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{ the }
-=*/> Buzzz Bros. <\*=-
present:
The Supreme Bunch
of INjustices
vs Peyote
Part I of II
{ }
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The following 13 messages, retrieved from PeaceNet, discuss the recent
Supreme Court ruling permitting states to prohibit sacramental use of
peyote.
Supreme Court Continues Chipping Away At Citizen's 1st Amendment Rights,
Part 1.
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Exerpts from the following article detailing the April 17th ruling
by the US Supreme Court which decided that Native Americans could
no longer use peyote in their religious practices:
"For all practical purposes, a majority of the Supreme Court has
eliminated the Free Exercise clause of the First Amendment from our Bill
of Rights," said American Jewish Congress Executive Director Henry Siegman.
"The court's decision in the peyote case can have the most far-
reaching consequences for all religions, but primarily for religious
minorities," continued Siegman. "It is precisely such minorities the
Bill of Rights sought to protect, for it is they who are particularly
vulnerable to the depredations of momentary and localized majorities."
... Dr. Robert L. Maddox, executive director of Americans United
for Separation of Church and State, said the "Smith" ruling is cause for
concern...
"We are concerned," he continued, "that this ruling will have a
negative effect on minority religions. Mainstream faiths will probably
have little difficulty getting the exemptions they need; smaller groups
with less political influence will have a tougher time of it. That is
unfortunate. Religious freedom should not be left to the whim of state
and federal lawmakers.
"No one wants anarchy in the name of religion," he added, "but do we
really want more and more government regulation of religion? What
bothers us most is the movement away from individual liberty and toward
statism--whatever the government wants, goes."
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[2]
The following article appeared in the June 1990 issue of "Church and State",
a publication of Americans United for Separation of Church and State, 8120
Fenton St., Silver Spring, MD, 20910, and is reprinted here w/permission.
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The Day 'Sherbert' Melted
by Rob Boston
Discarding A 27-Year-Old Test For Religious Liberty Cases, The Supreme
Court Says Government May Restrict Religiously Motivated Conduct
Alfred Smith considers himself apolitical; he's not even registered
to vote. But, in light of what the Supreme Court did April 17, the 70-
year-old Oregonian is ready to jump into politics in a big way.
The high court ruled 6-3 that day that Native Americans do not have a
constitutional right to use the drug peyote during their religious
ceremonies. Smith, one of the plaintiffs who helped bring the case
before the nation's highest court, is angry--angry enough to take his
fight to the polls.
"I'm encouraging all people to register and vote this year," Smith
said. "This is the time for it. I have never voted before because I
don't care to condone the system, but I have made a stand here with this
case."
The political route Smith proposes may be one many members of minority
religions are forced to take in the future, thanks to the Supreme
Court's decision in the "Employment Division v. Smith" case. The
justices' ruling marks an abrupt shift in free exercise jurisprudence,
granting government broad new powers over religious practices.
What makes the "Smith" decision so significant is that in reaching it
five justices voted to abandon the court's doctrine of "compelling state
interest," a move with far-reaching implications for religious liberty.
In a nutshell, the 27-year-old doctrine says that the government can
restrict religious freedom only when it proves there is a compelling
interest to do so and that there is no less intrusive alternative
available to achieve the state's goals. The judicial rule grew out of
the 1963 "Sherbert v. Verner" decision and is usually called the
"Sherbert" Test.
In the recent peyote case the court rejected the "Sherbert" standard
in favor of a much narrower test, holding that government may offer
religiously based exemptions from generally applicable laws if it
chooses, but it is under no constitutional obligat
ion to do so.
Wrote Justice Antonin Scalia for the majority, "We have never held
that an individual's religious beliefs excuse him from compliance with
an otherwise valid law prohibiting conduct that the State is free to
regulate."
[3]
Scalia went on to say that applying the doctrine of compelling state
interest in the peyote dispute and similar cases would create "a private
right to ignore generally applicable laws [which would be] a
constitutional anomaly." Rigorous application of the "Sherbert"
approach, he said, would be "courting anarchy."
Later in the opinion, Scalia admitted that the ruling will force
minority religious groups to seek relief from oppressive laws by
lobbying elected officials, and some may fail in their efforts. But he
excused this as unavoidable. "It may fairly be said," observed Scalia,
"that leaving accommodation to the political process will place at a
relative disadvantage those religious practices that are not widely
engaged in; but that unavoidable consequence of democratic government
must be preferred to a system in which each conscience is a law unto
itself or in which judges weigh the social importance of all laws
against the centrality of all religious beliefs."
The court majority acknowledged that judicial exemptions from neutral
laws have sometimes been granted for religious reasons. But, Scalia
argued, such exemptions have generally been granted in conjunction with
another constitutional right--such as free speech. He called these
examples "hybrids" and implied they are special cases. Other than that,
said Scalia, the only legal disputes where the "Sherbert" analysis has
been applied consistently and usefully are unemployment compensation
rulings, such as the line of decisions approving jobless benefits for
workers who are fired for refusing to work on their sabbath.
Ironically the "Smith" case involved just such an unemployment
controversy. It started in 1984 when Smith, a Klamath Indian, and
another man, Galen W. Black, a non-Indian, were fired from their jobs
as drug counselors after the agency they worked for learned the pair had
used the drug peyote during ceremonies in the Native American Church.
The Council on Alcohol and Drug Abuse Prevention Treatment (ADAPT) had
a policy stating that all employees must be drug free. Smith and Black
thought an exemption would be made for their religious use of peyote, a
mild hallucinogen derived from some cactus plants, but ADAPT officials
saw things differently: Both men were dismissed.
[4]
When Smith and Black subsequently applied for unemployment benefits,
they were turned down. Officials with the state Employment Division
said the two had been fired for misconduct and therefore did not
qualify. The duo took the case to the courts.
Four years later the Oregon Supreme Court ruled that the ceremonial
use of peyote is permissible under state law and is even protected by
the First Amendment. The Supreme Court's recent action overturns that
decision.
The "Smith" majority drew upon a somewhat unusual alignment of
justices. Scalia, Chief Justice William Rehnquist and Justices Anthony
Kennedy and Byron R. White were predictable allies. All four have
argued for a narrower reading of the First Amendment's religious liberty
clauses.
Justice John Paul Stevens, however, provided the key fifth vote.
Stevens, often thought of as a member of the court's liberal wing,
favors a strict separationist reading of the Establishment Clause, but
has argued in past cases for a less expansive reading of the Free
Exercise Clause.
Justice Sandra Day O'Connor concurred in the "Smith" outcome, but
wrote a separate dissent that accused the majority of going too far.
"Although I agree with the result the Court reaches in this case, I
cannot join its opinion," asserted O'Connor. "In my view, today's
holding dramatically departs from well-settled First Amendment
jurisprudence, appears unnecessary to resolve the question presented,
and is incompatible with our Nation's fundamental commitment to
individual religious liberty."
The free exercise of religion, O'Connor added, is a "preferred
constitutional activity," entitled to "heightened judicial scrutiny."
The "Sherbert" Test, she continued, has worked well to "strike sensible
balances between religious liberty and competing state interests."
Justices Harry A. Blackmun, William J. Brennan Jr. and Thurgood
Marshall indicated agreement with O'Connor's opinion, although they said
they would have gone further and upheld the Native American Church
members' claim. The court's liberal wing criticized the majority for
"mischaracterizing this Court's precedents" and engaging in a "wholesale
overtuning of settled law concerning the Religion Clauses of our
Constitution."
[5]
Wrote Blackmun, "One hopes that the Court is aware of the
consequences, and that its result is not a product of over-reaction to
the serious problems the country's drug crisis has generated."
The justice insisted that ritual peyote use by Native Americans could
be tolerated without jeopardizing the nation's campaign to curb drug
abuse. He noted that the federal government allowed the Roman Catholic
Church to employ sacramental wine at masses during Prohibition.
Said Blackmun, "I do not believe the Founders thought their dearly
bought freedom from religious persecution a 'luxury,' but an essential
element of liberty--and they could not have thought religious
intolerance 'unavoidable,' for they drafted the Religion Clauses
precisely in order to avoid that intolerance."
Even though the case dealt with the sensitive issue of drug use,
several religious organizations had sided with the Native American
Church members, most notably the American Jewish Congress, which filed a
friend-of-the-court brief in support of Smith and Black.
"For all practical purposes, a majority of the Supreme Court has
eliminated the Free Exercise clause of the First Amendment from our Bill
of Rights," said AJC Executive Director Henry Siegman.
"The court's decision in the peyote case can have the most far-
reaching consequences for all religions, but primarily for religious
minorities," continued Siegman. "It is precisely such minorities the
Bill of Rights sought to protect, for it is they who are particularly
vulnerable to the depredations of momentary and localized majorities."
Three weeks after the decision the AJC and an extraordinarily diverse
coalition of religious and civil liberties groups filed a petition for
rehearing before the Supreme Court. The petition urged the justices to
hear the case again so the organizations will have the opportunity to
address their free exercise concerns in friend-of-the-court briefs.
Groups joining the AJC include: the Baptist Joint Committee on Public
Affairs, the National Council of Churches, the National Association of
Evangelicals, People for the American Way, the Presbyterian Church
U.S.A., the American Civil Liberties Union, the Christian Legal Society,
the American Jewish Committee, the Unitarian-Universalist Association,
the General Conference of the Seventh-day Adventist Church, the
Worldwide Church of God and the Lutheran Church, Missouri Synod.
Americans United for Separation of Church and State also signed the
petition.
[6]
Attorney Oliver S. Thomas of the Baptist Joint Committee said it is
important that religious and civil liberties groups have the opportunity
to express their views to the court. He said the court's abandonment of
the "Sherbert" Test could have a wide impact.
"Taxation of church assets, regulation of church schools and child-
care centers, zoning and other land-use questions are all areas of the
law where we've relied upon the compelling state interest test to
provide churches with exemptions," Thomas told the Baptist Press. "With
a stroke of his pen, Justice Scalia has overturned 27 years of legal
precedent and made the 'first liberty' a constitutional stepchild."
The Rutherford Institute, a conservative legal aid group that
frequently litigates free exercises cases, was also dismayed by the
ruling. Said Institute President John W. Whitehead in a press
statement, "Justice Scalia's opinion rejects the notion that free
exercise of religion is a preferred right. Rather, in most situations
it is valid only when coupled with another constitutional right.
"Armed with this opinion, a state may draft a law that violates
religious liberty, claim it is `religiously neutral' and those affected
by it may have no recourse under the Constitution."
Constitutional scholars were particularly amazed that the majority in
the peyote case relied heavily on "Minersville School District v.
Gobitis," a 1940 Supreme Court decision that said Jehovah's Witness
children in public schools could be forced to say the Pledge of
Allegiance. "Gobitis" was overturned three years later in the
"Barnette" decision and has been roundly criticized ever since as one of
the court's biggest mistakes.
Observed Douglas Laycock, law professor at the University of Texas,
"The court repeatedly quotes "Gobitis" without noting that it was
overruled in "Barnette," and without noting that it triggered a
nationwide outburst of violence against Jehovah' s Witnesses. Until the
opinion in this case, "Gobitis" was thoroughly discredited."
But not all courtwatchers were chagrined by the ruling. Jules B.
Gerard, a constitutional law professor at Washington University in St.
Louis, told Religious News Service there has been a lot of overreaction.
Gerard said the decision "overturns very little" and accused those who
have protested it of "hysterical talk."
[7]
Bruce Fein, a conservative constitutional scholar, went even further,
applauding the ruling in a column in "The Washington Times." Fein
wrote, "It is both counter-intuitive and contrary to American political
experience to suppose the "Smith" ruling portends an epitaph for
religious tolerance and accommodation in generally applicable
legislative enactments. And when religion must yield to secular law,
the former continues to prosper."
Fein went on to say that religions can drop fundamental tenets and
still survive, pointing out that the Church of Jesus Christ of Latter-
day Saints (the Mormons) in 1890 dumped its support for plural marriage
after the Supreme Court refused to allow the practice for religious
reasons.
Conservative columnist George Will also was pleased with the "Smith"
decision. "A central purpose of America's political arrangements is the
subordination of religion to the political order, meaning the primacy of
democracy," he observed. "The Founders, like Locke before them, wished
to tame and domesticate religious passions of the sort that convulsed
Europe....Hence, religion is to be perfectly free as long as it is
perfectly private--mere belief--but it must bend to the political will
(law) as regards conduct."
However, Dr. Robert L. Maddox, executive director of Americans United
for Separation of Church and State, said the "Smith" ruling is cause for
concern.
"If a majority of the justices did not believe the Native American
Church members had a valid claim, they could have rejected them by
relying on the doctrine of compelling state interest," said Maddox.
"But a majority chose to go much further, effectively weakening the
protection the court has extended to religious free exercise.
"We are concerned," he continued, "that this ruling will have a
negative effect on minority religions. Mainstream faiths will probably
have little difficulty getting the exemptions they need; smaller groups
with less political influence will have a tougher time of it. That is
unfortunate. Religious freedom should not be left to the whim of state
and federal lawmakers.
"No one wants anarchy in the name of religion," he added, "but do we
really want more and more government regulation of religion? What
bothers us most is the movement away from individual liberty and toward
statism--whatever the government wants, goes."
The decision has already had a practical consequence for one minority
faith. Just six days after the "Smith" ruling, the justices, by a 7-2
vote, ordered the Minnesota Supreme Court to reconsider a recent
decision it made exempting an Amish group from complying with a highway
safety law.
[8]
Members of the Old Order Amish had protested a state law requiring
them to display orange safety triangles on their horse-drawn buggies.
The Amish said the bright symbols violated their belief in a plain
lifestyle. The Minnesota high court agreed in 1989, but now may be
forced to reverse the "State v. Hershberger" decision in light of the
"Smith" ruling.
In Eugene, Ore., meanwhile, Al Smith has no more faith in the courts.
After joining about 100 people in a protest of the decision that bears
his name at a Eugene federal building April 20, Smith told reporters he
is backing proposed legislation suggested by state representative Jim
Edmunson of Eugene that would allow Native Americans to use peyote in
religious rituals in Oregon. If that fails, Smith said, the Oregon
Supreme Court could decide Native American peyote use is permissible
under the state constitution.
Smith told "Church & State" he is also working with Native American
groups in the United States that are considering filing a protest before
the International Court of Justice (commonly called the World Court) in
The Hague, Netherlands.
"The United States is saying the original people of this land can't
worship," Smith told Church & State. "We were worshipping a long time
before the white man ever set foot on this turtle island.
"The issue is not dead, by no means," continued Smith. "I'm not
giving up; I have committed no crime. It's not a crime to pray in the
old way."
KOYAANISQATSI
ko.yan.nis.qatsi (from the Hopi Language) n. 1. crazy life. 2. life
in turmoil. 3. life out of balance. 4. life disintegrating.
5. a state of life that calls for another way of living.
---------> Buzzz Bros. <---------
See Part Two
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