Al Smith – the guy behind religious freedom as America does it – dies

An undated picture of Al Smith.

An undated picture of Al Smith.

Unless you remember that long list of court cases that AP US Government students are required to memorize, you probably don’t know Al Smith’s name, and probably haven’t heard that he died last month. 

But if you’ve followed the Hobby Lobby case, or the recent debates about “right to discriminate” laws, you know a little bit about Al Smith, because religious freedom as we now understand it in American law started with him, and his 1990 court case, Employment Division v. Smith. 

I’ve spilled a lot of ink on that case, between blogging and my master’s thesis, but I’d never actually heard Smith’s personal history, which is pretty remarkable. Born in 1919, taken from his family to be raised at a Native American boarding school, and part of a tribe that the government “terminated” to get rights to its land, his early life summarizes several decades of American mistreatment of Native Americans and its awful consequences.

After boarding school, a stint in the Army, jail, and alcoholism, Smith recovered to become an advocate and counselor for Native Americans with addictions. His work often used Native American spiritual traditions to provide culturally relevant treatment – including those of the Native American Church, a fascinating hybrid of Christianity and Native American practices which includes the communion-like ingestion of peyote. He was fired for using peyote in such a ceremony, was denied unemployment benefits, and sued.

When the case reached the Supreme Court, the court wasn’t sympathetic – Justice Scalia, writing for the majority, said that the First Amendment didn’t protect minority religions from “neutral, generally applicable laws” that happened to violate their practices.

This did not go over well.

In fact, the response was immediate and stunningly bipartisan, uniting everyone from the National Association of Evangelicals to the ACLU in fury. Congress passed a law overturning the decision in 1993, unanimously except for a single vote in the Senate.

The law they passed was the Religious Freedom Restoration Act – the law that underlies the court’s decision just this year to exempt Hobby Lobby from providing certain kinds of contraception under the Affordable Care Act. Several states have also passed their own versions of RFRA, and recent state RFRA’s have been criticized as “license to discriminate” by LGBT rights advocates worried that broad religious freedom protections could open the way for religiously-motivated discrimination against LGBT people.

(Bizarrely, and in a twist that I didn’t know before today, the Native American Church was excluded from the RFRA, because peyote use was considered too controversial. Religious peyote use was protected the next year in a different law.)

Reading Smith’s personal story, I’m a bit struck by the irony. His case to protect the right of a seriously oppressed minority group to maintain its particular practices has since been used mostly to shore up a narrow, conservative understanding of Christianity in the public domain.

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