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Sunday, May 20, 2012

Goodreads | Eric_W Welch (Forreston, IL)'s review of To An Unknown God: Religious Freedom On Trial

The book is about a particularly interesting case: Employment Division v Smith. Hidden behind this seemingly innocuous name lay a conflict pitting the Establishment Clause and the Free Exercise Clauses of the First Amendment to the Constitution. Perpetually in conflict, those two clauses of the First Amendment create a tension that all feel and few understand. Just how far can the government go in controlling behavior that is in conflict with society’s mores yet which for some may be considered an essential religious practice?

For some Native American Indians tribes peyote is a sacred sacrament, a gift that embodies God, much as wine might represent the blood of Christ in Catholic religious practice. Yet peyote was also considered a dangerous drug its use to be prosecuted to the fullest extent under the War on Drugs. It pitted two very interesting men against each other in the oral arguments before the Supreme Court and the result was new legislation, the Religious Freedom Restoration Act of 1993, that would also be declared unconstitutional four years later as an unconstitutional form of legislative power in City of Boerne v. Flores as an wrong use of the 14th amendment as it applied to the states. This resulted in another congressional action, Religious Land Use and Institutionalized Persons Act, which gave special grants to religious institutions. Whew. Got that? So the RFRA was still constitutional as it applied to the federal government, but not the states. The RFRA has been used by many minority religious groups to challenge federal statutes as being onerous to their religious practice, including payment of income taxes. They have lost, in most cases because the courts have ruled the statutes had a compelling secular interest.

Ironically, the Native American Church didn’t exist before 1918 when it was formalized at the suggestion of a white man, James Mooney, as a way of insulating itself and its practices, from mainstream harassment with protection from under the free exercise clause of the Constitution. There has always been tension between the free exercise clause, which permits unfettered religious practice in theory, and the establishment clause, which is intended to prevent government from favoring one religion over another. But even Thomas Jefferson, author of the Virginia Statute for Religious Freedom made a distinction between established religions as he saw them and the practices of those “aboriginal inhabitants. . .who inculcate a a sanctimonious reverence for their ancestors.” So the struggle to reconcile peyote use with governmental efforts to ban it had long roots. **

It all got started because of the state of Oregon denying unemployment benefits to two employees because they had used peyote, an illegal drug, as part of a religious ceremony and as a method to help alcoholics. The question before the court was, “Can a state deny unemployment benefits to a worker fired for using prohibited drugs for religious purposes?” The answer, in a six-three decision written by Justice Scalia was, *SPOILER ALERT* “ Yes. Scalia observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws” What astonished Court observers was the breadth of the majority opinion which threw out the Sherbert established in Sherbert v Verner in which a Jehovah’s Witness (many landmark religious test cases have involved this sect,) a Sabbatarian who insisted on a Saturday sabbath, was fired when she refused, on religious grounds, to work on a Saturday. The Court ruled that to force her to work on her Sabbath was not “a compelling state interest” and therefore a violation of the free exercise clause and she was entitled to unemployment benefits. A similar case, also involving Jehovah’s Witnesses (Thomas v Review Board) involved a man who refused to work on tanks arguing his personal interpretation of the Bible would prevent him from helping to create instruments of war. He, too, was entitled to unemployment benefits, said the court. One difference in the Smith case was that no state could pass a law prohibiting worship on Saturday; they could, however, declare peyote an illegal drug. But again, this case involved unemployment compensation. The decision caused a whirlwind of legal activity in response to Justice Scalia’s opinion which seemed to go much further than was asked for by the Oregon AG. They essentially overturned the Sherbert test and, in the eyes of some, stripped minority religious groups of special protection under the free exercise clause.The new rule was that if the state didn’t target religion, “then minorities whose practice was destroyed were out of luck.”

Epps argues that the case was wrongly decided as an infringement on religious freedom, yet even Thomas Jefferson made a distinction between religious belief and the action that flows therefrom. In Reynolds v US, Justice Waite (a decision surprisingly not mentioned in Epps’ book) made that point in denying the religious right to polygamy. “The court argued that if polygamy was allowed, someone might eventually argue that human sacrifice was a necessary part of their religion, and "to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." The Court believed the true spirit of the First Amendment was that Congress could not legislate against opinion, but could legislate against action.” But his harshest words are for Scalia, a “great and powerful judge who had seen the Smith case not as a dispute between real people but as a chance to play with the law, to take away part of our heritage of religious freedom.”

Epps does a great job of humanizing those involved in the dispute and getting us to sympathize not only with the claimants, but the state as well. Al Smith had his own alcohol related demons and Attorney General Frohnmayer was fighting to save the lives of his three daughters who had inherited a devastating anemic disease through a recessive gene from him and his wife. It’s a tragic story, and one cannot help but admire Frohnmayer and his family as they suffered one medical calamity after another. He is truly a heroic figure. This is a really good book that will make you think about the meaning of justice and whether that concept as applied by the law can be separated from the individuals and people it is supposed to protect.

N.B. There is an odd, but fascinating, chapter on Oregon’s battle with Baghwan Rajneesh and his compound and attempt to create a theocratic state within a state. A more fuller account can be found in James Gordon’s The Golden Guru: The Strange Journey of Bhagwan Shree Rajneesh (not read) and Frances Fitzgerald’s excellent lengthy reportage in Cities on a Hill: A Brilliant Exploration of Visionary Communities Remaking the American Dream and The New Yorker September 22 and 29, 1986 (which I have read.)

** Not to mention polygamy. In Reynolds v United States (1878)the Supreme Court held that religious duty was not a suitable defense to a criminal indictment (Reynolds had been criminally charged with bigamy under new Utah anti-polygamy statutes.) Justice Waite declared in the Constitution "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of the good order."

Another case that might be of interest to those pursuing this divisive issue is LARKIN ET AL. v. GRENDEL'S DEN, INC. of 1982. The court was asked to decide whether a Massachusetts statute, which vests in the governing bodies of churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius of the church or school, violates the Establishment Clause of the First Amendment or the Due Process Clause of the Fourteenth Amendment. It ruled the statute unconstitutional under the establishment clause since it effectively gave a religious body the power to make a political decision, i.e. the granting of a liquor license. The only dissent came from Justice Rehnquist and it makes interesting reading because his rationale seems to be solely that the law makes sense. It’s also interesting to note that the Catholic Church was granted an exemption to use wine during Mass during Prohibition.

You can hear the oral arguments and opinion announcement at

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