FREE exercise of religion is! If the United States Supreme Court sees it that way when it reviews an Oregon case on Nov. 6, two former workers in a drug rehabilitation program will likely win their unemployment-benefits claim.
If the justices, however, view this as strictly a drug-use matter, then the State of Oregon, which had denied the out-of-work pay, is likely to prevail.
This is the second time around for the high court to review the issues in Oregon Employment Division v. Smith, Black, and ADAPT. An earlier version of this case was sent back to the Oregon Supreme Court in 1988 to determine whether state laws banning drug use can be constitutionally applied to Native American Church members who use peyote as a religious sacrament.
Al Smith, a Klamath Indian, and Galen Black, a non-Indian, were dismissed from their jobs at ADAPT, an alcohol and drug-use prevention program, when they admitted using peyote in a religious ceremony of the Native American Church, to which they belong. The state reasoned that workers in a drug rehabilitation program should not be drug users themselves. Smith and Black are not seeking job reinstatement but unemployment benefits.
Peyote is a hallucinogenic drug. It is illegal in most states. The federal government, however, and more than 20 states - Oregon not among them - permit its use in some religious ceremonies.
The US Supreme Court now must decide whether this is a drug case or one of religious free exercise. And even if it rules that it is the latter, the judicial tribunal must then determine if the taking of peyote for sacred purposes is justified despite a legal ban of the drug.
The issue is complex and has broad implications for the oft-embattled right to practice what you preach.
Douglas Laycock, a law professor at the University of Texas, writes in The Christian Century, Oct. 4, that ``if the Supreme Court [in the current case] focuses too narrowly on drugs and misses the larger issue of religious ritual, it could create a devastating precedent for religious liberty.''
Laycock explains: ``...the Native American use of peyote has substantial parallels to Christian and Jewish use of wine. If the peyote ritual is allowed only by legislative grace and not by constitutional right, the right to participate in communion, the Passover Seder and sabbath rituals may rest on no firmer footing.''
The State of Oregon, however, stresses that the nation has broad interest in arresting drug problems. It also warns of the dangers of peyote use and argues that these points outweigh religious considerations. As examples, it cites the state's right to outlaw religious snake handling or the drinking of poison.
Smith and Black point out that in contrast to snake handling or the drinking of poison, the sacramental use of peyote is an ancient religious practice which is not harmful.
The lower courts have upheld Smith's and Black's claims to unemployment insurance, citing that denial substantially burdens an employee's right to exercise his religion. Oregon's Supreme Court upheld this finding before the state brought the case to the US Supreme Court.
The burden of free exercise often falls mainly on religions outside the mainstream. And this is not the first time the sacramental rights of American Indians have come into conflict with state interests.
The US Supreme Court, in a highly controversial case in 1988, allowed the federal government to build a logging road across Indians' sacred land.
Seventh-Day Adventists, who observe a Saturday sabbath, have been embroiled in battles regarding job rights and unemployment benefits. And Christian Scientists, who radically rely on prayer for healing, are being criminally prosecuted in several states for allegedly contributing to the deaths of young children by failing to avail themselves of medical care.