Pubdate: Mon, 22 Feb 2016
Source: Trentonian, The (NJ)
Copyright: 2016 The Trentonian
Contact:  http://www.trentonian.com
Details: http://www.mapinc.org/media/1006
Author: Ed Forchion, njweedman.com For The Trentonian

IT'S TIME FOR RELIGIOUS DIVERSITY ON SUPREME COURT

I'm not happy Supreme Court Justice Antonin Scalia is dead, but I'm 
glad we as a nation have the opportunity, if Republicans don't 
obstruct it, to get a non-Catholic replacement appointed to the 
bench. In previous columns I mentioned how we (minorities) in New 
Jersey suffer from having an all-white NJ Supreme Court, and the same 
is true of the U.S. Supreme Court: Religious freedom suffers wherever 
we have a lack of religious diversity.

The First Amendment prevents government from forbidding free exercise 
of religion, so government cannot regulate beliefs by foisting them 
or prohibiting them. Religious worship often entails performing 
physical acts such as consuming substances (e.g., bread and wine, 
marijuana, hoasca tea) or abstaining from substances or behaviors. 
Government could not ban performance of these acts in the context of 
religious procedure any more than it could ban the beliefs whence 
these actions originate.

So how does the government get away with banning the use of marijuana 
by Rastafarians, or even Christians, who see marijuana as a 
sacrament? Antonin Scalia.

Scalia is famous for claiming he followed the letter of the law as 
regards the Constitution. But he infamously suspended the vote count 
in Florida so his candidate, G. W. Bush, could steal the 2000 
election in what I call the Great Supreme Court Coup. Most talk about 
Scalia's death comes from the perspective of liberal or conservative, 
Democrat or Republican.

Instead, I want to inject religion into this conversation from my 
non-Christian POV. One of my pet peeves with the U.S. Supreme Court 
is that six of its eight judges were Catholics, and many of its 
rulings exhibit an overt Christian bias. Religious freedom for 
non-Christians is questionable. The idea of religious freedom has 
been limited and enforced through the spectacles of Catholics in the 
court, mainly by Scalia in the past 25 years. Specifically using his 
rationale in Employment Division, Department of Human Resources of 
Oregon v. Smith, 494 U.S. 872 (1990), determined that a state could 
deny unemployment benefits to a person fired for violating a state 
prohibition on using peyote, even though this substance is part of a 
Native American religious ritual.

States have the power to permit illegal acts performed in pursuit of 
religious beliefs, but they are not required to do so. Scalia and his 
fellow Catholics on the bench have an aversion to actually allowing 
non-Christian religious practices in America. Thus we have no 
"religious exemption for marihuana" or other non-grape based sacraments.

The majority opinion in Oregon v. Smith was delivered by Justice 
Scalia. To me this was the most important, far-reaching, and 
everlasting opinion he rendered. Here Scalia changed the game, 
eviscerating the no harm to the public clause.

I believe this case restricted religious freedom for non-Christians. 
I've tried several times to get a case before the federal courts in 
hopes of overturning or revising this boner of a decision. The sole 
purpose of my 2002-03 monthly "Liberty Bell Smoke-Out" protests at 
the Liberty Bell in Philadelphia was specifically to challenge 
Scalia's majority opinion in "Smith." - https://vimeo.com/5665293

You might notice there is no mention of this Smith decision in the 
press right now. The Smith decision meant churches no longer had a 
right to justify their religious practices on the grounds that 
exercise thereof caused no harm to the public. This was huge in 1990.

Imagine this fascist New York Catholic and his court cronies 
outlawing the practice of a Native American "church" that has 
congregated on this continent for over 4,000 years - and changing 200 
years of precedent in U.S. law and history. Well, that's what 
happened in Smith. If not for this ruling, Rastafarians who use 
marijuana could also claim their practice doesn't harm others. 
(Google: hoasca and the UDV church.)

That boner caused an alliance in Congress at the time between 
Democrats and conservative Christian Republicans. Both Republicans 
and Democrats had a major problem with the Smith decision, so a bill 
was introduced by Congressman Chuck Schumer (D-NY) on March 11, 1993. 
Surprisingly, Congress passed it in record time as the Religious 
Freedom and Restoration Act of 1993 (RFRA), and Democratic President 
Bill Clinton signed it into law. The RFRA was a direct response to 
Scalia's blind Catholic ruling, and it overturned Smith - not the 
decision itself, but the effect of the decision. It was probably the 
last bipartisan support Clinton received.

Had the story ended there I'd be happy, but in revenge the Catholics 
on the bench struck down the RFRA in City of Boerne v. Flores, 521 
U.S. 507 (1997), as unconstitutional (as it applied to the states).

At that time most people didn't understand I had a method to my madness.

I deliberately attempted to create a case similar to Smith (religious 
sacrament) by praying at the federal enclave of the Liberty Bell and 
consuming the sacrament of marijuana in monthly protests. Since the 
Liberty Bell was federal property I believed the case would 
eventually be heard by the U.S. Supreme Court. I wanted a federal 
ruling in the Third District that marijuana is a sacrament to join a 
similar ruling in the Ninth District Court of Appeals: In 1996 the 
U.S. Court of Appeals for the Ninth Circuit ruled that under the RFRA 
of 1993 Rastafarian defendants should be allowed to show that they 
use marijuana for bona fide religious reasons in their defense 
against charges of possession of marijuana (U.S. v. BAUER, Ninth 
Circuit, 1996).

No, Scalia was not alone on Smith, and too many remaining judges want 
to use their position to advance their own Catholic or fascist 
opinions at the cost of our constitutionally defined freedoms. My 
Liberty Bell case, USA v. Forchion, (3d Cir. Pa., Feb. 7, 2007), went 
before Catholic Federal Magistrate Judge Rappaport; at trial he 
refused to allow me to use the RFRA by falsely claiming it didn't 
apply to marijuana, in direct opposition to the Ninth Circuit ruling.

I appealed to the Third Circuit Court of Appeals, which vacated my 
sentence and told Rappaport the RFRA was relevant and to re-try me. 
Instead he dismissed the case rather than have it go through him to 
reach the Supreme Court; he falsely claimed I hadn't filed my appeal 
in a timely manner, which was a blatant lie.

That was another case of the Politics of Pot, Supreme Court style.
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MAP posted-by: Jay Bergstrom