Black v. Employment Div.
Decision Date | 16 October 1985 |
Docket Number | AB-161 |
Citation | 75 Or.App. 735,707 P.2d 1274 |
Parties | Galen W. BLACK, Petitioner, v. EMPLOYMENT DIVISION, Raymond P. Thorne, Assistant Director, DHR, and Adapt, Respondents. 84-; CA A31186. |
Court | Oregon Court of Appeals |
Jeffrey Bennett, Asst. Atty. Gen., Salem, argued the cause for respondent Employment Div. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.
Eldon F. Caley, Roseburg, filed the brief for respondent ADAPT.
Claimant appeals an Employment Appeals Board order which disqualified him from receiving unemployment compensation. 1 Because EAB failed to consider claimant's principal argument, we reverse and remand for reconsideration.
Beginning in September, 1982, claimant was employed by a drug and alcohol treatment clinic as a resident assistant. He has a history of substance abuse but has been drug and alcohol free since early 1982. Employer's personnel rules provide that misuse or abuse of alcohol or other mind-altering substances may constitute grounds for suspension. Claimant signed a copy of those rules on his second day of employment. Employer contends it also was understood that, for recovering alcoholics and drug addicts, any use of drugs or alcohol was considered abuse. During the course of his employment, claimant was promoted twice, the last time to a counselor position in June, 1983.
Claimant is a member of the Native American Church and attends services weekly. At the hearing, he indicated that he first came in contact with the church through his job. He began attending regularly around March, 1983, approximately six months after he began working for employer. In September, 1983, as part of a Native American Church ceremony, claimant ingested a small amount of peyote, a cactus "button" containing the hallucinogen mescaline, which is illegal in Oregon. ORS 475.005. He took it for spiritual reasons, as a communion. There was testimony that the amount was too small to produce any hallucinogenic reaction. Before participating in the church ceremony, claimant consulted with friends and co-workers about the advisability of ingesting peyote, given his history of drug and alcohol abuse. Claimant testified that he was not required by the church to take peyote, but that it was a personal decision.
When employer learned of claimant's actions, he was asked to submit to an evaluation by a professional social worker, who recommended that claimant be placed in a residential care facility for an intensive program of personal counseling. Claimant refused to follow the recommendation because he disagreed with employer's opinion that his religious practices were a sign of relapse. Thereafter, he was terminated for intentional violation of employer rules.
Claimant's initial application for unemployment compensation was denied. Pursuant to his request, a hearing was held, and the referee allowed his application after concluding that claimant's use of peyote was an isolated instance of poor judgment. OAR 471-30-038(3). Employer requested review by EAB, which issued an order that denied benefits. The order provided:
(6) The claimant was aware of those employer rules.
Claimant argued before EAB, as he argues here, that his ingestion of peyote is a constitutionally protected religious act which cannot constitute the basis for disqualification. He presented evidence to support that argument. Nevertheless, EAB's "findings of fact" and "conclusions and reasons" are not sufficiently responsive to claimant's constitutional claims. The case must be remanded for reconsideration. See Wasson v. AFSD, 59 Or.App. 634, 640, 652 P.2d 358 (1982); Hillcrest Vineyard v. Bd. of Comm. Douglas Co., 45 Or.App. 285, 608 P.2d 201 (1980). We turn now to a discussion of the nature of EAB's inquiry on remand.
The question in this case is whether the denial of unemployment compensation benefits based on claimant's use of peyote in a Native American Church ceremony is an unconstitutional intrusion on his right to free exercise of religion.
The initial responsibility for answering the question falls on claimant. Because he invokes the protection of Article I, sections 2 and 3, of the Oregon Constitution, and the Free Exercise Clause of the First Amendment to the United States Constitution, 2 he must establish that the act in question is a religious expression and that it is being substantially burdened by state law or action. If he establishes that, then the responsibility for resolving the question shifts to the state, which can only justify a burden placed on the religious expression by demonstrating that it is the least restrictive means of achieving a compelling state interest. 3 Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963).
Thus, three separate and distinct issues emerge. Each must be addressed before the ultimate question in this case can be decided:
(1) Was claimant's ingestion of peyote a religious act?
(2) Was the denial of benefits a substantial burden?
(3) Has the state demonstrated that the denial of benefits serves a compelling state interest by the least restrictive means?
Because we are able to resolve the latter two issues on the record before us, without the necessity of remand, we will address them initially.
First, we hold that the denial of unemployment benefits constitutes a substantial burden. In Sherbert v. Verner, supra, a sabbatarian was discharged for refusing to work on Saturday. Her refusal eventually resulted in her disqualification from unemployment benefits. The Supreme Court reversed the denial, holding that there was a significant coercive effect on the practice of religion, because the claimant was forced to choose between state benefits on the one hand and following her religious beliefs on the other. "Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship." 374 U.S. at 404, 83 S.Ct. at 1794. In Thomas v. Review Bd., Ind. Empl. Sec. Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), the Sherbert rationale was reiterated. There, a Jehovah's Witness was denied benefits after quitting his job, because it required him to work in the production of military weapons, which would have violated his religious beliefs. Under these abundantly clear and controlling authorities, it is beyond dispute that to deny someone unemployment benefits for engaging in bona fide religious conduct places a substantial burden on the exercise of his rights.
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Employment Division, Department of Human Resources of Oregon v. Smith Employment Division, Department of Human Resources of Oregon v. Black
......The State Court of Appeals reversed. The State Supreme Court affirmed, reasoning that, although the benefits denials were proper under Oregon law, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965, and Thomas v. Review Bd., Indiana Employment Security Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624, required the court to hold that the denials significantly burdened respondents' religious freedom in violation of the Free Exercise Clause of the First Amendment to the Federal Constitution. In reaching that conclusion, the court attached no ......
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Dupont v. Employment Div.
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