CONSTITUTIONAL HISTORY FROM 1865

01:512:405

RUTGERS UNIVERSITY
SCHOOL OF ARTS AND SCIENCES

April 2012

EMPLOYMENT DIVISION OF OREGON V. SMITH:

Peyote in Politics
Joseph S. Amditis

PROFESSOR PAUL CLEMENS

CONSTITUTIONAL HISTORY FROM 1865

01:512:405

EMPLOYMENT DIVISION OF OREGON V. SMITH:

Peyote in Politics
Joseph S. Amditis

TABLE OF CONTENTS
I. INTRODUCTION...........................................................................1 II. HISTORICAL BACKGROUND........................................................1 III. OREGON V. SMITH......................................................................2 a. Press Coverage....................................................................3 b. Arguments for the Appellant................................................4 c. Arguments for the Respondents...........................................5 d. State Interest........................................................................6 IV. DEVIATIONS AND IMPLICATIONS.................................................9 a. Judicial.................................................................................9 b. Legislative..........................................................................11 V. CONCLUSION.............................................................................13

PROFESSOR PAUL CLEMENS

EMPLOYMENT DIVISION OF OREGON V. SMITH:

Peyote in Politics
Joseph S. Amditis* I. INTRODUCTION

The case of Employment Division of Oregon v. Smith is complex and rife with controversy. Any time the interests of the State are pitted against the interests and freedoms of the individual there is always an expectation of backlash from the losing side. This case exemplifies the clash between societal needs and individual rights. The State has a duty to prevent possible harm and provide for the general welfare of the public, while safeguarding the rights of minorities from the tyranny of the majority. This becomes increasingly difficult in a society that contains a multitude of political, religious, and intellectual persuasions. This difficulty is compounded when the parties involved have an intricate historical and political relationship with the State. The distinctive and multifaceted historical relationship between the Native American Peoples and the United States Government presents unique constitutional and legal questions in determining what constitutes a proper balance between the rights of the citizens and the powers of the State. Furthermore, in determining the extent of religious protections afforded by the First Amendment, this case illustrates that the line between religious belief and religious exercise may not be as obvious or clearly defined as many would suppose. II. HISTORICAL BACKGROUND

The United States of America was founded in the midst of a plurality of religious faiths. The persecuted congregates of various denominations made the journey across the Atlantic Ocean and arrived in North America to establish or expand their respective religious institutions throughout the New World. Long before the Puritans, Quakers, and Baptists began to advance across the continental plains that would later become the United States, the indigenous peoples of the western hemisphere, now known as Native Americans or American Indians, had already established religious practices and customs of their own. Unfortunately, after years of disease and death, the majority of native peoples were relegated to small, isolated regions of what their ancestors once called home. The previous occupants of the New World endured long spouts of disease, violence, and discriminatory regulation, some lasting over decades and claiming countless lives throughout the pre- and post-Civil War eras.1 Most Native American tribes were so weakened by disease and warfare that Christian missionaries found members willing to listen to promises of salvation and redemption. Consequently, some tribes adopted variations of the Christian faith. Out of
* Undergraduate Student, Rutgers, The State University of New Jersey, School of Arts and Sciences, Author (2012). 1 See Indian Removal Act, Encyclopdia Britannica. Encyclopdia Britannica Online. Encyclopdia Britannica Inc. 2012. Web. (27 Mar. 2012). <http://www.britannica.com/EBchecked/topic/285943/IndianRemoval-Act>.

2 this cultural amalgamation came a sect of American Indian religion known as the Native American Church.2 The Native American Church is a religious denomination that practices peyotism and has been adopted by more than 50 American Indian tribes, with roughly 250,000 adherents in the greater United States. While the sacramental use of the peyote cactus is estimated to have begun some 10,000 years ago, the Native American Church was officially incorporated and recognized by the United States in 1918 throughout various Oklahoma tribes.3 As the collective attitude of United States public policy continued to evolve and adapt to the growing diversity of religious practices, the struggle between personal freedom and public welfare was constantly thrust into the political forum. The judicial and political atmosphere during the late 1980s and early 1990s was rife with conflict and controversy, especially in the courtroom. With the end of the Cold War finally in sight, and the beginning of the Gulf War looming just around the corner, the people of the United States were desperately trying to adapt to a rapidly changing political and social climate. Following the appointment of Chief Justice William Rehnquist to replace Warren Berger, the Court saw a continuing shift away from the liberal days of the 1960s4 to the Reagan era of neo-conservatism.5 With that shift came a substantial amount of new cases in the Supreme Court that centered on the freedoms of expression, speech, and religion.6 This era of First Amendment freedoms proved to be a time that would define how the concepts of religion and personal freedom were interpreted in the United States over the next few decades. No case painted a more descriptive picture of the paradoxical relationship between religion and the American republic at the end of the Reagan presidency than that of Employment Division of Oregon v. Smith.7 III. OREGON V. SMITH

Argued before the Rehnquist Court in 1989 and decided in April of 1990, Oregon v. Smith was an appeal by the State of Oregon of a decision by the Supreme Court of Oregon, stating that the denial of unemployment benefits for two members of the Native American Church, who had been terminated from their positions as addiction counselors for their sacramental use of peyote, violated the respondents free exercise rights under the First Amendment.8 The case was decided by a 6-3 majority in favor Employment Division, causing a wave of controversy throughout political and religious forums alike. The Appellant, the Human Resources Department of the Employment Division of
2 3

See Omer C. Stewart, Peyote Religion: A History, Norman: Univ. of Oklahoma Press, 157 (1987). See Huston Smith, One Nation Under God: The Triumph of the Native American Church, Council on Spiritual Practices, Santa Fe: Clear Light Publishers, (1996). 4 Although Chief Justice Berger was a conservative, he failed to maintain control over the rest of the Court, which, during his reign as Chief Justice, tended to take a liberal approach more often than a conservative one. 5 See Stuart Taylor Jr., More Vigor for the Right; Court Would Ease Toward Conservatism Without Abruptly Changing in Direction, The New York Times, June 18, 1986, Section A, Page 1, Column 4. 6 See Peter C. Hoffer et al., The Supreme Court: An Essential History, Lawrence, Univ. Press of Kansas, 409-442, 423 (2007). 7 See Employment Division, Department of Human Resources of Oregon v. Smith, 307 Ore. 68, 763 P.2d 146 (1988). 8 See Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

Oregon, claimed that the use of peyote, even for religious purposes, did not comply with the no-tolerance policy that addiction counselors were required to adhere to as part of the terms of their employment. The violation of that policy, regardless of the illegality of peyote itself, was therefore legitimate grounds for termination on the basis of workrelated misconduct. The two respondents, Alfred L. Smith and Galen W. Black, were members of the Native American Church and claimed that their religious motivation for using peyote placed them beyond the reach of Oregons criminal laws. a. Press Coverage The coverage of this case by the New York Times,9 while descriptive and informative, is not entirely accurate. The article centers on the refusal of the Oregon Employment Division to grant unemployment insurance benefits to the Respondents, but mistakenly claims that the refusal was based on the criminal status of peyote.10 In fact, while the Respondents were indeed denied unemployment insurance benefits by the State, it was due to misconduct as a drug counselor at a rehabilitation clinic, not the actual criminal status of the drug itself. The clinic had a strict policy concerning the counselors use of illegal drugs, and prohibited any counselor from using them as part of the terms of their employment. As drug counselors, the clinic believed that it was important that they act and serve as examples for those in recovery in order to expedite rehabilitation. The fact that peyote use was illegal became a separate issue altogether. The Respondents were terminated for violating their employers policy. If the policy had prohibited the use of an otherwise-legal substance as a requirement for continued employment instead of an illegal substance like peyote, the Respondents would still have been denied unemployment benefits since they had been terminated for work-related misconduct (rather than the illegality of the peyote itself), although the question of whether they could be prohibited from using the drug would still have come into question. This issue is further complicated by the fact that the original employee policy did not include a prohibition of religious use of peyote. Originally, the employee policy prohibited misuse, abuse, social, and recreational use of illegal drugs and substances. The religious prohibition was added after Galen Black was fired, due to the inherent vagueness of the original prohibition.11 The various news media outlets and others covering the case refer to that second written policy as the basis for termination. The issue of the illegality of peyote itself, however, only came into question on remand from the Supreme Court.12
9

See Linda Greenhouse, Use of Drugs in Religious Rituals Can Be Prosecuted, Justices Rule, The New York Times, April 18, 1990. 10 Id. at 5, [The state agency said the criminal status of peyote use rendered the men ineligible for the benefits.]. 11 See infra section III (c). 12 See Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, (1989) 88-1213 Oral Argument [Unknown Justice: So we really have no question of illegality before us, do we? Mr. Frohnmayer: The illegality comes by virtue of the question posed on remand by the majority of this Court...].

4 Although the coverage in The New York Times certainly touches on the First Amendment issues of the case, it fails to address the issues concerning the balance between the rights of the employee, the rights of the employer, and the rights of the State in exercising its police power to facilitate rehabilitation. The Employment Appeals Board of Oregon upheld the legitimacy of the termination of the Respondents, based on the fact that they had engaged in misconduct at work. The question becomes whether the rehabilitation clinics right to proscribe certain behaviors relevant to the purpose of their business outweighs the employees right to practice their religion. The article makes it appear as if a decision in the Respondents favor would have overturned the decision by the Employment Appeals Board and allowed the Respondents to collect unemployment benefits, which is not the case. b. Arguments for the Appellant Attorney General Dave Frohnmayer, in his oral argument before the Court, outlines three compelling state interests in the general criminal prohibition of peyote use. The first pertains to the dangers of peyote and other hallucinogenic drug use. Second, due to the need for neutrality in State action, Oregon is obligated to prevent preference from being awarded to one particular religion and not to another. Lastly, Attorney General Frohnmayer argues that, in order to prevent constant requests for exemptions to the use of other drugs, a general regulatory scheme is required for all Schedule I substances. He also alludes to the continually changing nature of religious practices and standards, and the fact that once regulatory control is put into the hands of the church, it will remain that way, guarded by the Constitution. This concession of regulatory power carries with it the possibility of eventual institutionalized neglect of regulatory duties and presents additional possibilities for abuse of the drug.13 The Appellant argues that the dangers inherent in the use and abuse of hallucinogenic drugs provide a sufficient basis for state interference. In support of this claim, he lists the effects of peyote, calling the drug a powerful and unpredictable hallucinogen. He illustrates that the active ingredient in peyote is the drug mescaline and that ingesting the drug causes a variety of adverse effects on the body, including audio and visual hallucinations, various physiological effects, and extreme emotional reactions.14 He also notes that a small number of peyote users experience induced psychotic reactions from the use of the drug. He then goes on to discuss the classification of peyote as a Schedule I drug, which is supposed to stem from the drugs high potential for abuse and lack of accepted safe use or medical application.15 The Attorney General also argued that the Oregon Supreme Court erred in its decision that the federal Constitution required a judicial exemption for use of the drug by
13 14

Id. Id. [Mr. Frohnmayer: {Peyote} stimulates respiratory changes, reflexes and pulse rates, which are physiologically measurable. The spectrum of effects experienced are similar, and in most respects identical, to those of LSD, psilocybin, and mescaline, accompanied by vivid visual and auditory hallucinations, altered perceptions of time, space, and body... emotional reactions that range from joy and exhilaration to extreme anxiety and even terror.]. 15 Ibid.

sincere adult believers of a single church. He claimed that the exemption was narrowly constructed to apply only to the specific actions of the members of the Native American Church and therefore implied a constitutional preference of a specific religion, which violated the federal requirement for religious neutrality outlined in the Constitution. When questioned about the similarity of this case to Wisconsin v. Yoder,16 the Appellant denied that a connection could be drawn between the two cases because in Yoder the church was not singled out and there were no other groups applying for the same exemption.17 According to the Appellant, the practice of allowing exemptions from generally applicable laws on the basis of religious conviction would create a precedent that would initiate a process by which an increasing amount of exceptions would be made, culminating in the eventual collapse of the States ability to regulate the use of prohibited substances. Likewise, once the power to regulate the use of a controlled, dangerous substance is transferred into the hands of the church, that power would remain with the church, protected by the Constitution, regardless of any changes in church practices and standards. If the church does not continue to uphold the same level of supervision and regulation of peyote use, the probability of abuse increases, and the State is thus left powerless to prevent further harm to society resulting from peyote use. c. Arguments for the Respondents Arguing on behalf of the Respondents was Mr. Craig J. Dorsay, an attorney from Oregon.18 Mr. Dorsay began his arguments by addressing the prevalent ethnocentric view of religion in the United States. That is to say, were the Court to examine the societal problems caused by peyote use in comparison to those caused by alcohol, it would be possible to conclude that it is alcohol, rather than peyote, that should be listed as a Schedule I substance. After a short exchange with the Court regarding the dangers of ingesting peyote, Mr. Dorsay began attempting to remove any distinctions between the claims made by the Respondents and the previous cases involving religious practices. Furthermore, he stressed the point that the criminality of peyote use was irrelevant to Oregons unemployment compensation law, as the Oregon Supreme Court did not address it. This is in direct contrast to the coverage of the case by the New York Times. As far as the criminality of peyote use is concerned, the Oregon unemployment compensation statutes contain the State interest involved in the distribution of benefits. According to the statutes, the only State interest is the fiscal integrity of the unemployment fund. If the Oregon legislature had included a statutory concern for the criminality of actions involved in unemployment claims, the Respondents would have been validly denied compensation, but that was not the case. Moreover, the lack of statutory reference to criminal acts is further supported by the lack of criminal prosecution of either Respondent.
16 17

See Wisconsin v. Yoder, 406 U.S. 205 (1972). See supra note 12, [Mr. Frohnmayer: Because there, in Yoder, the church was not singled out by name and by identity and by denomination, and there were no others similarly situated who were clamoring for that particular exemption.]. 18 See supra note 12, Oral Argument of Mr. Craig J. Dorsay for the Respondents.

6 By far the most intriguing argument made by the Respondents, and certainly the argument that raises the most questions in relation to the treatment of religious believers in the United States, were the statements made by Justice Stevens in the Goldman19 and Hobbie20 cases that seem to equate religious beliefs with a physical impairment.21 Mr. Dorsay attempts to use those statements to show that since the Court deems religious belief to be involuntary, just as a physical impairment is involuntary, the Respondents cannot be denied unemployment benefits for exercising their beliefs, even though others in similar positions would be validly denied compensation. What is ironic about this argument, aside from the allusion that religion is equivalent to a physical impairment, is the fact that the Respondents use the Hobbie case to justify the rigid and involuntary nature of religious conviction, yet in that particular case, Paula Hobbie converted to a different religion, which became a focal point for the Unemployment Appeals Commission. Although placing religious belief on par with a physical handicap is undoubtedly an interesting argument, it was not the strongest in this case. The strongest argument given by Mr. Dorsay was the fact that at the time the Respondents were hired at the rehabilitation clinic, the employee conduct policy only prohibited the misuse, abuse, social, or recreational use of peyote. It was not until after Galen Black was fired that the ambiguous wording of the policy was changed to include the prohibition of any use of peyote whatsoever. Therefore, had the Respondents been aware of the general prohibition at the time of their employment, they would have been validly denied unemployment compensation due to their misconduct. Since the policy was changed after the Respondents had already been employed, however, they were essentially forced to choose between abandoning their religion and abandoning their career. Here, unlike in Hobbie, the agent of change defense may be applied, since it was the employee conduct policy that was changed, rather than the religious beliefs and practices of the employees. This is the very essence of a free exercise claim, and the exact scenario that the First Amendment is designed to protect against. d. State Interests During the arguments given by the Attorney General, the Appellant attempted to outline the compelling government interests involved in the generally applicable
19 20

See Goldman v. Weinberger, 475 U.S. 503 (1986). See Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987). 21 See Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136, (85-993) (1986) Oral Argument [Justice Stevens: Mr. Carson, on that point can I ask you a question? Supposing that instead of being converted to a new religion she had acquired some physical disability that made it impossible for her to continue her work. Would she then have received unemployment compensation or not under the Florida scheme? Mr. Carson: Your Honor, it would be my impression that she would be entitled to benefits for a physical disability, and it is ironic that the state would award benefits to a person for a physical disability but not for a religious disability, if you will. Justice Stevens: Are there Florida cases that make that clear, because I couldn't really tell from the briefs, and the language of the statute seems to say she has to be ready, willing, and able to work. But you think it is clear she would have been entitled to benefits if it were a physical disability. Mr. Carson: Yes, Your Honor. That's correct, Justice Stevens.].

prohibition of peyote use, even for religious purposes.22 The Respondents argued that, even if the criminality were an issue in this case, though it had been established that it was not,23 the State had failed to meet its burden under the First Amendment to justify the total destruction of this religion. Once it is shown that there is a sincere religious belief in a bonafide religion, the State must show that its interests will be substantially harmed and undermined by granting the requested exemption, and that a less restrictive alternative is impossible. The States interest in the regulation of drug abuse generally is not met, due to the lack of evidence that peyote has been abused and the lack of contribution to other drug abuse problems. Furthermore, the entire supply of peyote is used exclusively for the purpose of bonafide religious ceremonies within the Native American Church. This is in stark contrast to the widespread availability and use of drugs like marijuana, which contributes significantly to the law enforcement problem in the United States. In response to the Courts inquiry to a general prohibition regarding peyote use, Mr. Dorsay carefully reminds the Court that in order for the government to restrict access to something, especially something protected by the First Amendment, a valid justification is required, beyond the mere legislative statement that [the Court believes] it may be harmful.24 In fact, according to Mr. Dorsay, every reason given for listing peyote as a Schedule I substance25 has been refuted by scientific and historical evidence. While he does not attempt to challenge the listing itself, he paints a very compelling picture of the contradictory aspects of the scheduling system as they relate to peyote. Attorney General Frohnmayer also draws the attention of the Court to the fact that the Respondents were employed as drug counselors. As drug counselors, it is their responsibility to ensure that the people who have been placed under their supervision receive the best care available. This includes treatment and guidance from counselors who are not ingesting the very substances that they are recovering from. Often, drug counselors are even recovering addicts themselves, which can create an atmosphere of confusion and hypocrisy if counselors are not committed to remaining drug-free as well. While mescaline, the synthetic derivative of peyote, has been misused in society at large, Mr. Dorsay claims that there is no evidence that the peyote buttons used by the Native American Church have been abused by society. The State conceded this fact when Attorney General Frohnmayer stated, in response to the Courts inquiry into the quantity of peyote buttons present in the normal drug trade, that the DEA had only seized a total of 19 pounds of peyote over the previous decade. This number pales in comparison to the amount of illegal trafficking of other drugs, such as marijuana, which yielded over 15
22

See supra note 12 [Mr. Frohnmayer: The Oregon Supreme Courts resolution of the federal law question, we believe, seriously compromises three compelling and intersecting State interests...]. 23 Ibid. 24 Id. 25 See U.S. DEPARTMENT OF JUSTICE DRUG ENFORCEMENT ADMINISTRATION, Definition of Controlled Substance Schedules: Schedule I Controlled Substances, OFFICE OF DIVERSION CONTROL, available at <http://www.deadiversion.usdoj.gov/schedules/index.html> [Substances in this schedule have a high potential for abuse, have no currently accepted medical use in treatment in the United States, and there is a lack of accepted safety for use of the drug or other substance under medical supervision.].

8 million pounds during a period of 7 years.26 Furthermore, the Respondents claims to have scientific evidence that the ceremonial use of peyote serves to aid in the rehabilitation of people who suffer from alcoholism and drug addiction. Therefore, the lack of evidence pointing to a high potential for widespread or local abuse of peyote by society at large, the lack of a contribution to the law enforcement problem, the long-standing absence of any harm associated with peyote use, and the evidence of legitimate medical uses in the rehabilitation of alcoholics and drug addicts seems to cast some doubt on the claim that allowing an exemption would undermine the compelling interests of the State. There is also the issue of the thin end of the wedge27 raised by Mr. Frohnmayer, that states that allowing an exemption for peyote use will inevitably attract other, more egregious requests for religious drug exemptions, thereby chipping away at prohibition and fostering a system in which each conscience is a law unto itself.28 Mr. Dorsay counters that argument by pointing out the unique relationship between the Native American Church and the federal government, which is found in the legislative history of the two parties.29 Due in part to the clash between early colonial settlers and the Native Americans, and the struggle for preeminence that ensued during the following years, the United States government has afforded special protections in order to preserve what little remains of the native culture and its practices. This distinctive legislative history, in combination with the narrowly tailored circumstances and long-standing history of the Native American Church, provides an element of exclusivity in terms of granting similar exemptions to other religious institutions and is of no precedential consequence to other parties seeking a similar religious exemption from drug prohibitions. There are also several factual and legal parallels between both the Sherbert30 and Thomas31 cases and the Smith case. Smith, like Sherbert and Thomas, was denied unemployment compensation by the State, asked or forced to choose between religion and employment, and placed into a situation where changed conditions of employment created pressure to modify his religious beliefs or face penalties. Yet, in Smith, the Court refuses to apply the same balancing test. The Court justifies this refusal by stating that the test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. However, as Justice OConnor points out in her concurring opinion, few States would be so nave to enact a law directly prohibiting or burdening a religious practice as
26

See Smith, 494 U.S. 872 at 916, Justice Blackmun dissenting, [quoting Olsen v. Drug Enforcement Administration, 279 U.S.App.D.C., at 6, 10, 878 F.2d at 1463, 1467 (quoting DEA Final Order to the effect that total amount of peyote seized and analyzed by federal authorities between 1980 and 1987 was 19.4 pounds; in contrast, total amount of marijuana seized during that period was over 15 million pounds).]. 27 See supra note 12 [Mr. Frohnmayer: ...that is one of the major reasons we have brought this case to this Court for a second time, which is, we are asked, we believe, not merely to see this as one case, but it is in fact the thin end of the wedge in which analytical distinctions are extremely difficult to draw, and in which claims will certainly be made...for other drugs...]. 28 See supra note 26 at 890, Opinion of Justice Scalia. 29 See generally American Indian Religious Freedom Act, Public Law No. 95-341, 92 Stat. 469 (1978) see also 25 U.S.C. ch.1-44, The Role of Indians in United States Code, available at: <http://www.law.cornell.edu/uscode/text/25>. 30 See Sherbert v. Verner, 374 U.S. 398 (1963). 31 See Thomas v. Review Board, Indiana Employment Security Division, 450 U.S. 707 (1981).

much.32 Furthermore, the First Amendment states, Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof, (emphasis added)33 and does not distinguish between generally applicable provisions and laws that are exclusively applied to certain faiths. Nonetheless, the Court ruled that the government interest in enforcing a generally applicable statute outweighed the Respondents request for a religious exemption and was merely an indirect consequence of the statute. IV. DEVIATIONS AND IMPLICATIONS

The Court, in its escape from previous decisions, replaced the traditional compelling interest test drawn from Sherbert v. Verner34 by automatically conceding to the constitutionality of any neutral, generally applicable law, even if the statute inadvertently encumbered the free exercise rights of religious citizens. Justice Scalia, in the majority opinion of the Court, suggests that such inadvertent burdens on religious minorities are an unavoidable consequence of our democratic system of government, and recommends that such issues be dealt with in the political process rather than in the courts. In doing so, the Court deems that the Sherbert Test may still be applicable to a narrow group of cases in which challenges to laws or regulations by religious observers involve a mechanism for individualized exemptions. This essentially relegates any claim of religious exercise liberty to those rare cases in which a statute specifically prohibits a certain religious group from exercising or practicing their particular religious rituals and activities. The decision in Smith subsequently received an answer from the legislative branch, in the form of the Religious Freedom Restoration Act, which was passed in the U.S. Senate in 1993 with a vote of 97-3. The House of Representatives unanimously passed a similar bill in May of the same year, and President Clinton signed the act into law on November 16. The legislative and judicial battles that followed Smith and the passing of the Religious Freedom Restoration Act are prime examples of the constant struggle for preeminent power between the different branches of the government and illustrate the complex nature of the American political arena. a. Judicial The Supreme Court has heard many cases concerning free exercise claims since the early 1970s and has rejected virtually all of them, except for cases involving unemployment compensation. The reasoning behind the Smith case, however, is in direct contrast to the reasoning used in previous free exercise cases. In the cases that

32

See supra note 26 at 894, (Justice OConnor, S., dissenting): (continued Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice. If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice.). 33 See U.S. CONSTITUTION, Amend. I, cl.1. 34 See Sherbert v. Verner, 374 U.S. 398 (1963).

10 implemented the Sherbert compelling interest test,35 those that did not apply the balancing test,36 and even cases involving social security numbers37 or religious land disputes,38 the Court refused to uphold any generally applicable principle prohibiting free exercise considerations. In Sherbert v. Verner,39 a South Carolina woman was fired from her job because her religion prohibited its adherents from working on Saturdays. The Seventh-Day Adventist Church is a Protestant denomination that is distinguished by the belief that Saturday, the seventh day of the Judeo-Christian week, is the Sabbath, and by the Churches emphasis on the impending second coming, or Advent, of Jesus Christ. In deciding the case, the Court used a balancing test to determine whether the State could impose a facially neutral statute that inadvertently forced various faiths to choose between the observance of their religious beliefs and their employment. The Court held that the State must demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights, even if the State found a compelling interest. This ushered in what is generally accepted as the modern era of free exercise jurisprudence. In both United States v. Lee and Gillette v. United States, the Court used the compelling interest test from Sherbert to uphold a governmental interest concerning the collection of social security taxes (Lee) and the enforcement of the draft (Gillette). Both of these cases dealt with sincere religious belief and legitimate religious concern, and both of these cases used the Sherbert test to determine the proper course of action for the State. While both Gillette and Lee demonstrated that upholding the government interest would impose a substantial burden on religion, the use of the balancing test was sufficient to determine that the burden was a necessary and proper exercise of State police power, justified by the governmental interest in enforcing conscription and tax collection. Likewise, in Hernandez v. Commissioner the Court applied the Sherbert balancing test and upheld the governmental interest in refusing to allow the Church of Scientology to receive tax deductions for member contributions that served to finance auditing and training meetings. Although a specific religious exercise claim was not presented in the same doctrinal context as seen in Lee or Gillette, the Court still committed itself to a significant analysis of religious exercise freedom as it pertained to the case at hand before upholding the governmental interest. Similarly, while the Court did not specifically use the Sherbert test in Goldman v. Weinberger, it still weighed the interests of both sides before submitting its decision in
35

See United States v. Lee, 455 U.S. 252 (1982); Gillette v. United States, 401 U.S. 437 (1971); Hernandez v. Commissioner, 490 U.S. 680 (1989). 36 See OLone v. Estate of Shabazz, 482 U.S. 342 (1987); Goldman v. Weinberger, 475 U.S. 503 (1986) (In Justice OConnors dissenting opinion, she says that these cases are different because they arose in the narrow, specialized contexts in which we have not traditionally required the government to justify a burden on religious conduct by articulating a compelling interest. Smith, 110 U.S. at 1612, concurring). 37 See Bowen v. Roy, 476 U.S. 693 (1986). 38 See Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). 39 See Sherbert supra note 34.

11

favor of the military. In Goldman, the Court was asked to decide whether or not the religious wearing of a yarmulke on duty outweighed the government interest in maintaining Air Force policies that ensured uniformity and discipline in the field. Although the balancing test was implemented, the Court nevertheless made sure to examine both sides of the issues before upholding the militarys interests. From these examples it can be said that although no two cases are identical, it is possible, at the very minimum, to adapt variations of the compelling interest tests used in previous cases in order to ensure proper judicial protection of First Amendment free exercise rights while simultaneously upholding legitimate governmental interests. Even the use of a reasonable means test would suffice to justify the validity of almost any statute, yet the Court, in its Smith opinion, rejects this concept entirely and instead seems to favor blanket suppression of free exercise examination rather than a balanced appraisal of the conflicting interests. b. Legislative The construction of the First Amendments free exercise clause propagated by Justice Scalia gives the impression that the freedom of religion and the free exercise of religion are in fact one and the same. This interpretation, however, seems to lack the necessary precision required when defining such constitutional imperatives as religious liberties. By Justice Scalias logic, the State is not obligated to allow a religious exemption to a criminal statute as long as the statute is not specifically tailored to burden a specific denomination or ritual. Thus, the concept of religious exercise is now effectively subordinated to the concept of religious belief and left open to harsher restriction from the State. Furthermore, Justice Scalia goes on to openly acknowledge that, as a consequence of the democratic process, those religious faiths and denominations that lack substantial political clout will inevitably fall prey to the will of the majority. He calls this unfortunate disadvantage an unavoidable consequence of democratic government and continues to declare that the subjugation of the few is preferred to a system in which each conscience is a law unto itself.40 This novel interpretation of the free exercise clause is in contrast the to standing legislation at the time, at least as it pertains to Native Americans. The American Indian Religious Freedom Act states: [I]t shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions..., including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.41 The decision in Smith, therefore, seems to place itself in direct opposition to the standing federal policy of protecting Native American religious freedoms. This
40 41

See Smith, 494 U.S. 872 at 890. See American Indian Religious Freedom Act, 92 Stat. 469, 42 U.S.C. 1996 (1982).

12 agreement between the federal government and the Native American people was reached in response to the extended periods of discriminatory legislation and oppressive political maneuvers against Native Americans.42 Following the decision in Smith, many individuals and organizations alike sought to rectify the alleged injustice done to religious freedom in America.43 Professor Steven Carter published his book titled, The Culture of Disbelief in 1993,44 sparking an increase in support for religious freedom in both private and political spheres. Professor Carter argues that the political culture of the United States has become increasingly secular, and he calls for an end to the exclusion of religion from political conversation. President Clinton publically supported the book,45 resulting in growing support for the liberation of religion from the grasp of secular lawmakers. Coincidentally, many of the larger, more prominent Protestant denominations began working in cooperation under the collective title of the Coalition for the Free Exercise of Religion to pressure Congress into passing a bill called the Religious Freedom Restoration Act (RFRA).46 According to the Act, if religious conduct was substantially burdened by any law, the State was required to prove that it had a compelling interest in burdening the practice, and that it used the least restrictive means possible to serve that compelling interest. The Act served as the legislative branchs answer to the ruling in Smith. The RFRA was in direct contrast to the holding in Smith, which only required that the State show that the law was facially neutral and generally applicable in order to be accepted as law. It essentially served as a way to overturn the ruling in Smith and required a return to the Sherbert test. The Act is sometimes referred to (unofficially) as one of the American Indian Religious Freedom Act Amendments.47 The Coalition for the Free Exercise of Religion gave its full support and lobbied Congress in favor of the Act. Congress passed the Religious Freedom Restoration Act with almost unanimous approval.48 Then in 1997, four years after the RFRA was approved, the Court answered back. The RFRA was struck down in the case of City of Boerne v. Flores,49 and was followed by vehement disapproval and vocal opposition from religious groups.50 In Boerne, Catholic Archbishop Patrick Flores sought to expand the size of his church in San Antonio, Texas, and was met opposition from the local zoning authorities, denying him the permit to build in the historic district where the church was
42

See Smith, 494 U.S. 872 at 920 (Blackmun, J., dissenting): This potentially devastating impact must be viewed in light of the federal policy reached in reaction to many years of religious persecution and intolerance of protecting the religious freedom of Native Americans. 43 See Marci A. Hamilton, The Constitutional Rhetoric of Religion, UALR L. J., 619-632 (1998). 44 See Steven L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993). 45 See E. J. Dionne, Jr., They Only Look Dead: Why Progressives Will Dominate The Next Political Era, 164 (1996). 46 See Brief Amicus Curiae of the Coalition for the Free Exercise of Religion in support of Respondents, City of Boerne v. Flores, 117 S.Ct. 2157 (1997). 47 See Jack Utter, American Indians: Answers to Todays Questions, 159 U. OK. Press (2001). 48 See 139 Cong. Rec. S14461, S14471 (daily ed. Oct. 27, 1993) (97-3). 49 See City of Boerne v. Flores, 117 S.Ct. 2157 (1997). 50 See Tony Mauro, Illustrated Great Decisions of the Supreme Court,. Washington D.C.: CQ Press (2000).

13

located. The Archbishop challenged the zoning authorities under the RFRA, claiming that his congregation had outgrown the churchs current capacity, and that the States refusal to grant the church a permit to expand constituted a substantial burden on the free exercise of religion.51 The U.S. District Court for the Western District of Texas ruled the RFRA as unconstitutional, and Flores appealed the District Courts decision to the Court of Appeals for the 5th Circuit. The Court of Appeals reversed, and Boerne filed a petition for certiorari to the Supreme Court.52 The opinion, written by Justice Anthony Kennedy, overturned the Court of Appeals decision and ruled the RFRA unconstitutional, labeling it an unconstitutional exercise of legislative power by Congress.53 According to the Court, by enacting legislation like the RFRA, Congress had actually violated the Establishment Clause because the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.54 IV. CONCLUSION

The effects and consequences of the Courts decision in Smith, and the subsequent legal and judicial battles that ensued are, if nothing else, a fantastic example of the checks and balances that serve to stabilize the power struggle between the branches of the federal government. Furthermore, it is a truly awe-inspiring spectacle, in retrospect, to see how macro-sociological processes work within the confines of a democratic society. It is true that democracy must, sometimes, be saved from the righteous as well as protected against the wicked.55 It is not always clear, however, who are the righteous and who are the wicked. Thus, it is important to consider all aspects of the issues at hand when determining the scope of our fundamental freedoms. The actions of the State have a lasting effect on the lives of the People. While the Rehnquist Court certainly helped to build the foundation for the current jurisprudence, the diverse, and constantly changing applications of a living Constitution will continue to mold and shape the future of the United States for years to come.

51

See Julia Miller, U.S. Supreme Court Declares RFRA Unconstitutional in Texas Religious Landmarking Case, Washington D.C., Preservation Law Reporter, 16, 1053, (1997). 52 See Mauro, supra note 50 at p. 38. 53 See City of Boerne v. Flores supra note 49 (Justice Kennedy, A., majority opinion): (Congress power under 5... extends only to enforc[ing] the provisions of the Fourteenth Amendment. The Court has described this power as remedial.... Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power to enforce, not the power to determine what constitutes a constitutional violation.). 54 See Hamilton, supra note 43 at n. 44, citing City of Boerne v. Flores, 117 S.Ct. 2157, 2172 (1997) (Stevens, J. concurring). 55 See Laura Wittern-Keller et al., The Miracle Case, p. 152, Univ. Press of Kansas (2008).

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1. 2. 3. 4. 5. 6. 7. 8. 9. Indian Removal Act, Encyclopdia Britannica. Encyclopdia Britannica Online. Encyclopdia Britannica Inc. 2012. Web. (27 Mar. 2012). 139 Cong. Rec. S14461, S14471 (daily ed. Oct. 27, 1993) (97-3). 25 U.S.C. ch.1-44, The Role of Indians in United States Code, available at: <http://www.law.cornell.edu/uscode/text/25>. American Indian Religious Freedom Act, 92 Stat. 469, 42 U.S.C. 1996 (1982). American Indian Religious Freedom Act, Public Law No. 95-341, 92 Stat. 469 (1978). Bowen v. Roy, 476 U.S. 693 (1986). Brief Amicus Curiae of the Coalition for the Free Exercise of Religion in support of Respondents, City of Boerne v. Flores, 117 S.Ct. 2157 (1997). City of Boerne v. Flores, 117 S.Ct. 2157 (1997). E. J. Dionne, Jr., They Only Look Dead: Why Progressives Will Dominate The Next Political Era, 164 (1996).

10. Employment Division, Department of Human Resources of Oregon v. Smith, 307 Ore. 68, 763 P.2d 146 (1988). 11. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). 12. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, (1989) 88-1213 Oral Arguments. 13. Gillette v. United States, 401 U.S. 437 (1971). 14. Goldman v. Weinberger, 475 U.S. 503 (1986). 15. Hernandez v. Commissioner, 490 U.S. 680 (1989). 16. Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987). 17. Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136, (85-993) (1986) Oral Arguments.

18. Huston Smith, One Nation Under God: The Triumph of the Native American Church, Council on Spiritual Practices, Santa Fe: Clear Light Publishers, (1996). 19. Jack Utter, American Indians: Answers to Todays Questions, 159 U. OK. Press (2001). 20. John Delaney, Police Power Absolutism and Nullifying the Free Exercise Clause: A Critique of Oregon v. Smith, 25 Indiana L. Rev. 71-145 (1991). 21. Julia Miller, U.S. Supreme Court Declares RFRA Unconstitutional in Texas Religious Landmarking Case, Washington D.C., Preservation Law Reporter, 16, 1053, (1997). 22. Laura Wittern-Keller et al., The Miracle Case, p. 152, Univ. Press of Kansas (2008). 23. Linda Greenhouse, Use of Drugs in Religious Rituals Can Be Prosecuted, Justices Rule, The New York Times, April 18, 1990 (1990). 24. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988). 25. Marci A. Hamilton, The Constitutional Rhetoric of Religion, UALR L. J., 619-632 (1998). 26. OLone v. Estate of Shabazz, 482 U.S. 342 (1987). 27. Omer C. Stewart, Peyote Religion: A History, Norman: Univ. of Oklahoma Press, 157 (1987). 28. Peter C. Hoffer et al., The Supreme Court: An Essential History, Lawrence, Univ. Press of Kansas, 409-442, 423 (2007). 29. Sherbert v. Verner, 374 U.S. 398 (1963). 30. Steven L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (1993). 31. Stuart Taylor Jr., More Vigor for the Right; Court Would Ease Toward Conservatism Without Abruptly Changing in Direction, The New York Times, June 18, 1986, Section A, Page 1, Column 4 (1986). 32. Tony Mauro, Illustrated Great Decisions of the Supreme Court,. Washington D.C.: CQ Press (2000). 33. U.S. CONSTITUTION, Amend. I, cl. 1.

34. U.S. DEPARTMENT OF JUSTICE DRUG ENFORCEMENT ADMINISTRATION, Definition of Controlled Substance Schedules: Schedule I Controlled Substances, OFFICE OF DIVERSION CONTROL, available at <http://www.deadiversion.usdoj.gov/schedules/index.html>. 35. United States v. Lee, 455 U.S. 252 (1982). 36. Wisconsin v. Yoder, 406 U.S. 205 (1972).