Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, April 18, 1990                   TAG: 9004180200
SECTION: NATIONAL/INTERNATIONAL                    PAGE: A-2   EDITION: METRO 
SOURCE: The Washington Post
DATELINE: WASHINGTON                                LENGTH: Medium

SUPREME COURT UPHOLDS PEYOTE-USE BAN/ RELIGIOUS RIGHTS NOT VIOLATED BY

The case involved two Oregon men denied unemployment benefits after they were fired from their jobs at a drug rehabilitation program because they ingested peyote at a ceremony of the Native American Church.

Peyote, which contains the hallucinogenic drug mescaline, is a central part of the church ritual, and the federal government and 23 states allow it to be used for that purpose.

In rejecting the men's claim that Oregon's law barring peyote use under all circumstances violates their religious freedom, Justice Antonin Scalia said nothing in the First Amendment prevents states from adopting "generally applicable" laws that have the "incidental" effect of interfering with religious practices.

Scalia said it would be "courting anarchy" and "open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind" to create exceptions every time a religious group claims a law infringes its practices.

The decision was surprising not so much for the outcome as for the analysis - endorsed by five justices - that the state did not have to demonstrate a "compelling government interest" to justify "generally applicable prohibitions of socially harmful conduct."

Four justices - three dissenters and Justice Sandra Day O'Connor in a concurring opinion - said the majority approach "dramatically departs from well-settled First Amendment jurisprudence . . . and is incompatible with our nation's fundamental commitment to individual religious liberty."

O'Connor, joined by Justices William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun, said that "a law that prohibits certain conduct . . .that happens to be an act of worship for someone manifestly does prohibit that person's free exercise of his religion. . ..

Peyote, a hallucinogen from a species of cactus that grows in the southwestern United States and Mexico, is classified by the federal government as a Schedule I controlled substance - the highest level of dangerous drugs - meaning that it has no accepted medical use and a great potential for abuse.

However, there is little illegal traffic in peyote; only 19.4 pounds were seized by federal authorities between 1980 and 1987, compared with more than 15 million pounds of marijuana during that period.

University of Chicago law professor Michael McConnell, an expert on the religion clauses, called the decision "one of the clearest reversals of important constitutional precedent in a decade." He said it could affect cases in which Moslem schoolchildren seek time during school to engage in daily prayers or Jewish prisoners assert that they are entitled to kosher meals.

Steven Shapiro of the American Civil Liberties Union, which filed a friend of the court brief on behalf of the Native Americans, said the ruling "significantly erodes the protection for religious freedom."