Everything Is Everything -- "Witchi Tai To" (1969)

Witchi tai to, gimma rah

Woe rah neeko, woe rah neeko

Hey nay, hey nay, no wah

Washington has been all a-buzz recently over the Supreme Court's Hobby Lobby decision, which holds that an employer with religious objections to the use of abortifacient drugs and devices is not required to pay for employee health insurance coverage for such drugs and devices.

The United States Supreme Court

Of course, the world will little note, nor long remember the Hobby Lobby chit-chat that is currently dominating newspaper editorial pages, cable TV talk shows, and a goodly percentage of the blogosphere here in Your Nation's Capital.  

But while the Hobby Lobby decision still struts and frets its hour upon the stage -- or, if you prefer Warhol to Shakespeare, enjoys its 15 minutes of fame -- 2 or 3 lines might as well jump on the bandwagon with my fellow idiots and contribute to the sound and fury signifying nothing.

Are you wondering what the Hobby Lobby decision has to do with today's featured song?  Keep reading and you'll find out.  (We wildly popular bloggers call that a "tease.")

Jim Pepper

Our story begins when a young Native American named Jim Pepper learned a peyote song from his grandfather.  Pepper, a jazz saxophonist and songwriter who was born in 1941 and died in 1992, based "Witchi Tai To" on that peyote song. 

The Native American Church, which has a quarter of a million adherents in North America,  utilizes peyote -- a psychoactive cactus -- sacramentally to induce spiritual experiences.  The singing of peyote songs is part of the peyote ritual.  (The Native American Church was formally incorporated in Oklahoma in 1918, but the use of peyote by the indigenous peoples of North America dates back to pre-Columbian times. )

Peyote ceremony

In 1984, two members of the Native American Church who were counselors at a private drug rehabilitation clinic in Oregon were fired from their jobs because they had ingested peyote while participating in religious services.  At that time, the possession of peyote for any reason was illegal under Oregon law.  

When the two men filed a claim for unemployment benefits, that claim was denied because employees who are fired for work-related misconduct are not eligible to receive such benefits.

The men appealed the denial, and their case meandered through the state and federal court systems for years.  Finally, in 1990, the U.S. Supreme Court ruled that the First Amendment's protection of the "free exercise" of religion does not allow a person to disobey generally applicable laws -- such as a law prohibiting the possession of a psychoactive drug like peyote -- even when they are motivated by their religious beliefs.

Peyote cactus

Here's an excerpt from the Court's decision:

It is a permissible reading of the [Constitution] . . . to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. . . . To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling" -- permitting him, by virtue of his beliefs, "to become a law unto himself," contradicts both constitutional tradition and common sense."  To adopt a true "compelling interest" requirement for laws that affect religious practice would lead towards anarchy.

In response to that decision -- which was authored by Justice Antonin Scalia, a conservative who had joined the court in 1986 -- Congress passed the Religious Freedom Restoration Act (or "RFRA") in 1993.  That law provided that the government "shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability." 

The RFRA allowed laws that restricted the exercise of religion only if two conditions were met.  First, the burden must be necessary for the furtherance of a compelling government interest.  Second, the rule must be the least restrictive way in which to further the government interest.

The recent Hobby Lobby opinion applied the RFRA and held that the provision of the Affordable Care Act ("Obamacare") that guarantees employees no-cost access to contraceptives (including abortifacient drugs and devices) may be a compelling government interest, but that requiring employers who have religious objections to certain forms of contraceptives to pay for them is not the least restrictive means of achieving that interest.  (For example, the government could pay for abortifacients in such cases itself rather than requiring the employer to do so.)

The hue and cry that has resulted from this decision is astonishing.  People seem to have lost their minds over the decision.

Many have gone beyond criticizing the decision on its merits, alleging that all five members of the Court majority are conservative Catholic males who are engaging in a war on women, the goal of which is to deny women control over their own bodies.  

Click here to read one example of the nonsense that has spewed forth from the mouths (or keyboards) of critics of the decision.  

I'm not here to fan the Hobby Lobby conflagration -- or pour even more gasoline on to the flames.  (I admit I do like to stir the pot a little from time to time.)  I'm simply here to point out an interesting irony.

Justice Antonin Scalia

Let's go back to that 1990 case about the peyote users.  If you remember, the Supreme Court (led by Justice Scalia, a conservative Catholic) ruled that the First Amendment did not allow people who had a religious objection to a certain law to ignore or disobey that law.  In Scalia's words, doing so would "make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

Applying that 1990 precedent, the Court would have ruled that Hobby Lobby's religious beliefs were not superior to the law of the land (i.e., Obamacare), and that the company had to give its employees health insurance that covered all types of contraceptives (including abortifacients).

But in 1993, Congress decided to upset that particular apple cart by passing the Religious Freedom Restoration Act, which overturned Scalia's decision and compelled the Court to rule the way it did in Hobby Lobby.  

Here's where we get waist deep in the Big Irony.  Guess who controlled both houses of Congress in 1993?  The Democrats did -- and by sizable majorities.  (The 103rd Congress had 57 Democratic Senators and 258 Democratic House members, compared to 43 Republican Senators and 176 Republican House members.)

Which means that all the liberals who are foaming at the mouth about the Hobby Lobby outcome are foaming at the mouth about a decision that was dictated by a law that passed Congress with more Democratic votes than Republican votes and was then signed into law by Bill Clinton.

President Clinton signs the Religious
Freedom Restoration Act in 1993

So the next time you come across a screed about how the Hobby Lobby decision denies women reproductive freedom at the behest of religious fanatics, remember that Justice Scalia -- the senior conservative Catholic male on the Court -- opined in 1990 that freedom of religion did not mean that people who had religious objections to a law didn't have to obey it.

If you think Hobby Lobby is a bad decision, blame the Democrats who controlled both houses of Congress and the White House in 1993, when the Religious Freedom Restoration Act -- which reversed Justice Scalia's ruling in the Oregon peyote case and dictated the result in the Hobby Lobby case -- became law.

One final note.  After the Hobby Lobby decision was announced, Hillary Clinton had this to say:

It’s very troubling that a salesclerk at Hobby Lobby who needs contraception, which is pretty expensive, is not going to get that service through her employer’s health care plan because her employer doesn’t think she should be using contraception.

It's also very troubling that politicians who are smart enough to know better are willing to twist the truth like a pretzel when doing so gives them a political advantage.  

The fact of the matter is that Hobby Lobby does not object to paying for health insurance that provides birth-control pills, diaphragms, spermicide, condoms, contraceptive patches, and a number of other contraceptive drugs and devices for its employees.  So that salesclerk Mrs. Clinton is so worried about can get many different forms of contraception through the Hobby Lobby employee health plan.

The "morning-after" pill

What Hobby Lobby does object to is being required to pay for IUDs and "morning-after" pills -- which don't prevent pregnancy, but prevents a fertilized egg from surviving.  The company believes the use of such post-fertilization contraceptives is the moral equivalent of having an abortion.  So under the RFRA, it doesn't have to pay for health insurance that covers such drugs and devices to its employees.

You may disagree with the company and believe that there's nothing morally objectionable about post-fertilization contraceptives.  But don't blame the Supreme Court for deferring to Hobby Lobby's religious beliefs when the RFRA gave them no real choice.  

If you don't like the outcome in the Hobby Lobby case, put the responsibility where it belongs:  on the 103rd Congress.

The version of "Witchi Tai To" we are featuring today was released by Everything Is Everything.  Jim Pepper, the Native American musician who wrote the song, was a member of that short-lived band whose eponymous 1969 debut album was its only album.

The song was covered by an odd assortment of recording artists, including Brewer & Shipley, Harpers Bizarre, and Diana Ross and the Supremes (whose recording was never released).  

It was also covered by Jim Pepper himself on his 1984 solo album, Comin' and Goin':

One source says that Brewer & Shipley first heard the Everything Is Everything version of the song on a Little Rock, Arkansas radio station.  I can guarantee you that this station was KAAY (1090), a 50,000-watt AM station that I listened to regularly when I lived in Joplin, Missouri.

"Beaker Street" poster

KAAY was a top 40 station until 11:00 pm, when it broadcast a groundbreaking three-hour underground program called "Beaker Street."  (Expect more about "Beaker Street" in an upcoming 2 or 3 lines.)

By the way, my spelling of the quoted lyrics is purely phonetic.  One website says that Pepper's grandfather never told him what the words to the peyote song meant, and that no one has been able to translate them.

Here's "Witchi Tai To" by Everything is Everything:

Click below to buy the song from Amazon: