Quote:
Originally Posted by
DGUtley
I found this this discussion in an Ohio case, State v. Flesher
https://www.courtlistener.com/opinio...ate-v-flesher/:
The right to the free exercise of religion has two distinct constitutional factors: “There is freedom to believe, which is an absolute freedom. There is likewise, the freedom to act, which may be controlled * * *.”
Bacher v. North Ridgeville (1975), 47 Ohio App.2d 164, 168, 1 O.O.3d 255, 257, 352 N.E.2d 627, 630 (citing
United States v. Ballard [1944], 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148; Cantwell v. Connecticut [1940], 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213).
The court of appeals in
Bacher, supra, further stated:
“The freedom to act on behalf of one's religious beliefs does not free an individual from responsibility to conduct themselves obediently to laws, which are imperatively necessary to protect society as a whole from grave and pressing dangers to interests which the state may lawfully protect.
West Virginia Bd. of Ed. v. Barnette (1943), 319 U.S. 624 [63 S.Ct. 1178, 87 L.Ed. 1628]. Later case law, when applying a test to state action, now mandates that there be a compelling state interest to justify and warrant a curtailment in any way of first amendment rights.
Wisconsin v. Yoder (1972), 406 U.S. 205 [92 S.Ct. 1526, 32 L.Ed.2d 15]; Shapiro v. Thompson (1969), 394 U.S. 618 [89 S.Ct. 1322, 22 L.Ed.2d 600]; Sherbert v. Verner (1963), 374 U.S. 398 [83 S.Ct. 1790, 10 L.Ed.2d 965].”
Bacher, supra, 47 Ohio App.2d at 168, 1 O.O.3d at 257, 352 N.E.2d at 630.
The appellant analogized his circumstances to that of the native Americans in
People v. Woody (1964), 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813. However, even the requirement of establishing a compelling state interest has been swept away by the most recent United States Supreme **903 Court decision in
Employment Div., Dept. of Human Resources of Oregon v. Smith (1990), 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876.
In
Smith, which was factually similar to
Woody, the Supreme Court found that a criminal prohibition against the use of peyote, a hallucinogenic drug, is not unconstitutional even under the First Amendment Free Exercise Clause. It went even further and eliminated the need for the compelling state interest test when the law or statute at issue is determined to be a neutral, generally applicable law, and is not specifically directed to religious practice, and is otherwise constitutionally sound.
Thus, for better or for worse, the United States Supreme Court has signaled a new parameter in the government's ability to curtail religious practice without first demanding that the state set forth and prove that it has a compelling interest which supersedes the individual's right to exercise his religious freedom.
The
Smith case therefore reduces appellant's arguments to a puff of smoke.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE. This Act may be cited as the "American Indian Religious Freedom Act Amendments of 1994". SECTION 2. TRADITIONAL INDIAN RELIGIOUS USE OF THE PEYOTE SACRAMENT. The Act of August 11, 1978 (42 U.S.C. 1996), commonly referred to as the "American Indian Religious Freedom Act", is amended by adding at the end thereof the following new section:
SECTION 3.
(a) The Congress finds and declares that –
(1) for many Indian people, the traditional ceremonial use of the peyote cactus as a religious sacrament has for centuries been integral to a way of life, and significant in perpetuating Indian tribes and cultures;
(2) since 1965, this ceremonial use of peyote by Indians has been protected by Federal regulation;
(3) while at least 28 States have enacted laws which are similar to, or are in conformance with, the Federal regulation which protects the ceremonial use of peyote by Indian religious practitioners, many States have not done so, and this lack of uniformity has created hardship for Indian people who participate in such religious ceremonies;
(4) the Supreme Court of the United States, in the case of Employment Division v. Smith, 494 U.S. 872 (1990), held that the First Amendment does not protect Indian practitioners who use peyote in Indian religious ceremonies, and also raised uncertainty whether this religious practice would be protected under the compelling of the State interest standard and
(5) the lack of adequate and clear legal protection for the religious use of peyote by Indians may serve to stigmatize and marginalize Indian tribes and cultures, and increase the risk that they will be exposed to discriminatory treatment in violation of the religious guarantees of the First Amendment of the Constitution.
(b)(1) Notwithstanding any other provision of the law, the use, possession, or transportation of peyote by an Indian who uses peyote in a traditional manner for bona fide ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or by any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.
(2) This section does not prohibit such reasonable regulation and registration of those persons who cultivate, harvest, or distribute peyote as may be consistent with the purposes of this Act.
(3) This section does not prohibit application of the provisions of section 481.111(a) of Vernon's Texas Health and Safety Code Annotated, in effect on the date of enactment of this section, insofar as those provisions pertain to the cultivation, harvest, and distribution of peyote.
(4) Nothing in this section shall prohibit any Federal department or agency, in carrying out its statutory responsibilities and functions, from promulgating regulations establishing reasonable limitations on the use or ingestion of peyote prior to or during the performance of duties by sworn law enforcement officers or personnel directly involved in public transportation or any other safety-sensitive positions where the performance of such duties may be adversely affected by such use or ingestion. Such regulations shall be adopted only after consultation with representatives of traditional Indian religions for which the sacramental use of peyote is integral to their practice. Any regulation promulgated pursuant to this section shall be subject to the balancing test set forth in section 3 of the Religious Freedom Restoration Act (Public Law 103-141; 42 U.S.C. 2000bb-1).
(5) This section shall not be construed as requiring prison authorities to permit, nor shall it be construed to prohibit prison authorities from permitting, access to peyote by Indians while incarcerated within Federal or State prison facilities.
(6) Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103-141; 42 U.S.C. 2000bb-1), this section shall not be construed to prohibit States from enacting or enforcing reasonable traffic safety laws or regulations.
(7) Subject to the provisions of the Religious Freedom Restoration Act (Public Law 103-141; 42 USC 2000bb-1), this section does not prohibit the Secretary of Defense from promulgating regulations establishing reasonable limitations on the use, possession, transportation, or distribution of peyote to promote military readiness, safety, or compliance with international law or laws of other countries. Such regulations shall be adopted only after consultation with representatives of traditional Indian religions for which the sacramental use of peyote is integral to their practice.
(c) For purposes of this section –
(1) the term 'Indian' means a member of an Indian tribe;
(2) the term 'Indian tribe' means any tribe, band, nation, pueblo, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (43 U.S.S. 1601 et seq.)), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians;
(3) the term 'Indian religion' means any religion –
(A) which is practiced by Indians, and
(B) the origin and interpretation of which is from within a traditional Indian culture or community; and
(4) the term 'State' means any State of the United States, and any political subdivision thereof.
(d) Nothing in this section shall be construed as abrogating, diminishing, or otherwise affecting –
(A) the inherent rights of any Indian tribe;
(B) the rights, express or implicit, of any Indian tribe which exist under treaties, executive orders, and laws of the United States;
(C) the inherent right of the Indians to practice their religions under any Federal or State law..
