Smoke Signals August 1990 Page 11
Peyote Ruling Dramatically Changes Law
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 persecu
tion 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 an "negative protec
tion 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 infringe
ment 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 year 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 exempt
ing the religious, sacramental use of peyote was an
unconstitutional establishment of religion, at the other
end of the religious clauses of the First Amendment. In
the Court's terms, a peyote exemption, while constitu
tionally 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 statue books protecting the religion; another twelve
tie their exemption to a federal Drug Enforcement
Agency regulation which rests on questionable founda
tion 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 particu
lar 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.
Indians have always had an uphill stniggle in
the halls of Congress and elsewhere to have
their rights recognized and respected.
Native American Church members stripped on their
rights under the Constitution are now subject to the will
of the legislative branch of our state and federal govern
ments. 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 exceed
ingly unusual place for individuals to look to have their
rights under the First Amendment vindicated. Courts
Since 1943, it has been accepted in the United States
that laws of general application, including criminal law,
cannot inhibit the free exercise of religion unless they
pursue a "compelling government interest." When a
person acting in response to religious convictions breaks
a law and is persecuted, the state must demonstrate that
its goal in overriding a First Amendment freedom is of
the highest order and that its means are as narrow as
possible.
Thus a Jehovah's Witness child cannot be compelled to
salute the flag in school, religious canvassers cannot be
required to attend school beyond age 14.
A Supreme Court decision of April 17 changed all that,
however. In Department of Human Resources of
Oregon v. Smith, a case testing whether the right of free
religious observance could justify the use of hallucino
genic drug during a worship service of the Native
American Church, the court rejected this well, settled
principle. It held that the state need not make any
accommodation to religious liberties as long as the law
docs not intentionally seek to infringe religious conduct.
In finding that an Oregon criminal law barring the use of
peyote does not violate the First Amendment, Justice
Antonin Scalia specifically repudiated the "compelling
state interest" test.
Justice Scalia could have reached the same result
without changing the basic strength of the free-exercise
clause. Indeed, Justice Sandra Day O'Connor did so in
her concurring opinion. She weighed the state's interest
in prohibiting drug use against the American Indians'
right to use peyote and found a governmental goal com
pelling enough to sustain the prohibition even a sacra
mental act central to worship.
Legal scholars are calling this case "the single most t
dramatic change in free-exercise doctrine in the last 25
years" and "the clearest doctrinal turnaround in the
constitutional area." Justice Harry Blackmun in dissent
ing called it "a wholesale overturning of settled law."
Where does the case leave us? First, religious minori
ties can no longer rely on the Bill of Rights as heavily as
they have in the past. The state is no longer required to
consider varieties of religious practice as it shapes public
policy.
Second, in their legislative and administrative processes
states must intensify their sensitivity to the burden they
place on the lives of believers of every stripe.
Third, since the Supreme Court has shifted to politics
are traditionally looked to as protectors of these rights,
against majoritarian legislatures. Justice O'Connor, in
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 that 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. Ex
amples 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 culturalreligious ceremo
nial purposes; the taking of game by Indians out season,
when not otherwise protected by treaty; burning wood to
heat rocks for sweatlodge ceremonies, when burning is
otherwise outlawed by local ordinance during times of
the responsibility for safeguarding religious freedoms,
the religious community will have to plunge into the
legislative fray to protect its rights to worship freely.
Why has the court emasculated such a precious
freedom? The recent evolution of many unorthodox
religious movements including some exploitive or even
fraudulent ones, may have exhausted the natural
American tolerance for religious diversity. Perhaps the
court's view of religious liberty responds to this exhaus
tion Perhaps the court is responsive to the current alarm
over the drug epidemic and the mounting public cry for
law and order. Perhaps it is returning philosophically to
a very strict construction of the First Amendment.
If it's this late possibility, the court has not examined
the original intent os the free-exercise clause as envi
sioned by George Mason and James Madison. They
were implacable in their defense of religious freedom. In
wording the amendment they rejected the phrase
"religious worship or belief as not broad enough,
settling on " exercise of religion" as better describing
the scope of behavior to be free from regulation.
The Supreme Court seems to rank freedom of religion
lower than other fundamental liberties.
We need to rethink what the exercise involves. To the
casually religious, observance consists of attendance at
church or occasional religious ceremonies. Many highly
educated people have such complete confidence in
mankind's power to conquer evil by themselves that they
tend to consider faith-based behavior irrelevant.
But to the deeply convinced believer, religion shapes
his whole view of this world and guides his lifestyle in
ways that more secular people find eccentric. His
approach to education, work family life and health care
may seem impractical to worldly wise.
We must also appreciate how total is the reach of
government activity in modern America. Much religion
behavior which was ignored in our grandparents' day is
now under close federal or state supervision. American
Indians have chewed peyote, which is not addictive, in
their ceremonies for generations without any record of
harm to anyone. The Amish resistance to public educa
tion, Jehovah's Witnesses' refusal to salute the flag, all
went on without restraint until the state decided to
control them. As the conforming arm of government
reaches ever farther into personal behavior, our need for
some standard of "compelling state interest " grows ever
greater.
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, expect where Public
Law 280 legitimizes intrusion.
As a result of Smith, minority religions, in Justice
Scalia's opinion, maybe 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 pre
ferred choice.
- Courtesy of the NARF Legal Review