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Internet Book of Shadows, (Various Authors), [1999], at sacred-texts.com
Supreme Court And Peyote (Articles)
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.
Excerpts fromthe following articledetailing the April17th 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 SupremeCourt 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 directorof 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," headded, "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."
[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 Smithconsiders himselfapolitical; he's noteven 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 highcourt ruled 6-3 thatday that Native Americansdo 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 enough to take his fight
to the polls.
"I'm encouraging all peopleto register and vote thisyear," 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 jurisprud-
ence, granting government broad new powers over religious practices.
What makes the "Smith"decision so significant is thatin 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 compell-
ing 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.
Inthe recent peyote case the court rejected the "Sherbert" stan-
dard 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 obligation to do so.
Wrote Justice Antonin Scaliafor the majority, "We havenever 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."
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."
1727
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 conjunc-
tion 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 Alcoholand 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.
When Smithand Black subsequently appliedfor unemployment bene-
fits, they were turned down. Officials with the state Employment
Dvision said the two had been fired for misconduct and therefore did
not qualify. The duo took the case to the courts.
Fouryears later the OregonSupreme Court ruledthat 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.
1728
Justice Sandra Day O'Connor concurredin 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 jurisp-
rudence, 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 judi-
cial 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 maj-
ority for "mischaracterizing this Court's precedents" and engaging in
a "wholesale overturning of settled law concerning the Religion
Clauses of our Constitution."
Wrote Blackmun, "One hopes that the Court is aware of the conse-
quences, 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 Prohibi-
tion.
Said Blackmun, "Ido notbelieve the Foundersthought theirdearly
bought freedom from religious persecution a 'luxury,' but an essential
element of liberty--and they could not have thought religious in-
tolerance 'unavoidable,' for they drafted the Religion Clauses precis-
ely 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.
1729
Groups joining the AJC include: the Baptist Joint Committee on
Public Affairs, the National Council of Churches, the National As-
sociation of Evangelicals, People for the American Way, the Pres-
byterian 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.
Attorney OliverS. Thomas of theBaptist Joint Committee saidit is
important that religious and civil liberties groups have the oppor-
tunity to express their views to the court. He said the court's
abandonment of the "Sherbert" Test could have a wide impact.
"Taxation ofchurch assets, regulationof church schoolsand 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 step-
child."
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 state-
ment, "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 af-
fected by it may have no recourse under the Constitution."
Constitutional scholars wereparticularly amazed that themajority
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 "Ba-
rnette" 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 overreac-
tion. Gerard said the decision "overturns very little" and accused
those who have protested it of "hysterical talk."
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
1730
legislative enactments. And when religion must yield to secular law,
the former continues to prosper."
Fein went on to saythat religions can drop fundamentaltenets 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 arrange-
ments 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 ofthe justices did not believe theNative 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 d
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.
Members of theOld Order Amish had protesteda 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
1731
Edmunson of Eugene thatwould allow Native Americans touse 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" heis also working withNative 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 UnitedStates is saying theoriginal people of thisland 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 theHopi Language) n.1. crazy
life. 2.life in turmoil. 3. life out of balance. 4. life disintegrat-
ing. 5. a state of life that calls for another way of living.
__________________
Excerpts from the following article analyzing the effects the US
Supreme Court ruling on the Native American Church's use of peyote as
being illegal:
--------------------------------
Native American churchmembers stripped oftheir rights underthe
Constitution are now subject to the will of the legislative branch of
our state and federal governments. Not an enviable place for Indian
people; as a distinct racial and religious minority Indians have
always had an uphill struggle in the halls of Congress and elsewhere
to have their rights recognized and respected.
The legislativebranch ofany governmentis anexceedingly unusual
place for individuals to look to have their rights under the First
Amendment vindicated. Courts are traditionally looked to as protectors
of these rights, against majoritarian legislatures. Justice O'Connor,
in a separate concurring opinion which joined the result of the
majority but sharply criticized its method, reasoned that "the First
Amendment was enacted precisely to protect those whose religious
practices are not shared by the majority and may be viewed with
hostility."
As a result of "Smith," minority religions, in Justice Scalia's
opinion, may be at a disadvantage in the political arena. But that is,
in his estimation, "an unavoidable consequence of democratic govern-
ment," preferable to "a system in which each conscience is a law unto
itself." Justice Scalia had to strain to defend his decision, citing
the need to prevent "anarchy" in our democratic society. Indian
people simply want to be left alone in our societyto worship the
god of their choice. Is that asking too much? The Court's decision in
"Smith" strips Indians of their pride and integrity, and makes many of
them criminals in the eyes of the law. Only history will judge the
Court's decision in "Smith;" but for now the remote specter of anarchy
may very well have been the preferred choice.
1732
1733
------------------------
The following article appearedin the Spring 1990 issueof "Native
American Rights Fund Legal Review", a publication of the Native
American Rights Fund,
1506 Broadway, Boulder, CO 80302, andis reprinted here w/permis-
sion.
------------------------
Supreme Court Deals Devastating Blow to Native American Church
by Steve Moore
On Tuesday, April 17,1990, the United States SupremeCourt struck
a gut wrenching blow to the religious lives of many of this country's
Native Americans, in a decision which invites the return to an era of
religious persecution one would hope a presumably enlightened and
tolerant society such as ours had left behind. In the case of "Oregon
Department of Employment v. Alfred Smith," Justice Antonin Scalia,
writing for a five member majority, and describing the First Amend-
ment's Free Exercise Clause as little more than a "negative protection
accorded to religious belief," held that a member of a religious faith
may not challenge under the free exercise clause of the First Amend-
ment to the United States Constitution a legislature's criminal
enactment of otherwise general application which produces infringement
on a particular religious practice. In the "Smith" case this amounted
to a challenge to the constitutionality of an Oregon drug law which
the Court Interpreted as a general criminal prohibition on all uses of
the drug peyote, considered by Indian members of the Native American
Church as an essential sacrament, the physical embodiment of the Great
Spirit.
The Native American Church, which claims over 250,000 members
nationwide, and additional Indian practitioners in Canada and Mexico,
and which can be traced back archaeologically several thousand years
in North America, was not absolutely destroyed or driven underground
by the Court's action. The Court did not go so far as to rule that any
state or federal law exempting the religious, sacramental use of
peyote was an unconstitutional establishment of religion, at the other
end of the religion clauses of the First Amendment. In the Court's
terms, a peyote exemption, while constitutionally *permitted*, is
neither constitutionally *required* or *prohibited*. A kind of con-
stitutional limbo-land for the Native American Church and its members.
In real terms the decision leaves the fate ofthe peyote religion
to the whim of majoritarian legislatures and Congress. Eleven states
currently have exemptions on the statute books protecting the relig-
ion; another twelve tie their exemption to a federal Drug Enforcement
Agency regulation which rests on questionable foundation since the
decision. A small handful of states, notably California and Nebraska,
in which are located some of the largest Indian and Native American
Church populations, have based their protection on court decisions.
The others, and the federal government through Congress, have no
statutory or common law protection. Indian reservation lands will
provide some safe haven from possible prosecution, given the par-
ticular Public Law 280 configuration in any given state, but problems
of transportation of the sacrament into Indian country through "il-
legal" territory will reduce peyote ceremonies to complex and danger-
ous liaisons.
1734
Native American church members strippedof their rights under the
Constitution are now subject to the will of the legislative branch of
our state and federal governments. Not an enviable place for Indian
people; as a distinct racial and religious minority Indians have
always had an uphill struggle in the halls of Congress and elsewhere
to have their rights recognized and respected.
The legislative branchof any government is anexceedingly unusual
place for individuals to look to have their rights under the First
Amendment vindicated. Courts are traditionally looked to as protectors
of these rights, against majoritarian legislatures. Justice O'Connor,
in a separate concurring opinion which joined the result of the
majority but sharply criticized its method, reasoned that "the First
Amendment was enacted precisely to protect those whose religious
practices are not shared by the majority and may be viewed with
hostility."
A noted scholar of Indian law and philosopher, Felix Cohen, was
quoted several decades ago as saying: "Like the miner's canary the
Indian marks the shifts from fresh air to poison gas in our political
atmosphere; and our treatment of Indians, even more than our treatment
of other minorities, reflects the rise and fall in our democratic
faith " Cohen's words become even more prophetic after the Court's
decision in "Smith." The "Smith" decision may perhaps portend even
greater persecution for other forms of Indian religious expression.
Examples which come to mind include: the wearing of long hair by
Indian students in public schools, and by Indian prisoners in federal
and state prisons; missing school on a regular basis for cultural/rel-
igious ceremonial purposes; the taking of game by Indians out season,
when not otherwise protected by treaty; burning wood to heat rocks for
sweat- lodge ceremonies, when burning is otherwise outlawed by local
ordinance during times of high pollution; and body piercing as part of
the Sun Dance ceremony. If these forms of religious expression are
otherwise prohibited by general criminal laws, the First Amendment no
longer provides a basis from which to claim protection from religious
infringement. As with peyote use, reservation boundaries will provide
a buffer from the application of state law, except where Public Law
280 legitimizes intrusion.
As a result of "Smith," minority religions, in Justice Scalia's
opinion, may be at a disadvantage in the political arena. But that is,
in his estimation, "an unavoidable consequence of democratic govern-
ment," preferable to "a system in which each conscience is a law unto
itself." Justice Scalia had to strain to defend his decision, citing
the need to prevent "anarchy" in our democratic society. Indian people
simply want to be left alone in our society to worship the god of
their choice. Is that asking too much? The Court's decision in "Smith"
strips Indians of their pride and integrity, and makes many of them
criminals in the eyes of the law. Only history will judge the Court's
decision in "Smith;" but for now the remote specter of anarchy may
very well have been the preferred choice.
1735
Statement From Pacific Northwest Church Leaders
Who Support Indian Religious Rights
Re: Employment Division, State of Oregon v. Al Smith, Galen Black,
88-1213
-----------------
The recentU.S. Supreme Court decisionregarding the sacramental
use of peyote in Native American religious rites is unfortunate and
deeply disappointing. We support the right of Native Americans to
practice their religion as they have for centuries. We concur with
Justice Harry Blackmun, who writing for the dissent, called the
decision a "wholesale overturning of settled law concerning the
religious clauses of our Constitution." The decision jeopardizes the
fundamental right of all citizens to exercise freedom of religion free
from government restraint. We will continue to work with Native
Americans to help them protect their religious rights.
The Most Rev. Raymond G. Huthausen Archbishop of Seattle Roman Cath-
olic Archdiocese of Seattle
The Right Rev. Vincent W. Warner, Bishop Episcopal Diocese of Olympia
The Most Rev. Thomas Murphy, Coadjutor Archbishop Roman Catholic
Archdiocese of Seattle
The Rev. John Boonstra, Executive Minister Washington Association of
Churches
The Rev. Calvin D. McConnell, Bishop United Methodist Church Pacific
NW Conference
The Rev. W. James Halfaker, Conference Minister Washington-Idaho
Conference United Church of Christ
The Rev. Lowell Knutson, Bishop NW Washington Synod Evangelical
Lutheran Church In America
The Rev. Dr. William B. Cate, President Director Church Council of
Greater Seattle
The Rev. Gaylord Hasselblad, Executive Minister American Baptist
Churches of the Northwest
These church leaders issued an apology to Indians that was carried in
the Winter 1988 NAF Legal Review
1736