Exordium
Far from the polished marble floors and stagnant elevators of American courtrooms, remote from 100-channel televisions and agitprop images of frying eggs, indeed, long before the inception of the nation state and its inescapable machinery for generating consensus and managing conformity, some human somewhere ate of an (as of yet) unforbidden fruit, perhaps a mushroom, and was hyperswept headlong into the mysterium tremendum. Scripture and dogma came later. Sin, confession and repentance, crusades, blasphemy and heresy, all came later. Priests, politicians and police, a flash later in time.
But, this story begins on November 6, 1989, the day that Al Smith, a “full-blooded” Klamath Indian, turned seventy years old. He spent the day at the United States Supreme Court listening to the nine justices debate the future of his religion.
Al Smith’s true name was taken from him at an early age by federal Indian Agents. He does not remember his “Indian name.” To better serve the US government’s needs, he was assigned the nondescript name “Albert Smith.” Like his true name, his tribe — the Klamath — was also lost in history. The US Congress literally “terminated” the Klamath tribe in 1954 in an effort to assimilate Indians into the mainstream of American culture.1 As he sat before the Justices on the morning of his birthday, Al Smith worried that like his name and his tribe, his religion was next on the chopping block.
Al Smith was before the US Supreme Court because his church was a tipi, and his sacrament was a vision-eliciting cactus called peyote. Under the laws of the state of Oregon, peyote was a dangerous illegal drug in the same class as heroin. Ingesting it was a serious crime, and under Oregon law there was no exception for religious use. As a result, Al Smith had been fired from his job after admitting that he’d ingested peyote in a Native American Church religious ceremony. When he applied for unemployment benefits, the state of Oregon refused to pay citing a state law that denied benefits to any employee discharged for work-related “misconduct.” Smith sued. After a long and winding path through the courts, Smith’s case had reached the United States Supreme Court.
Al Smith hoped that the highest court in the nation — a nation founded on the principle of religious freedom — would protect the right of Native Americans to practice their peyote religion. He was aware that even during Alcohol prohibition in the late 1920s and early 1930s, the use of alcohol in religious services was permitted. Surely, the Free Exercise Clause would provide the same protection to generations of Native Americans who used a far more obscure sacrament.
Al Smith learned of the Supreme Court’s ruling on the morning of April 17, 1990. He lost.
Justice Scalia wrote the opinion for the Court’s (5–4) majority. Oregon’s peyote prohibition, he wrote was a perfectly valid exercise of the state’s power to protect the health and welfare of its citizens from dangerous drugs. Scalia acknowledged that one effect of Oregon’s peyote prohibition was to criminalize the religious use of peyote by Al Smith and other Native Americans, but this, wrote Scalia, did not offend the Free Exercise Clause. Simply put, so long as Oregon’s lawmakers did not enact the state’s general peyote prohibition for the purpose of outlawing religious use of the cacti, the Free Exercise Clause was not implicated. A law’s indirect, or unintentional injuries to a religious practice — even if tantamount to a deathblow — did not raise any First Amendment free exercise issues, wrote Justice Scalia. According to Scalia, any protection for the religious use of peyote would have to come from the legislature — by lobbying for a statutory protection — not in the courts.
For Americans who cherished religious freedom the ruling in Smith was truly stunning. Four of the Justices, in a separate opinion authored by Justice O’Connor cautioned, “today’s holding dramatically departs from well-settled First Amendment jurisprudence…and is incompatible with our Nation’s fundamental commitment to individual religious liberty.”2 The Free Exercise Clause had long been viewed as the primary constitutional protection for minority religions, a firm guarantee that religious freedom was not to be left to the fiat of legislators or majority rule. Justice Jackson, writing for the majority in West Virginia State Bd. of Ed. v. Barnette explained:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.3
The decision in Smith completely voided this understanding of the free exercise guarantee.
As word of the ruling spread, it sent shockwaves rippling through the constitutional law community and into nearly ever corner of society. Constitutional law professors vigorously decried the decision, describing it as “the near total loss of any substantive constitutional right to practice religion,”4 as “a low point in modern constitutional protection under the Free Exercise Clause,”5 and one that “exhibits only a shallow understanding of free exercise jurisprudence and [with a] use of precedent [that] borders on fiction.”6
On April 17, 1990, the day of the Smith decision, I was in the final two months of law school at the University of California, Berkeley (Boalt Hall). To me, the ruling was as earthshaking as the 7.1 earthquake that hit the Bay Area less than a year earlier. The constitutional principles that I had studied for the preceding three years, and which I was soon to take an oath to protect, had literally, in a single ruling, been blown to bits. If freedom of religion could be so utterly abandoned and emptied of meaning, just what fundamental rights could we count on?
How could it be, I asked myself, that a country founded on the principle of religious freedom was so utterly unwilling to accommodate the religious practices of a peaceful person like Al Smith? What was it about the Smith case that made the US Supreme Court take the extraordinary leap of slamming the door on the entire Free Exercise Clause? Was the Free Exercise Clause really second fiddle to a transitory “war on drugs” frenzy?
Today, Smith remains “[u]ndoubtedly the most important development in the law of religious freedom in decades.”7 Unlike other scholars who have worked to understand Smith primarily by examining its internal reasoning and the way the justices employed or evaded landmark free exercise precedent and longstanding principles, my analysis situates Smith in a specific lineage of cases, and views the decision as a sad, but inevitable, result of the ‘war on drugs’ blown so large and gone so wild that it even eclipses what is arguably the most important and fundamental right guaranteed by the Constitution, the right to freely practice one’s religion. The Smith decision was like the clash of two socially constructed tectonic plates: “drugs” and “religion.” The result of this collision completely reshaped the landscape of free exercise jurisprudence, and sent fissures into other areas of law, politics, and society. A careful examination of the drugs + religion legal topography is called for.
My effort in this book is a focused one, to map the fault line created when drugs and religion clash in the courtroom. The Smith case was not the first time that our legal system was called upon to navigate the relationship between drugs and religion, nor is this an issue that is likely to ever go away. Indeed, just the opposite is true. As discoveries in the neurosciences continue to unveil the brain’s mysteries, scientists in the new field of “neurotheology” are specifically working to isolate the neural correlates of religious experiences. While I doubt that scientists will ever succeed in completely reducing religion or spirituality to particular electrochemical brain states, scientific understandings of the relationship between the brain and religious experiences will undoubtedly continue to accumulate. What will “freedom of religion” look like if (or more likely, when) neuropharmacology brings forth new drugs that safely and reliably trigger what some people sincerely claim are “authentic religious” insights, understandings, or inner experiences?
Over the next several decades, as discoveries in neuroscience and pharmacology continue to trend upward, courts will be called upon to decide some very fundamental issues about some very fundamental rights. Indeed, the Supreme Court’s decision in Smith, raises the previously unthinkable question of whether “freedom of religion,” is even sustainable in an age of neuroscience. I do not hope to answer this complex question in this book. Rather, my aim here is to begin the examination of this issue at one logical beginning and to survey, observe, and hopefully better understand, the forces released when religion and drugs are mixed together in the athenor of the American courtroom.
A few bookkeeping notes before beginning. First, with a few exceptions, larger social or cultural happenings with respect to the various drugs discussed herein will be seen only indirectly, as reflected in the legal cases and legislation that are this book’s archive. Likewise, the scientific, ethnobotantical and pharmacological aspects of psychotropic substances will be covered only within this case law framework. I acknowledge that such a magnifier approach does add a certain amount of distortion to the examination of these drugs and of free exercise jurisprudence on a system’s level. A close look at anything has the inherent limitation that the surrounding scenery is observed in less detail.8 Nevertheless, as I hope to show, spotlighting the religious drug cases is fruitful for an understanding of some important past, present and future, social issues, including the so-called “war on drugs,” the meaning(s) of “religion,” and the power contours and structural limits of our legal system.
Second, while this is a book on “the law,” I have written it with a multi-disciplinary audience in mind, including anthropologists, ethnobotanists, and other readers without legal training. Consequently, one of my aims has been to avoid “legalese” as much as possible. In some places these linguistic work-arounds will be tiresome to legally trained readers. I apologize to those readers in advance.
As a final preliminary matter I should explain that the manuscript for this book has been through a number of forms, and was written over a ten-year period during which many of my thoughts about the subject matter changed and changed again. It began as a chronological survey of every reported court case in which a person raised a religious defense to drug charges. After completing that survey, however, it was evident that a number of common threads were woven in and out of the chronology. In an effort to reduce some of the redundancy inherent in the survey structure, and in order to better address some of these reoccurring themes, I switched to a hybridized organization where the chronological structure is deviated from in order to underscore common themes. As I hope will become evident, a number of re-occurring themes do exist in these cases. At the same time, however, these themes usually contain variations that make it impossible to formulate any general theory of how courts decide religious drug claims. Indeed, the pliable nature of the jurisprudence of these cases is one of their prominent characteristics.9
Notes
1 CAROLYN LONG, RELIGIOUS FREEDOM AND INDIAN RIGHTS 22 (University Press of Kansas 2000).
2 Smith, 494 U.S. at 891. (Concurring opinion of Justice O’Connor, joined by J. Brennan, J. Marshall, and J. Blackmun.)
3 West Virginia State Bd. of Ed. v. Barnette (1943) 319 U.S. 624, 638.
4 Douglas Laycock, “Summary and Synthesis: The Crisis in Religious Liberty,” 60 Geo. Wash. L. Rev. 841, 848 (1992).
5 Steven D. Smith, “The Rise and Fall of Religious Freedom in Constitutional Discourse,” 140 U. Pa. L. Rev. 149, 232 (1991).
6 William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. Chi. L. Rev. 308, 308–09 (1991).
7 Michael McConnel, Professor of Law and the University of Chicago, quoted in CAROLYN LONG, RELIGIOUS FREEDOM AND INDIAN RIGHTS 198 (University Press of Kansas 2000).
8 Fortunately, the larger landscape of free exercise jurisprudence in general (like drugs in general) has been the subject of countless scholars. What is needed, therefore, is an in depth examination of one of the fault-lines in that landscape, where discrete concepts and principles clash. The psychotropic-drug-religious-defense cases provide just such a tectonic locus.
9In a surprising admission during oral argument before the United States Supreme Court, Oregon’s Attorney General called the federal sacramental drug cases, “shamelessly result-driven.” Noting that they routinely involve “religious gerrymandering from which no consistent neutral principle emerges.” (Reporter’s Transcript (p. 24) of oral argument before the U.S. Supreme Court held Monday, November 6, 1989 in Smith II, infra.)
