Imagine a country in which religious freedom is trammeled, and another country in which religious freedom is flourishing. Imagine a multitude of religious refugees fleeing the former nation and flocking to the latter. Until quite recently, most Americans would probably have been inclined in such a scenario to cast some East Bloc country (say East Germany) in the role of persecutor and the United States as the beacon of religious freedom. But in the wake of developments in Eastern Europe and the U.S. Supreme Court’s recent decision in the Oregon peyote case, an argument could be made that the roles in our little melodrama should be reversed. The peyote case, Employment Division v. Smith, is much more than a simple example of the state’s power to regulate controlled substances. In the opinion of many constitutional experts, a majority of five Justices of the Supreme Court used the case as a vehicle to reason the Free Exercise Clause out of the Constitution. Indeed, one leading expert on constitutional law, Michael P. Farris of the Home School Legal Defense Association, has stated that the Smith case “has done to religious freedom what Roe v. Wade did to human life.” Religious people need to understand this case and its far-reaching implications. We also must recognize that our right to engage in our religious practices is inextricably intertwined with the rights of others to freely exercise their religion. The facts of Smith are simple. Two American Indians, Alfred Smith and Galen Black, were denied unemployment benefits after being fired from their jobs as drug counselors. The benefits were denied because Smith and Black had been discharged for work-related “misconduct””their use of the hallucinogenic drug peyote for sacramental purposes at a ceremony of the Native American Church. Smith and Black claimed that the denial of benefits was an unconstitutional burden on their free exercise of religion, because it penalized them for taking part in what to them was a religious sacrament. Not surprisingly, the Supreme Court disagreed and upheld Oregon’s right to deny unemployment benefits to Smith and Black. So where is the grave threat to religious freedom? Most persons would agree that individuals employed as drug counselors should abstain from the use of hallucinogenic drugs and that Oregon acted properly when it denied unemployment benefits to persons discharged for unlawful drug use. The problem is not with the specific holding of the case; rather, it is with the Supreme Court’s reasoning. Justice Antonin Scalia, writing for a five-judge majority, stated that the Free Exercise Clause does not apply to “generally applicable prohibitions of socially harmful conduct.” In other words, so long as religious people are not singled out for discriminatory treatment, the government is free to enact laws that restrict or even criminalize religious practices. As Justice Sandra Day O’Connor pointed out in her separate opinion, the Court’s reasoning in Smith casts aside “well-settled” case law protecting the free exercise of religion and is “incompatible with our Nation’s fundamental commitment to individual religious liberty.” If Smith means what it says, religious liberty taken for granted today may be gone tomorrow. Justice Scalia made clear that government may prohibit that which religion requires, or require that which religion prohibits. Accommodation of religious conscience is left to the wisdom (or the whim) of the majority. The First Amendment no longer stands between Caesar and the sanctuary. For example, many states have criminal laws that prohibit the serving of wine to minors. It has always been assumed that, under the Free Exercise Clause, these laws did not prohibit churches from providing sacramental wine to minors participating in the celebration of the Lord’s Supper. This assumption is no longer justified. Under the Smith decision, churches are not protected by the Free Exercise Clause against these laws, because the laws are of “general application” and are aimed at restricting “socially harmful conduct.” In Smith, the socially harmful conduct was the use of peyote; in our example, it is the use of wine. Under the Supreme Court’s reasoning, the cases are analogous and neither implicates Free Exercise concerns. Other potential intrusions on religious life include anti-discrimination laws being applied to determine church membership, or to force churches to hire women as clergy or homosexuals as nursery workers. According to the logic of the Court, the Free Exercise Clause does not protect churches in these circumstances, unless some other constitutional right, such as Free Speech or the right of parents to control the upbringing of their children, is violated by the governmental intrusion. I want to emphasize that this “parade of horribles” probably will not happen. Politically, the American people must not let it happen. But it is a very sad day in American legal history when the Constitution no longer guarantees that it cannot happen. As Chuck Colson said in his recent book Against the Night, “It is difficult to think of fresh beginnings in times that seem so much like the end.” But begin again we must, because we owe it to our children”and to our brothers and sisters throughout the world still engaged in the struggle for religious freedom.
Richard F. Duncan is Professor of Law at the University of Nebraska in Lincoln.