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Supreme Court Continues Chipping Away At Citizen's 1st Amendment 
Rights, Part 1. 
 
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    Exerpts 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
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."

    ... 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."

 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--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 "mischaracterizing this Court's
precedents" and engaging in a "wholesale overtuning 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 U.S.A., the American Civil
Liberties Union, the Christian Legal Society, the American
Jewish Committee, the Unitarian-Universalist Association, the
General Conference of the Seventh-day Adventist Church, the
Worldwide Church of God and the Lutheran Church, Missouri Synod.
Americans United for Separation of Church and State also signed
the petition.

    Attorney 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 courtwatchers were chagrined by the ruling.
Jules B.  Gerard, a constitutional law professor at Washington
University in St.  Louis, told Religious News Service there has
been a lot of overreaction.  Gerard said the decision "overturns
very little" and accused those who have protested it of
"hysterical talk." [more]

    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 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."

    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. [more]

    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. [more]

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        Exerpts 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.
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   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. [more]

     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. [end of article; more to come]

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 NARF Legal Review