The Pagan Library
Wed, Jul 30 2014

Supreme Court And Peyote

Anon


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 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."

[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.

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 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 obligation 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."

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.

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 "mis-characterizing 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 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 USA, 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 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 court watchers 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."

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 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 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.

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 church members stripped of 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 branch of any government is an exceedingly 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 government," 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.

The following article appeared in the Spring 1990 issue of "Native American Rights Fund Legal Review", a publication of the Native American Rights Fund, 1506 Broadway, Boulder, CO 80302, and is reprinted here w/permission.


Supreme Court Deals Devastating Blow to Native American Church

by Steve Moore

On Tuesday, April 17, 1990, the United States Supreme Court 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 Amendment'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 Amendment 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 constitutional limbo-land for the Native American Church and its members.

In real terms the decision leaves the fate of the peyote religion to the whim of majoritarian legislatures and Congress. Eleven states currently have exemptions on the statute books protecting the religion; 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 particular Public Law 280 configuration in any given state, but problems of transportation of the sacrament into Indian country through "illegal" territory will reduce peyote ceremonies to complex and dangerous liaisons.

Native American church members stripped of 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 branch of any government is an exceedingly 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/religious 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 government," 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.

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 recent U.S. Supreme Court decision regarding 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 Catholic 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


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