Alfred Leo Smith was a recovering alcoholic who worked as a counselor at a private Oregon clinic for recovering addicts. When a Native American colleague was fired for using peyote, the mescalin drug common in certain Indian ceremonies, he intentionally smoked it too and was fired. Both men were denied unemployment benefits. They sued the state, claiming their First Amendment rights were violated.
Six years later–in 1990–the U.S. Supreme Court ruled against them. Oregon was free to legalize an exemption for peyote, but there was no such exemption in state law, and the First Amendment did not require it, the court ruled.
“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” Justice Antonin Scalia wrote in his majority opinion. The court in 1878 had ruled against Mormons–the Church of Jesus Christ of Latter-day Saints, as it prefers to be called–using the First Amendment to shield their bigamy, thus outlawing Mormons’ (or anyone’s) polygamy.[1] No court will sanction female genital mutilation, one of North Africa and the Middle East’s more barbaric practices hiding behind religious custom, or the segregation of women during their period, as is still common in parts of Nepal or Brooklyn’s Williamsburg. No licensed professional could or should get away with recommending such harmful practices.
In Oregon the state wasn’t targeting peyote, which would have been illegal. It was targeting illegal drugs, which peyote was (though Oregon was not prosecuting anyone for its use).
Scalia said lawmakers were free to make exceptions. But the First Amendment could not be interpreted to mean that “each conscience is a law unto itself.” He predicted that it might result in preferential treatment for more conventional religions at the expense of “practices that are not widely engaged in.”[2] But “that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself.”
Three years later Newt Gingrich’s Congress passed the Religious Freedom Restoration Act in response. It translated the zealotry of a Great Awakening to law, severely breaching the church-state wall. The law completed the demolition Scalia had started by doing away with a higher standard of review–the so-called “strict scrutiny” test–when it came to religious preferences or disfavor.[3]
The Religious Freedom and Restoration Act turned the First Amendment on its head. An amendment intended to protect secularism in public spaces and prevent religious discrimination in private ones has been reinterpreted to promote religious expressions in public schools, at government meetings and in public squares while indemnifying private companies’ bigotry as long as they invoke their religious freedom.
Those inclined to destroy the separation of church and state like to say that freedom of religion does not mean freedom from religion. But the two are not mutually exclusive, and that’s exactly how the First Amendment was intended: granting freedom to individuals or collectives to practice any religion they please without government interference, but also without interfering with others’ practice or non-practice of their own religion. Christians don’t like that second part, as it means leaving public spheres free of religious expression that might infringe on an individual’s wish to be let alone.[4] That means freedom from religion in public spaces and public policy, including in government regulations.
We’ve gone sharply and zealously in the other direction. Scalia[5] feared a system “in which each conscience is a law unto itself.” It’s exactly the system he invited with the Oregon decision.[6]
We saw it in the Hobby Lobby decision that allowed the company to deny birth control coverage to its women employees, because it considers it un-Christian.[7] We saw it in the decision the same year that now allows public meetings to start with a prayer even when, as is always the case, privileging Christianity.[8] We saw it last year in the right granted homophobic or racist parents to opt out of class time if they don’t like certain books. We saw it in the decision allowing businesses not to serve gays, if it means so much as transcribing a loving six-word message by one gay person to another on a damn cake. We will see it soon in the funding of religious charter schools at public expense.
And we will see it by June when the court rules, probably 6-3, that states may not ban licensed counselors from preaching conversion therapy to patients under 18.
Conversion therapy is the non-medical and debunked theory that if you hector gays, lesbians, trans and enbys long enough, they’ll convert back to heterosexuality. Put in an equally crude way, it’s like telling a Black or Asian person that if they try hard enough, they could be white. The approach is premised on self-loathing. It’s abusive. It has nothing to do with science. It has everything to do with a perverted interpretation of Christianity’s vilification of anything non-heterodox.[9] Imagine if the old practice of bleeding was revived and termed a First Amendment right since bleeding was thought to flush demons from the body. That’s what this conversion therapy case is about.[10]
Many states ban conversion therapy for minors.[11] No state disallows churches or youtubers and other nitwits from preaching it on their Facebook pages. The ban only applies to licensed medical professionals, just as it would with any other nonsensical medical practice. That’s the difference the Supreme Court is about to demolish, erasing the line between professional licensing and theology, between science and snake oil.
You expect this from Iran’s Supreme Council of Islamic mullahs. You don’t expect it from Justices steeped in science and 230 years of First Amendment law. But we’re no longer that society, and this is no longer a secular court but the vanguard of a theocracy where each conscience is a law unto itself. Let us bow to quackery.
Pierre Tristam is the editor of FlaglerLive. A version of this piece airs on WNZF.
Notes and Amplifications:
[Keeping in mind that these notes and amplifications are not essential to the commentary nor recommended reading, at least not without a beer or two. They are pedantry’s sandbox. Abandon all hope ye who enter here.]
[1] There’s nothing wrong with polygamy. It’s easy, if not logical (and more easily demonstrable), to argue that monogamy, like monotheism, is against nature. The more the merrier, whether gods or spouses. The less absurd and oppressive and intolerable, too. The problem with polygamy isn’t the principle but, as always when religion corrupts a good thing, as religion always does, its application. For Mormons as for Muslims (the two cults share more DNA than not), the practice was strictly one way: a man could have several wives (up to four in Islam, unlimited plans in the Church of Latter Day Saints, until the church officially banned the practice in 1890), a woman could only have one spouse. Obviously in neither cult could a Sappho or Abu Nuwas (a Whitmanesque Muslim of the 9th century) thrive. It’s those prohibitions that justly lend revulsion to polygamy, not polygamy in itself. In any case, prohibitions have done nothing to stop it. As Updike’s Couples documented with erogenous granularity, we nowadays redefine polygamy as adultery if a marriage contract is involved. Without the contract, we’re all, or have all been at one time or another (and not just since the sexual revolution), polygamists in hock to Fanny Hill.
[2] Is there anything weirder than the subjectivity of judgments about one religion’s validity over another, of the subjectivity that deems, say, the Catholic Church more legitimate than Heave’s Gate, the Branch Davidians or Jim Jones’s People’s Church, none of which–if body counts are to count for anything–on their worst day (they each had horrific ones) approach the bloodletting in the Catholic Church’s name on any one of the 55,000 days of its reign before the Enlightenment and secularism slowed its genocidal orgies, which continue to this day?
[3] In English: strict scrutiny is the strongest constitutional test of a law’s validity. If the state can’t convincingly show that the law is in the public interest, it’s invalid. It’s a good standard to apply to First Amendment cases, whether about religion or free speech. Justice Sandra Day O’Connor in her partial concurrence and partial dissent had argued that applying strict scrutiny in the Oregon case would have yielded the same result Scalia was seeking. She thought he went too far by discarding strict scrutiny, perhaps seeing what was ahead. So Scalia’s decision was both visionary and short-sighted–visionary for refusing to go along with a standard that makes every person a religion unto itself and short-sighted for not seeing that inviting–or daring–Congress and legislatures to write laws elevating religion beyond First Amendment protections wouldn’t have the floodgate effect of Christianizing the country, as it has. Then again, the wily Scalia was no fool, and may have known exactly what he was doing by merely appearing to open the gates of Ijtihad, when he was very much closing them in Christianity’s favor. What Scalia did in the 1990 case, Justice Neil Gorsuch, Samuel Alito and Clarence Thomas are itching to do to libel law, invalidating Sullivan v. New York Times, the 1964 decision that not only found that to prove libel in a case involving a public official, the plaintiff had to prove that falsehoods were published with malice and reckless disregard for the truth, but that trial courts had to apply a strict scrutiny test to any claim of libel, thus raising an extra protective shield for the press. It has freed the press from endless threats of lawsuits and self-censorship. It has also led to rampant abuses from unscrupulous journalists and fake-news organizations like Fox and its viral progenies, though not without occasional cost.
[4] I’ve never understood how the very same people who would be indignant at any sexual or erotic expression in a public space feel perfectly comfortable to the point of presumption to express religious feelings in those spaces. I see no difference between the two. We are entitled to both. Religion, like sex, is an essential part of us. But religion, like sex, belongs exclusively to our private world–houses of worship, houses of pleasure, our own houses and wherever else our private world extends. Just not in public. Religious expression openly expressed by strangers around me repels me, and I suspect the revulsion is no different than how those pious eminences might react if I were to speak to them of my favorite sexual positions. Why should they not extend me the same discretion when it comes to their religious expression?
[5] Scalia was not fond of the 1960s Warren Court. Reagan appointed him to smash a lot of those precedents. He did, spending the first half of his tenure, before his straitjacket came off as the court veered decisively right, planting delay-action legal bombs like the Oregon decision.
[6] As Americans bred on a mythology of cultural and racial superiority (“America First,” “the American Dream,” “only in America”), we like to think of ourselves, in our brawny gallery of best, strongest, freest, as the country with the most respectful religious rights. We do well in that department. Certainly better than most. But we’re nowhere near “best.” According to the Pew Resarch Center’s annual tracking of religious restrictions around the world, at least three dozen countries have fewer restrictions, whether imposed by government or by social hostilities. (When’s the last time you didn’t sneer when you saw a Muslim take a few moments to pray in a discreet corner of a public venue, as you never would sneer when the table next-over joins hands to say Grace?)
[7] It is no different than–if Hobby Lobby were owned by a Saudi Wahhabi prince, say–forcing women to wear a burqa at work and calling it the company’s freedom to express its religious beliefs on its own turf.
[8] Those abuses are notorious in Flagler County, specifically in Bunnell, where, when the likes of City Commissioners John Rogers or the police chief open commission meetings with prayer, the words “Christ,” “Jesus” and “god” outnumber all others. Town of Greece v. Galloway, the 2014 decision of a split 5-4 court, “acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds,” in Justice Anthony Kennedy’s words for the majority, but does not require the prayer to be non-sectarian, or non-specifically Christian, as that “would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.” Kennedy minimized the intention of prayer as merely bringing gravity to the proceedings at the beginning of meetings. He punted when faced with the slippery-slope inappropriateness of prayers that turn preachy: “If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court.” But the circumstance is implicitly always in play, the moment a denominational prayer is spoken. Unitarians and rare other ecumenical sects aside, no religion’s prayer ever markets approvingly to iconoclasts and heretics. Kennedy also left unclear whether it is permissible for elected officials to say the prayers, though his context strongly suggests it is not permissible, just as it has never been so, as it would then place the elected in a position of explicitly endorsing–of preaching–the prayer: it doesn’t get more Establishment than that. Kennedy remarks on the “several occasions where audience members were asked to rise for the prayer. These requests, however, came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so thinking the action was inclusive, not coercive.” The fact that the “guest ministers” are specified underscores the still-prevailing rule thgat the elected must not deliver the prayer, let alone direct congregants to stand or sit in response, or ask them to bow their heads, as they routinely do in Bunnell.
[9] The self-loathing takes its source from the despicable and entirely un-Christ-like admonition we find in Matthew 5:29, “And if thy right eye offend thee, pluck it out, and cast it from thee: for it is profitable for thee that one of thy members should perish, and not that thy whole body should be cast into hell,” an admonition to which John’s Christ dissented (“He that is without sin among you, let him first cast a stone,” and so on.) Origen, unfortunately, stopped at Matthew, as did Augustine, who codified self-loathing of the human body for 1500 years of church doctrine and to this day scripts the moral mutilation of conversion therapy.
[10] Kaley Chiles is a licensed Colorado counselor who runs a place called “Deeper Stories Counseling” and tells her patients that “Creating a relationship with a therapist is a playground, an experiment, for learning which then fosters blossoming new relationships with self and with others (including God).” Her parentheses. More power to her. She sounds like a lovely person. So lovely and inoffensive that Colorado has made clear it has no intention of prosecuting her. She obviously has a very light hand. The state is not intending to stop therapists from including a religious point of view in the mix, and that’s not the sort of aberrant, shame-ridden “therapy” it had in mind when it passed the sort of law 25 other states have on their books–a law intended to keep charlatans from using their license as a shield for harmful, often deadly therapy. So the case should not even have been considered since, as Justice Sotomayor said in oral arguments and Scotus Blog reported, “there was no ‘credible threat of prosecution,’ as the Supreme Court’s cases require for a party to have standing.” But the Alliance Defending Freedom (formerly Alliance Defense Fund), wanted a case. It chose this one, since it would allow for a much wider door to open for conversion therapy. That ADF (not to be confused with the Anti-Defamation League) is the hard-right James Dobson progeny that tried to destroy the Affordable Care Act and succeeded in some regards. The Hobby Lobby decision and the ruling letting businesses refuse service to gays are its cap’s toxiest feathers. It now wants to forbid women from receiving abortion pills by mail, forbid transgender girls from participation in boys’ sports, and of course forbid states from regulating medical practitioners’ baseless and harmful claims. You can “sign up to pray for freedom’s future” on its website. So here we are.
[11] As you might expect, Free Florida, land of DeSantis, Ladapo and parental might, goes the other way, forbidding local governments from banning conversion therapy.
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