Douglas Laycock holds the Alice McKean Young Regents Chair in Law at the University of Texas at Austin. He is writing a book tentatively titled A Centrist Theory of Religious Liberty.
This article appeared in the Christian Century October 4, 1989, p. 876. Copyright by the Christian Century Foundation and used by permission. Current articles and subscription information can be found at www.christiancentury.org. This material was prepared for Religion Online by Ted & Winnie Brock.
Oregon’s disapproval of peyote use, even under controlled conditions, does not provide a compelling reason to forbid a religious ritual.
This fall the U.S. Supreme Court will consider arguments in a case that goes to the very heart of the constitutional guarantee of free exercise of religion. The court will decide whether the state can prohibit a religious ritual, and if so, what kinds of dangers justify such an extraordinary prohibition. This litigation involves not a practice of a mainstream faith but the peyote ritual of the Native American Church.
Peyote, or mescal, is a small cactus that grows in the southwest U.S. and in northern Mexico. It produces buds or tubers, called buttons, that have hallucinogenic properties. Peyote is an illegal drug, but the federal government and 23 states permit its use in at least some religious ceremonies. Federal drug authorities issue licenses to grow and sell peyote to religious users. But the case before the court comes from Oregon, which has no such exemption.
If the Supreme Court focuses too narrowly on drugs in this case and misses the larger issue of religious ritual, it could create a devastating precedent for religious liberty. For the Native American use of peyote has substantial parallels to Christian and Jewish uses of wine. If the peyote ritual is allowed only by legislative grace and not by constitutional right, the right to participate in communion, the Passover Seder and sabbath rituals may rest on no firmer footing.
The Oregon case is an odd vehicle for addressing such an issue. It is not a criminal prosecution; questions about criminal prohibitions are involved only because the court reached out for them. Alfred Smith and Galen Black were drug- and alcohol-abuse counselors at a nonprofit agency When their supervisor learned that they had consumed peyote at a religious service, he discharged them for violating the. agency’s absolute rule against’ drug or alcohol use. The supervisor later testified that "we would have taken the same action had the claimant consumed wine at a Catholic ceremony." But he offered no evidence that anyone had actually been discharged for drinking communion wine, and he did not claim to have inquired about which of the churches his employees attended used wine and which only grape juice.
Smith and Black first complained that their employer had discriminated against them based on their religion. Without admitting the charge, the employer changed its absolute rule against religious use of drugs, and it paid Smith and Black some of their lost pay. They agreed not to insist on being reinstated to their jobs.
Smith and Black also filed claims for unemployment compensation. A long line of Supreme Court cases holds that states must pay unemployment compensation to employees who lose their jobs because of their religious beliefs. Employees who refuse to work on their sabbath have been the principal beneficiaries of this rule (in another case a worker lost his job in a brass mill because he refused to help manufacture tank turrets) The Oregon courts followed these cases and awarded unemployment compensation to Smith and Black.
The U.S. Supreme Court vacated the judgment, deciding that if Oregon could send Smith and Black to prison for chewing peyote, it could surely refuse to pay them unemployment compensation. Therefore, the court reasoned, the constitutional status of Oregon’s criminal prohibition of peyote was logically prior to the unemployment-compensation issue. It sent the case back to the state courts to ask whether Oregon would recognize a religious exception to its criminal laws against possession or consumption of peyote.
Oregon’s Supreme Court, which had already concluded that this question was irrelevant, dutifully answered that in its judgment criminal prosecution of Smith and Black would violate the federal Constitution. Their consumption of peyote was a constitutionally protected exercise of religion; therefore, Oregon could not send them to prison or refuse to pay them unemployment compensation.
The U.S. Supreme Court has agreed to hear the case again. Presumably it intends to decide whether Smith and Black could be sent to prison, even though no one has shown the slightest interest in sending them there. If it has second thoughts about this exercise in judicial activism, it may retreat to the narrower issue and decide only whether Smith and Black are entitled to keep their unemployment compensation.
The opinions of the Oregon courts provide few details about exactly what Smith and Black did with peyote. Opinions in other cases provide more information about the peyote ritual, based on the testimony of witnesses and of anthropologists who have studied it. The peyote ritual is no modern innovation designed to evade the drug laws. Native Americans have practiced it at least since 1560, when it was first described in Spanish records. Today the ritual is practiced in substantially similar form from northern Mexico to Saskatchewan. Believers come from many Native American tribes, although it is not the major religion of any tribe. The faith has absorbed some Christian teachings as well, but peyote remains at the heart of its theology and practice.
To the believer, peyote is a sacramental substance, an object of worship and a source of divine protection. Peyote is the focus of the worship service, much as the consecrated bread and wine are the focus of mass and communion. The cases speak of prayers being directed to peyote; I suspect that the believer thinks of himself as praying to the holy spirit who is present in the peyote. •
The believer may wear peyote on his person for protection; soldiers have worn a large peyote button in a beaded pouch suspended from their necks. While there is no parallel in Christian theology, there is ample parallel in Christian folk-belief -- a consecrated communion wafer worn around the neck has been thought to be the best defense against Dracula, and crosses and medals are put to similar use against modern dangers.
Finally, and most important for the question before the court, participants in the ritual believe that peyote intoxication enables them to experience God directly. Peyote is consumed for this purpose only at a "meeting," convened and controlled by a leader. It is a sacrilege to use peyote for a nonreligious purpose. A meeting is a solemn and somewhat infrequent occasion. Participants wear their finest clothing. They pray, sing and perform ceremonies with drums, fans, eagle bones and other symbolic instruments.
The central event is the consumption of peyote in quantities sufficient to produce intoxication. At the appointed time, the leader distributes up to four buttons to each adult participant. There is an opportunity for participants to take additional buttons at a later point in the ceremony. The buttons are extremely bitter, and difficult to chew and swallow. Some groups use a tea brewed from the buttons, but chewing the buttons appears to be the norm.
The meeting lasts from sundown Saturday to sunrise Sunday. In the morning, the leader serves breakfast. By then all effects of the peyote have worn off, and the participants leave in a sober state. Smith and Black were fired for participating in a service that, apparently, went according to this generic description.
Another central function of the First Amendment is to ensure that small, unfamiliar and unpopular religions get equal treatment with larger, well-known and politically influential religions. In those compelling cases in which religious liberty must be restricted, the restrictions must be applied neutrally.
This principle of neutrality requires us to compare the peyote ritual to the rituals of mainstream faiths. Peyote is not the only mind-altering drug used in a religious ritual. Many Christians drink wine at communion. For Jews, a prayer over wine is part of the sabbath service, sabbath meals, all religious holidays and special religious events such as weddings and circumcisions.
Wine was once illegal in the U.S., just as peyote is now. But the National Prohibition Act, passed after ratification of the 18th Amendment, exempted wine "for sacramental purposes, or like religious rites." State prohibition laws, some of which survived into the 1960s, either had similar exemptions or at least were not enforced against religious users. (Contemporary local prohibition laws rarely require exemptions; they generally restrict the sale of alcohol, but permit private consumption of alcohol purchased elsewhere.)
Why is it that the religious use of wine was exempt everywhere during Prohibition, but the religious use of peyote is exempt in only half the states today? If Oregon may constitutionally punish the religious use of peyote, may it not also punish the religious use of wine? Could Oregon ban communion wine and require that all Christians use grape juice instead? The Supreme Court does not have to answer these questions formally; no case about wine is before it. But it should think hard about these questions, to make sure it is not suppressing a small and unfamiliar religion on the basis of principles it would not apply to a mainstream faith.
Oregon may respond that peyote is simply more dangerous than wine. I do not know whether that is true; I am sure that wine is more widely abused. But the court will assume that the legislature had good reason for its ban. It should inquire into dangerousness only in the narrow context of religious use. The judicial question is this: if the Constitution protects the religious use of wine when legislatures believe that wine is so dangerous it has to be banned, does the Constitution also protect religious use of peyote at a time when legislatures believe peyote must be banned? If sacramental uses of wine are protected and sacramental uses of peyote are not, it must be because of some compelling difference between the drugs or the rituals.
Each of the Christian and Jewish uses of wine is similar to the peyote ritual in some ways, and quite different in others. Communion resembles the peyote ritual in the liturgical and theological centrality of the wine in the worship service. For many Christians, there are further similarities in the reverence and even adoration for the consecrated wine and the belief that the deity is present in the wine.
However, no one gets intoxicated on communion wine. Well, hardly anyone. In traditions that believe in the real presence of Christ, the priest or pastor may get tipsy from drinking the consecrated wine that is left over at the end of the service, since the blood of Christ cannot just be poured down the drain. This consequence could perhaps be avoided by recruiting enough helpers, but in some denominations only clergy and designated assistants are permitted to help.
Not even the matter of intoxication distinguishes Purim, the celebration of the Jews’ deliverance from a genocidal plot during the Babylonian captivity. Some Jewish traditions teach a duty to celebrate Purim to the point of drunkenness. Jews drink four cups of wine at the Passover Seder, which commemorates the Exodus from Egypt. Prayer over a single cup of wine is part of the sabbath service and of sabbath meals.
But one important difference is that an essential part of the peyote ritual is to experience God through the mind-altering effects of the drug; that is not part of the communion service in any Christian tradition, and it is not part of any Jewish celebrations or rituals. Purim, the most intoxicating Jewish celebration, is only a minor festival. Because Purim is far less central theologically, a decision that Oregon could ban the peyote ritual would clearly imply that it could ban the use of intoxicating amounts of wine to celebrate Purim.
In an important sense it is a greater violation of religious liberty to ban a ritual that is at the theological heart of a faith than to ban a peripheral celebration. But either act limits religious liberty. We should be uncomfortable with governmental bans on minor religious festivals, or with judges deciding which festivals are important enough to deserve full constitutional protection and which are not. A court that starts down that path might eventually convince itself that wine is not central to the sabbath or to the celebration of Passover, or that the use of wine is not central to communion. The government could acquire a de facto power to review theology and liturgy.
If the court considers communion or the Passover Seder or the sabbath, its instinct will he to regard these as constitutionally protected. If it considers only peyotism, its instinct may be to consider it a weird and dangerous practice. Comparing familiar and presumptively protected faiths to an unfamiliar one is a way of guarding against unrecognized bias. But this cautionary device will not work if the court jumps at any possible distinction to rationalize its prejudices in favor of the familiar.
Thus, the ultimate question is whether Oregon’s reasons for prohibiting the peyote ritual are compelling, and, if the. peyote ritual is to be distinguished from Christian and Jewish rituals, whether the distinctions are compelling. The only plausible distinction is that Christian and Jewish uses are generally less intoxicating -- but there are important exceptions even to that.
The distinction is further blurred by the mystical tradition in every major world religion, including Christianity and Judaism. The mystics often seek to experience God through altered states of consciousness, generally induced by trance or meditation instead of drugs. So neither the use of mind-altering drugs nor the achievement of altered consciousness distinguishes peyotism from mainstream faiths. It is only the combination of these two things that arguably distinguishes peyotism.
The most one can say without exceptions is that only in peyotism is drug-induced altered consciousness part of the central religious event. That difference is compelling only if peyote intoxication under the controlled conditions of a meeting poses a serious danger to the participants or others. To say only that Oregon disapproves of peyote intoxication is merely to restate Oregon’s disapproval of this mode of worship. Oregon’s disapproval does not provide a compelling reason to forbid a religious ritual.
The danger is hypothetical, but only in part. A variety of religious and pseudo-religious groups have claimed a right to use drugs. There is a small offshoot of the Native American Church, the Peyote Way Church of God, which split over a disagreement about the admission of non-Native American members and the authority of certain teachings from the Book of Mormon. Both the main body and the offshoot are said to teach traditional moral values, including temperance, and to be a generally positive influence on their believers. But only one of them is exempt from the federal drug laws.
The federal exemption and many of the state exemptions refer expressly to the Native American Church. No one else is exempt unless the Constitution requires an exemption. A federal district court recently upheld the narrow scope of the federal exemption and refused to exempt the Peyote Way Church of God. It is as if during Prohibition, the exemption for sacramental wine had applied only to Roman Catholics and not to Lutherans.
The Native American Church also has imitators of varying degrees of apparent sincerity. An example is the Native American Church of New York, founded by Alan Birnbaum, apparently a New Yorker but apparently not a Native American. I do not know enough about Birnbaum to determine his sincerity, but I have my doubts.
Peyote and wine are not the only mind-altering drugs used in religious rituals. A related pair of loosely organized sects that originated in Jamaica, the Rastafarians and the Ethiopian Zion Coptic Church, use marijuana as a sacrament. They worship Haile Selassie as a God and teach black supremacy, pacifism, a moral code, a strict set of dietary laws and some unique interpretations of Scripture. They teach an absolutist interpretation of a passage in Leviticus that forbids the shaving of beards or the cutting of hair. These groups present a much more difficult case than the peyote worshipers. because their use of marijuana is not limited to highly structured worship services. At least some of them believe they should smoke marijuana continuously.
Finally, a few ordinary drug users have claimed to have created new religions. These are usually short on doctrine, weak on ritual and utterly lacking in any teaching that might constrain or even inconvenience a believer. There is little reason to think that they are motivated by sincere religious belief. But inquiries into the sincerity of such claims are awkward and time-consuming.
If sincere religious use of mind-altering drugs is constitutionally exempt from the criminal law, then the courts must pass on all these claims to religious exemption. Enforcement will be hampered in arguable cases, and courts will make mistakes, sometimes punishing sincere but unconvincing believers while exempting more convincing fakers.
Some judges think that the difficulty of drawing lines between true and false claims of religious belief justifies a refusal to grant any exemptions. The peyote worshipers can be punished, even though we are quite sure that many of them are sincere religious believers, because we can never be certain who is sincere and who is not. These judges fear that some of the insincere will get away, and they fear that government will discriminate among the sincere, exempting some and erroneously punishing others. This they say violates the constitutional command to treat all religions equally.
The equality half of this argument has two serious defects. First, it assumes that because we will inadvertently persecute some religious minorities -- those who cannot convince us of their sincerity -- we would do better to persecute them all, including those who are both sincere and harmless. Because we will inevitably get some cases wrong, we should get them all wrong. It is an odd and unappealing sort of equality. If we are serious about the free exercise of religion, we should protect free exercise whenever we can, by protecting sincere religion in most cases even if we realize that human error will prevent us from protecting it in all cases.
Second, we know from experience that we will not enact this odd "ideal" of persecuting all religions equally. The mainstream faiths will always be exempted. So will any minority faiths that become socially accepted, or somehow get the sympathetic ear of enough legislators. When we have exempted sacramental wine, and when Congress and some states have exempted the Native American Church, the courts cannot invoke a desire for equal treatment as a reason not to exempt other religious uses of mind-altering drugs.
The danger of creating an obstacle to all drug enforcement is more serious, but manageable. Courts may have to rely on relatively objective signs of sincerity. Chewing four peyote buttons is not an easy high; the cynical evader of the drug laws can probably find an easier way to use drugs. Peyote use only in a structured service, administered by a leader who can be required to keep records, is not a likely way to satisfy an addiction or to get high whenever the mood strikes. A religion that restricts lifestyle in a variety of other ways is less likely to be a over for drug use than a religion that teaches only the duty to take drugs. A group that claims a sincere religious belief in staying high all the time will probably lose its ease, not because it is necessarily insincere but because any drug defendant could make that claim and courts have no good way to know who is telling the truth.
It may be that as a practical matter religious use of mind-altering drugs will be limited to groups that can point to some substantial tradition and that limit the use of drugs to structured worship service. Perhaps the practical difficulties of enforcing the drug laws will prevent any broader protection of religious liberty. But both familiar and unfamiliar groups can show a substantial tradition and a structured worship service. At least Christians, Jews and peyote worshipers fall into this category. Peyote worship should be constitutionally protected, and Smith and Black should be allowed to keep their unemployment compensation.