Council on Spiritual Practices About CSP | Site Map | ©
Search CSP:   

Religion and Psychoactive Sacraments:
An Entheogen Chrestomathy

Thomas B. Roberts, Ph.D. and Paula Jo Hruby, Ed.D.
Author Index | Title Index

Interpreting the Free Exercise of Religion: The Constitution and American Pluralism

Evans, Bette Novit (1997)
Chapel Hill, NC: The University of North Carolina Press

ISBN:0-8078-4674-0 paperback
0-8078-2374-0 hardcover

Description: Hardcover, xx + 294 pages.

Contents: Acknowledgments, 9 chapters, notes, index.

Excerpt(s): One of the achievements of the American system we most justly celebrate is the First Amendment guarantee of religious freedom. The very first words of the Bill of Rights announce this protection: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Traditionally, we have understood these words to encompass two separate guarantees. The Establishment Clause protects us against state-sponsored or -imposed religious obligations, and the Free Exercise Clause protects the liberty of individual and group religious expressions from state penalties. Judges, activists, and scholars have long argued about whether the two clauses encompass a single principle of religious liberty, or whether they protect essentially different kinds of interests: are they fundamentally consistent or ultimately contradictory? In either case, together they provide the context in which each one separately makes sense. This book is about the guarantee of free exercise of religion, but only in the sense that it is the foreground of a photograph-distinguishable only because of the constitutional context in which it is situated. (page 1)

The dominant understanding of the Free Exercise Clause has evolved continually, reflecting changes in the cultural, social, and political context in which constitutional understanding is situated. In 1878 the Supreme Court ruled that it protected only beliefs, not the actions stemming from them, and had no trouble sanctioning penalties against religiously motivated polygamy. Furthermore, until the Bill of Rights was incorporated into the Fourteenth Amendment during the decades surrounding the 1930s, its guarantees only offered protection against acts of the national government, not the states. During the 1930s and 1940s, the religion clauses were applied to the states, and they began to provide some genuine protection to religious minorities, due largely to the effective legal advocacy by the Jehovah's Witness legal organization. The civil rights and liberties era of the 1960s was reflected in a number of landmark developments concerning religious liberty, best exemplified by Sherbert v Verner in 1963. In this case, the Supreme Court ruled that only compelling state interests could justify governmental burdens upon religious freedom; absent such interest, the state is constitutionally obligated to exempt from secular regulations religiously inspired behavior with which they conflict. The same era also saw major developments in Establishment Clause cases, with the still controversial rulings prohibiting Bible reading and prayers in the public schools. Guarantees for nontraditional and minority religions were further increased in the 1970s. In Wisconsin v Yoder the Court extended the approach it used in Sherbert, affirming that "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Furthermore, in several cases stemming from conscientious objection to military service during the Vietnam War, the Court extended religious protection to those whose faiths did not rest on belief in a Supreme Being, hence making the First Amendment more congruent with contemporary theological developments and the increased religious diversity of American life. The 1980s saw a resurgence of traditional religion, including the development of sophisticated political action groups to represent their interests. In addition, traditional religious institutions became increasingly involved in social service and institutional activities beyond worship services. During the 1980s, courts began to pay closer attention to the institutional rights of religious bodies. At the same time, these groups criticized the "wall of separation" approach to the Establishment Clause that had characterized the previous generation's understanding, and they sought a renewed accommodation between government and religion. In 1988 the Williamsburg Charter, a broad-based and sophisticated restatement of the American commitment to religious liberty, was signed in celebration and reaffirmation of the bicentennial of the Bill of Rights.

First Amendment watchers and many religious leaders were shocked in 1990 when the Supreme Court made a significant step to reverse the expansive trends of the past decades. In Employment Division, Department of Human Resources of Oregon v Smith, a majority rejected both the compelling state interest approach and the constitutional requirement of religious exemptions. Just as Sherbert and Yoder exemplify the landmark cases of their eras, Smith seemed to exemplify the conservative Court's approach to Free Exercise. In 1993 Congress passed and the president signed a law repudiating the constricted approach of the Smith majority. While this book was in press, in June 1997, the Supreme Court struck down the Religious Freedom Restoration Act as overstepping congressional power to enforce constitutional rights. (pages 3-4)

Conflicts between religious practices and narcotics laws have been another context for disputes about religious sincerity. In 1964 in People v Woody the California Supreme Court ruled that traditional, ritual use of peyote by unquestionably sincere members of the Native American Church was protected by the Free Exercise Clause. But in State v Bullard this protection did not extend to drug use without evidence of religious sincerity. And in Leary v United States the Fifth Circuit ruled that Dr. Leary's religious faith was simply insufficient to outweigh the state interest in enforcement of its narcotics laws. Perhaps the classic case in this respect is United States v Kuch, in which the evidence of insincerity was frivolity. In this case, the district court upheld the conviction for illegal marijuana possession and transportation against a primate of the New American Church who claimed that marijuana and LSD were sacraments of her church and therefore protected by the First Amendment. Examining such documents, the court found no belief in a Supreme Being, no religious discipline, ritual, or tenets to guide daily existence, and, in general, "goofy nonsense."

While "goofy nonsense" may disqualify a claim to religious sincerity, a person making a religious claim need not be theologically sophisticated. While faiths that are grounded in recognized religious groups have an easier time demonstrating their sincerity, neither individually held faiths nor disagreement with other members of one's faith are appropriate grounds for courts to reject the sincerity of one's religious motivations. While obvious hypocrisy and cynicism may call one's sincerity into question, occasional lapses in consistency of religious conduct do not impugn one's sincerity. Courts may also inquire into the origins of beliefs (religious training, for example) to provide evidence of sincerity. Nevertheless, the Supreme Court has affirmed that recently adopted faiths are fully protected.

All of these cases reiterate the essential disagreements that emerged in Ballard. The strongest advocates of religious accommodation continue to argue Justice Jackson's point that any judicial examination of religious sincerity inevitably involves scrutiny of the beliefs themselves and hence should be forbidden. Those more sympathetic to secular interests follow Justice Douglas's argument that the truth or falsity of religious doctrine can be distinguished from the sincerity of the believer and that courts may examine the latter when necessary. (page 72)

Ritual Peyote Use

Both Supreme Court watchers and religious activists were shocked in 1990, when a six to three majority upheld an Oregon law prohibiting the use of peyote, a drug that has long been used as a crucial part of the religious ceremonial practices of the Native American Church, as applied to its ritual use by members of the church and upheld the denial of unemployment compensation benefits for two church members fired from their jobs for ritual peyote use.

As long as hallucinogens have been prohibited by state and federal narcotics laws, exemptions for ritual peyote use have been controversial. Since 1964, when in the case of People v Woody the California Supreme Court ruled that ritual peyote use in Native American Church services was protected by the Free Exercise Clause, the issue had seemed settled. Subsequently, both federal law and the laws of twenty-three states provided statutory exemptions. Oregon, however, had not done so. When Alfred Smith and Galen Black were fired from their jobs for participating in a peyote ceremony, the once-settled question was opened again and prompted the most controversial religious freedom case of the decade. Smith and Black's request for unemployment compensation was denied because their termination was deemed to be for a work-related cause. The Oregon courts reversed that denial, refusing to hold a religious ritual a work-related cause for termination. Citing a long string of U.S. Supreme Court cases, the Oregon Supreme Court ruled that such acts are protected by the First Amendment. On remand after the first Supreme Court hearing, the Oregon Supreme Court reemphasized its position: Although ritual use of peyote was not exempted from the state's narcotics laws, the law's enforcement in those circumstances would violate the First Amendment. Thus, when the Supreme Court reversed and held that ritual use need not be exempted from "laws of general applicability," it was upholding a criminal law that the state had declined to enforce; hence, it was ruling on an issue that had not been raised.

Among the peculiarities of Justice Scalia's majority opinions is his failure to confront the fact that the exercise being prohibited was a religious ritual-the kind of act most uncontroversially "religious." In contrast, the dissenters took very seriously the religious context of peyote use. While agreeing with the majority that courts ought not delve into the "centrality" of religious acts, they noted that, for members of the Native American Church, peyote rituals are "an integral part of the life process." Respondents believe, and their sincerity has never been in doubt, that the peyote plant embodies their deity, and eating it is an act of worship and communion. Without peyote, they could not enact the essential ritual of their religion." The dissenters noted the "devastating impact" of prosecuting them for an act of worship-an impact all the more troubling in view of Congress's policy of protecting the religious freedom of Native Americans symbolized in the American Indian Religious Freedom Act. (pages 104-105)

Ritual Acts and Free Exercise Principles

As we might expect, the first two accounts of free religious exercise are most helpful in thinking about ritual religious acts. Interestingly, protection of free religious choice would protect these acts better than the protection of religious obligation. Holiness members are not obligated to handle snakes; they do so as voluntary expressions of faith. Likewise, peyote is not an obligation for members of the Native American Church; it is a method of achieving higher spiritual awareness. Taken together, the individualist principles do an adequate job of explaining and justifying religious freedom in these areas.

Yet, something seems to be missing. As we have seen, both freedom of choice and freedom of conscience are individualized principles. Yet, the core significance of rituals seem to be that they are not individual behaviors but collective ones, which have meaning only because they are done with a certain community of worshipers and in a particular setting. (Carrying around snakes in one's living room and ingesting peyote on the back porch would not be considered religious practices; indeed they would probably be considered blasphemous.) However, neither the third account, which views religious freedom in terms of preventing civil conflicts, nor the fourth, which is concerned with limiting the power of government, seems particularly helpful in resolving to these controversies.

Again, the pluralist account seems to provide the missing piece. These practices are valuable for individual worshipers because they sustain shared meanings and identities. A society that values a complex mosaic of meanings and identities rather than unified ones cannot fail to appreciate the contributions of these ritual acts to that mosaic. (pages 108-109)

Two kinds of religious communities who pose the greatest problems for my moderate pluralism are insular communities, which seek to create and maintain their own integrated nomos, and redemptive communities, which seek to transform the wider one. The Amish, the Hasidim, and various Native American religious groups exemplify the first; the second includes a wide range of visionary groups from the conservative activist Christian fundamentalists who are enjoying political ascendance as these words are written. Both kinds of groups challenge the moderate pluralism of my theory-the first by demanding a much stronger pluralism, and the second, by seeking to proclaim unified meanings for the society as a whole. (page 242)

My theory has surprisingly little support for redemptive communities. For the most part, the Establishment Clause is at the heart of our constitutional protection against groups who seek to convert the society to their vision. The old and often repeated insight is still largely true: the Establishment Clause is a protection against majoritarian dangers to religion (or those who would impose their religious values on the majority), while the Free Exercise Clause is a protection for religious minorities. The two clauses overlap, however, when religious groups claim a Free Exercise right to redesign the public square. Our overriding commitment to plural and overlapping meanings confirms that the Free Exercise Clause offers no constitutional comfort to those who want to use the mechanisms of the state as tools of redemptive transformation- however noble the goals. (pages 245-246)

Compilation copyright © 1995 – 2001 CSP

[Error Creating Counter File -- Click for more info]