Religion and Psychoactive Sacraments:
An Entheogen Chrestomathy
Thomas B. Roberts, Ph.D. and Paula Jo Hruby, Ed.D.
Author Index | Title Index
Flowers, Ronald B. (1994).
- That Godless Court?:
- Supreme Court Decisions on Church-State Relationships.
Louisville, KY: Westminister John Knox Press.
Description: Paperback, xii + 177 pages.
Contents: Introduction, 9 chapters, epilogue, Appendix A: Memorial and
Remonstrance against Religious Assesements by James Madison.
Appendix B: An Act for Establishing Religious Freedom by Thomas
Jefferson, chapter notes, bibliography, index.
Excerpt(s): The question was, how much latitude does the government
have to prevent or hinder religious freedom? The Sherbert test, a most
satisfactory answer to the question, was given in Sherbert v. Verner.
This compelling state interest test says that the government may not
interfere with religious endeavors unless it has a compelling interest that
the religious action violates. Furthermore, it may not prevent or inhibit the
expression of religious freedom if it has an alternative way to accomplish
its legitimate goals without interference with religion. [Does the drug war
have alternate ways to accomplish its goals without interfering with
entheogens? TR] So, the compelling state interest test has meant that
religious freedom is the rule, government interference is the exception.
This important principle was seriously undermined by
Employment Division of Oregon v. Smith. Justice Antonin Scalia wrote
the opinion, in which he said that the compelling state interest test was
no longer available in most free exercise of religion cases. His reasoning
was that the test should not apply to laws of general applicability. The
Court held that if a law targets religion specifically, that is, if it bans
religious acts or compels acts that religious conviction forbids, then that
law can be struck down under the Free Exercise Clause. However, if a
law has application across the board, that is, if it does not single out
religion, then the compelling state interest test cannot be used to
adjudicate the concerns of a religious plaintiff. For example, in Smith the
law in question was a law prohibiting the use of drugs on the state's list
of forbidden drugs. It was a law of general applicability, in that it was a
law prohibiting a wide range of drugs, including peyote. Consequently,
the Court was not willing to apply the Free Exercise Clause to the
worship of the Native American Church, which uses peyote as its
sacrament. So the law of general applicability took precedence over the
free exercise of the Native Americans in this case. Justice Scalia was
not willing to apply the compelling state interest test to the issue.
Furthermore, and this is one of the most important parts of this case, he
generalized to say that henceforth the compelling state interest test
should never be used on laws of general applicability, except in
unemployment compensation cases. ... In fact, Justice Scalia wrote that
the solicitude for religious freedom, which originally was the reason for
existence of the compelling state interest test, is a luxury which we
cannot afford. This means that government, at whatever level, except in
the most narrow of circumstances, no longer had to show that it had a
strong interest to justify its burden on religious exercise. Whereas before
Smith, religious freedom was the rule and government interference was
the exception, now just the opposite was true. (pp.129-130.).
I would argue that Justice Robert Jackson, a generation earlier,
was more on target than Justice Scalia. Justice Jackson recognized that
there are certain liberties that are not subject to majority rule, as essential
as that is to democracy.
The very purpose of the Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to establish them as legal
principles to be applied by the courts. One's right to life, liberty, and
property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to vote;
they depend on the outcome of no elections.
What the court did in Smith, having forgotten the sound
constitutional principle articulated by Justice Jackson, was to adopt a
position of majoritarianism or statism. That is, it embraced the view of
the sovereignty of the majority or of the state. One might ask, What is
wrong with that? In a democratic country, the majority rules. That is what
a democracy is all about. That is so, but American government is a
system of checks and balances. The very concept of checks and
balances recognizes that unfettered power by any branch, or by the
majority over the minority, is tyranny. Specifically, the founders of the
nation recognized that the state, governed by the majority, might assume
to itself unlimited power. ... The power of the state, arrayed against the
individual or minority groups, is awesome. ...
To turn specifically to the freedom of religion, Peter Berger argues
Religious freedom is fundamental because it posits the ultimate
limit on the power of the state....[R]eligion limits the power of the
state because it refuses to recognize the state's sovereignty as ultimate;
religion posits another sovereignty beyond and indeed over that
of the state....[T]he state that guarantees religious liberty does more
than acknowledge another human right: It acknowledges without
knowing it, that its power is less than ultimate.....[D]emocracy,
whose very essence is the limitation of state power, is always in
need of firm guarantees of religious liberty.
Whether or not the authors of the Constitution were fully aware
of this insight, they wrote the First Amendment as a limitation on the
power of the state to have its way with the people in the matter of
religion. As Justice Sandra Day O'Connor insisted in her strong dissent
from the rationale in Smith, the First Amendment was
"enacted precisely to protect the rights of those whose religious
practices are not shared by the majority and may be viewed with
hostility.... The compelling interest test reflects the First Amendment's
mandate of preserving religious liberty to the fullest extent possible in a
pluralistic society. For the Court to deem this command a luxury, is to
denigrate [t]he very purpose of a Bill of Rights. " (pp. 131-132).
After the Smith decision, the sense of alarm about its disastrous
effects on religious freedom was high. My concern was shared by so
many that in response to the decision the Religious Freedom Restoration
Act was introduced into Congress. Its sole purpose was to restore the
compelling state interest test as a principle of adjudicating laws. ... The
bill had the support of religious groups from across the theological
spectrum, including groups of the Christian Right. So even those who
had aided Presidents Reagan and Bush to get elected and insisted that
they appoint conservative jurists to the federal courts, and especially to
the Supreme Court, were having second thoughts in the area of religious
liberty. They saw that the position taken by the Court in Smith was
devastating to religious liberty in this country.
The Religious Freedom Restoration Act became law in November
1993. Courts, including the Supreme Court, again are obligated to use the
compelling state interest test when deciding Free Exercise Clause cases.
This compilation by Thomas B. Roberts & Paula Jo Hruby, © 1995-2003 CSP