IN the 1980’s, two Native Americans showed up to work high on peyote. Oh, and guess where they worked – a drug rehab clinic. They were obviously fired. And then the brilliant duo decided to file for unemployment, claiming that the peyote they smoke or ate or whatever was part of a religious ritual so they were being discriminated against. Yeah, that’s the ticket.

It sounds like the start of a bad Cheech and Chong but in reality, these two changed the course of religious freedom in this country…not in a good way.

The Supreme Court heard their case in 1989 and ruled against the two men. Writing for the majority, Justice Antonin Scalia said that carving an exception from uniformly enforced laws (such as drug bans) for religious objectors would make people laws unto themselves and would court societal “anarchy.”

Seems fair, right?

But this has become a problem. A major problem.

Smith set the precedent “that laws affecting certain religious practices do not violate the right to free exercise of religion as long as the laws are neutral, generally applicable, and not motivated by animus to religion.”

Because now that same argument is being used against Catholic hospitals.

The Discovery Institute reports:

This ruling opened the door to oppressing faithful people by simply enacting laws of general applicability that are consistent with contemporary secular beliefs, but also known to be offensive to certain religions. A perfect example of this suppression is ongoing in California. When the administrators of a Catholic hospital in the Dignity Health chain were informed that a patient’s planned hysterectomy was a gender transition, the surgery was canceled as a violation of Catholic moral teaching.

Dignity Health was sued for violating California law requiring facilities to “provide full and equal access to medical procedures without regard to gender.” The trial court dismissed based on religious freedom issues. But the Court of Appeals reinstated the case, a ruling affirmed by the state’s Supreme Court and allowed to remain in effect by the U.S. Supreme Court. Thus, a Catholic hospital may soon be forced to pay considerable damages for adhering to Catholic dogma because the law being enforced wasn’t specifically aimed at suppressing Catholic institutions.

That’s a major problem. This will literally mean hospitals cannot follow the teachings of the Catholic Church.

Wesley Smith continues:

The private sector may pose an even more potent threat to religious liberty by blackballing religious organizations and institutions. Former Kansas Gov. Sam Brownback—the U.S. Ambassador-at-Large for International Religious Freedom during the Trump administration—has a passion for protecting religious liberty. So, after leaving government service, he formed the National Committee for Religious Freedom (NCRF) to advocate for freedom of religion for all Americans.
At one time such a group wouldn’t have been controversial. Today, social progressives, including some who manage many of the country’s most powerful corporations, scorn religious freedom because they see it as an excuse to discriminate against LGBT individuals—which may explain why Chase Bank closed all NCRF accounts last year. Notably, Chase never warned the NCRF that its relationship with the bank was imperiled, nor did it ask for information that might have clarified a legitimate business concern. Thus, it’s reasonable to suspect that Chase “de-banked” the NCRF because it defends religious freedom, including in LGBT controversies such as the Phillips cases.

Private acts of discrimination such as de-banking open a new front in the religious freedom wars. Indeed, Brownback worries that Chase’s actions against the NCRF may reflect a growing trend. He told me: “Some corporations are stealthily discriminating against people of faith and faith-oriented groups. This must stop.”

If he’s right—and I think he is—such private-sector discrimination poses a potent threat to faith institutions that would be difficult to counter since the Constitution only applies against the government. Think about it: If a religious organization can’t bank or, say, buy insurance, it would be hard to remain in operation.]

The effectiveness of this threat was just highlighted in a successful lawsuit brought by an individual against a Maryland Catholic hospital for refusing to perform a transgender hysterectomy. The trial judge ruled that the hospital’s refusal was illegal sex discrimination under both Maryland law and the Affordable Care Act (pdf). (The case was complicated by the unusual fact that the Catholic hospital is owned by a state-run network.)
Pertinent to this discussion: The judge applied other cases finding that the federal RFRA doesn’t protect against suits involving private parties. Thus, the government could readily circumvent the RFRA by authorizing private lawsuits against religious institutions that refuse services such as abortion, same-sex couple adoption, or gender transitions.
A gauntlet has been thrown. Secularists are determined to impose their progressive beliefs on conservative faith communities. Those of us who believe that freedom of religion is the “first liberty” had better gird our loins. Because if the right to free exercise of religion is effectively suppressed, freedom of worship will be the next religious liberty on the chopping block.