Smith v. Employment Div., s. 84-AB-161
Citation | 763 P.2d 146,307 Or. 68 |
Decision Date | 18 October 1988 |
Docket Number | 84-AB-1217,Nos. 84-AB-161,s. 84-AB-161 |
Parties | , 50 Fair Empl.Prac.Cas. (BNA) 779, 48 Empl. Prac. Dec. P 38,406 Alfred L. SMITH, Respondent on Review, v. EMPLOYMENT DIVISION, W.E. Hunter, Assistant Director, DHR, Petitioner on Review, and Adapt, Respondent. Galen W. BLACK, Respondent on Review, v. EMPLOYMENT DIVISION, W.E. Hunter, Assistant Director, DHR, Petitioner on Review, and Adapt, Respondent. ; CA A31186, CA A33421, SC S32482, SC S32481, USSC 86-947, USSC 86-946. |
Court | Supreme Court of Oregon |
William F. Gary, Deputy Atty. Gen., Salem, argued the cause for petitioner on review. On the petitions for review were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Michael D. Reynolds and Jeff Bennett, Asst. Attys. Gen., Salem. On the petitions for reconsideration were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Michael D. Reynolds, Asst. Atty. Gen. On petitioner's supplemental briefs were Dave Frohnmayer, Atty. Gen., William Gary, Deputy Atty. Gen., and Virginia L. Linder, Sol. Gen.
Suanne Livendahl, Oregon Legal Services Corp., Roseburg, argued the cause and filed briefs for respondents on review.
David M. Gordon, Thorp, Dennett, Purdy, Golden & Jewett, P.C., Springfield, and Allen L. Johnson, Johnson & Kloos, Eugene, filed briefs amicus curiae on behalf of American Civil Liberties Union.
Before PETERSON, C.J., and LENT, * LINDE, CAMPBELL, CARSON and JONES, JJ.
These cases are before us on remand from the Supreme Court of the United States. Employment Div. v. Smith, 485 U.S. 660, 108 S.Ct. 1444, 99 L.Ed.2d 753 (1988). We had decided that the state could not, consistent with the First Amendment, deny unemployment compensation to petitioners, who had been discharged from employment for ingesting peyote in ceremonies of the Native American Church, of which they were members. Smith v. Employment Div., 301 Or. 209, 721 P.2d 445 (1986); Black v. Employment Div., 301 Or. 221, 721 P.2d 451 (1986).
In our earlier opinions, we observed that the record in each case established that peyote use was a sacrament in the Native American Church, that the respondents were members of the church and sincere adherents to this faith, and that their use was in the course of a church ceremony. We also stated that it was immaterial to Oregon's unemployment compensation law whether the use of peyote violated some other law.
Smith v. Employment Div., supra, 301 Or. at 218-19, 721 P.2d 445. The decisions of the United States Supreme Court on which we relied held that this financial interest did not suffice to override interests of unemployment compensation claimants in the free exercise of their religion. Thomas v. Review Board, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).
On certiorari, the United States Supreme Court remanded the decisions to this court for clarification of the legality of petitioners' use of peyote. Employment Div. v. Smith, supra. Alluding to Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878), a decision in which criminal proscription of bigamy was upheld against a Free Exercise challenge, the Court declared:
(Emphasis in original.)
485 U.S. at ----, 108 S.Ct. at 1451, 99 L.Ed.2d at 764. In sum, the Supreme Court held that a state's criminal law is relevant in that if a state has validly criminalized certain types of religiously motivated conduct, it may also deny unemployment benefits to persons discharged for engaging in that conduct. 485 U.S. at ----, 108 S.Ct. at 1450, 99 L.Ed.2d at 763. The Court noted that it was uncertain whether Oregon law proscribed the peyote use in question here and, if so, whether the law could constitutionally be applied to petitioners. 1 We conclude that the Oregon statute against possession of controlled substances, which include peyote, 2 makes no exception for the sacramental use of peyote, but that outright prohibition of good faith religious use of peyote by adult members of the Native American Church would violate the First Amendment directly and as interpreted by Congress. We therefore reaffirm our holding that the First Amendment entitles petitioners to unemployment compensation. 3
The long history of peyote as the sacred object of the Native American Church, entitling members to a First Amendment exemption from its prohibition, was reviewed by Justice Tobriner 24 years ago in People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964), quoted extensively in our earlier opinion in Black v. Employment Div., supra, 301 Or. at 225-227, 721 P.2d 451. The court concluded that peyote "plays a central role in the ceremony and practice of the Native American Church" and that its religious use was known in the 16th century. 61 Cal.2d at 721, 40 Cal.Rptr. at 73, 394 P.2d at 817. To prohibit the use of peyote "results in a virtual inhibition of the practice of defendants' religion." Id. at 722, 40 Cal.Rptr. 69, 394 P.2d 813. The experience of states that exempted bona fide religious use of peyote from the prohibition did not support any compelling state interest in suppressing it. Id. at 722, 40 Cal.Rptr. 69, 394 P.2d 813. The court therefore decided that this religious use was privileged under the First Amendment. See also In re Grady, 61 Cal.2d 887, 39 Cal.Rptr. 912, 394 P.2d 728 (1964).
Subsequent state and federal decisions have divided on protecting the religious use of peyote under the First Amendment. See Brown, Religion: The Psychedelic Perspective: The Freedom of Religion Defense, 11 Am Indian L Rev 125 (1983). 4 We do not now reexamine the background recited in People v. Woody, supra, nor the question on what kind of record such a claim should be examined in the future. The view of the Native American Church and its constitutionally privileged use of peyote that was expressed by the California Supreme Court in Woody was expressly endorsed by Congress.
In 1965, when Congress first brought peyote within the Drug Abuse Control Amendments of 1965, 79 Stat. 226 § 3(a), Congress made clear that it expected the implementing regulations to exempt the religious use of peyote. Representative Harris expressly referred to the holding in Woody "that prosecutions for the use of peyote in connection with religious ceremonies was a violation of the first amendment to the Constitution," and he gave the House the assurances of the Food and Drug Administration that the bill "cannot forbid bona fide religious use of peyote." 111 Cong Rec 15977 (1965). See Native American Church of New York v. United States, 468 F.Supp. 1247, 1249-50 (1979). Congressional approval of exempting the bona fide religious use of peyote in the Native American Church was reiterated in 1970. See Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193, 197 at n. 15 (5th Cir.1984).
Even more emphatically, in 1978, Congress by law made it "the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." 42 U.S.C. § 1996 (1982). The accompanying report of the House Committee on Interior and Insular Affairs stated, with respect to federal restriction of the use of peyote and other substances in Indian religions:
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