It is precisely because the Federal RFRA was found unconstitutional to apply to states that the states went and applied it to themselves. Back before Conservatives got in a panic about gay rights, the original implementation of it (which most states copied) was actually considered a just and proper law by both Liberals and Conservatives alike. The ACLU had a major hand in its creation, it only had three dissenting votes in the entire Congress when it was passed, and it was signed into law by Bill âHave a Cigar!â Clinton himself. For more info, check out this blog entry, and also this one.
Even Arizonaâs 1999 implementation of it matches the narrower Federal version. That was why Arizona politicians wanted to add some broadening clauses to it in 2013âcorporate personhood and the right to use the RFRA against anyone, not just the government. Those clauses got vetoed for Arizona by Gov. Brewer, but the exact same clauses ended up in sections 7 and 9 of SB 101.
I was raised to bask in the glory of Judi myself, and have rarely been tempted to abandon her (get thee behind me, Sir Ian McKellen!), but hereâs one of my favorite sermons:
Iâm a big fan of the RFRA (I have friends in Oregonâs Santo Daime for example, who can practice their religion precisely because of it)., but donât you find the whole self-application by states to be somewhat troubling?
After all itâs only legislation (even at the Federal level, where is was passed to restore the CSI test), and what the law makers givieth they can easily taketh away if it becomes too inconvenient.
Thatâs why I think it is unlikely that the lawmakers there would say âHmm, we didnât intend to legalize X, but oh well!â
Thanks to the Separation of Powers, thatâs how these things work. The Federal Government doesnât have the power to order states to do certain things. (Thatâs why the application of the Federal RFA to the states was found unconstitutional.) They can just make suggestions.
(Of course, sometimes they can accompany those suggestions with blackmail. The reason all 50 states now have a minimum drinking age of 21 is that the government threatened to withhold Federal highway funds from states that didnât vote to raise it to that.)
And, as I said above, before the advance of gay rights drove conservative state regulators into a panic, the RFRA was considered a desirable law for states to have for the protection of adherents to all religions within that state.
Iâm curious how many people have actually taken time to read the law in question.
My biggest issue with the law is not what it enables businesses to do, but that it doesnât provide the same rights to equivalent non-religion beliefs. Where is the right of agnostics or atheists to decent from laws that carry undo religious connotations?
One could wish that all laws required that the government prove it â(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest;â
Iâm not at all a fan of the corporations as people bit, but at least itâs an explicit item in the law, and not some invented idea by the courts. The people of Indiana can work to fix a law, but we essentially have to wait for the supreme court to retire before we can fix that mess.
They might not be stupid, but their bias and lack of understanding certainly make an impression. Many religions which use actual psychoactive sacraments pre-date the popular Abrahamic ones. And besides, thereâs not any compelling reason why religious freedom should be based upon how old a given religion is. Even if there was, they would not want to go there.
The problems are in two areas: 1. what sacraments generally are understood to be, and 2. what exactly does âhighâ even mean?
On the first point, there is a long history of entheogenic use. The substances have been historically used to facilitate altered states of consciousness for ritual purposes. And the reasons for adaptation of purely symbolic sacraments (such as wafers) are widely understood, as some doctrines require that only clergy are entitled to direct religious experience, so the masses get a substitute. But many doctrines and traditions do not specify this. And symbolic sacraments can be quite unsuitable for certain kinds of work.
On the second, being âhighâ is a rather poor qualification for sincerity. Religious experience has often been known to include euphoria and such states, and I think itâs debatable that this should be taken to imply insincerity. It would be just as easy to argue that conservative Christians only go to church because they are bums who only seek free wine and crackers. Ultimately, it can also be argued that people can expect religious freedom whether they appear to be sincere or not. Some people I am sure are affiliated with churches for other personal, family, or social reasons and they still are afforded these protections if they arenât a firm adherent to doctrine or creed.
A lot of it really comes down to, like I was saying, people on either side imagining they are âgetting away with somethingâ particularly special or naughty when they arenât.
Theyâre sounding so many alarms about âSharia law,â even though it would seem to be the least likely thing to happen given our constitution, precisely because theyâre actually for throwing out the constitution for a theocracy - they just want it to be their brand of theocracy.
Well, odds are pretty good that a centuries-old religion wasnât just started for the sake of trying to make an end-run around anti-drug laws like the âFirst Church of Cannabisâ (and, for that matter, the Church of Cognizance in the quote cited above) were. If you can prove youâve been doing it for a long time, before anti-drug laws came into effect, then itâs pretty clear youâve got the right to do so.
[quote]The problems are in two areas: 1. what sacraments generally are understood to be, and 2. what exactly does âhighâ even mean?
On the first point, there is a long history of entheogenic use. The substances have been historically used to facilitate altered states of consciousness for ritual purposes. And the reasons for adaptation of purely symbolic sacraments (such as wafers) are widely understood, as some doctrines require that only clergy are entitled to direct religious experience, so the masses get a substitute. But many doctrines and traditions do not specify this. And symbolic sacraments can be quite unsuitable for certain kinds of work.[/quote]
Any religion thatâs been around long enough to have an established tradition of such sacraments is more than likely going to be permitted to go right on using them. Thatâs what the RFRA was invented for.
[quote]On the second, being âhighâ is a rather poor qualification for sincerity. Religious experience has often been known to include euphoria and such states, and I think itâs debatable that this should be taken to imply insincerity. It would be just as easy to argue that conservative Christians only go to church because they are bums who only seek free wine and crackers. Ultimately, it can also be argued that people can expect religious freedom whether they appear to be sincere or not. Some people I am sure are affiliated with churches for other personal, family, or social reasons and they still are afforded these protections if they arenât a firm adherent to doctrine or creed.
A lot of it really comes down to, like I was saying, people on either side imagining they are âgetting away with somethingâ particularly special or naughty when they arenât.[/quote]
The thing is that judges are empowered to judge religious sincerity. In fact, theyâre required to. They were required to for decades even before the RFRA was written, because the point of the law is to protect practitioners of actual religions that exist for truly religious purposes. The law is not meant to allow people to rules-lawyer their way around laws they donât like by inventing a new religion off the cuff to justify it, no matter how they try to argue that their âbeliefâ entitles them to do so.
You canât invent an âOur Lady of the Blessed Acceleratorâ church that holds speed limits as anathema. You canât found the âSacred Order of the Pickpocket,â which has a religious rite of collecting âdonationsâ from the unaware. And you canât make a new church that says itâs a sacrament to do illegal drugs, no matter how much you might want to.
You can apply all your sophistry to that point, and you can argue that philosophically you should be able to use mind-altering substances because religions have been doing that for hundreds of yours. You can argue until youâre blue in the face. You can even toke up and then argue it in court after you get caught if you feel like spending lots of money on lawyers and risking your freedom on the outcome. Go right ahead. But as the law journal quote above indicates, judges werenât born yesterday. If your particular religion hasnât been doing it for hundreds of years, or even one year, its motives are immediately and naturally suspect in court. Sorry about that, but itâs just a fact of life.
And this is a clear violation of the establishment clause. Anything thatâs legal for members of some religions but not others, or any judgement on the part of the state as to what constitutes a âlegitimateâ religion, is a completely obvious violation of separation of church and state.
Could we create a Church of Actual Science, use all the powers everyone from the Catholic Church to Scientology has been abusing, invite everybody to join as long as theyâre not a dick to each other and actually learns logic and reason, and basically take over Indiana?
There is a delicious irony in that, isnât there? (and that gets us in front of the judges/politicians issue too! Weâd also make it really easy to vote!!)
See, the thing about the Establishment Clause is that it includes the Free Exercise Clause.
âCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.â
If youâre going to keep from prohibiting the free exercise of a religion, sooner or later you have to be able to decide if someone has an actual religion theyâre trying to exercise. The problem with people is that many of them will happily lie like dogs to get away with anything they can. Laws become meaningless if you can simply get around any law you want by claiming to have a religious objection to it.
Besides, the clause says âCongress shall make no lawâŚâ It doesnât say âThe courts shall make no judgmentâŚâ
Not unlike the folks in Louisiana who backed way off of the idea of allowing school vouchers to be used for private religious schools, once they realized that it wasnât just Christians whoâd have that right, but Muslims too.
