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Court’s Decision in Peyote Case Could Make Jewish Rituals Illegal

May 14, 1990
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WASHINGTON, May 13 (JTA) –The Supreme Court decision allowing American Indians to be prosecuted for the use of illegal drugs in religious rituals could result in making illegal such Jewish ritual practices as drinking wine for Kiddush, the slaughter of kosher meat and circumcision, a Jewish leader has warned.

Henry Siegman, executive director of the American Jewish Congress, issued the warning last Thursday at a news conference after his group and 15 other religious and civil liberties organiza­tions filed a petition with the Supreme Court asking for a rehearing of the case, popularly  known as the “Peyote case.”

The court ruled 6-3 on April 17 that two members of an American Indian church could not be exempted from an Oregon law that makes it a crime to possess or use peyote, even though they used it only for sacramental purposes.

Justice Antonin Scalia, who wrote the ma­jority opinion, rejected the Oregon Supreme Court’s ruling that the First Amendment free exercise of religion clause required that the two men, Alfred Smith and Galen Black, be exempted from the Oregon law.

“For all practical purposes, a majority of the Supreme Court has eliminated the free exer­cise clause of the First Amendment from our Bill of Rights,” Siegman said.

He explained that in the case, known as the Employment Division vs. Smith, “the court decided that when a generally applicable law conflicts with a religious practice, the state need not exempt individual religious adherents from the court’s reach.”

The Rev. Dean Kelley, director for religious liberty of the National Council or Churches, said the court’s decision “gutted” the free exercise clause.

‘Disastrous’ For Religious Liberty
He compared the Scalia ruling with the 1857 Dred Scott decision, which said that a black slave was property and not a U.S. citizen. “In Smith, Justice Scalia said in effect that religious minori­ties have no rights to religious practices that majorities are bound to respect,” Kelley said.

He charged the decision “not only devas­tated the Native American Church but struck a serious blow at all religious groups in this coun­try.’

This is why the petition for a rehearing was signed by such a diverse group or organizations, ranging from the American Civil Liberties to the National Association of Evangelicals.

Jewish groups joining the petition were the American Jewish Committee, AJCongress and the National Jewish Community Relations Advisory Council.

“I doubt that these groups have ever been in the same room together, much less in a joint project of this magnitude,” said Oliver Thomas, general counsel for the Baptist Joint Committee on Public Affairs.

“These individuals and organizations agree on very little,” Thomas said. “They all agree, however, that the Smith decision is disastrous for the free exercise of religion.”

Marc Stern, Amy Adelson and Lois Waldman of the AJCongress legal staff argued in the rehearing petition that “every religious group in the country will be profoundly disadvantaged” by the court’s decision.

They were joined by the Craig Dorsay, lawyer for the Native American Program’s Oregon Legal Services, the counsel of record for the Indians. Io addition, 55 of the nation’s leading constitutional law professors signed the petition.

On specific Jewish ritual practices, the petition noted that under the ruling, the “govern­ment could, for example, without constitutional impediment, bar all ‘non-humane’ slaughter, and thus effectively outlaw Jewish and Moslem ritual slaughter; (and) outlaw as medically unnecessary all circumcision, including that practiced for religious reasons by Jews, Moslems and Coptic Christians.”

Siegman noted that during Prohibition, if the law “had not exempted sacramental wine use in Communion by Christians and Sabbath Kiddush by Jews, according to this court such religious rituals would have landed their practitioners in jail.

“Under the court’s new dispensation, which overturns 30 years of free exercise jurisprudence, laws that have the effect of outlawing shechitah (ritual slaughter), or circumcision would no longer be violative of the free exercise clause,” he added.

The petition also noted that Jewish students could be expelled from public schools for wearing kipot and could be refused time off for religious holidays. Siegman said the protection that now exists for Shabbat observers not to work on the Shabbat could be lost.

Thomas said that the organizations that asked for the rehearing recognized it was “a long shot,” since only six such petitions were granted between 1976 to 1982. “Nevertheless, it is our only shot, so we are taking it,” he said.

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