constitution. Had the Supreme Court ruled, all those years ago, that “shall make no law prohibiting the free exercise of religion” actually meant what it said, would the situation be different today? It certainly wouldn’t be worse. States routinely flout federal drug laws. Medical Marijuana is a thing. The war on drugs is lost. The terrible effects of the Supreme Court ruling remain.

But wouldn’t it have been nice, if, instead of using religion to fight the war on drugs, the seven had said “This law may have a noble purpose. But the text of the constitution is clear. It obviously means that not only may you believe as you want, but you may freely exercise that belief in practice. Anything that would restrict that have an overwhelming importance, and must restrict it in the least burdensome way possible. And yes, this applies to state and local laws as well.” Sometimes I do wonder…

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