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While 28 States do provide varying legal protections for the religious use of peyote by Indians, the U.S. Supreme Court ruled in 1990 in the Smith case that it is constitutionally permissible for States to prohibit such use. This legislation is made necessary by the Smith ruling.

The Smith case began as an unemployment compensation dispute involving Alfred Smith, a Native American employee of a private drug and alcohol rehabilitation facility. Smith was fired and denied unemployment benefits after acknowledging he had ingested the peyote sacrament during a traditional religious ceremony of the Native American Church. The Oregon Employment Division believed that the State had a compelling interest in proscribing the use of certain drugs pursuant to a controlled substance law.

Smith filed a case disputing the denial of unemployment benefits and questioning the constitutionality of the controlled substance law as it applied to his religious practice. Following protracted litigation, the Oregon Supreme Court ruled that the prohibition on the sacramental use of peyote violated the free exercise clause of the First Amendment.

The U.S. Supreme Court reversed, holding that the free exercise clause of the First Amendment did not prohibit the State of Oregon from banning the sacramental use of peyote through its general criminal prohibition laws, or from denying unemployment benefits to persons dismissed from their jobs for such religiously inspired use. In an opinion written by Justice Scalia (joined by Chief Justice Rehnquist and Justices White, Stevens, and Kennedy), the Court discarded the long-standing compelling interest test, holding that facially neutral laws of general applicability that burden the free exercise of religion require no special justification to satisfy free exercise scrutiny. Finally, the Court asserted that the free exercise of religion may be protected through the political process. According to the majority, its inability to find constitutional protection for religiously inspired action burdened by generally applicable laws does not mean statutory exemptions to such laws are not permitted or even desired. However, the majority noted:

It may fairly be said that leaving accommodation to the political process 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 unto itself or in which judges weight the social importance of all laws against the centrality of all religious beliefs.

To reach its decision, the majority had to strain its reading of the First Amendment and ignore years of precedent in which the compelling government interest test was applied in a variety of circumstances. In a strongly worded concurrence, Justice O'Connor took sharp issue with the Court's abandonment of the compelling government interest test. Justice O'Connor reviewed the Court's precedents and found that they confirmed that the compelling interest standard is the appropriate means to protect the religious liberty guaranteed by the First Amendment:

To say that a person's right to free exercise has been burdened, of course, does not mean that he has an absolute right to engage in the conduct. Under our established First Amendment jurisprudence, we have recognized that the freedom to act, unlike the freedom to believe, cannot be absolute. Instead, we have respected both the First Amendment's express textual mandate and the governmental interest in regulation of conduct by requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.

This controversial decision by a divided Court has been heavily criticized by constitutional law scholars, religious leaders, and civil libertarians. In 1993, Congress overturned portions of the Smith decision by enacting the Religious Freedom Restoration Act of 1993 (RFRA), Pub. L. 103-141, 107 Stat 1488 (42 U.S.C. 2OOObb et seq.,).

However, RFRA left open the question of whether the reinstated compelling government interest test would provide adequate legal protection for the traditional religious use of peyote by American Indians--the precise religious practice at issue in Smith. As President Clinton emphasized when he signed the Religious Freedom Restoration Act on November 16, 1993:

The agenda for restoration of religious freedom in America will not be complete until traditional Native American religious practices have received the protection they deserve. My Administration has been and will continue to work actively with Native Americans and the Congress on legislation to address these concerns.

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Excerpted from material contributed by Tom Leonard, a member and director of the Ponca Chapter of the Native American Church of Oklahoma.

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