Morning After Pills and Peyote Pipes

Last week we packed our newspapers and law books and set out on our summer road trip down the First Amendment Highway. In coming weeks, we’ll be good tourists and visit some historic markers in Constitutional history (maybe Sproul Plaza at UC Berkeley and the Free Speech Movement?)  But we’d better drive carefully, because if the Supreme Court keeps up its controversial decisions, our road might be blockaded in spots, crowds of protestors exercising their right to assembly.  Take last week’s Hobby Lobby ruling – I would call that a full scale car crash pileup that we’ll be stuck behind for a long time. So climb in – never a dull moment on the First Amendment Highway.

The First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free expression thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Peyote Bird PipeBecause Native Americans consider it a sacrament to smoke peyote in their religious ceremonies, the US Supreme Court ruled last week that employers may refuse to cover birth control for their employees, if the owners object on religious grounds.

Or put it this way; if you are a religious American you can smoke peyote but your boss might deny your access to birth control, thanks to the First Amendment.

I wonder: when James Madison wrote in the First Amendment to the US Constitution that “Congress shall make no law respecting an establishment of religion, or prohibiting the free expression thereof” did he have any idea the courts would be writing about morning after pills and peyote pipes?

Welcome to America’s diverse, fluid and contentious religious landscape. 

Roughly speaking, the religion protections in the First Amendment has two parts.  One, the government can’t set up or favor one religion over others (establishment.)  Two, people can’t be stopped from freely expressing their religion (free expression.)  (Note that  the phrase “separation of church and state” does not appear in the Constitution – that’s a later concept, and slightly different.)

Over the years the courts have decided many cases on both these protections.  Earlier this year, in a case named for the small town of Greece, New York, some Jews and atheists sued the town council for allowing primarily Christian pastors, using explicitly Christian language, to open council meetings with prayer.  Most people expected the court to rule in favor of the plaintiffs, because it seemed to favor one religion over others.  But – surprise! – the infamous five conservative justices, all Catholic men, said that prayer before meetings was a cultural tradition, not a religious expression, and allowed it.

But this week’s case, about birth control, was about the second clause, free expression, which likewise has been honed and refined over the years.  (Prayer before school football games, soldiers wearing yamulkes, etc.)  Were the fundamentalist Christian owners of the craft store chain Hobby Lobby being denied their right to freely express their religious conviction that birth control was wrong and did that free expression extend to their employees who might not share those beliefs?

This time, sort of like last week’s abortion and free speech ruling, the ruling was more narrow than the headlines implied.  Justice Scalia writing for the majority said yes, Hobby Lobby’s religious expression was being limited.  But, he said, there was an easy workaround; the Obama administration had already offered an exception to the health insurance birth control requirement to churches and synagogues and temples, as well as religious schools and hospitals.  You can do that too, Hobby Lobby, the court said.  Just sign a form saying your religious beliefs prevent you, the company, from paying for the contraception directly, and the insurance companies will be required to pick up the costs. 

But then later in the week the justices seemed to contradict themselves when they granted a conservative religious college the right to do a workaround around the workaround. Wheaton College said they couldn’t even sign the form, that that would be complicit in the evils of contraception.  So the men of the court said, OK, don’t sign the form, just bring a lawsuit and we’ll give you a pass.  The three women justices were furious and penned an extremely explicit condemnation of their colleagues’ duplicity. 

Stay tuned for more suits from both businesses and religious institutions seeking exceptions and so-called clean hands. 

So where do the peyote pipes come in?  25 years ago the Supreme Court had ruled on another religious expression case, in Oregon, where a Native American who was working as a drug counselor was fired when he tested positive for drug use.  His defense was he had smoked peyote as part of a Native American religious ceremony. The court ruled against him, saying the state had the right to enforce drug laws for the greater good and to restrict his religious expression.

There was huge public outcry after this court ruling.  All kinds of religious organizations, conservative, liberal, Jewish, Muslim, Christian fundamentalist united to pressure Congress to pass a law called the Religious Freedom Restoration Act which expanded the rights of citizens to express their religion and required the government only to limit them in the least restrictive way possible.  The Native Americans could smoke peyote sacramentally. 

What amazes me is that 93 out of 100 senators, Democrats and Republicans, came together to vote for a law to overturn that Supreme Court ruling, saying it was too restrictive, and religions should have more freedom of expression.  Did they really feel that strongly about Native American sacramental peyote?  Maybe it was the parallel suit at the same time by Native Americans to stop the US from taking control of more Native American lands including some sacred sites, which also claimed their free expression was being limited.  I can see Americans defending land rights, but hallucinogen rights?  But they did, and Clinton signed it.

But because Congress passed that new law, the courts now have to rule that any law limiting religious expression must use only the least restrictive methods.  Scalia wrote the ruling overruling sacramental peyote use.  But now he and the court (some new folks on the bench, thank you George W. Bush) seem to have had a change of heart.  If it’s OK to smoke peyote, it’s ok to express your religion on the backs (or the uteruses) of your minimum wage women employees. 

I haven’t even brought up the whole issue of how the court has decided recently that companies are now considered people with First Amendment rights (the Citizen’s United case), and so, like people, they have free speech rights.  (This means that companies can give as much money as they wanted to politicians, because money is speech.)  So now, with the Hobby Lobby case, companies have religious rights as well.

Democrats are hoping that this ruling will improve their chances at the polls in November, that they can appeal to women voters especially, with the promise that they will pass a new law, like the Religious Expression law, that will force the courts to rule differently on birth control and religion. I’m not very optimistic.  Congress hasn’t voted on much of anything, let alone bipartisan 93-7, for the past 8 years.   And when it comes to birth control, which 90% of Americans, men and women, support, the men of Congress and the courts and the religious right are running the show.  I guess Jefferson really meant it when he wrote, “All MEN are created equal.”

Copyright © 2014 Deborah Streeter