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American Cuckoo: Religious freedom or lawlessness

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My friend Sarah reminded me that Big Dawg Productions opens Ken Kesey’s masterpiece “One Flew Over The Cuckoo’s Nest” in May.

“Nothing in Kesey’s work is as cuckoo as the wave of restoration of religious freedom acts,” I said. “The practice of Christian principles of charity, mercy and compassion surely needs restoration, but business has been booming for Christian churches in America since the Mayflower landed. How Christianity became a victimized religion is truly miraculous!”

“Big Dawg has Sunday shows.” Sarah smiled, “Go after church.”  

I continued unfazed: “The first NC State senate bill introduced this year was to allow magistrates to opt out of marrying same-sex couples. And state Senator Paul Stam recently introduced our own version of Indiana’s law. We could be heading toward Sharia law here.”

“To permit these laws would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself,” Sarah thoughtfully asserted. “The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability. Such exemptions could be a slippery slope to lawlessness.”

I smiled. “Whoever said that should be on the supreme court!”

“He is,” my sly friend said with a chuckled. “I was paraphrasing Scalia. Seems like you’d rather live under Scalia law.”

“No! That champion of the ‘hanging chad’?” I recoiled. “I suppose I’d rather live under Scalia law than Sharia law.”       

In Employment Division, Department of Human Resources of Oregon vs. Smith  (1990), Oregon denied two Native Americans’ unemployment benefits because they tested positive for peyote. The Native Americans asserted peyote was used in religious ritual and protected under the “free exercise” clause. Scalia wrote the 6-to-3 majority opinion, affirming Oregon’s denial. The law is the law. Peyote is illegal in Oregon. Do not pass go. Do not collect unemployment. Scalia also seems prescient as to the effects of siding with faith-based exceptions in general:

“The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”  

That’s not Ken Kesey on an acid trip. That’s Justice Scalia, with a son and a priest. Had we listened to Scalia, the law still would be the law—even if that law offended a sincerely held religious opinion. (All religions are, at root, human opinions—nothing more.)      

But we didn’t listen. By 1993 we concocted the Federal Religious Freedom Restoration Act in part to defend our opinions. In the wake of recent court decisions to legalize same-sex marriage, states have conjured their own formulas to expand the federal law. They’ve transformed an apparently benign law protecting rare religions from state interference to make it possible for any individual to play the “religious freedom” card anytime they see fit. They’ve been constructed by people that oppose same-sex marriage as unholy and view the marriage of church and state as divine.

Why do we persist in distracting ourselves with our endless varieties of religious crusades? To be sure, the marriage of man to man or woman to woman is distasteful to some people. However, the only marriage in which the government has clear and compelling interest in preventing is the unholy marriage between church and state.

We can’t see that because this is America, founded by brave pilgrims who seek religious freedom (mostly for white Christian men with guns and property) and can’t tell the difference between private religious beliefs and public moral behavior. We call ourselves a Christian nation even though we didn’t have the decency to pass the 13th and 14th amendments without a Civil War—or pass the civil rights acts without a century of lynchings. We don’t have the guts to pass the Equal Rights Amendment to guarantee women get paid the same as men, but we can pass anything with “religious,” “freedom” or “patriot” on it in a New York minute. (But, please, don’t build a mosque in Manhattan. That’s un-American.)

With Easter behind us and tax day upon us, perhaps it’s time to file for divorce in the marriage between church and state. Instead of passing laws to protect our prejudices, we could tax churches for the billion-dollar businesses they are. Of course, if we tax churches, we’ll probably have to tax corporate cathedrals, too. We’ll have to regulate banks, pass the Equal Rights Amendment, and start celebrating each other’s diversity.

When that day comes, I’ll be bunking with McMurphy and Chief in the Cuckoo’s Nest.

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