"Congress shall make no law prohibiting the Free Exercise of Religion...."
The Freedom of Religion Restoration Act of 1993, or RFRA—a landmark enactment designed to insure the future of religious liberty in the United States—was signed into law by President Bill Clinton on November 16. The act was supported by a broad coalition of over 50 organizations including Catholic, Jewish and Mormon groups, as well as the ACLU, and easily passed in both the Senate and the House. Ironically, RFRA was precipitated by a court case involving sacramental use of peyote cactus. But Native American activists charge its passage doesn't do anything to ensure Indians' exercise of their religious rights, Meanwhile, some adherents of the Ethiopian Zion Coptic Church, or Rastafarians, who consider marijuana essential to the practice of their religion, see the prospect of a new legal door opening for protected use of herb.
RFRA was drawn up in response to a 1989 Supreme Court decision, Oregon Employment Division v. Smith, which ruled against two Oregon men seeking unemployment benefits they had been denied after being fired for ingesting peyote in a Native American Church ceremony. RFRA is widely seen as having tremendous legal implications for persons requesting religious exemptions of all kinds—especially those who have lost in court as a result of the Smith decision, which lowered an important legal standard.
Bill Clinton, upon signing RFRA, stated, "More than 50 cases have been decided against individuals making religious claims against government action since that decision was handed
down. This act will help to reverse that trend.... What this law basically says is that the government should be held to a very high level of proof before it interferes with someone's free exercise of religion."
As RFRA's title implies, the act simply restores, by codifying into federal law, the strict constitutional interpretation of the First Amendment's guarantee of religious freedom, as set forth in federal cases prior to the Smith ruling. As stated in RFRA: "Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person
(1) is in furtherance of a compelling government interest; and
(2) is the least restrictive means of furthering that compelling government interest." [emphasis added]
This "compelling interest" test was abandoned in the Smith case. While RFRA restores the "compelling interest" test, it leaves open the question: Does the government have a "compelling interest" to prevent the religious use of psychoactive drugs like peyote and marijuana?
Native Americans and Peyote
The history behind RFRA is fraught with irony, righteousness and hypocrisy.
While Congress was prompted to act by negative public reaction to the legal precedent set in a peyote case, Native rights are unlikely to be assisted in any meaningful way by RFRA, which was introduced by Rep. Charles Schumer (D-NY) and Sen. Orrin Hatch (R-UT). Although the act appears to overturn the Smith ruling, it is not clear whether the court would actually rule differently in a similar case involving peyote.
The Amish (who may no longer be forced to hang electric lights on horse-drawn buggies) and Jews and Hmong (who may prevent states from performing autopsies in violation of their beliefs) clearly have cause for celebration. American Indians, however, can only look to a long legacy of desecration of their sacred sites and rights, and hope to hold on to what few religious liberties they have left. Ironically, the framers of the US Constitution and the Bill of Rights were greatly influenced by the success of the Great Law of Peace of the then-populous and powerful Iroquois Confederacy. This ancient tradition still unites the Mohawk, Oneida, Onondaga, Cayuga, Seneca and Tuscarora Nations in respect for the Creator and one another.
Suzan Shown Harjo, an eminent Native activist of Cheyenne/Hodulgee-Muscogee heritage and director of the Morningstar Foundation in Washington, DC, has no illusions about the state of Native religious rights in the US. Harjo claims RFRA's legislative history "specifically excludes Indians" from its benefits. She charges that the Coalition for the Free Exercise of Religion, which lobbied for RFRA, "did not stop some negative Senate language, which covered everyone except Native people."
Her argument is supported by testimony given just prior to the vote by Sen. Daniel Inouye (D-HI): "There is language...in the Senate committee report accompanying ¡RFRA] which indicates that Native American worship at sacred sites on federal land will not be protected by the act.... We have a long history of government oppression to correct when it comes to the religious freedom of Native Americans.'
"So RFRA doesn't do jack shit for us and that's why we need the Native American Free Exercise of Religion Act," says Harjo. "Our religious freedom has never been a priority in America, and the persecution of our religions and the desecration of our religious sites has been a priority in America." NAFERA, recently introduced in the Senate by Inouye, would provide the broad protections demanded by indigenous leaders, including sacred land rights, prisoner access to spiritual leaders and the right to use peyote in a Native ceremonial context. None of these are mentioned in RFRA.
"Seeing Native peoples as different and not human beings is not a recent phenomenon," says Tonya Cannella Frichner, an Onondaga and president of the American Indian Law Alliance in New York. Such attitudes date from "different popes issuing orders to Christianize the `savages.' Native people don't have large, ornate buildings. The Earth is our church, our altar. From the European perspective. land is something to be owned and developed, wild and untamed. It wasn't wild and untamed to us." Frichner says she had contacted Rep. Stephen Solarz (D-NY), who introduced the original version of RFRA in the House, to discuss Native rights. "He didn't want to hear about it."
Prior to Clinton's signing of the bill, Harjo faxed the White House "and told them it was essential that a provident statement must be made, just very simply that the religious freedom agenda isn't finished until it's concluded for Native peoples too." In his prepared (but not spoken) remarks, Clinton obliged by stating that he looked forward to the time when Congress would send him such legislation. Meanwhile, ritual use of peyote and protection of sacred sites from government and corporate rape is still not written into any federal law.
Prisoners and Paradoxes
Prisoners almost lost out as well. Sen. Harry Reid (D-NV) proposed
an amendment to RFRA that would have denied all federal prisoners the strict scrutiny standard guaranteed by the act to litigants in religious freedom cases. -[L]ast year...we had...49,939 civil cases brought by prisoners," Reid stated on the Senate floor on October 16. "The prisoners brag about how many lawsuits they file.... Inmates are litigious by nature.... Some man said he was in prison for child abuse because it was his religion." Reid buttressed his position with a letter signed by all 50 state prison directors. collectively responsible for 834,000 incarcerated persons. But the amendment was defeated 58-41, with the help of a letter from Attorney General Janet Reno. The story of RFRA is replete with paradoxes. Smith defendants Alfred Smith and Galen Black, both members of the Native American Church, were working as drug abuse counselors with a rehabilitation organization when they were fired for ''misconduct." The peyote underpinnings of RFRA were not lost on the New York Times, which wrote, " ...supporters...at first found it hard to rouse public concern about a case involving hallucinogenic drugs." -
Finally, it is significant that the Supreme Court chose to abandon the established "compelling interest" test in a case involving both Native rights and drug use.
Marijuana Legalese 101
Carl Olsen, a white Rastafarian and director of the fledgling Iowa NORML, is responsible for more federal cases requesting religious exemptions for marijuana than anyone else. In 1978 he was busted with 100 pounds, in 1979 with one pound and in 1980 for importing 21 tons of pot. In these cases, and in a separate civil lawsuit filed against the DEA, Olsen asserted that his faith exempted him from the marijuana laws, and that he was distributing the ginja to other practitioners of the Coptic Church.
Olsen's defense did not succeed. But, he notes, "the only people who've been successful in taking an argument about sacramental use of controlled substances through the courts basically have been the Native American Church and the Coptic Church." Olsen is preparing to file a new civil case in federal court. The key to his strategy can be found in Justice Scalia's majority opinion in the Smith case: If the 'compelling interest' test is to be applied...it must be applied across the board, to all actions thought to be religiously commanded.... Any society adopting such a system would be courting anarchy.... The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service...to the payment of taxes...drug laws, see, e.g., Olsen v. Drug Enforcement Administration, 279U.S.App.D.C. 1, 878 F.2d 1458 (1989)...
Olsen explains: "RFRA overturned that decision, and ]Scalia] said if that were to ever happen it would open the door to a constitutionally required exemption for me to use marijuana. How are they going to dodge that? I'm asking them to create an exemption and they can define it...just tell me where and when I can use it and I'll do that." Jah has smiled on Olsen before. Due to an administrative error, he was let out of prison early after serving only two years of a five-year sentence. As in many decisions, the particular judgment rendered in the Smith case is not nearly as revealing as the opinions of the Justices.
Justice Blackmun. in his dissenting opinion in the Smith case joined by Justices Brennan and Marshall, found that the defendants shouldn't have been denied unemployment benefits—but also found that the government has an interest in controlling substances which people may claim to be "sacraments." Blackmun wrote:
Almost half the states, and the Federal Government IDEA] have maintained an exemption for religious peyote use.... Allowing an exemption for peyote use would not necessarily oblige the State to grant a similar exemption to other religious groups.... Some religions...might not restrict drug use to a limited ceremonial context, as does the Native American Church. See e.g., Olsen, ("the Ethiopian Zion Coptic Church...teaches that marijuana is properly smoked 'continually all day"). Some...claims...involve drugs such as marijuana...in which there is significant illegal traffic...it would be difficult to grant a religious exemption without seriously compromising law enforcement efforts.
After all, Rasta might suddenly become the most popular religion in America.