On March 26, Indiana passed its Religious Freedom Restoration Act (RFRA) which contained language that legalized businesses’ discrimination of same-sex couples. The law became national fodder with presidential hopefuls, political pundits, sports figures, and entertainers weighing in. The Hoosier State also faced potential economic consequences, as the NCAA, the tech company Salesforce, and the gaming convention Gen Con condemned the act. By April 2, the state amended its law to “unequivocally state that Indiana’s (religious freedom) law does not and will not be able to discriminate against anyone, anywhere at any time.” The state’s decision to backpedal less than a week after passing the RFRA demonstrates how much our country has changed since the first national RFRA was enacted over two decades ago. Of course, 1993’s inaugural RFRA law wasn’t inspired by the same-sex marriage debate; it was written in response to the U.S. Supreme Court’s 1990 ruling on peyote. With the high court set to rule on the constitutionality of same-sex marriage this month, tribal colleges and universities (TCUs) should take the forthcoming weeks to remind students of the role Native people have played in defining America’s religious freedoms.
American Indians have suffered through a history of condoned religious oppression. The Mayflower set sail for a new world to avoid religious persecution in Europe, but the Pilgrims and other colonists didn’t hesitate to discriminate against Native peoples’ religious practices. Indeed, the country the Pilgrim’s descendants eventually founded officially criminalized Native ceremonies and rituals from 1883 to 1978. The discrimination even continued following the passage of the American Indian Religious Freedom Act, as the Supreme Court ruled in Employment Division, Department of Human Resources of Oregon v. Smith that two members of the Native American Church could be fired by a private drug rehabilitation organization because they ingested peyote as part of a sacramental practice. Yet what was alarming to non-Natives about the ruling against peyote use was that its wording allowed for governmental repercussions for all religious practices. The uproar over the Court’s decision led to the passage of the first federal religious freedom protection law in 1993. At the signing ceremony, then Vice President Al Gore quoted Thomas Paine: “It is the will of the Almighty that there should be a diversity of religious opinions among us.” This was good news for the Native American Church, whose use of peyote received national religious protection in 1994. But the legacy of that law is less decisive.
In the 1990s, passage of “Don’t Ask, Don’t Tell,” along with the Defense of Marriage Act (DADT), appeased conservative religious institutions who opposed the rights of same-sex couples. However with Massachusetts legalizing same-sex marriage rights in 2004, and DADT’s repeal in 2011, religious rationale for withholding rights seems to be waning. And like the panic set off by the peyote ruling, legislative responses have become commonplace. Currently, 20 states have enacted their own RFRAs, and this year alone 16 introduced legislation regarding the creation or amendment of religious freedom laws.
Still, this month could be a game changer. Before June is out, the Supreme Court is set to rule on Obergefell v. Hodges, which will decide whether states are required to “license a marriage between two people of the same sex and if states have to recognize same sex-marriage licenses from other states under the 14th Amendment.” Of course, this is not to say that if the Court issues a pro-same sex marriage ruling it will end the debate. In America, inter-generational habits die hard. After slavery was abolished, our country ushered in an era of Jim Crow and segregation laws. Women may have gained the right to vote in 1920, but that right didn’t shatter every glass ceiling. Or, on point, Native sacred sites continue to be desecrated despite laws enacted to protect them. In the case of religious protection or oppression based on a business’s or individual’s same-sex marriage stance, one could speculate that RFRAs could become the weapon of choice for same-sex marriage dissenters.
Regardless of where our students stand on same-sex rights, we TCU educators should take this moment to help them understand the origins of our country’s religious freedom principles and the role that Native people have played in our evolution. In 1995, the famed historian David McCullough noted a fear we educators should echo: “We, in our time, are raising a new generation of Americans who, to an alarming degree, are historically illiterate. The situation is serious and sad…We are losing our story, forgetting who we are and what it’s taken to come this far.” Of course, those of us striving to help fulfill the missions of our respective TCUs know that no group of people is more historically misunderstood than American Indians. And so we must employ every opportunity we have to illuminate Native contributions.
It is my belief that we TCU educators need to use our knowledge of history to empower our students to see that Native people have always contributed to our country’s religious evolution. This was true when the Wampanoag tribe celebrated with the Pilgrims at the first Thanksgiving; it was true of tribes who practiced their ceremonies despite 90 years of governmental oppression; and it was true of the Native American Church’s use of peyote.
June 2015 will be a month where the Supreme Court casts a decision with deep seeded religious ramifications. As our country digests the Court’s decision, whatever that may be, let’s each strive to ensure that our students know that a ruling on ceremonial peyote use helped to lead America to where it is today.
Ryan Winn is the Humanities Department chair at College of Menominee Nation, where he has been recognized as the American Indian College Fund’s Faculty Member of the Year.
Buckley, M. (2015, April 2). Seattle, San Francisco mayors join in boycott of Indiana over RFRA. Retrieved from: http://www.indystar.com/story/news/politics/2015/03/27/san-francisco-joins-planning-boycott-indiana/70531518/
Carter, J. (1978, August 12). American Indian Religious Freedom Statement on signing S.J. Res. 102 into law. Retrieved May 2015 from: http://www.presidency.ucsb.edu/ws/index.php?pid=31173
Castile, G.P. (2006). Taking Charge: Native American Self-Determination and Federal Indian Policy, 1975–1993. Tucson: University of Arizona Press.
Cook, T., LoBianco, T., and Stanglin, D. (2015, April 2). Indiana governor signs amended ‘religious freedom’ law. Retrieved from: http://www.usatoday.com/story/news/nation/2015/04/02/indiana-religious-freedom-law-deal-gay-discrimination/70819106/
Employment Division, Department of Human Resources of Oregon v. Smith (No. 88-1213). (1990, April 17). Retrieved May 2015 from: https://www.law.cornell.edu/supremecourt/text/494/872
McCullough, D. (1995, November 15). Why History? Retrieved May 2015 from: http://www.nationalbook.org/nbaacceptspeech_dmccullough.html#.VWSNREYYF2B
Trafzer, C.E. (2009). American Indians/American Presidents. New York: Harper Collins.
Von Drehle, D. (2015, April 13). Freedom Fight in Indiana. TIME 185(13), 28–35.
Wheeler, L. (2015, April 27). Historic ruling expected as SCOTUS takes up gay marriage. Retrieved May 2015 from: http://thehill.com/regulation/court-battles/240034-supreme-court-takes-up-gay-marriage
Editor’s note: The opinions expressed in the Inquisitive Academic or any other opinion columns published by the Tribal College Journal (TCJ) do not necessarily reflect the opinions of TCJ or the American Indian Higher Education Consortium.