Religious Faiths Decry High Court Ruling : Constitution: Critics say a basic freedom is imperiled by the opinion in the peyote case that religious exemptions are a 'luxury.'


Asserting that spiritual freedoms in America are at great risk, religious organizations this week decried a U.S. Supreme Court decision that removed constitutional protection not only for American Indians who use the drug peyote as a sacrament but also for other religions whose practices may conflict with state laws.

"This was a shocker; the nation's first liberty has become a constitutional stepchild." said Oliver Thomas, legal counsel for the Baptist Joint Committee on Public Affairs.

"It was a terrible decision for religious liberty," said Amy Adelson, staff attorney for the American Jewish Congress. "The court's majority members completely revamped the 'free exercise' (of religion) clause of the First Amendment as we know it."

The lament over the court's ruling extended from experts on church-state matters to believers who are most directly affected, such as 91-year-old Native American Church leader Truman Dailey of Red Rock, Okla.

"This medicine has been our faith . . . we use it with a spiritual attitude in prayer and singing," said Dailey in a telephone interview. The cactus peyote "button" is chewed and its hallucinogenic drug ingested in rites central to the Native American Church, which combines native traditions and Christian beliefs.

The justices, by a 6-3 margin, on Tuesday upheld the dismissal 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.

Beyond that, Justice Antonin Scalia, writing for the court's majority, declared that "we cannot afford the luxury" of striking down laws just because they limit someone's religious practices.

Although Justice Harry A. Blackmun dissented by saying the majority opinion changed religious liberty from "an essential element" to a "luxury," Scalia asserted that the justices "have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting the conduct that the state is free to regulate."

Scalia advised religious groups to seek protection through laws that allow exceptions to cover their beliefs and practices.

Indeed, 23 states have laws allowing the controlled use of peyote by the Native American Church, according to Americans United for the Separation of Church and State, an interdenominational group based in Silver Spring, Md. But religious libertarians say that legislatures cannot always anticipate how laws will affect religious groups. In addition, they say, changing public moods can swing against the idea of religious exceptions.

The court system, and especially the U.S. Supreme Court, frequently has defended small and often unpopular groups such as Jehovah's Witnesses, the Amish and Seventh-day Adventists when laws appeared to violate their First Amendment guarantees.

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

The opinion spells trouble to Mike Burgess, a Comanche who once edited the now-defunct Talking Leaf newspaper for the Los Angeles Indian community. "There aren't enough Indians in any one state to have enough strong political clout," he said.

An inactive member of the Native American Church, Burgess said that peyote acts as "a communicator between the participant and the Creator, but using it this way does not make it addictive."

More than one critic of the court decision said the peyote case "could not have come at a worse time" for American Indians. Observers believe the justices did not want to open the door to small religious bodies claiming that marijuana is important to their beliefs, such as the Ethiopian Zion Coptic Church.

But courts have made reasonable distinctions before between authentic religious tradition and less-established practices, and could do so again, according to attorney Steven C. Moore of the Native American Rights Fund. The Boulder, Colo.-based organization filed a friend-of-the-court brief in the Oregon case on behalf of the defendants. Moore said the bitter-tasting peyote button is not sold on the street and only has a ceremonial use.

Indian leaders, in both mainstream Christian and non-Christian circles, said they were disappointed that Tuesday's ruling showed anew the lack of impact of the American Indian Religious Freedom Act of 1979, a non-binding declaration of Congress which asked that the federal government show sensitivity to the religious practices of Indians, Eskimos and native Hawaiians.

"There is definitely an eroding away of American Indian rights," said Little Crow, also known as the Rev. Carl Bryant of the American Indian Unity Church of Garden Grove. He said Indians should nevertheless continue in their ways: "If we give up our world view, then (the government) will do it with the Sikhs, the Buddhists and the Baptists."

Similar fears were expressed by organizations concerned with religious liberties.

"This case tells us a lot about how the court will react in future cases on the free exercise of religion," said Rob Boston, a spokesman for Americans United for Separation of Church and State. He said that the decision is a harbinger of a narrowing interpretation of the First Amendment by the Supreme Court.

The American Jewish Congress' Adelson, interviewed by phone from the organization's New York headquarters, said, "Until this decision, it was generally believed without question that while individuals may lose a claim of religious exemption, the state would have to make an attempt to justify the burden on the religious practice."

The state no longer has that burden, she said.

"We can only hope that those states will keep those exemptions . . . but they don't have to," Adelson said.

Oliver Thomas, the counsel for the Baptist Joint Committee in Washington, said he believes there is "a strong probability" that the Supreme Court decision could affect mainline churches in the areas of taxation, church property, church schools and day-care centers.

However, Ron Garat, professor of law and religion at USC, said that large religious bodies probably have the ability to use the political process to protect their interests.

But Garat said smaller religious groups are likely to encounter difficulties with the direction being taken by the present Supreme Court under Chief Justice William Rehnquist.

"It's a direction making it harder and harder to obtain exemptions," he said. "If the purpose of a statute is legitimate and not designed to suppress a religious group," Garat said it would not be unconstitutional under the new ruling.

Even with the best of motives by legislatures, however, Garat said "it is hopeless to foresee all the burdens they might impose on religious groups."

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