Religious landscape redrawn by drug case

Anyone interested in religious freedom is bound to find this book fascinating but disturbing. Fascinating because it tracks a landmark Supreme Court case that resulted in the diminution of religious rights in America; disturbing because the court's decision came out of the blue, a study in unintended consequences.

For centuries, native Americans have used peyote, a hallucinogen derived from cactus, in their sacred ceremonies. Today, members of the Native American Church, which was formed in the past century, use small amounts in tipi ceremonies. Peyote is a controlled substance, and the Native American Church exists, says writer Garrett Epps, "within a complex web of state and federal laws designed to make sure that ritual peyote is not abused."

In 1983, Galen Black got caught in that web. A drug counselor and recovering alcoholic, Black worked in a residential unit that had secured funding by promising to offer "culturally appropriate" outreach and treatment to special needs populations, including native Americans.

Mr. Black, not a native American, began exploring their spirituality, and after being assured that peyote was a sacrament, not a drug, he participated in a tipi ceremony. This is not as overtly contradictory as it appears: Scientific studies had concluded that native American alcoholics seeking recovery through the Native American Church often succeeded because of its "orderly, constructive and stimulating" structure. Black thought he was exploring treatment options, but he was subsequently dismissed and denied unemployment benefits.

Fellow counselor and native American Al Smith, sober since 1957 through Alcoholics Anonymous, had seen benefits to himself and others in attending peyote ceremonies. When told his employer's policy forbade the use of peyote, he thought, "I can't go to church?" When he defied the policy, Smith was also fired and denied unemployment benefits.

What follows is a swirl of issues: Does ritual peyote use violate the abstinence demanded by most drug- and alcohol-abuse treatment strategies? Is that violation reason enough to deny unemployment benefits? Does peyote use violate Oregon State law? If so, does Oregon law infringe on the free exercise of religion?

When the dust settled, all participants were surprised by a 1990 Supreme Court decision that went well beyond any position argued by the parties. Since 1963, the Supreme Court had held that only a compelling state interest could allow a burden on the free exercise of religion. Examples of compelling state interests include health, safety, and public order. But in Employment Division v. Smith, as Black and Smith's cases came to be known, the Supreme Court ruled in favor of the state and essentially redrew the landscape of religious liberty in America.

The court held that if a state law did not intentionally single out a religious practice, but had a general "rational" application, the restriction met constitutional muster. "Religious minorities penalized - even outlawed - by 'neutral' laws," Epps summarizes, "shouldn't look to the courts anymore for protection. Their only hope lay in the state legislatures and Congress, which could, if they chose, protect religious belief."

A firestorm erupted when it became clear the Supreme Court was unwilling to do the heavy lifting necessary to protect religious freedom, and was handing the crafting of safeguards off to the legislature.

In response, Congress passed the Religious Freedom Restoration Act in 1993. The law re-installed the compelling state interest test, but ironically, the Supreme Court struck it down in 1997, claiming it went beyond Congress's authority.

According to Epps, recent cases indicate the court is backing away from its position in Smith, but he calls the law of religious freedom "unsettled." And that is unsettling in itself.

Epps's book has its flaws: internal contradictions, annoying rhetorical devices, comparisons that fall apart under scrutiny, and more personal detail about the lives of the parties than many readers might care to know.

Still, this is a book that deserves attention. As America becomes more diverse, varying religious traditions and practices are bound to collide with the state's interests. We can only hope the court finds its way back to a position consistent with the Founders intent to guarantee "free exercise." We might expect conservative justices like Scalia to resist making law, but we don't expect them to resist protecting the most basic constitutional rights.

Carol des Lauriers Cieri is a writer and editor living in Lincolnville, Maine.

To An Unknown God: Religious Freedom On Trial

By Garrett Epps St. Martin's Press 289 pp., $24.95

(c) Copyright 2001. The Christian Science Publishing Society

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