Professional Documents
Culture Documents
the
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present:
The Supreme Bunch
of INjustices
vs Peyote
Part I of II
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Transcription By
The Subliminal Kid
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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.
----------------------------------------------------------------------------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 70year-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 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." [more]
[3]
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 farreaching 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
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. [more]
---------> Buzzz Bros. <--------See Part Two
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