People v. Woody (1964)
On the evening of April 28, 1962, a group of Navajo members of the Native American Church of California gathered in the desert near Needles, California. They were there to hold a peyote ceremony.
Unbeknownst to the attendees, they were being watched by a group of police officers. In the middle of the ceremony, the officers burst into the hogan in which the ceremony was taking place. The officers identified themselves as police officers and announced that they were enforcing California’s law outlawing the possession of peyote.1
When the dust settled, one of the Indians handed the officers a framed copy of the Native American Church’s articles of incorporation that was displayed in the hogan. The articles declared:
…we as a people place explicit faith and hope and belief in the Almighty God and declare full, competent, and everlasting faith in our Church things which and by which we worship God. That we further pledge ourselves to work for unity with the sacramental use of peyote and its religious use.
Unmoved by the papers or the obvious religious nature of the invaded ceremony, the officers arrested the Indians and confiscated their peyote.
In San Bernardino County Superior Court, the Indians were charged and convicted of unlawfully possessing peyote. The Indians appealed and their case eventually reached the California Supreme Court.
In a landmark case that would turn out to be one of the rare victories for entheogen users, the California Supreme Court reversed the Indians’ convictions. The right to freely exercise one’s religion was, said the court, unconstitutionally violated by making the Indian’s criminals for ingesting peyote in a religious ceremony. The Court’s opinion in Woody became one of the most cited and often-quoted judicial opinions on the subject of religious peyote use.2
The California Supreme Court began its analysis by invoking a balancing test enunciated by the United States Supreme Court only one year earlier in the landmark case of Sherbert v. Verner.3 While not an entheogen case, Sherbert is a central case in entheogen jurisprudence because it established the “strict scrutiny” analysis applicable (until the 1990 Smith decision) in free exercise cases. A brief discussion of the Sherbert case is therefore warranted.
In Sherbert, a Seventh-day Adventist was fired for refusing to work on Saturday, the day recognized by Seventh-day Adventists as the Sabbath. She began looking for another job, but because she would not work on Saturday prospective employers were not interested in hiring her. Unable to secure employment that did not conflict with her religious obligations, she applied for state unemployment benefits, but was deemed ineligible because she would not accept work if it required her to work on Saturdays.
The South Carolina Supreme Court upheld the denial of her benefits. The woman appealed to the United States Supreme Court claiming that denying her unemployment benefits because she would not work on her Sabbath abridged her First Amendment right to freely practice her religion.
The U.S. Supreme Court began its analysis by noting the distinction between religious belief and religious conduct; a critical distinction first enunciated by the Supreme Court in its landmark Reynolds decision of 1878.4 In Reynolds, the United States Supreme Court held that Mormons were not entitled to a religious exemption from laws prohibiting multiple concurrent marriages. The Supreme Court acknowledged that, for Mormons, the doctrine of polygamy was of divine origin and imposed upon male members the duty of multiple marriages upon pain of eternal damnation. But the Court then made a distinction between religious belief and religious conduct. While a person’s religious beliefs were entitled to absolute protection under the First Amendment, the Court held that religiously motivated conduct could be constrained by law, and in some circumstances even wholly prohibited without violating the Free Exercise Clause.5
The belief/conduct distinction made in Reynolds sounded one of the earliest significant demarcations in free exercise jurisprudence, and its reverberations would be felt in every entheogen case to follow. Under the Reynolds distinction, a person is absolutely free to entertain any religious belief imaginable, and the government is prevented from interfering with that belief. But, as soon as a person is moved to actively practice or otherwise act upon his or her religious beliefs, absolute protection ends. Religious actions may still receive some constitutional protection, but not absolute protection. As one scholar has aptly summarized: “[f]or the Court, protection of belief under the Free Exercise Clause is only protection against mind control, or to state the proposition in positive terms, protection of belief preserves the individual’s private, isolated, interior spiritual life, but no more (Hamilton 1993).”
The belief/conduct distinction, in other words, puts narrow boundaries on “free exercise” out of a fear that absolute protection for religious actions could lead to total anarchy:
To permit [a people to justify unlawful activity on the basis of their religious belief] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.6
In Sherbert, the Supreme Court took the belief/conduct distinction made in Reynolds and developed the conduct side of that bifurcation. Religious belief was to be afforded absolute protection, and hence, any law limiting religious belief would be automatically struck down as unconstitutional. But, a law burdening religious conduct was neither automatically unconstitutional nor automatically constitutional. A law that burdens religious conduct, held the Sherbert Court, must be “strictly scrutinized” to determine whether it was supported by a “compelling governmental interest,” and, if so, whether the government’s interest was indeed compelling enough to justify the law’s negative impact on a person’s religious practice.
In application, the “strict scrutiny” analysis enunciated in Sherbert is a two-pronged test. Pursuant to the first prong, a religious practitioner has the burden of proving that a particular law (or other government action) has a “substantial impact” on his or her religious practice. If the person succeeds in this showing, the burden of proof then shifts to the government, which, under the second prong of the test, must show that the burden on the person’s religion is an unavoidable consequence of a law that furthers a compelling governmental interest.
Applying the two-pronged strict scrutiny test to the facts before it in Sherbert, the Supreme Court concluded that South Carolina’s law (requiring that a worker be available to work on every day of the week in order to qualify for unemployment benefits) failed the test. First, the Court found that the requirement did indeed substantially burden the practice of Seventh-day Adventism.7 This triggered the second prong of the strict scrutiny test; thereby shifting the burden on South Carolina to prove that the law’s impact on religious practice was justified by a compelling state interest. Here, South Carolina failed.
Examining South Carolina’s seven-day-availability requirement, the Supreme Court was at a loss to see how the requirement supported a compelling governmental interest, noting that South Carolina “suggest[ed] no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work.”8 The Court further explained “even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon [South Carolina] to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.”9 Consequently, the Court concluded that the state’s seven-day-availability requirement failed the strict scrutiny test, and ordered the state to exempt the woman from that requirement and to pay her unemployment benefits.
Returning now to the peyote case before the California Supreme Court in Woody (the case under discussion before this necessary digression), the court applied the two-pronged strict scrutiny test mandated by the US Supreme Court in Sherbert. It began by examining whether California’s prohibition against possessing peyote burdened the religious practice of Native American Church members.
The court commenced its analysis by making some “findings of fact” with respect to the peyote cactus itself and the psychoactive effects it can elicit when eaten:
The plant Lophophora williamsii, a small spineless cactus, found in the Rio Grande valley of Texas and Northern Mexico, produces peyote, which grows in small buttons on the top of the cactus. Peyote’s principal constituent is mescaline. When taken internally by chewing the buttons or drinking a derivative tea, peyote produces several types of hallucinations, depending primarily upon the user. In most subjects it causes extraordinary vision marked by bright and kaleidoscopic colors, geometric patters, or scenes involving humans or animals. In others it engenders hallucinatory symptoms similar to those produced in cases of schizophrenia, dementia praecox, or paranoia. Beyond its hallucinatory effect, peyote renders for most users a heightened sense of comprehension; it fosters a feeling of friendliness toward other persons.10
The court acknowledged that peyote had been used in religious ceremonies for centuries predating the California law that outlawed its possession:
Peyotism discloses a long history. A reference to the religious use of peyote in Mexico appears in Spanish historical sources as early as 1560. Peyotism spread from Mexico to the United States and Canada; American anthropologists describe it as well established in this country during the latter part of the nineteenth century. Today Indians of many tribes practice Peyotism. Despite the absence of recorded dogma, the several tribes follow surprisingly similar ritual and theology; the practices of Navajo members in Arizona practically parallel those of adherents in California, Montana, Oklahoma, Wisconsin, and Saskatchewan.11
The California Supreme Court then explained, in considerable detail, the inner workings of a Native American Church ceremony during which peyote is ingested by the participants:
The “meeting,” a ceremony marked by the sacramental use of peyote, composes the cornerstone of the peyote religion. The meeting convenes in an enclosure and continues from sundown Saturday to sunrise Sunday. To give thanks to the past good fortune or guidance for future conduct, a member will “sponsor” a meeting and supply to those who attend both the peyote and the next morning’s breakfast. The “sponsor,” usually but not always the “leader,” takes charge of the meeting; he decides the order of events and the amount of peyote to be consumed. Although the individual leader exercises an absolute control of the meeting, anthropologists report a striking uniformity of its ritual.
A meeting connotes a solemn and special occasion. Whole families attend together, although children and young women participate only by their presence. Adherents don their finest clothing, usually suits for men and fancy dresses for the women, but sometimes ceremonial Indian costumes. At the meeting the members pray, sing, and make ritual use of drum, fan, eagle bone whistle, rattle and prayer cigarette, the symbolic emblems of their faith. The central event, of course, consists of the use of peyote in quantities sufficient to produce an hallucinatory state.
At an early but fixed stage in the ritual the members pass around a ceremonial bag of peyote buttons. Each adult may take four, the customary number, or take none. The participants chew the buttons, usually with some difficulty because of extreme bitterness; later, at a set time in the ceremony any member may ask for more peyote; occasionally a member may take as many as four buttons. At sunrise on Sunday the ritual ends; after a brief outdoor prayer, the host and his family serve breakfast. Then the members depart. By morning the effects of the peyote disappear; the users suffer no aftereffects.12
Recognizing that in other religions the sacrament is often conceived of as merely a sign or symbol of a spiritual reality, the court noted that for members of the Native American Church, peyote is far more than a symbolic sacrament:
Although peyote serves as a sacramental symbol similar to bread and wine in certain Christian churches, it is more than a sacrament. Peyote constitutes in itself an object of worship; prayers are directed to it much as prayers are devoted to the Holy Ghost. On the other hand, to use peyote for nonreligious purposes is sacrilegious. Members of the church regard peyote also as a “teacher” because it induces a feeling of brotherhood with other members; indeed, it enables the participant to experience the Deity. Finally, devotees treat peyote as a “protector.” Much as a Catholic carries his medallion, an Indian G.I. often wears around his neck a beautifully beaded pouch containing one large peyote button.13
Continuing along these lines, the court then made a comment the echo of which would resound throughout entheogen jurisprudence. Distinguishing the Reynolds case, the California Supreme Court pointed out that although polygamy was a tenet in the theology of Mormonism, it was “not essential to the practice of the [Mormon] religion.” In contrast, the use of peyote was “the sine qua non of defendants’ faith. It is the sole means by which defendants are able to experience their religion; without peyote defendants cannot practice their faith.”14 Peyote prohibition laws, in the eyes of the California Supreme Court, worked a far greater burden on the religious practice of Native American Church members, than the burden suffered by Mormons under anti-polygamy laws.
Having made these findings, the California Supreme Court held that applying California’s peyote prohibition to members of the Native American Church would remove the “theological heart” of their religion. The State’s prohibition against any possession of peyote, held the court, clearly burdened the Indians’ religious practice, and thus they had satisfied the first prong of the strict scrutiny test.
Turning to the second prong of the test, the court invited the State of California to prove that its no-exceptions peyote prohibition advanced a governmental interest sufficiently important enough to justify the tremendous burden the law placed on members of the NAC.
The California Attorney General argued that a number of compelling interests necessitated unqualified enforcement of the prohibition on any and all peyote use. For one, the Attorney General asserted that a total prohibition on all use of peyote was necessary in order to prevent peyote’s “deleterious effects upon Indians” especially Indian children. The Attorney General also raised “gateway drug” concerns, stating that the religious use of peyote even by adult Indians might lead some of them “to use some other more harmful drug.” Lastly, California’s Attorney General argued that granting an exception for members of NAC was impossible, as a practical matter, because of the immense difficulty of detecting fraudulent claims of asserted religious use.
The California Supreme Court rejected each of the Attorney General’s arguments, finding that they were baseless assertions lacking supporting evidence. First, the court found that evidence admitted during the trial showed that the NAC does not permit Indian children to ingest peyote even for religious purposes. This addressed the Attorney General’s vague concern about negative effects of peyote on children. Second, the court found that the California Attorney General presented no “evidence to suggest that Indians who use peyote are more liable to become addicted to other narcotics than non-peyote-using Indians.”15 In fact, said the court, the opinion of scientists and other experts was just the opposite: “that peyote works no permanent deleterious injury to the Indian.”16
Grasping at straws, the Attorney General then arrogantly asserted that “peyote could be regarded as a symbol, one that obstructs enlightenment and shackles the Indian to primitive conditions.” The California Supreme Court, however, sharply ridiculed this contention, commenting “[w]e know of no doctrine that the state, in its asserted omniscience, would undertake to deny to defendants the observance of their religion in order to free them from the suppositious “shackles” of their “unenlightened” and “primitive condition.”17
Lastly, the court addressed the Attorney General’s slippery slope argument that granting a religious exemption would effectively make California’s anti-peyote law unenforceable because recreational peyote users would fraudulently invoke the exemption in an effort to shield their non-religious use of peyote. As note earlier, most logicians categorize the slippery slope argument as a fallacy, an argument type that is deceptive and false.18 As explained by one logician, slippery slope arguments are characterized by the following hallmarks:
..the proponent is using a repeatable sequence to warn the respondent that if he takes a first step, this sequence of subsequent steps will be embarked upon by the respondent in such a way that there will be no turning back until the horrible outcome occurs. The analogy to illustrate this characteristic is between a staircase and a slide. At any point part way down the staircase, you can stop and go back up the stairs again if you chose. On a slide, however, once you have taken that first step where your motion forward starts, there is no turning back.19
The slippery slope argument is common in religious free-exercise cases, and endemic in entheogen cases. As noted earlier, it was expressed in the very first entheogen case, Big Sheep, and we will encounter it again and again in the cases to follow, including the Smith case.20 As we will see, the fear of creating an unmanageable religious exemption to drug prohibition laws is a chord sounded by many of the courts that have decided entheogen cases. Indeed, as pointed out by one free exercise scholar, a slippery slope fear lurks in the shadows of every free exercise claim:
Behind every free exercise claim is a spectral march; grant this one, a voice whispers to each judge, and you will be confronted with an endless chain of exemption demands from religious deviants of every stripe.21
Returning to the analysis in the Woody case, the California Supreme Court rejected the Attorney General’s slippery slope argument, stating that it would not let the Free Exercise Clause take second place to vague and speculative fears. The court noted that a similar argument was considered and rejected by the United States Supreme Court in the Sherbert case because the government failed to present evidence in support of its worries.22 The California Supreme Court explained that the California Attorney General “produced no evidence that spurious claims of religious immunity would in fact preclude effective administration of the law, or that other “forms of regulation” would not accomplish the state’s objectives.23 The Court bolstered this point by noting that New Mexico, Montana, and Arizona, all exempted religious use of peyote from their general peyote prohibition laws without otherwise impairing enforcement of the general prohibition in those states.24 Consequently, the California Supreme Court properly dismissed the Attorney General’s slippery slope argument as an “untested assertion.”25
Continuing, the court observed that, even if fraud were a concern, courts are well-equipped to weed out fraudulent claims from sincere ones. The finder of fact (i.e., the judge in a court trial, or the jury in a jury trial), explained the court, need simply determine “whether the claimant holds his belief honestly and in good faith or whether he seeks to wear the mantle of religious immunity merely as a cloak for illegal activities.”26 Such a determination, said the California Supreme Court, is well within the capability of judges and jurors, remarking, “[w]e do not doubt the capacity of judge and jury to distinguish between those who would feign faith in an esoteric religion and those who would honestly follow it.”27 At bottom, explained the court, “the problems of enforcement here do not inherently differ from those of other situations which call for the detection of fraud.”28 In a passing comment, the court reminded California’s Attorney General that no significant fraud arose when Congress, in the National Prohibition Act outlawed alcoholic beverages while exempting the sacramental use of wine.29
Lastly, the California Supreme Court distinguished the State’s peyote prohibition from the polygamy prohibition upheld by the U.S. Supreme Court in Reynolds.30 The California Supreme Court noted that the Reynolds Court had seen in polygamy “the seed of destruction of a democratic society,” and classed polygamy with such outlawed religious rites as human sacrifices and funereal immolation of widows.31 In the opinion of the California Supreme Court, the potential social damage flowing from the religious use of peyote was insignificant relative to the social damage that might occur were polygamy permitted as a protected religious practice.
Recapitulating its analysis, the court concluded that California had failed to meet its burden of proof:
We have weighed the competing values represented in this case on the symbolic scale of constitutionality. On the one side we have placed the weight of freedom of religion as protected by the First Amendment; on the other, the weight of the state’s “compelling interest.” Since the use of peyote incorporates the essence of the religious expression, the first weight is heavy. Yet the use of peyote presents only slight danger to the state and to the enforcement of its laws; the second weight is relatively light. The scale tips in favor of the constitutional protection.32
The California Supreme Court concluded its opinion with an eloquent recitation of the importance of stridently protecting religious freedom in modern society:
…the right to free religious expression embodies a precious heritage of our history. In a mass society, which presses at every point toward conformity, the protection of a self-expression, however unique, of the individual and the group becomes ever more important. The varying currents of the subcultures that flow into the mainstream of our national life give it depth and beauty. We preserve a greater value than an ancient tradition when we protect the rights of Indians who honestly practiced an old religion in using peyote one night at a meeting in a desert hogan near Needles, California.33
Consequently, the court reversed the Indians’ criminal convictions and, in so doing, established California as the nation’s first state with a free-exercise protection for the religious use of peyote.
Notes
1 At that time, and continuing today (2005), it was a criminal offense to possess peyote in California for any reason. There was no statutory exemption for religious use, and in fact, to this day (2005) California statutory law contains no religious exemption.
2People v. Woody (Cal. 1964) 40 Cal.Rptr. 69, 394 P.2d 813.
3Sherbert v. Verner (1963) 374 U.S. 398 [83 S.Ct. 1790, 10 L.Ed.2d 965].
4Reynolds v. United States (1878) 98 U.S. 145.
5Id. at pp. 163–164. Numerous scholars have examined and critiqued the Court’s distinction between religious belief and religious conduct. Professor Michael McConnell, for example, has analyzed the historical underpinnings of Reynolds’ belief/conduct distinction, finding only weak historical support for the doctrine (McConnell 1990a).
6Reynolds, supra, 98 U.S. at p. 167.
7Seventh-day Adventists are chiefly distinguished from other Adventists by their belief that Saturday is the seventh day of the week and, therefore, the “Sabbath” named in the Ten Commandments as the day of rest and worship.
8 Sherbert, 374 US at 407.
9 Ibid.
10Woody, supra, 40 Cal.Rptr. at pp. 72–73.
11Id. at p. 73.
12Ibid.
13Id. at pp. 73–74.
14Ibid.
15Id. at p. 74.
16Ibid.
17Ibid.
18 Conventional logic texts instruct students on how to recognize the slippery slope argument and teach that arguments employing the mechanism should be rejected as invalid (Hamblin 1970). While not all slippery slope arguments should be flatly rejected as fallacious (see Walton 1992), they must, at a minimum, be carefully scrutinized to make sure they are not unfairly exploiting vagueness.
19 Walton 1995.
20 One account of the history of the Smith peyote case reports that Dave Frohnmayer, the Oregon Attorney General who argued the Smith case before the United States Supreme Court ate breakfast the morning of the argument “repeating like a legal mantra, Drugs are bad, drugs are bad. Slippery slope, slippery slope.” (Garret Epps, To an Unknown God: Religious Freedom on Trial (St. Martin’s Press, New York 2001) p. 3.)
21Lupu 1989.
22In Sherbert, South Carolina argued that granting Seventh-day Adventists an exemption from the seven-day-availability rule would countenance “the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work.” The argument was rejected by the United States Supreme Court because the state failed to present any evidence that such fraudulent behavior was anything more than speculative.
23Ibid.
24Ibid. See Appendix A for statutory exemptions protecting religious peyote use.
25Id. at p. 75.
26Id. at p. 77.
27Ibid.
28Ibid.
29From 1920 to 1933, federal law made it a crime to “manufacture, sell, barter, transport, import, export, deliver, furnish or posses any intoxicating liquor except…wine for sacramental purposes” (Title II, section 3, of the National Prohibition Act (Volstead Act) (1919) 41 Stat. 308–309, 27 U.S.C. sec. 12 (1927) (emphasis added), repealed by Liquor Law Repeal and Enforcement Act, Ch. 740, Title I, sec. 1, 49 Stat. 872 (1935).)
30See Reynolds, supra, note
31Woody, supra, 40 Cal. Rptr at p. 76.
32Id. at p. 77.
33Id. at pp. 77–78.
