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Hearings Open on Bills to Restore Religious Rights After Peyote Case

May 15, 1992
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It was the Jews, Mormons and Evangelical Christians versus the Catholics at congressional hearings this week on two bills that would make it more difficult for federal laws to impinge on religious liberties.

The bills, one of which has received wide support, are designed to circumvent a 1990 U.S. Supreme Court ruling in what is popularly known as the “Peyote case.”

The court ruled 6-3 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.

It held that so long as a law is neutral on its face, the government may uniformly apply it to all persons, regardless of any burden or prohibition it may place on particular religious practices.

Jewish groups from secular to Orthodox want to thwart the possibility of the courts upholding laws that could potentially limit practices central to religious life.

These include conscientious objection from military service, Jewish circumcision rituals and kosher slaughter, the Anti-Defamation League said in written testimony before the House Judiciary Subcommittee on Civil and Constitutional rights.

Jewish groups have been at the forefront of the effort to create legislation to get around the Supreme Court ruling.

“Without a federal law to restore the liberties denied by the peyote ruling, any religious practice that ever conflicts with governmental regulation in this country would be vulnerable to attack,” said Abba Cohen, director of the Washington office of the Agudath Israel of America.

Since the 1990 ruling, claims made under the First Amendment’s free exercise of religion clause have been “markedly unsuccessful,” the Congressional Research Service said last month in its study of the issue.

Between 1963 and 1990, following a precedent crafted by now-retired Justice William Brennan, the Supreme Court applied various modifications of a “strict scrutiny test” that required the government to prove a compelling state interest on any law that affects a particular religious freedom.

In 1990, Rep. Stephen Solarz (D-N.Y.) introduced a bill, the Religious Freedom Restoration Act, to revive the most stringent version of that test.

His latest version of the bill has 187 cosponsors and appears to have enough votes to gain House approval.

Though representatives of Jewish groups were present at this week’s hearings, none testified. But the subcommittee did hear from Solarz, who is Jewish and who represents a heavily Jewish district in Brooklyn. He provided the hearings with a list of Jewish religious practices that could be endangered without his proposed legislation.

It is too early to predict the bill’s fate in the Senate. President Bush has yet to indicate his views on the issue.

The bill has run into opposition from the powerful U.S. Catholic Conference, which does not want a stringent test applied in cases where a woman claims a religious right to have an abortion, or where a taxpayer claims that government aid to religion violates his or her religious conscience.

The Catholics instead support a bill, the Religious Freedom Act, that would revive the strict scrutiny test but with some exceptions, as introduced by Rep. Christopher Smith (R-N.J.) with 29 co-sponsors.


The Agudah said it opposes the Smith bill because religious rights legislation that could not be used to protect the right to an abortion would “strike directly at the Jewish woman who is required by her faith — under the extraordinary circumstance of a pregnancy putting her at mortal risk — to undergo an abortion.”

There is no Senate version of either the Solarz or Smith bills.

But Jewish groups expect one to be reintroduced from 1990 by Sens. Joseph Biden (D-Del.) and Orrin Hatch (R-Utah).

Despite their anti-abortion position, the Evangelical Christians and Mormons argued that restoration of the Brennan test would do more good than harm.

Dallin Oaks, an apostle in the Mormon church and a former chief justice of the Utah Supreme Court, said his group was “looking to the larger good.”

Oaks dismissed Catholic concerns that the courts may find a religious right to have an abortion or block government help for religion as too “theoretical” at this point.

Rep. Don Edwards (D-Calif.) the subcommittee chairman, told the Jewish Telegraphic Agency after the hearings that “we can’t compromise” the Solarz bill by adding Smith’s alteration because with the change it has little chance of gaining congressional approval.

Edwards added he expects the subcommittee to vote on the Solarz and Smith bills by early June.

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