Next year America will observe the 200th anniversary of its ratification of the Bill of Rights. How ironic that, at this historic point, a little noticed decision of the U.S. Supreme Court should virtually eviscerate the free exercise of religion clause of the First Amendment, at the very heart of the Bill of Rights.
Yet that is precisely what five Supreme Court justices did in Oregon v. Smith. The majority held that a generally applicable law that incidentally burdens a religious practice, even if it means suppression of a worship service, raises no issue under the free exercise clause. Only a law that is intended to impede religious practice, in the view of the majority justices, would be barred by the First Amendment.On April 17, in an opinion by Justice Scalia (joined by Chief Justice Rehnquist and Justices White, Stevens and Kennedy), the court rejected a claim by two American Indians in Oregon that their use of the drug peyote as part of a required religious ritual is protected by the First Amendment's religious freedom guarantee.
Until now, it had been settled law that a governmental action that places a burden on religious observance is unconstitutional unless it can be shown to serve a "compelling state interest." Not any more.
Federal law and the laws of 23 states now exempt from criminal penalties the sacramental use of peyote, a centuries-old practice in Indian religious ceremonies. Scalia acknowledged that such an exemption was permissible, even "desirable," for legislators to grant. But he added that "the First Amendment's protection of religious liberty does not require this." In other words: Leave it up to legislatures to protect religious liberty, not the courts - and not the Constitution.
So Indians in Oregon are not free to use peyote in their religious ceremonies. Why should this be cause for alarm and dismay? Because the court's sweeping denial of one religious minority's free exercise rights opens the door to other encroachments on the rights of other religious minorities.
- A state could pass a law that would have the effect of barring religious groups, like the Roman Catholic Church or Orthodox Jews, from discriminating against women in ordaining clergy.
- A law could be passed to regulate the slaughter of animals that would jeopardize kosher slaughter.
- Zoning exemptions for synagogues and churches could be eliminated.
- A law could be passed forbidding minors to consume alcohol, with no exemption for priests giving sacramental wine to children or Jewish families giving wine to children during a Passover seder.
- Churches and synagogues will no longer have a defense under the free exercise clause to the designation of their buildings as landmarks, which bars alteration they may need to make for economic necessity.
Under the Supreme Court's ruling the free exercise clause no longer protects against such eventualities.