Journalists who took the time to dig into the history of the Religious Freedom Restoration Act -- all the way back into ancient times, as in the Clinton White House -- will have run into references to a 1990 U.S. Supreme Court case called Employment Division v. Smith.
That case focused on this question: Did Native Americans -- in this case workers at a private drug rehabilitation group -- have the right to take peyote as part of a religious ritual linked to similar rites in their heritage dating back centuries? The conservative side of the court said "no," while liberals dissented and said the decision denied Native Americans the free exercise of their religious beliefs.
Justice Antonin Scalia famously said that this kind of religious liberty appeal would "open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind."
A nearly unanimous U.S. Congress begged to differ and passed RFRA, backed by a stunningly broad church-state coalition -- basically everyone from Pat Robertson to the American Civil Liberties Union. It was a law inspired by some strange and messy legal cases, but as my graduate-school mentor at Baylor University's Church-State Studies program used to say: Your religious liberty has been purchased for you by people with whom you might not want to have dinner.
In other words, the First Amendment's "free exercise" clause is very powerful and, unless you are dealing with fraud, profit or a clear threat to life and health, courts are not supposed to mess with religious doctrines and practice, even when dealing with messy cases.
If you are following the news right now, you know where I am headed: Bill Levin and his First Church of Cannabis in Indiana. Here is some key information from a Religion News Service piece, picking up coverage from the Indianapolis Star:
Levin, who ... calls himself the church’s minister of love, formed the organization this year partly as a means to test Indiana’s new Religious Freedom Restoration Act, which bars the government from infringing on religious practices. He plans his first official church service July 1, the day the law goes into effect. At the end of that first service, he had originally planned to follow the blessing with a congregation-wide marijuana smoking.
The Internal Revenue Service has granted the church nonprofit status. The designation means donors can deduct gifts to the church on their federal tax returns if they itemize and the church is eligible for a property-tax exemption in Indiana.
You can taste the flavor of Levin and his flock in the following pronouncement:
“Due to the threat of police action against our religion I feel it is important to CELEBRATE LIFE’S GREAT ADVENTURE in our first service WITHOUT THE USE OF CANNABIS,” Levin wrote on his Facebook page. “The Police dept has waged a display of shameless misconceptions and voluntary ignorance. We will do our first service without the use of any cannabis. CANNABIS WILL BE PROHIBITED ON THE FIRST SERVICE.
“We will not be dragged into criminal court for their advantage. We will meet them in a civil court where the laws are clear about religious persecution. We do not start fights. We Finish Them!
Now, Levin has made it clear that his church has been created in the here and now as a political statement, testing the limits of the state's RFRA. If this also lands him a reality-television gig, then so be it.
Reporters who are covering this as a real, live church-state issue -- as opposed to another way of mocking Indiana lawmakers -- need to focus on one or two crucial questions linked to RFRA and, yes, Employment Division v. Smith.
Remember that courts have said that, when dealing with religious liberty conflicts, it is acceptable to ask questions about matters of fraud and profit. Courts have also tried to probe another issue: Whether a specific religious practice actually has links to historic practice in a religious tradition and whether those claiming this right are linked to that tradition.
Native Americans? Plenty of sacramental history there. But what about Levin?
It's hard to know if the Star team has grasped this serious side of the Church of Cannabis case, but readers are told that Levin:
... has also been an inveterate huckster, causing some to question his current motives. Over the years, Levin has launched one moneymaking scheme after another, from party buses to digital advertising, some successful, some not. He once told a reporter, “My goal is to be rich.” And along the way he also filed for bankruptcy.
Now, at 59, Levin appears to have arrived at his moment -- hatching a “big idea” that has garnered international attention.
Sounds like the historical practice question may be relevant.
Meanwhile, The New York Times has jumped on this same story. How much material did the nation's most prestigious newsroom devote to the serious church-state issue raised in this legal showdown?
Maybe one sentence. Read this passage carefully:
Earlier this year, Indiana’s Republican-held legislature approved a Religious Freedom Restoration Act aimed at preventing government from infringing on religious practices. Critics said the measure was anti-gay and aimed at allowing discrimination against gay men and lesbians in the name of religion. Facing the threat of boycotts and fierce objections from business leaders, state officials swiftly added a provision explicitly blocking the measure from trumping local ordinances that bar discrimination over sexual orientation.
Mr. Levin, who has been a carpenter, a promotions and marketing strategist, and a Libertarian candidate for political office, had few kind words for the lawmakers who wrote the state’s law in the first place. He called them “clowns” who “polluted and embarrassed” his state. But if Indiana was going to have such a law, he said, why not test its limits and press for his long-held goal, permission to use cannabis?
State leaders, including the office of Gov. Mike Pence, a Republican who supported the religious exceptions law, did not respond to requests for comment on the church. And some legal experts said Mr. Levin may have trouble proving that the use of marijuana is truly tied to religious expression. But Mr. Levin seemed untroubled.
“This is an honest-to-God religion,” he said. “Other religions have sins and guilt. We’re going to have a really big love-in.”
Oh those silly Indiana lawmakers. But did you catch the one actual sentence of serious content? That would be this one: "And some legal experts said Mr. Levin may have trouble proving that the use of marijuana is truly tied to religious expression."
Ah! So the Times team did talk to some anonymous experts on the actual issue at the heart of this case. What a concept!
So think this through. What is the doctrinal history linked to Levin's worship tradition? How deep is it?
Now, what were the religious traditions linked to Indiana's attempt to pass a strong state RFRA, linked to the defense of believers in faiths with centuries of tradition linked to marriage? Let's see, that would be Pope Francis and the Catholic Church. That would be Orthodox Judaism. That would be all major forms of Islam. That would be the Church of Jesus Christ of Latter-day Saints. That would be centuries of conservative forms of Protestantism, linked back to Martin Luther, John Calvin, et al. Do the math.
Journalists! There are serious issues here.
Talk to some church-state professionals. Take Levin seriously and cover this story. And it might help to remember my mentor's mantra: Your religious liberty has been purchased for you by people with whom you might not want to have dinner.