Won’t Shield Religions From Law, Court Says


In what was called a “radical departure” from previous rulings protecting religion, the Supreme Court ruled Tuesday that there is no constitutional right to take peyote as a religious sacrament and declared forcefully that it will no longer shield believers whose practices violate general laws.

Religions that are out of the mainstream are most likely to be affected, because their unconventional practices and lack of political influence have led them to depend on the courts for protection.

The ruling was made in the case of two members of the Native American Church who were fired from their jobs as drug counselors in Oregon after they admitted ingesting peyote during a religious ceremony. On a 6-3 vote, the court upheld their dismissal.

But, in a sweeping opinion, Justice Antonin Scalia went far beyond the case at hand and declared that, when religious rights clash with the government’s need for uniform rules, the court will side with the government.


As a nation, “we cannot afford the luxury” of striking down laws simply because they limit someone’s religious practices, Scalia said. He advised religious adherents to look to the political system, not the courts, for protection.

In contrast, the high court for most of this century has gone out of its way to shield minority religions--such as the Jehovah’s Witnesses and the Amish--from laws that infringed on their religious beliefs. Those decisions were based on the First Amendment’s protection of “the free exercise of religion.”

The new ruling “will place at a relative disadvantage those religious practices that are not widely engaged in,” Scalia conceded, “but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is law.”

The high court dissenters said that Scalia’s opinion “effectuates a wholesale overturning of settled law concerning the religion clauses of our Constitution.” Had his opinion been law during Prohibition, they noted, the government could have banned the use of sacramental wine during Communion.

Joining in the dissent were Justices Harry A. Blackmun, William J. Brennan and Thurgood Marshall.

Justice Sandra Day O’Connor, normally on the conservative side, voted with the majority on the peyote case. But she objected strongly to Scalia’s opinion, which will be binding on lower courts.

His opinion “is incompatible with our nation’s fundamental commitment to individual religious liberty,” she wrote. “In my view, 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.”

Legal experts on religion said that the opinion marked a sharp change in the court’s doctrine and could affect mainstream religions. For example, one noted that the Roman Catholic Church’s practice of ordaining only men requires that it be exempt from laws banning sexual discrimination.


“This is a radical departure from what they have said before,” said Jesse Choper, dean of the UC Berkeley Law School. “Clearly, they plan to give much less protection to religion than they had before.”

In recent years, he noted, a more conservative court has increasingly ruled against those who contend that their religious rights have been violated by the government. But, until Tuesday, the conservative majority had not spelled out a change in constitutional doctrine.

In the 1940s, in response to appeals by Jehovah’s Witnesses, the court struck down laws banning door-to-door soliciting. In 1943, in the midst of World War II, the justices struck down all the mandatory flag salute laws in the public schools because children of Witnesses refused to salute a secular symbol.

In 1963, the court in a much-quoted opinion said states could not deny unemployment benefits to Seventh-day Adventists who refused to work on Saturday. Even as late as 1972, the court exempted Amish children from compulsory school laws.


The court’s approach at that time was clear: Someone claiming a right to religious freedom would prevail, except when the government could assert an even more “compelling interest” in its general rule.

That doctrine has been eroding over the last few years. In 1986, a Jewish serviceman was denied the right to wear a yarmulke with his uniform. In 1988, the court said the government may build a road through a sacred Indian burial ground. Last year, the court said Scientologists may not claim a tax exemption for the cost of “auditing,” a central feature of their religious practice. And, in January, the court said the states may tax the sales of Bibles or other religious literature.

On Tuesday, Scalia spelled out a new doctrine. Now, the government need not show that it has a “compelling interest” to win. Its general laws will be presumed valid, he said, even if they seriously infringe on someone’s religious beliefs or practices. The only laws that would be struck down, Scalia said, are any that were intended to stifle a particular religion.

In responding to Scalia’s statement that the nation cannot afford the luxury of striking down laws that limit someone’s religious freedom, Blackmun shot back: “I do not believe the Founders thought their dearly bought freedom from religious persecution a ‘luxury,’ but an essential element of liberty.”


Steven Shapiro, counsel for the American Civil Liberties Union, said the ruling is in line with the court’s recent approach of shrinking constitutional rights.

“We are seeing a continuing erosion of the concept of fundamental rights,” he said.

Scalia’s opinion in the case (Employment Division, State of Oregon vs. Smith, 88-1213) was signed by Chief Justice William H. Rehnquist and Justices Byron R. White, John Paul Stevens and Anthony M. Kennedy.

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