PER CURIAM
These cases are before us on remand from the Supreme Court of the United States.
Employment Div. v. Smith,
485 US_, 108 S Ct 1444, 99 L Ed 2d 753 (1988). We had decided that the state could not, consistent with the First Amendment, deny unemployment compensation to petitioners, who had been discharged from employment for ingesting peyote in ceremonies of the Native American Church, of which they were members.
Smith v. Employment Div.,
301 Or 209, 721 P2d 445 (1986);
Black v. Employment Div.,
301 Or 221, 721 P2d 451 (1986).
In our earlier opinions, we observed that the record in each case established that peyote use was a sacrament in the Native American Church, that the respondents were members of the church and sincere adherents to this faith, and that their use was in the course of a church ceremony. We also stated that it was immaterial to Oregon’s unemployment compensation law whether the use of peyote violated some other law.
“The Board found that the state’s interest in proscribing the use of dangerous drugs was the compelling interest that justified denying the claimant unemployment benefits. However, the legality of ingesting peyote does not affect our analysis of the state’s interest. The state’s interest in denying unemployment benefits to a claimant discharged for religiously motivated misconduct must be found in the unemployment compensation statutes, not in the criminal statutes proscribing the use of peyote. The Employment Division concedes that ‘the commission of an illegal act is not, in and of itself, grounds for disqualification from unemployment benefits. ORS 657.176(3) permits disqualification only if a claimant commits a felony in connection with work. * * * [T]he legality of [claimant’s] ingestion of peyote has little direct bearing on this case.’
“The state’s interest is simply the financial interest in the payment of benefits from the unemployment insurance fund to this claimant and other claimants similarly situated.” (Footnote omitted.)
Smith v. Employment Div., supra,
301 Or at 218-19. The decisions of the United States Supreme Court on which we relied held that this financial interest did not suffice to override interests of unemployment compensation claimants in the
free exercise of their religion.
Thomas v. Review Board,
450 US 707, 101 S Ct 1425, 67 L Ed 2d 624 (1981);
Sherbert v. Verner,
374 US 398, 83 S Ct 1790, 10 L Ed 2d 965 (1963).
On certiorari, the United States Supreme Court remanded the decisions to this court for clarification of the legality of petitioners’ use of peyote.
Employment Div. v. Smith, supra.
Alluding to
Reynolds v. United States,
98 US 145, 25 L Ed 244 (1878), a decision in which criminal proscription of bigamy was upheld against a Free Exercise challenge, the Court declared:
“If a bigamist may be sent to jail despite the religious motivation for his misconduct, surely a State may refuse to pay unemployment compensation to a marriage counselor who was discharged because he or she entered into a bigamous relationship. The protection that the First Amendment provides to
‘legitimate
claims to the free exercise of religion,’ does not extend to conduct that a State has validly proscribed.” (Emphasis in original.)
485 US at_, 108 S Ct at 1451, 99 L Ed 2d at 764. In sum, the Supreme Court held that a state’s criminal law is relevant in that if a state has validly criminalized certain types of religiously motivated conduct, it may also deny unemployment benefits to persons discharged for engaging in that conduct. 485 US at_, 108 S Ct at 1450, 99 L Ed 2d at 763. The Court noted that it was uncertain whether Oregon law proscribed the peyote use in question here and, if so, whether the law could constitutionally be applied to petitioners.
We conclude that the Oregon statute against possession of controlled
substances, which include peyote,
makes no exception for the sacramental use of peyote, but that outright prohibition of good faith religious use of peyote by adult members of the Native American Church would violate the First Amendment directly and as interpreted by Congress. We therefore reaffirm our holding that the First Amendment entitles petitioners to unemployment compensation.
The long history of peyote as the sacred object of the Native American Church, entitling members to a First Amendment exemption from its prohibition, was reviewed by Justice Tobriner 24 years ago in
People v. Woody,
61 Cal 2d 716, 40 Cal Rptr 69, 394 P2d 813 (1964), quoted extensively in our earlier opinion in
Black v. Employment Div., supra,
301 Or at 225-227. The court concluded that peyote “plays a central role in the ceremony and practice of the Native American Church” and that its religious use was known in the 16th century. “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 devoted to the Holy Ghost. On the
other hand, to use peyote for nonreligious purposes is sacrilegious.” 61 Cal 2d at 721, 40 Cal Rptr at 73, 394 P2d at 817. To prohibit the use of peyote “results in a virtual inhibition of the practice of defendants’ religion.”
Id.
at 722. The experience of states that exempted bona fide religious use of peyote from the prohibition did not support any compelling state interest in suppressing it.
Id.
at 722. The court therefore decided that this religious use was privileged under the First Amendment.
See also In re Grady,
61 Cal 2d 887, 39 Cal Rptr 912, 394 P2d 728 (1964).
Subsequent state and federal decisions have divided on protecting the religious use of peyote under the First Amendment.
See
Brown,
Religion: The Psychedelic Perspective: The Freedom of Religion Defense,
11 Am Indian L Rev 125 (1983).
We do not now reexamine the background recited in
People v. Woody, supra,
nor the question on what kind of record such a claim should be examined in the future. The view of the Native American Church and its constitutionally privileged use of peyote that was expressed by the California Supreme Court in
Woody
was expressly endorsed by Congress.
In 1965, when Congress first brought peyote within the Drug Abuse Control Amendments of 1965, 79 Stat 226 § 3(a), Congress made clear that it expected the implementing regulations to exempt the religious use of peyote. Representative Harris expressly referred to the holding in
Woody
Free access — add to your briefcase to read the full text and ask questions with AI
PER CURIAM
These cases are before us on remand from the Supreme Court of the United States.
Employment Div. v. Smith,
485 US_, 108 S Ct 1444, 99 L Ed 2d 753 (1988). We had decided that the state could not, consistent with the First Amendment, deny unemployment compensation to petitioners, who had been discharged from employment for ingesting peyote in ceremonies of the Native American Church, of which they were members.
Smith v. Employment Div.,
301 Or 209, 721 P2d 445 (1986);
Black v. Employment Div.,
301 Or 221, 721 P2d 451 (1986).
In our earlier opinions, we observed that the record in each case established that peyote use was a sacrament in the Native American Church, that the respondents were members of the church and sincere adherents to this faith, and that their use was in the course of a church ceremony. We also stated that it was immaterial to Oregon’s unemployment compensation law whether the use of peyote violated some other law.
“The Board found that the state’s interest in proscribing the use of dangerous drugs was the compelling interest that justified denying the claimant unemployment benefits. However, the legality of ingesting peyote does not affect our analysis of the state’s interest. The state’s interest in denying unemployment benefits to a claimant discharged for religiously motivated misconduct must be found in the unemployment compensation statutes, not in the criminal statutes proscribing the use of peyote. The Employment Division concedes that ‘the commission of an illegal act is not, in and of itself, grounds for disqualification from unemployment benefits. ORS 657.176(3) permits disqualification only if a claimant commits a felony in connection with work. * * * [T]he legality of [claimant’s] ingestion of peyote has little direct bearing on this case.’
“The state’s interest is simply the financial interest in the payment of benefits from the unemployment insurance fund to this claimant and other claimants similarly situated.” (Footnote omitted.)
Smith v. Employment Div., supra,
301 Or at 218-19. The decisions of the United States Supreme Court on which we relied held that this financial interest did not suffice to override interests of unemployment compensation claimants in the
free exercise of their religion.
Thomas v. Review Board,
450 US 707, 101 S Ct 1425, 67 L Ed 2d 624 (1981);
Sherbert v. Verner,
374 US 398, 83 S Ct 1790, 10 L Ed 2d 965 (1963).
On certiorari, the United States Supreme Court remanded the decisions to this court for clarification of the legality of petitioners’ use of peyote.
Employment Div. v. Smith, supra.
Alluding to
Reynolds v. United States,
98 US 145, 25 L Ed 244 (1878), a decision in which criminal proscription of bigamy was upheld against a Free Exercise challenge, the Court declared:
“If a bigamist may be sent to jail despite the religious motivation for his misconduct, surely a State may refuse to pay unemployment compensation to a marriage counselor who was discharged because he or she entered into a bigamous relationship. The protection that the First Amendment provides to
‘legitimate
claims to the free exercise of religion,’ does not extend to conduct that a State has validly proscribed.” (Emphasis in original.)
485 US at_, 108 S Ct at 1451, 99 L Ed 2d at 764. In sum, the Supreme Court held that a state’s criminal law is relevant in that if a state has validly criminalized certain types of religiously motivated conduct, it may also deny unemployment benefits to persons discharged for engaging in that conduct. 485 US at_, 108 S Ct at 1450, 99 L Ed 2d at 763. The Court noted that it was uncertain whether Oregon law proscribed the peyote use in question here and, if so, whether the law could constitutionally be applied to petitioners.
We conclude that the Oregon statute against possession of controlled
substances, which include peyote,
makes no exception for the sacramental use of peyote, but that outright prohibition of good faith religious use of peyote by adult members of the Native American Church would violate the First Amendment directly and as interpreted by Congress. We therefore reaffirm our holding that the First Amendment entitles petitioners to unemployment compensation.
The long history of peyote as the sacred object of the Native American Church, entitling members to a First Amendment exemption from its prohibition, was reviewed by Justice Tobriner 24 years ago in
People v. Woody,
61 Cal 2d 716, 40 Cal Rptr 69, 394 P2d 813 (1964), quoted extensively in our earlier opinion in
Black v. Employment Div., supra,
301 Or at 225-227. The court concluded that peyote “plays a central role in the ceremony and practice of the Native American Church” and that its religious use was known in the 16th century. “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 devoted to the Holy Ghost. On the
other hand, to use peyote for nonreligious purposes is sacrilegious.” 61 Cal 2d at 721, 40 Cal Rptr at 73, 394 P2d at 817. To prohibit the use of peyote “results in a virtual inhibition of the practice of defendants’ religion.”
Id.
at 722. The experience of states that exempted bona fide religious use of peyote from the prohibition did not support any compelling state interest in suppressing it.
Id.
at 722. The court therefore decided that this religious use was privileged under the First Amendment.
See also In re Grady,
61 Cal 2d 887, 39 Cal Rptr 912, 394 P2d 728 (1964).
Subsequent state and federal decisions have divided on protecting the religious use of peyote under the First Amendment.
See
Brown,
Religion: The Psychedelic Perspective: The Freedom of Religion Defense,
11 Am Indian L Rev 125 (1983).
We do not now reexamine the background recited in
People v. Woody, supra,
nor the question on what kind of record such a claim should be examined in the future. The view of the Native American Church and its constitutionally privileged use of peyote that was expressed by the California Supreme Court in
Woody
was expressly endorsed by Congress.
In 1965, when Congress first brought peyote within the Drug Abuse Control Amendments of 1965, 79 Stat 226 § 3(a), Congress made clear that it expected the implementing regulations to exempt the religious use of peyote. Representative Harris expressly referred to the holding in
Woody
“that prosecutions for the use of peyote in connection with religious ceremonies was a violation of the first amendment to the Constitution,” and he gave the House the assurances of the Food and Drug Administration that the bill “cannot forbid bona fide religious use of peyote.” 111 Cong Rec 15977 (1965).
See Native American Church of New York v. United States,
468 F Supp 1247, 1249-50. Congressional approval of exempting the bona fide religious use of peyote in the Native American Church was reiterated in 1970.
See Peyote Way Church of God, Inc. v. Smith,
742 F2d 193, 197 at n 15 (1984).
Even more emphatically, in 1978, Congress by law made it “the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.” 42 USC 1996 (1982). The accompanying report of the House Committee on Interior and Insular Affairs stated, with respect to federal restriction of the use of peyote and other substances in Indian religions:
“To the Indians, these natural objects have religious significance because they are sacred, they have power, they heal, they are necessary to the exercise of rites of the religion, they are necessary to the cultural integrity of the tribe and, therefore, religious survival or a combination of these reasons. To the Federal Government, these substances are restricted because the non-Indian has made them scarce, as in endangered species, or because they pose a health threat to those who misuse them, as in peyote.
“The Federal court system has shown that this apparent conflict can be overcome with the institution of well thought out exceptions. Although acts of Congress prohibit the use of peyote as a hallucinogen, it is established Federal law that peyote is constitutionally protected when used by a bona fide religion as a sacrament.”
H. Rep. No. 1308, 95th Cong, 2d Sess 2 (1978). Congress, of course, has the power under section 5 of the Fourteenth Amendment to protect against state infringement what it believes to be the free exercise of religion under the First Amendment. While Congress has not done so expressly, it has unmistakably adopted the view that the use of peyote in the Native American Church is the kind of free exercise of religion that the First Amendment protects. In light of this repeated recognition of that church’s use of peyote, we are convinced that the First Amendment would not allow Oregon authorities to seize peyote used in good faith in a religious ceremony of the
Native American Church and to prosecute those who possess it.
In our first decision, we concluded that the decisions against denying unemployment compensation to persons whose unemployment results from their exercise of their religious freedom precluded a denial of unemployment compensation in these cases. Because, for the reasons set forth above, we hold on remand that the First Amendment prevents enforcement of prohibitions against possession or use of peyote for religious purposes in the Native American Church, we reaffirm that conclusion.
The case is remanded to the Board for entry of orders consistent with this court’s decisions of June 24, 1986,
Smith v. Employment Div.,
301 Or 209, 721 P2d 445 (1986), and
Black v. Employment Div.,
301 Or 221, 721 P2d 451 (1986).