Church, State, and Peyote

FROM the sacramental use of peyote in Oregon one would not expect a revolution in constitutional law, but that is what appears to have happened. Conservatives are sharply divided by this surprising development. Referring to the decision of the Supreme Court in Employment Division v. Smith, George Will writes, “Scalia’s position is not only sound conservatism, it is constitutionally correct: it is the intent of the Founders.” William Ball, however, a staunchly conservative champion of limited government who has argued historic cases before the Supreme Court, writes, “The Court has used a trivial circumstance as the vehicle for a catastrophic decision.” Among the disagreements involved is whether the price of democracy is the prohibition or the protection of behavior that is inconvenient to the majority.

The decision in Employment Division v. Smith was 6 to 3, with Justice Sandra Day O’Connor joining in the conclusion but vigorously protesting the rationale set forth in Justice Antonin Scalia’s majority opinion. There is no dispute about the “trivial circumstances” of the case. Two Oregon men, both members of the Native American Church, were fired from their jobs and denied unemployment benefits for participating in a sacramental rite that involves ingesting peyote. Unlike 23 other states and the Federal Government, Oregon makes no exception in its drug laws for the religious use of peyote. The men argued that Oregon had violated their First Amendment right to the “free exercise” of religion. (The Religion Clause, extended to the states under the Fourteenth Amendment, reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”)

RJ

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Richard John Neuhaus

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FROM the sacramental use of peyote in Oregon one would not expect a revolution in constitutional law, but that is what appears to have happened. Conservatives are sharply divided by this surprising development. Referring to the decision of the Supreme Court in Employment Division v. Smith, George Will writes, “Scalia’s position is not only sound conservatism, it is constitutionally correct: it is the intent of the Founders.” William Ball, however, a staunchly conservative champion of limited government who has argued historic cases before the Supreme Court, writes, “The Court has used a trivial circumstance as the vehicle for a catastrophic decision.” Among the disagreements involved is whether the price of democracy is the prohibition or the protection of behavior that is inconvenient to the majority.

The decision in Employment Division v. Smith was 6 to 3, with Justice Sandra Day O’Connor joining in the conclusion but vigorously protesting the rationale set forth in Justice Antonin Scalia’s majority opinion. There is no dispute about the “trivial circumstances” of the case. Two Oregon men, both members of the Native American Church, were fired from their jobs and denied unemployment benefits for participating in a sacramental rite that involves ingesting peyote. Unlike 23 other states and the Federal Government, Oregon makes no exception in its drug laws for the religious use of peyote. The men argued that Oregon had violated their First Amendment right to the “free exercise” of religion. (The Religion Clause, extended to the states under the Fourteenth Amendment, reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”)