Kai Wright: Hey, it's Kai. We dedicated the whole show this past Sunday to conversation about the eruption of bills in state legislatures that target transgender people and trans youth in particular. Scroll back one episode in your feed if you missed it. One important idea that came up is the way in which the religious right has worked for decades to keep LGBT people arguing that we truly exist. The movement has pushed one argument after another that at route says the same thing. Queer people are the result of some condition, mental or social, that can be fixed or avoided.

Today's version of that argument is that kids are being "indoctrinated" or peer pressured into questioning their gender identities, and parents need more rights to protect their kids from that danger. That's the logic behind these bills. There have been other arguments because the religious rate has been argument-shopping for a long time, going all the way back to its foundation as a political movement in the early 1970s. We covered this history on our show back in 2017 when there was a wave of bills circulating state legislatures that limited enforcement of new rights for LGBT people, marriage equality, and the like in order to protect religious freedom.

Mississippi passed an infamous law along these lines. A group of civil rights advocates sued the state and the ensuing debate reveal the real history behind all of the religious rights arguments today. Producer Jessica Miller covered that debate for our show in 2017. Her story began in the Jackson Mississippi office of a Presbyterian minister named Rims Barber.

Rims Barber: Clearly, my accent is not native Mississippians. I've only been here for 57 some years.

Jessica Miller: Rims Barber was born in Chicago, but he came to Mississippi during the Freedom Summer of 1964 and he ended up staying.

Rims Barber: Several years later, went to a Presbyterian meeting, and was up saying something to the body. One of the old timers from the battle days, white guy got up and said, "Aren't you the guy that came to Canada in 1964 and ruined our race relations?" I said, "Well, you got the year right." [laughs]

Jessica Miller: This is the guy who has been in it. He officiated the first interracial marriage in the state of Mississippi. It was three years after Loving v. Virginia, the Supreme Court case that officially legalized interracial marriage, and he still had to go to a federal court to get the marriage license. When we visited him, he was wearing a shirt with a quote on it from the book of Micah.

Rims Barber: What does the Lord require of you, but to do justice, to love kindness, and to walk humbly with your God?

Jessica Miller: That's a principle that Rims built his life around. Back then he used to hear a lot of people use religion to try to get out of things like permitting an interracial couple to get married, or the mandates to desegregate the schools and churches of Mississippi.

Rims Barber: You've heard the religious rhetoric about separation of the races 50 years ago. We hear the same rhetoric about gays and about immigrants today. It's just the same old mindset that people are trying to perpetuate. White superiority doesn't give up easily.

Jessica Miller: That's why at 80 years of age, Rims has put his name down as the lead plaintiff in a class action lawsuit against the governor of Mississippi, Phil Bryant.

Rims Barber: The lawsuit of Barbara v. Bryant. Yes, I am a plaintiff in that lawsuit. My name is on it, and I'm proud of that.

Jessica Miller: Rims is not gay, but he put his name on the lawsuit because he says the bill violates his religious freedom. Remember, he's a minister.

Rims Barber: I believe that the governor of the state of Mississippi cannot tell me what my religion ought to be. I will decide that in my heart and then my church and my family, and there are no superior and inferior ways to God.

Jessica Miller: When Rims Barber first arrived in Mississippi, he spent a lot of time working on school desegregation. It wasn't easy work. He said he got chased out of town a few times, even thrown in jail. I should say, Rims is white and he wasn't a schoolchild back then. The actual kids who were disaggregating, well, they had it worse.

Rims Barber: One of the kids who desegregated school not too far from here is what's now a suburb of Jackson. That first night, my mother called us and said, "They're burning a cross in our front yard." We said, "We'll be there in 10 minutes." I remember we called the FBI office and they said, "Call the local sheriff." I said, "I think that's him out there." [laughs]

Jessica Miller: This is after Brown v. Board of Ed shouldn't be a problem, right? Just because the law changed didn't mean the culture changed. This battle over school segregation also set the stage for today's fight over religious freedom.

Randall Balmer: Well, I'm going to get going on this narrative, and it's hard to stop me.

Jessica Miller: Randall Balmer is a professor of religion at Dartmouth College. He spent more than 10 years of his career investigating the foundations of the religious right, as well as interviewing a few of its architects.

Randall Balmer: Religious right did mobilize in response to a court decision, but it was not Roe v. Wade in 1973. It was an earlier court decision actually, at the district court District of Columbia in a decision handed down on June 30, 1971, in a case called Green v. Connally.

Jessica Miller: Green v. Connally, a case that originated in Holmes County, Mississippi, a school district that Rims helped desegregate. In Holmes County as in many places, desegregation was immediately followed by movements in the white population. People left the cities, pulled their kids out of school, all because they didn't want to have to comply with the new law.

Randall Balmer: The first year of desegregation, the number of white students in the public school system decreased from over 700 to 28. The second year of desegregation in Holmes County, Mississippi, the number of white students in the public school system decreased to zero.

Rims Barber: It led to the formation of a whole variety of segregation academies where white people could flee to.

Jessica Miller: That was Rims Barber again. Those segregation academies he remembers where private Christian schools set up for white kids in Mississippi and Virginia, and all the places where desegregation was going on. Because they were religious schools, they were also tax-exempt. Well, a few people in Holmes county didn't think that was right.

Randall Balmer: Any institution that engages in racial segregation, or racial discrimination is not by definition a charitable institution.

Jessica Miller: In 1971, a federal judge made it official but it doesn't end there. Not by a longshot, because the arm of the federal government that starts to enforce this is the IRS. They begin looking around, they're searching for segregated schools outside of Holmes County. Their radar lands on Bob Jones University, a fundamentalist segregated Christian College in Greenville, South Carolina, and the IRS issues a warning, desegregate or lose your tax exemption. Now, the culture war is on.

Kai Wright: Just there's still something I don't understand, though. What does desegregation have to do with religion? Why are we talking about this here? What are all these institutions really holding on to?

Jessica Miller: Remember, back in episode 2 when we were talking about the Scopes Trial, race and religion went hand in hand back in 1925, to say that all races were created equal or that they should mix? Well, that rattled a lot of people's religious logic. Even though now we're four or five decades down the line in our story, a lot of people are still thinking that way. The truth is people tried to put religious loopholes in the Civil Rights Act of 1964.

Kai Wright: They wanted to use religion to avoid integration?

Jessica Miller: Yes. PS: After the Civil Rights Act passed, it was still an issue. There was just case after case, a chain of barbecue restaurants called Piggie Park claimed that they shouldn't have to serve Black people because it violated the owner's religious beliefs. We just talked about Loving v. Virginia, the first judge who heard that case said in his decision that God didn't want interracial marriage. That's what Bob Jones was doing here, too. They claimed that to integrate their campus and to lose their tax exemption if they chose not to do so that would violate their religious liberty. Here's what one of their lawyers had to say about it.

Speaker 5: One of the religious beliefs of the university is that the scriptures prohibit the anti-marriage of the races and that it would be scripturally wrong for members of different races to marry. Based upon that religious belief which has been its beliefs since the commencement of the University in 1927, I believe, it has refused admissions to Blacks. It has admitted a few Orientals under a rule that says those who are admitted cannot date members of other races. While at the University, the University feels that at the college level is when most romantic attachments are formed between parties and when their life's partners are frequently chosen. For that reason, it has adhered to the policy that no Blacks are admitted to the university.

Jessica Miller: Those sincerely held religious beliefs were not enough for the IRS. In 1976, after five years of warnings, Bob Jones loses its tax-exempt status. This community that had stayed out of politics for so long begins to organize. Randall Balmer says, evangelical leaders like Jerry Falwell sees an opportunity.

Jerry Falwell: They mobilized evangelical voters to lock the Internal Revenue Service and its attempts to deny tax-exempt status to racially segregated institutions.

Jessica Miller: Most evangelical people weren't even registered to vote in the middle decades of the 20th century, but the day Bob Jones tax-exempt status gets revoked.

Jerry Falwell: January 19th, 1976,

Jessica Miller: A certain southern Democrat wins the Iowa Caucus.

Jerry Falwell: A born again Southern Baptist Sunday School teacher, evangelical Christian by the name of Jimmy Carter.

Jessica Miller: Evangelical voters emerge. Under Carter, the IRS continues enforcing the law, and it becomes increasingly clear to a once apolitical group of faith leaders that they need to become political players though keeping a school segregated wasn't exactly a PR-friendly platform. Abortion, however, that was. In 1979, Jerry Falwell's Moral Majority is founded.

Jerry Falwell: I am optimistic about America. May I begin by saying that I feel that America is in these 1980s, particularly in this decade, experiencing a moral and spiritual rebirth.

Randall Balmer: The standard narrative behind the emergence of the religious right is that these evangelical leaders were morally outraged by the Roe v. Wade decision.

Jessica Miller: This is Randall Balmer again.

Randall Balmer: It's a narrative that's been repeated many, many times, and it is also a piece of utter fiction.

Jessica Miller: He says that over time, people forgot the segregationist roots of the religious right. It all became about Roe v. Wade and the right to choose.

Kai Wright: Yet, whatever the religious rights origin, the culture war it has waged over morality is a very real one and has been for nearly 40 years. That movement's most potent weapon right now, it isn't the president who won huge support from white evangelicals. It's not even something the right came up with. It's an idea created by people who really, truly believe in both religious freedom and civil liberties. That's next.

The idea of religious freedom has traveled a twisted path in American politics and law. Today, you hear it and you think about evangelical Christians who want to be exempted from laws protecting things they consider immoral. Reproductive healthcare, same-sex relationships, gender-affirming care, and so on. The idea that people of faith need more protection than what is already guaranteed in the First Amendment, that did not begin with the religious right. Again, here's producer Jessica Miller.

Jessica Miller: Actually, the idea that religious freedom needs more protection came from many of the same people who wanted to codify sexual freedom, people who want to expand all kinds of civil liberties. It was because of what happened to a man named Alfred Smith.

Alfred Smith: I want to speak to my brothers and my sisters that are in this audience, and perhaps others that may be listening to a tape.

Jessica Miller: Here he is in 1990, just days after the challenge he took to the courts, changed the concept of religious freedom forever. He knew it.

Alfred Smith: I want to apologize to you my brothers and my sisters, who are natives of this land, if any way this case has harmed you.

Jessica Miller: Alfred was a Native American born on the Klamath Reservation in Oregon. As an adult, he became a member of the Native American Church and adopted the practice of taking peyote, a hallucinogenic cactus during certain religious ceremonies. It's complicated because when he decided to adopt this practice, he was also working as a substance abuse counselor in the State of Oregon. Using any kind of drug was a fireable offense. He lost his job over it in 1984, but Alfred didn't think that was right.

Alfred Smith: Here they're telling me, no. If you want to keep your job, you can go to the ceremony, but you can't take the sacrament. You can't take the peyote, you can't take the drug. I had to make a decision. They've been doing this to my people from the time that they got here.

Jessica Miller: He sued and his case went all the way to the Supreme Court. There, his lawyers were tasked with proving that taking peyote counts as a legitimate religious practice. As you can imagine, the justices sometimes had a hard time wrapping their minds around that concept.

?Alfred Smith: The use of peyote in these ceremonies is at least in part for its very hallucinogenic properties. That is to say the religious experience, at least for some communicants, comes from the achievement of the heightened hallucinogenic effect, where this is also not true of the ingestion of Sacramento wines.

Justice Scalia: There's any special spiritual feeling at taking communion.

?Alfred Smith: Well, the feeling is different than the induction of an actual altered state of consciousness.

Jessica Miller: What substances do or don't induce religious experiences is not what's really on trial here. What is on trial, what everyone is assembled here to figure out is if the government has a good enough reason to stop Alfred Smith from his personal religious expression, whether federal drug laws and employment laws in the state of Oregon can eclipse religious freedom. Guess what? The Supreme Court says that at least in this case, they can. According to Justice Scalia--

Justice Scalia: The mere possession of religious convictions, which contradict the relevant concerns of political society does not relieve the citizen from the discharge of political responsibilities.

Jessica Miller: Scalia is effectively saying that Alfred's religious practices are not more important than the law. When it comes down to it, the government gets to decide what's legal and what isn't. Let me tell you, that freaked people out, a very real fear started brewing in all types of religious communities and on both the right and the left, that this was government overreach and that it could be used against them, too. That's why Alfred Smith's Supreme Court decision kicks off a new fight to protect religious practice.

Barry Lynn: Literally, the day after the decision, there was a meeting.

Jessica Miller: Barry Lynn is the executive director of Americans United for Separation of Church and State. He's also an ordained minister in the Church of Christ. When the Smith decision came out, he was working as a lawyer for the ACLU in Washington. The day after the Supreme Court makes its decision about peyote, he gets called to this meeting in Orrin Hatch's office. Some other lawyers are there, some faith leaders, but most notably Ted Kennedy is there. He and Orrin Hatch are running the show.

Barry Lynn: If those two people got together and both thought the decision was wrong, there was a hope, widespread hope that something could come of all of this.

Jessica Miller: It turns out it didn't matter where you fell on the political spectrum or what religion you were, everyone assembled in this room agreed that the Smith decision was government overreach because once they can mess with the Native American church, they can mess with you too. The politicians are off and running.

Chuck Schumer: Under Smith, the practice of using Sacramento wine, wearing a yarmulke, kosher slaughter, and many other religious practices all could be jeopardized.

Jessica Miller: Okay. We're listening to some very bad tape from 1993. It was the '90s, we only had VCRs to record [unintelligible 00:18:32], sorry. Anyway, that was Chuck Schumer introducing something called the Religious Freedom and Restoration Act to the House. Ted Kennedy introduces something similar in the Senate, and Orrin Hatch is the lead Republican sponsor. Barry, the lawyers, the religious groups, and the congressmen have been battling it out for three years. This is the fruit of their labor build as a restoration of the First Amendment Freedoms lost in the Smith case.

Chuck Schumer: Incomprehensibly Judge Scalia's decision explained that requiring the government to accommodate religious practice was a luxury. Tell that to the millions and millions of Americans, religion is a luxury. I think you'd get the reaction that we have had universally here on the floor from the most liberal to the most conservative member.

Jessica Miller: Kai, look at the coalition that came together to endorse this thing. It's called RFRA. That's R-F-R-A, Religious Freedom and Restoration Act.

Kai Wright: Yes, and I remember this. It's pretty impressive list. It's organizations representing Jews, Christians, Muslims, Scientologists, Quakers, Mennonites. It's a long list. The Americans for Democratic Action, the ACLU, the Association of American and Indian Fairs.

Jessica Miller: They've been working on crafting this language for three years. Here's how Barry Lynn describes that process.

Barry Lynn: Well, this is a good example of not wanting to watch how meat is prepared in a slaughterhouse and not really wanting to watch how legislation is done either.

Jessica Miller: The bill that passes, the act that Bill Clinton signed into law in 1993, it was a monster compromise, one that ultimately had huge unintended consequences.

Speaker 6: Today, the High Court striking down a key provision in the Affordable Care Act that requires for-profit companies to provide comprehensive birth control coverage.

Jessica Miller: Which brings us to Hobby Lobby.

Speaker 6: -the evangelical Christian owners of Hobby Lobby--

Jessica Miller: The chain of craft stores that said it would be a religious burden on their company to provide contraception to its female employees and won big at the Supreme Court in 2014. Hobby Lobby won their case, because of a new expanded interpretation of RFRA. It was decided that a for-profit company could have protected religious rights, too. Barry told me that nobody working on the original bill saw Hobby Lobby coming.

Barry Lynn: If those of us who knew where this piece of legislation would go and where its clones would appear in terms of state legislation. I think some of us, I'm speaking just for myself, would have never gotten involved in the process from the beginning.

Kai Wright: That kind of regret is understandable, I get it. If there's one clear thing in the history of the religious right, it's that the argument will always shift. The Religious Freedom uproar, just a few years ago, has now morphed into an outcry on behalf of parental rights, and it'll be something else tomorrow. What always remains, going all the way back to those fights over racial integration of schools, is an assertion that more rights for one group of Americans means a loss for someone else. It's a dangerous, intoxicating way of thinking that has unfortunately been a crucial part of our national history.

Notes from America is a production of WNYC studios. Special thanks to Jessica Miller, Reniqua Allen, and Jillian Weinberger for their reporting on this segment. It was initially mixed by Bill Moss and Matt Boyden. You can find our full archive of episodes on our website at notesfromamerica.org, just click on that Archives tab to see those vintage podcast seasons going all the way back to the 2016 elections. While you're there talk to us, you can always leave a voicemail right there on the site. Just click on the green record button and tell us what's on your mind.

Thanks for listening. As always, I hope to talk to you on our live show on Sunday. Until then, I'm Kai Wright.

Copyright © 2023 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.