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Religion and Psychoactive Sacraments:
An Entheogen Chrestomathy

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

That Godless Court?:
Supreme Court Decisions on Church-State Relationships.

Flowers, Ronald B. (1994).
Louisville, KY: Westminister John Knox Press.

ISBN: 0-664-25562-0

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 that

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. (page 133)

This compilation by Thomas B. Roberts & Paula Jo Hruby, © 1995-2003 CSP

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