William H. Rehnquist: We'll hear argument next in Number 88-1213, Employment Division of Oregon v. Alfred Smith. Mr. Frohnmayer, you may proceed.
David B. Frohnmayer: Thank you, Mr. Chief Justice, and may it please the Court: This case is before this Court a second time. The first question was whether claimants were entitled to receive unemployment compensation benefits after being fired as drug counselors. It is undisputed that they violated their employer's job-related rule that they be drug free because they ingested peyote in the ceremonies of the Native American Church. A majority of this Court held that the claimants were not entitled to unemployment benefits under the doctrine of Sherbert v. Verner if their conduct, even if religiously motivated, violated a valid Oregon criminal law. After the Oregon Supreme Court's ultimate decision on federal grounds on remand, the question is this. Does the Free Exercise Clause require every state to exempt the religious peyote use by the Native American Church, or perhaps even beyond that, other substance use by other religions, from the reach of generally applicable criminal laws regulating the use of controlled substances by all citizens?
Sandra Day O'Connor: General Frohnmayer, the Oregon Supreme Court really didn't tell us whether the Oregon constitution would have been violated by this statute, did it? We still don't know what the position would be under the Oregon constitution.
David B. Frohnmayer: In footnote 3 of the Oregon Supreme Court's decision on remand, Justice O'Connor, the court reserved the question of what would happen in a fact-specific criminal prosecution related to the conduct of a specific person arrested and prosecuted.
Sandra Day O'Connor: Has... does... do we know whether there have ever been any criminal prosecutions in Oregon under the statute of members of the Native American Church for peyote use?
David B. Frohnmayer: Yes, we do. More than a decade ago, in a case called State v. Soto, which I believe is described in our briefs, the conviction of a person who was a Native American for peyote use was upheld, criminal prosecution, and certiorari was denied by this Court. That is a dozen years ago.
Speaker: Was there any claim in that case that the Oregon constitution barred the prosecution?
David B. Frohnmayer: I believe not, Justice White, but I will try to refresh my memory before we conclude our argument. We are obviously acutely aware, as in all Free Exercise cases, of the sensitive interests that are at stake. On one hand we recognize that this is a genuine church with doctrinal beliefs in peyote use that are real. The church's members are unquestionably sincere, and the adherents generally... genuinely believe that the existence of their religion is threatened if they are not free to use this substance.
Sandra Day O'Connor: Is it also true that the federal government and some 23 states exempt peyote use from their drug enforcement schemes?
David B. Frohnmayer: There is an exemption in the Drug Enforcement Administration's regulations for bonafide use by the Native American Church. The figure of 23, Justice O'Connor, we believe, is wholly inaccurate. Footnote 8 of our reply brief is a careful parsing of the states that provide, either by legislative exemption or judicial decision, an exemption for religious peyote use, sometimes by a named religion, other times more generically referring to bonafide religions. But the number by our count is closer to 12 or 13.
Antonin Scalia: But the federal exemption and the exemption in the 12 states you are talking about applies only to use by a member of the Native American Church?
David B. Frohnmayer: Justice Scalia, no, the exemptions are somewhat scattered in terms of how they are phrased. For example, in Arizona it is simply a defense through a prosecution rather than an exemption from Schedule I, and it refers to bonafide use of peyote.
Speaker: [inaudible]
David B. Frohnmayer: I am sorry, Justice White.
Speaker: By whom?
David B. Frohnmayer: By the bonafide practice of a religious belief.
Speaker: Any religious belief?
David B. Frohnmayer: That is right. Others... in fact, I would... I think it is safe to say the majority of the exemptions single out the Native American Church, so--
Speaker: How about the federal?
David B. Frohnmayer: --The federal exemption is limited to the Native American Church.
Antonin Scalia: So, if you are sort of the Martin Luther King, the Martin Luther... not King, of the Native American Church, you are just out of luck. You can't start a branch religion using peyote.
David B. Frohnmayer: Justice Scalia, that is one--
Antonin Scalia: In the states that limit the exemption to the Native American Church.
David B. Frohnmayer: --That is one of the deeply troubling aspects we find in the Oregon Supreme Court's decision, because there is another church, an offshoot of this church, called the Peyote Way Church of God, which also has many Native American members and which has strictly controlled religious rights which a lower federal court has denied the same exemption enjoyed by the Native American Church.
William H. Rehnquist: Am I correct in thinking that one need not be a Native American to be admitted to the Native American Church, or to participate in its rituals?
David B. Frohnmayer: Justice Rehnquist, I... I would be somewhat hesitant to answer that question, because that is more properly directed, I believe, to the communicants of the church. It is safe to say that the record is somewhat obscure on this point. We know that Respondent Black--
Speaker: What about Mr. Black--
David B. Frohnmayer: --I am sorry?
Harry A. Blackmun: --What about Mr. Black? He was not a Native American, was he?
David B. Frohnmayer: Mr. Black was not a Native American. We believe it is a fair reading of the record that he believed that he was a member of the Native American Church. There is contradictory evidence in the record concerning whether persons other than Native Americans can be admitted to the ritual, at least if they don't show a certain amount of blood lineage from Native American ancestry. And in fact the Texas statute requires a minimum of 25 percent. Other statutes are much vaguer as to precisely the contours of the membership that's required in this religion. Let me turn on the other hand to the fact that peyote is unquestionably a dangerous and powerful hallucinogen. Government's interest in controlling peyote and similar hallucinogens is real, it is compelling, and it is evident by universal and pervasive regulation. There are other religions using peyote, and there are other religions using other drugs which also clamor for First Amendment constitutional exemptions--
Anthony M. Kennedy: Is there any documentation in the record or in reported opinions of the danger that peyote is diverted from religious use and, say, sold on the street in the normal drug distribution channels?
David B. Frohnmayer: --Justice Kennedy, we know that it is found in normal drug distribution channels, although not in great amounts.
Anthony M. Kennedy: Is it used for the derivative mescaline, which in turn is used commercially? Or can you get mescaline from some other source?
David B. Frohnmayer: Mescaline, as we understand it, can be produced synthetically, as well as, of course, being found as the psychoactive ingredient in peyote itself. In fact, the only thing that distinguishes peyote from mescaline is the presence of alkaloids in a natural way in the peyote button, which does create additional effects on the particular user.
Anthony M. Kennedy: Does this record show the presence of peyote buttons in the normal drug trade in any significant amounts?
David B. Frohnmayer: The best evidence for that is in material at least tangential to the record and in other lower court proceedings, which shows that the DEA has seized some 19 pounds, I believe, is the figure, over perhaps the period of a decade. So that shows at least--
Anthony M. Kennedy: From whom?
David B. Frohnmayer: --From sources apparently other than Native Americans. That is not clear from the DEA's reports. However, we would assume that they would be reporting illegal trafficking, as opposed to that which they regulate. The Oregon Supreme Court's resolution of the federal law question, we believe, seriously compromises three compelling and intersecting state interests. The first is the state's interest in regulating all peyote and hallucinogenic drug use to... in order to further the health and safety interests of its citizens. The second is the state's interest in a regulatory scheme as a whole, so that law enforcement does not face a patchwork of exemptions of other drugs on a drug-by-drug, religion-by-religion, believer-by-believer basis. And the third and compelling interest is that the state constitution's heightened requirement of neutrality in our jurisdiction, requires it to avoid giving the preference of one church over another. Let me then examine these concerns in order. Peyote, by all accounts, is a powerful and unpredictable hallucinogen. That fact is largely conceded even by Respondents, at least for the public generally, and it is amply illustrated by the record. Its active ingredient is mescaline. It stimulates respiratory changes, reflexes and pulse rates, which are physiologically measurable. The spectrum of effects experienced are similar, and in most respects identical, to those of LSD, psilocybin, and mescaline, accompanied by vivid visual and auditory hallucinations, altered perceptions of time, space and body... emotional reactions that range from joy and exhilaration to extreme anxiety and even terror. There is no way to predict, even for the experienced user, how the user will react on a given occasion. There are effects on the central nervous system and behavior which cause inability to distinguish reality and non-reality. And it does induce psychotic reactions in a small number of users.
Harry A. Blackmun: How long do these things last?
David B. Frohnmayer: It is said, Justice Blackmun, and I am now trying to recall from memory precisely, that the effect may last as long as 12 hours. To quote from the record in Smith's case Exhibit 8 from a clinical substance special... abuse specialist, it is a powerful and potent agent which does sometimes have long-lasting negative effects on its user, with no predictability as to when that can happen. It is "very risky". The record is consistent with what is known generally about this substance, and why every jurisdiction in the country regulates it intensely. It is almost universally a Schedule I drug, which means that it has a high potential for abuse. There is no currently accepted medical use, and there is lack of accepted safety for use even under medical supervision. The experiences under the influence of this substance may be good, but they are unpredictable, and they are indifferent to the motives of the user. The risk is largely unquestioned by Respondents, and the risk cannot be meaningfully distinguished from the risk of using any other hallucinogen. These dangers are great enough that Oregon has chosen, with respect to any user, to have a blanket regulation without exemption. In the face of these considerations, the Oregon Supreme Court has concluded, however, that the federal Constitution commands a judicially crafted exemption for sincere adult users of a single church. And this poses for us a dilemma. On the one hand, if the exemption is crafted so narrowly that it applies to one group on a de minimis basis, then that means that our state and federal constitutions have preferred one religion over another, and hopelessly compromised the constitution requirements of neutrality.
Harry A. Blackmun: Excuse me, what do you mean by-- --Can we say the same thing about the Yoder case?
David B. Frohnmayer: I am sorry, Justice?
Harry A. Blackmun: Can we say the same thing about the result of the... Wisconsin against Yoder?
David B. Frohnmayer: No, we think not. Because there, in Yoder, the church was not singled out by name and by identity and by denomination, and there were no others similarly situated who were clamoring for that particular exemption. Yoder is a case which is distinguishable, obviously, on many other important grounds, and I can reach them now.
Anthony M. Kennedy: Well, suppose the Wisconsin legislature had singled out the Amish church. Just because this Court singles that out it is all right, but the legislature can't?
David B. Frohnmayer: We think the problem is compounded when a legislature singles it out, because the judicial exemption is free of broader interpretation, whereas, if the legislature in its plenary judgment has singled out a specific church, we believe it has, in many respects, potentially run afoul of the Establishment Clause unless it treats other religions clamoring for equal treatment on similar grounds in similar ways.
John Paul Stevens: Are you arguing that the 23... or it isn't 23 under your figures, but whatever the number of states is that grant exemptions, those exemptions all violate the Establishment Clause?
David B. Frohnmayer: No, we are not. We did not come to this Court to argue that giving an exemption in some form or another is an impermissible state act in the exercise of its plenary authority. Our argument is simply that the Free Exercise Clause does not command every state in this union, as apparently our Oregon Supreme Court would command, to craft an exemption singling out a specific church. Some of those state exemptions, as we pointed out, Justice Stevens, do speak neutrally with respect to bonafide religious practices.
Sandra Day O'Connor: But some don't. And those that don't you would say are invalid under the Establishment Clause?
David B. Frohnmayer: I think we would need to know more. And what more we would need to know is whether, if a court were faced with a claim by another religion that, notwithstanding the specific named claim of the particular communicants of one church, if it denied it to another, then perhaps that might implicate the Establishment Clause because it would have closed the doors to others achieving this equally. So, I believe our position is that we would have to wait for a case-by-case determination to see whether those jurisdictions would open their doors to other claims, if properly advanced by other religions.
Byron R. White: xxx these problems.
David B. Frohnmayer: I am sorry, Justice?
Byron R. White: You just don't want to have to face up to those problems. You want to be able to... not to have any exemption at all.
David B. Frohnmayer: That is correct. And this is not a theoretical issue for the State of Oregon, because we have pending in our appellate courts a case which in many ways is on all fours with this, in which sincere religious communicants who believe that their use of marijuana is religiously inspired, have asked for exemption from Oregon's drug laws. And that's part of the problem.
Antonin Scalia: Well, that is also another problem in deciding what the states can do without offending the Establishment Clause. There is a problem in just allowing all religions to use peyote, but not allowing all religions to use marijuana, or any other hallucinogenic drug, I would assume. Isn't that a problem, too?
David B. Frohnmayer: Justice Scalia, that is one of the major reasons we have brought this case to this Court for a second time, which is, we are asked, we believe, not merely to see this as one case, but it is in fact the thin end of the wedge in which analytical distinctions are extremely difficult to draw, and in which claims certainly will be made, as they have been made in lower courts with increasing frequency, for other drugs and other--
John Paul Stevens: I take it, then, that your flat rule position would permit a state to outlaw totally the use of alcohol, including wine, in religious ceremonies?
David B. Frohnmayer: --That's a different question.
John Paul Stevens: Why is that different?
David B. Frohnmayer: The issue of sacramental wine is different because, at least at the present, it is not a Schedule I substance. The--
John Paul Stevens: Well, but the state certainly could prohibit the use... the consumption of alcohol within its borders, or at least the sale or use of alcohol.
David B. Frohnmayer: --But there... there might be a religious accommodation argument of an entirely different order than is presented here.
John Paul Stevens: You mean, just a better-known religion?
David B. Frohnmayer: No. It has nothing to do with... it is religion indifferent. Even during prohibition there was a statutory exemption for the use of sacramental--
John Paul Stevens: Yes, but what I am asking is supposing a state did not give that statutory exemption.
David B. Frohnmayer: --There, an argument for accommodation is stronger, stronger in at least two respects. First is that there... that to the extent that this Court examines or re-examines the nature of the compelling state interest and the potential danger of the ingestion of sacramental wine in small quantities, it might... might well question whether the state's over all interest in regulation of a very dangerous substance--
John Paul Stevens: So if this were a Schedule IV substance it would be a different case?
David B. Frohnmayer: --It could be a different case.
Speaker: I see.
David B. Frohnmayer: The second is clearly that the use of peyote in the ceremonies is at least in part for its very hallucinogenic properties. That is to say, the religious experience, at least for some communicants, comes from the achievement of the heightened hallucinogenic effect, where this is also not true of the ingestion of sacramental wine in small quantities.
John Paul Stevens: You don't think there is any special spiritual feeling in taking communion?
David B. Frohnmayer: Well, the feeling is different than the induction of an actual altered state of consciousness. What I am saying is that those two factors at least distinguish, and would presumably cause this Court or any other to say that the argument for accommodation is much stronger in the case of those religious sacraments than in the case where it is unquestionably a very dangerous substance for everyone else, acknowledged and conceded to be, and where it is taken for the purposes of inducing the very state that causes the danger, at least with respect to everyone else.
Antonin Scalia: You would say that it would be at least a close case as to whether a state could prohibit this and not prohibit the use of alcohol in worship services to the point of inebriation.
David B. Frohnmayer: I think that would be a very, that would be a much closer case, Justice Scalia.
Speaker: But a quite different case.
David B. Frohnmayer: Yes, indeed it would. We believe that it is ironic that while Respondents concede that the use of a Schedule I drug is dangerous as to everyone else, it is safe as to them. And the burden, we believe, lies properly on Respondents to show convincingly why the dangers of the drug use, or substance use, are less as to them. If there is to a judicially crafted exemption, we are entitled to know who uses, with what frequency, in what amounts, for what purposes, and in what concrete ways do those uses reduce the risk. That is the nature of the state's undoubted compelling interest. The record provides us no security. The sources cited in our reply brief are for... almost universally the same sources cited by Respondents or their amici with respect to the nature of the practices. They show considerable variation in the ritual, in the dosage, in the membership, and yet no real information as to how the underlying danger of the substance or harm is in fact avoided. What we do know about the religious use of the substance is the same thing we know about the use of peyote for anyone. And that is that there is a risk to the user. It's use is inconsistent with the government's compelling interest in preventing a known hazard to anyone. And if on this ambiguous and incomplete record it suffices to exempt under the Free Exercise Clause this substance, many other religious users can make identical claims persuasive to a court and to a legislature. But there is a second reason--
Antonin Scalia: General Frohnmayer, you... much earlier on you said that the state was presented with the problem of whether to make a de minimis exemption. What did you mean by a de minimis exemption?
David B. Frohnmayer: --It is argue--
Antonin Scalia: Is it conceded that... that the use of peyote in these ceremonies is only de minimis? Are you--
David B. Frohnmayer: --No.
Speaker: --conceding that point?
David B. Frohnmayer: No, I meant it on quite a different basis, and it is responsive, I think, to an argument of amici and perhaps others, that what we have is a small group of sincere... religious believers of deep conviction, and that to make an exception in their case would not compromise the interests of the state. The problem is, of course, that the other interests are compromised by the other claims of others equally entitled.
Speaker: We don't know how much peyote is used in these ceremonies, I gather we don't know that it is just a, you know, a sniff or whatever?
David B. Frohnmayer: Again, bearing in mind the admonition that it is not government's role to explore the centrality of religious practices of a belief, the record would fairly reveal that a hallucinogenic dose of four is common, and that ingestion of between eight and 30 of the peyote buttons is common. Beyond that the anthropological literature and the other literature cited by both parties is somewhat variable. But it does seem clear that there is no uniformly prescribed amount, nor any real control over the number of peyote buttons that may be ingested by communicants at the particular religious ceremony.
Harry A. Blackmun: Mr. Attorney General, why were these people fired?
David B. Frohnmayer: They were fired because they were drug counselors. Their--
Harry A. Blackmun: They what?
David B. Frohnmayer: --They were drug counselors.
Speaker: Yes.
David B. Frohnmayer: At a drug and alcohol treatment center. Their employer had a drug and alcohol free policy--
Harry A. Blackmun: So they were fired because they violated the employer's policy.
David B. Frohnmayer: --That is right.
Harry A. Blackmun: They were not fired because the use of peyote was illegal.
David B. Frohnmayer: That is correct. And it would not be a proper ground in Oregon to fire them simply because their underlying conduct... their conduct was otherwise illegal. They were fired for the statutory purpose upheld by the Employment Appeals Board of engaging in misconduct at their work, because it was a drug and alcohol free policy, consistent with the policy of many drug and alcohol rehabilitation centers, that they act as role models for those whom they were counseling. That was a valid job-related requirement.
Harry A. Blackmun: So we really have no question of illegality before us, do we?
David B. Frohnmayer: The illegality comes by virtue of the question posed on remand by the majority of this Court, which is another way of saying that it is a way to distinguish this case from Sherbert v. Verner and its progeny. Because in none of its pro... Sherbert or its progeny, was the underlying conduct which could constitute the legitimate state interest actually contrary to a state law, let alone to a state criminal law.
Anthony M. Kennedy: But is it a plausible reading of the Oregon Supreme Court's opinion on remand that even if we reached the criminals question and sustained the criminal statute, that the unemployment benefit is going to be paid anyway?
David B. Frohnmayer: No, we think not. We think that the ACLU amicus brief simply misread, and clearly misread, the Oregon Supreme Court's opinion on remand, which did not reiterate its past holding as its present holding, it simply repeated, in the past tense, what it had held. And then went on reach, quite properly, the questions posed by this Court on remand as to whether or not the federal interest in free exercise demanded a specific exemption. Moreover, the Oregon court's reasoning would hopelessly insulate any federal court, holding of a state court, from review by this Court, as we have argued I think... I believe persuasively in our reply brief. The notion that the state's interest must be cabined and confined within the unemployment laws suggests that they have to incorporate by reference every other prohibitory statute. And that, that to us is an absurd reading of what the Oregon court would have said. We believe it did not say that, it simply referred--
John Paul Stevens: Mr. Attorney General, may I ask one question here that I still can't quite figure out? Is there any explanation, either in the argument on remand or in part of the record that I am not familiar with, why the Oregon Supreme Court, which has... many times say they decide state constitutional issues before federal, and Justice Lindy has written on this, why didn't they do that in this case?
David B. Frohnmayer: --Either because they did not believe it was dispositive of this Court's question to it on remand, or because they believed, more properly as we conclude from the decision in Smith I in the Oregon Supreme Court, that in fact there would not be an entitlement to benefits under the Oregon constitution.
John Paul Stevens: That wasn't actually held in that case, and it is rather strange that they were totally silent on the point.
David B. Frohnmayer: Yes. The question--
John Paul Stevens: And had they ruled the other way, or had they ruled the way they did on the Oregon constitution, that would have been the end of the ball game.
David B. Frohnmayer: --That is correct. But in both cases the court reached out to decide the issue on federal grounds. And you are quite right, Justice Stevens, that of any court in the country ours is the most conscious of putting first a state constitutional consideration if it is relevant to decision of the case. But the court did not choose to reach the federal... the state ground, or perhaps concluded sub silentio that the state ground was not dispositive of the case. And that's why the federal issue is squarely before us again. Let's make one other point. That is, we have a claim by Respondent that line drawing of the kind that we find so objectionable in pursuit of our interests in religious neutrality is easy. And we point to the lower federal court cases suggesting that other persons using peyote, other persons using hashish, LSD or marijuana for sincere religious reasons, that those cases can be easily distinguished. We simply invite this Court's careful review of those cases, which are shamelessly result-driven and involve religious gerrymandering from which no consistent neutral principle emerges. And our point is that if we cannot accommodate on equal grounds, then the requirement of accommodation must fail. And there is a final and critical point here related to our health and safety interest. That is that denominational practices, and indeed individual believers, even in long-standing religions, can and do change. They change the nature of their religious beliefs, they change the nature of their doctrine, and that is the very essence of freedom of religion and belief. So a constitutional exemption that is bound in time and place is very risky. If we exempt a practice, even if we are presently satisfied by its safety, control passes forever into private hands. And that is proper. But then we must ask, before we let that control pass in the form of a constitutional exemption, denomination specific or not, now and in the future, what are the contours of that exemption and how will it be conferred. Because if the denominational or church controls weaken or change, there are still enshrined in the Bill of Rights a permanent exemption for the practices of that religion.
Anthony M. Kennedy: You do concede, I take it, that the enforcement of the Oregon criminal laws would in effect destroy the Native American Church and its ritual in your state.
David B. Frohnmayer: We don't concede that, Justice Kennedy, for a very practical reason. The Oregon criminal prohibition, construed as constitutional by the Oregon court of appeals since State v. Soto, has been on the books for more than a decade. There is no suggestion in our state that that religion has been destroyed by inappropriate police intrusion into the tepee ceremony. In most--
Antonin Scalia: What do you mean by inappropriate police intrusion? You are asserting that they have the right to intrude.
David B. Frohnmayer: --We are--
Antonin Scalia: If they haven't been destroyed, it is just that you have had inefficient enforcement.
David B. Frohnmayer: --We have had priorities in police enforcement that are understandable in terms of what is at stake. This, this--
Antonin Scalia: xxx event, that is the reason. Are you saying you are not going to enforce the criminal law if we sustain it?
David B. Frohnmayer: --No, we are not saying that. We are saying that, reading carefully and thoughtfully footnote 3 of the Oregon Supreme Court's opinion on remand, as Justice O'Connor has called to our... the Court's attention, there may be, in the specific context of the specific use by a person accused of a specific crime, special state constitutional restrictions on the state which have not yet been explored. We do not know the contours of those exemptions. But moreover, to answer your question generally--
Sandra Day O'Connor: But if... if the contour is just to forgive or exempt the use of peyote by members of the Native American Church, you would then be back here arguing that that violates the Establishment Clause.
David B. Frohnmayer: --If the defense were that the specific church and that church only was entitled to the exemption, that would very probably be the case, Justice O'Connor.
Byron R. White: xxx to enforce the law to the extent that some drug counselor who violates his employer's rules isn't protected... doesn't get unemployment compensation.
David B. Frohnmayer: Yes, Justice White, it's so intuitively obvious that drug counselors ought not to be partaking of the substances which they are asking others to refrain from, that of course we would. I would like to reserve the balance of my time if I may.
William H. Rehnquist: Thank you, General Frohnmayer. Mr. Dorsay, we'll hear from you.
Craig J. Dorsay: Mr. Chief Justice, and may it please the Court: I am compelled as an initial matter to address the subject raised by Justice Stevens relating to the use of alcohol, which I think raised one of the primary problems with this case as it comes before the Court. I think, if you looked at this situation and Indian people were in charge of the United States right now, or in charge of government, and you look at the devastating impact that alcohol has had on Indian people and Indian tribes through the history of the United States, you might find that alcohol was the Schedule I substance and peyote was not listed at all. And we are getting here to the heart of an ethnocentric view, I think, of what constitutes religion in the United States. And I think that needs to be looked at very hard before determining what is a dangerous substance and what is not.
Antonin Scalia: Well, it could... couldn't it be that the exception that the Oregon court was referring to might have been an exception for the use of peyote in insignificant quantities that could... could not produce any hallucinogenic or other adverse physical effect? Might not that be the exception that they were referring to? And if that's the case, then... then your pointing to the traditional use of wine at religion services would not make any difference. I don't assume that the states would be compelled to allow excessive use of alcohol, drunken... drunken parties, under... on grounds of religion. I don't think that that is the--
Craig J. Dorsay: Well, that is correct. And that interest still exists here, for instance, for people who might overuse alcohol in a religious ceremony, or for instance, if communion is administered to minors, or some other situation in which the state has a legitimate interest.
Antonin Scalia: --Yeah, but, you see, I don't see a correlation between the wine and the peyote. I mean, it is acknowledge that the peyote... do you disagree with what the Attorney General said, that the whole purpose of the ingestion of the peyote is its hallucinogenic effect.
Craig J. Dorsay: No, I do not disagree with that. What I disagree with is the fact that that ingestion is harmful. There is no documented evidence that the use of the peyote in these carefully circumscribed ceremonials has any harm to the individual, to society at large, or to the state's law enforcement efforts.
Antonin Scalia: How did it get to be a Schedule I controlled substance?
Craig J. Dorsay: Well, I think it has--
Antonin Scalia: I mean, somebody thinks it is harmful.
Craig J. Dorsay: --Yes. We do not know that for sure. It obviously, the drug mescaline has a high potential for abuse. That is what Schedule I says. The synthetic derivative has obviously been misused in society at large. There is, however, no evidence that peyote, as used by the Native American Church, has been misused in these sense that is has been misused in society.
Antonin Scalia: How would such evidence be acquired? Would you want the state to send agents into church services to observe them carefully and--
Craig J. Dorsay: Well, we have a long history with this church of hundreds of years, and there has been no documented evidence. We have one or two anecdotal instances. I think, also, if you are going to look at the legislative judgment that peyote is a dangerous substance, you also have to look at the legislative judgment that peyote can be exempted. There is some kind of legislative fact finding when Congress and other states have acted to exempt the use of peyote. They have based this in large part, for instance, on testimony before Congress, the factual findings by the California supreme court in People v. Woody, that there have been no evidence that there have been harmful use. The first point I wanted to make is that this case is indistinguishable from the previous unemployment cases before this Court. The Oregon Supreme Court has now decided twice, as a matter of state law, that the criminality of Respondent's conduct is immaterial to Oregon's unemployment compensation law. And I think the point, I believe it was raised by Justice O'Connor, is important here, and that is the reason the Oregon Supreme Court did not address its constitutional question under state law is because the criminality was not relevant. The statement of the Oregon Supreme Court on remand could not have been clearer. It said we also stated that it was immaterial to Oregon's unemployment compensation law whether the use of peyote violated some other law. It didn't say it was constrained by the previous decisions of this Court. It didn't say the state had conceded this issue. So the two reasons that this Court used in the majority opinion last time to find that the decision of the Oregon Supreme Court was ambiguous, and that was why this decision had been remanded, has now been cleared up. It was not a summary of its previous decisions. The Oregon court did not address a large number of things it said in its first decision.
William H. Rehnquist: --It gives the appearance of being [inaudible] script in a way, when it says, when it is describing its previous opinion. It says, we also stated--
Craig J. Dorsay: That is correct.
William H. Rehnquist: --as it if was just repeating what it said in its earlier opinion.
Craig J. Dorsay: Well, I believe what they did is they responded to the dissent's invitation to say this is what we said the first time. We meant it, we are saying it again. When this case went back on remand to the Oregon Supreme Court, Chief Justice, we raised the fact that we believed the state had distorted the Oregon Supreme Court's previous holding, and that this decision should be readdressed to find, or to address the fact of whether the criminality was irrelevant as a matter of state law. I can't disagree that I wish they had discoursed on it at greater length, but we believe that statement is as clear as you can find.
Antonin Scalia: Mr. Dorsay, I... whether it is irrelevant is a matter of state law. I mean, it might be irrelevant to whether you can fire the person--
Craig J. Dorsay: Yes.
Antonin Scalia: --for violation of your state rules, as an original matter. But it may not be irrelevant to the defense. I mean, is the supreme court of Oregon saying that it makes no difference under Oregon law whether you have a defense to the firing, that the matter is criminal, that a religious practice is criminal under state law?
Craig J. Dorsay: That is correct, unless it is job related or is involved in the actual firing of the person. They said the first time you have to look in the Oregon unemployment compensation statutes to find the state interest. And where the only state interest is the fiscal integrity of the unemployment fund, criminality has no place in the federal constitutional inquiry. Now, the state, and we conceded this in our brief, could choose to tie legislatively criminality with the receipt of unemployment benefits. They have never done so. Or, if the state had brought a criminal prosecution, then the criminality of the ingestion of peyote would have been relevant in the federal constitutional analysis.
Byron R. White: Why do you... why do you say that the... these people are entitled to workmen's compensation?
Craig J. Dorsay: Because they had a right to practice their religion under the First Amendment to the Constitution.
Byron R. White: So, so the First Amendment issue is here, I take it?
Craig J. Dorsay: It is, yes, in either form. But what is perhaps not here, and we believe it is not necessary to address the criminality, because the Oregon Supreme Court has decided that as a matter of state law.
Byron R. White: But it says that the... your court says they are entitled to compensation because the First Amendment requires it.
Craig J. Dorsay: That is correct.
Byron R. White: Even though the... even though the employee breached the rules of the employer.
Craig J. Dorsay: Well, we have a dispute about that. If you look at the record in this case--
Byron R. White: Well, suppose it is that there was a rule like that.
Craig J. Dorsay: --If that was the rule, and if the employee knew of that rule when they were hired, then the state could validly deny unemployment benefits. But--
Byron R. White: Despite the First Amendment.
Craig J. Dorsay: --No, not... only if the interest was criminalized. Not if... under the previous decisions of this Court, even where an employee is fired for misconduct; all the previous decisions, the employees were fired for misconduct, anyone else in their situation would have been validly denied, been denied unemployment benefits. This Court has chosen to view religious beliefs, and I believe it is Justice Stevens who said this in both the Goldman case and the Hobbie case, as equivalent to a physical impairment. So this Court has chosen to look at the issue as whether the state would have denied benefits to other people with a similar physical impairment. Religious belief has not been seen to be a voluntary choice by this Court. For instance, in Hobbie the Court rejected the State of Florida's view that the respondent or the claimant in that case had come voluntarily to the religion.
William J. Brennan, Jr.: Well, suppose that... suppose someone who wasn't claiming a religious privilege to use peyote was a drug counselor, and he used peyote.
Craig J. Dorsay: That's right. He would be validly denied unemployment benefits.
William J. Brennan, Jr.: Why?
Craig J. Dorsay: It is--
William J. Brennan, Jr.: Why, why?
Craig J. Dorsay: --It is the religious belief that changes the issue.
Speaker: Well, he would be denied it because of why? Because of--
Craig J. Dorsay: Well, again--
Speaker: --Because it was a breech of the criminal law?
Craig J. Dorsay: --If he was--
Speaker: You can't say that because they... the court has said the illegality is beside the point.
Craig J. Dorsay: --Well, if he was denied--
Speaker: It, this would be, it would be misconduct, wouldn't it?
Craig J. Dorsay: --If he was fired for misconduct, yes. And I want to get to that point very clearly. If you look at the policies of the employer at the time these two people were hired, the employer policy prohibited misuse and abuse of illegal drugs and substances and said social and recreational use is prohibited. After the first Respondent, Galen Black, used peyote and was fired, the employer realized that their policy was not clear, and they changed their written policy. It is that second written policy which was quoted by this Court in its first opinion. So--
William H. Rehnquist: We get to a point where some of this is water over the dam, isn't it?
Craig J. Dorsay: --Yes, it is.
William H. Rehnquist: I mean, we granted certiorari on the question presented, which is whether the Free Exercise Clause of the First Amendment protects a person's religiously-motivated use of peyote from the reach of the state's general criminal law prohibition. And you say maybe it is not so much a question of criminal law, but you agree that the First Amendment issue is here.
Craig J. Dorsay: Yes, but we think it is disposed of, and we need to keep reemphasizing this by Sherbert and Thomas, that the criminality is irrelevant. If the criminality is relevant, we still believe that the state has not met their test under the First Amendment. And I would be glad to move to that issue. The state has failed to meet its burden under the First Amendment to justify what we believe would be the total destruction of this religion, and that is because of the test that has been established by this Court in First Amendment cases. There is a sincere religious belief, it is a bonafide religion; that is conceded by the state. But once that is shown, the state must show, as Justice O'Connor summarized in the Goldman case, that the interest will in fact be substantially harmed by granting the type of exemption requested, and that the state interest will be undermined by granting the exemption, and there is no less restrictive alternative that can be granted in this case. And it is our belief that the state cannot meet any of the burdens in this case. The compelling state interest is the regulation of drug abuse generally, but we do not have any evidence in this case that peyote has been abused or that it contributes to the drug abuse problem. In fact, all of the evidence is to the contrary. We have the findings, for instance, of the federal agency charged with enforcement of the drug laws in this country, which found that and concluded that the religious use of peyote by the Native American Church does not cause a law enforcement problem in this country. And therefore there is no harm that is--
Antonin Scalia: Tell me, what does that mean?
Craig J. Dorsay: --Well, what is means is, and they listed a number of factors, and these are the factors which we believe distinguishes the use of peyote from other drugs, the amount of peyote that is in the system. For instance, they found that the entire supply of peyote is now used in bonafide religious ceremonies of the Native American Church. They found, for instance, that the marijuana problem in the United States, and the availability of marijuana and the use of marijuana was a much larger problem. And all of the courts that have addressed it have found that no accommodation can be made for marijuana.
Antonin Scalia: Well, I think a very good case could be made on the basis of what you say, that there is no risk of its use spreading beyond the Native American Church.
Craig J. Dorsay: That is correct.
Antonin Scalia: And that that church has been responsible in its use. But why can't the state say we don't want Native American Church members to use it either. We think this is dangerous. It is harmful to people. We don't want children to be brought into this church and taught to use this thing, it is harmful to them. It is a Schedule I substance; we have made that determination.
Craig J. Dorsay: Because the First Amendment, I believe, requires something more than a mere legislative statement that we believe it may be harmful. States can come up with all kinds of reasons to outlaw all kinds of conduct, as we have cited in our supplemental brief, for instance. That driving of Amish buggies without the reflector warning system is certainly a dangerous act. But if you allow the mere legislative proscription without an actual inquiry into whether harm has in fact occurred, then you are--
Antonin Scalia: Excuse me, what do you mean in fact occurred? You would not accept scientific evidence that the use of peyote is physically harmful?
Craig J. Dorsay: --I would not accept that.
Antonin Scalia: In general. You would require the showing in the particular context of the religious service?
Craig J. Dorsay: Not in the context of the religious service. The evidence is divided. The evidence is particularly divided. In respect to this church, however, there is reliable scientific evidence that the use of peyote in the ceremony of the Native American Church contributes to rehabilitation of people who have problems with drug and alcohol abuse. So the evidence is mixed. There is no evidence that anyone, and we need to keep repeating this, over 300 years or more, has ever suffered harm. There is one or two anecdotal--
John Paul Stevens: But, Mr. Dorsay, under that analysis, is there any... can we possibly defend the state laws that prohibit bigamy? What is the evidence that bigamy is harmful?
Craig J. Dorsay: --Well, I think the evidence that bigamy was harmful in the 1800s perhaps may be different than exists today.
John Paul Stevens: What was the evidence then? It was against a lot of people's religious and moral beliefs, but did anybody ever prove it was harmful?
Craig J. Dorsay: Well, I would say that the analysis conducted by the Court back in the 1800s was perhaps different, and maybe that statute would not be upheld in the present day. But--
John Paul Stevens: I think that is the logic of your position, that that statute probably falls, too.
Craig J. Dorsay: --I think it is not substantially justified. In that case the state, or the United States, was obviously alleging that bigamy was harmful to society in the United States. There is some evidence, for instance, that the beliefs of the Mormon church were believed to be so outrageous that there were riots, massacres, and other things that occurred as the Mormon church moved west from Indiana to Utah, and posed a substantial and actual threat to public order at that time.
John Paul Stevens: The riots probably were the result of the fact that they were a persecuted group.
Craig J. Dorsay: Yes, that is correct.
William H. Rehnquist: Well, Mr. Dorsay, do you say that the State of Oregon can't rely at all on the fact that the peyote is shown as a Schedule I drug? That the facts behind that have to be proved all over again?
Craig J. Dorsay: No, I am not ask... saying that. I would say that the legislative proscription informs the constitutional analysis, but it is certainly not a conclusion that this Court is bound by. We have just as reliable evidence by the legislature in terms of granting the exemption, we cannot presume that the legislature would be so outrageous--
William H. Rehnquist: Yes, but the Oregon legislatures didn't choose to grant the exemption.
Craig J. Dorsay: --All it did was adopt the Schedule I listing that had been adopted previously by the federal government. And that listing, in its legislative history, provided an express exemption for the Native American Church.
William H. Rehnquist: But Oregon didn't provide it.
Craig J. Dorsay: That is correct.
John Paul Stevens: But on that, on that subject you earlier suggested that the outcome of this case may result in the total destruction of this religion.
Craig J. Dorsay: Yes.
John Paul Stevens: But isn't it much more likely that there will continue to be exemptions in the states which have allowed them, and as I understand it, there are proceedings pending in Oregon to grant exemptions... doesn't some board, a state board, have authority to grant an exemption here?
Craig J. Dorsay: Well, there is a question. The state disputes whether the board has any authority to grant exemptions, just, for instance, under the Federal Controlled Substances Act there is no express authority to grant exemptions. The Native American Church was exempted only because it was listed in the legislative history. The federal government takes the position that that is a unique exemption, and is of no precedential value for any other exemptions. The Board of Pharmacy did exempt the religious use of peyote. That exemption was withdrawn upon the advice of the Attorney General that it might violate the Establishment Clause, or for other reasons.
John Paul Stevens: It might moot this litigation, I suppose. Well, would you... wouldn't you think that the same exemption would be required for other, other sincere claims that the use of peyote is part of their religion?
Craig J. Dorsay: Well, I have two points of response to that. Yes, I do believe it would be required under normal constitutional analysis, for other peyote churches, such as the Peyote Way Church of God, which have the same exact conditions that the Native American Church does. And there are a number of conditions that go to that that show that this church, or the use of peyote, is unique. However,--
Sandra Day O'Connor: How about marijuana use by a church that uses that as part of its religious sacrament?
Craig J. Dorsay: --Well, see, I think we can get into a lot of examples, and I don't want to go down that road too far because we don't--
Speaker: I'll bet you don't. [Laughter]
Craig J. Dorsay: --have the facts here. [Laughter] But the fact is, and a number of courts have looked at marijuana, and they have concluded that marijuana contributes substantially to the law enforcement problem. That has been the distinguishing factor in a number of cases. This drug does not contribute to the law enforcement problem. This substance is used by... as used in its sacramental purposes by the church, does not cause those problems.
Antonin Scalia: Only because the law is not enforced. I mean, you know--
Craig J. Dorsay: Well, why is the law not enforced?
Antonin Scalia: --if it occurs on the reservation and the law enforcement authorities say it can occur... I am, I am not comforted by the fact that it doesn't--
Craig J. Dorsay: Well no, not just because the law--
Antonin Scalia: --cause a law enforcement problem. I don't know what that means.
Craig J. Dorsay: --Well, what it means is it doesn't contribute to the use of other drugs. It doesn't undermine the federal government or the nation's law enforcement efforts for other drugs. It doesn't get into the distribution system. It is not one of the drugs that is looked to by other people as a recreational substance.
Antonin Scalia: But why can't the state consider it itself as the law enforcement problem?
Craig J. Dorsay: Peyote itself?
Antonin Scalia: The very use, even in religious services. Just as the state may consider the very use of marijuana, regardless of whether it pollutes commerce or anything else, as being itself a problem. We don't want it used. Why can't--
Craig J. Dorsay: The state can look at it as the problem itself, but we're... it is my position, strongly, that they have to justify that position by showing some actual harm. Otherwise there would really be no free exercise right, because the state could outlaw any kind of conduct and say--
Antonin Scalia: --So long as it does it generally, I think... why isn't that right?
Craig J. Dorsay: --So long as it does--
Antonin Scalia: So long as it does it generally and doesn't pick on a particular religion. It has a generally applicable law for good and sufficient reasons.
Craig J. Dorsay: --Well, the problem is, is this law and the "neutral", quote, unquote, prescription, does affect a particular religion only. And it is not, this Court said in Yoder, neutral laws may in its application have an affect on other, on particular--
Antonin Scalia: Well, I suppose you could say a law against human sacrifice would, you know, would affect only the Aztecs. But I don't know that you have to make... you have to make exceptions. If it is a generally applicable law that the state--
Craig J. Dorsay: --Well, for instance, a better example I thought, the state is, for instance, cited to a case outlawing the use of dangerous snakes. Now, that is a legitimate belief. But, for instance, what happens if the state says we want to outlaw all use of snakes by religions. And you have a religion that believes that garter snakes, the common garden snake, is a deity. Would that general proscription hold up where you have an overbroad legislative proscription, and it is not necessary, though, in this particular instance of this... the garter snake in that case. And we would hold, and this Court has hold, that the proscription must be narrowly drawn to only protect the interest that is harmed, not the general interest that is not harmed.
Antonin Scalia: --[inaudible] snakes. Nobody shall handle poisonous snakes.
Craig J. Dorsay: Well, that would certainly be a large step in the right direction. If there are some snakes that have... are, for instance, are poisonous, but you can show one, that they never bite people, two, that the effect is not really dangerous, that poison is not dangerous, then even in that case I would say you should not outlaw the use of that snake, because in fact it is not causing any harm to people.
Antonin Scalia: And the burden is on the state to show that.
Craig J. Dorsay: Yes. All of the cases--
Antonin Scalia: So if there were a cult that used rattlesnakes, the state would have to show that in the use of those rattlesnakes somebody has been killed or hurt.
Craig J. Dorsay: --Well, I don't think there is any dispute about the harm that rattlesnakes can cause.
Antonin Scalia: I don't think there is any dispute about the harm that peyote can cause. You haven't disputed that, the general dangerousness of it, have you?
Craig J. Dorsay: The misuse of peyote, no. We do not believe the circumscribed ceremonial use of this peyote constitutes misuse under any circumstances. The other--
Anthony M. Kennedy: The Attorney General mentioned the incidence of 18 to 30 buttons being consumed. Would that be a dangerous use, or a use that the state could proscribe?
Craig J. Dorsay: --See, this is one of the problems with the record in this case. The normal, generally-accepted use is four buttons, as it goes around... the use of peyote goes around twice during the ceremony. People can choose to take one to four more the second time it goes around. We do not know, the use varies in some instances, the circumstances--
Anthony M. Kennedy: Well, I am not sure if it is a general problem with the record or a general problem with the exemption you seek to have us adopt.
Craig J. Dorsay: --If it could be shown that the ingestion of a large number, 30 or more peyote buttons, caused harm, I would say that perhaps the state could limit the use of peyote in the ceremony to a smaller amount that would not cause those problems.
Speaker: How often are these ceremonies held?
Craig J. Dorsay: They vary among people.
Speaker: Like every day?
Craig J. Dorsay: No. My client participates in them once or twice a year. Some people participate in them... the chiefs, road chiefs who conduct the ceremonies, do them once a week in different settings. I think the normal use is in the order or once a month or so.
Speaker: Is peyote habit forming?
Craig J. Dorsay: No. It has not been shown to be habit forming or addictive in any respect. I wanted to briefly address the other Establishment Clause issue, and that is the second reason for just upholding the Native American Church is that it's a federal exemption that is governed by the United States trust responsibility to Indian tribes. That's why the Native American Church has been singled out in the legislative history and in the American Indian Religious Freedom Act. There have been a number of other instances, for instance the Bald Eagle Protection Act, which was addressed by this Court in U.S. v. Dion, provides an exemption for the religious use, Indian use, of eagle feathers for Indian religious purposes. There are a number of other statutes. The Indian Child Welfare Act, which was addressed by this Court earlier in the year, is based on the cultural integrity of tribes. The Indian Civil Rights Act provides an express exemption from the Establishment Clause because the cultural integrity of tribes was so important. We don't believe it is necessary to address that issue again in this case, but we certainly believe that the singling out of one church in this case is based on the federal government's relationship with Indian tribes. And that is why they have singled out this church. Oregon Supreme Court only exempted the Native American Church because that was the only church before it. It was not there to look at a broad exemption for all churches, and that is the purpose of the First Amendment. In the Frazee case, the Court said we realize it is difficult to balance between different religious beliefs, but the First Amendment requires it. If you have a long history, if you have organized tenets of a church, it makes the inquiry easier, but that does not get rid of that burden on this Court or other courts, if those organized beliefs aren't there. In this case they are here, there is... this church supports the state's drug enforcement effort in every respect. The tenets of the church believe any misuse of this drug, any misuse of other drugs or alcohol is sacrilegious. And so there is no disparity between the beliefs of this church, we believe, and the beliefs of... the interests of the state in this case.
Speaker: I suppose any, any individual outside this church could have a sincere religious belief also that two buttons a month is required by my religious beliefs, and that can't be forbidden.
Craig J. Dorsay: Well, the problem is, this is only ingested in a ceremony which is led by a road chief, in which no one leaves--
Speaker: I know, what if he says I have a ceremony in my house twice a month.
Craig J. Dorsay: --Well, see, that has been the distinction with other religions. In some of the marijuana religions, for instance, they believe we should be able to use it in any conditions under any circumstances. That, of course, implicates the state's law enforcement interest.
Antonin Scalia: I thought the record here showed that some members of the church do use it to cure illness, apart from these mass ceremonies where they use it, but some use it at home--
Craig J. Dorsay: It is used in the ceremony, but it is also used for medical treatment as part of the ceremony. Thank you.
William H. Rehnquist: --Thank you, Mr. Dorsay. General Frohnmayer, you have three minutes remaining.
David B. Frohnmayer: Thank you, Mr. Chief Justice, and may it please the Court: Two points on Oregon law. The case of State v. Soto which is relevant to my answer to Justice O'Connor's decision, the court did not address the Oregon constitution, and that was probably prior to a time at which state and federal constitutional claims were separately considered. With respect to the question propounded by... to opposing counsel, the question of benefits and the entitlement of Respondents to benefits under the state law and under the state constitution was fully settled by the Oregon Supreme Court before this Court ever reached this case in Smith v.... Smith I. So the state constitutional entitlement to benefits, putting aside the criminal law issue, is settled law, it is, as the Chief Justice said, water over the dam in terms of what the state law ruling was on misconduct and whether that is covered by... or protected, by the state constitution. It is not.
Byron R. White: The reason the benefits are required in this case, according to the court below, is that it... the First Amendment requires it.
David B. Frohnmayer: That is correct. That is the only reason we are here at this Court is because--
Byron R. White: And it may, it may have said that, whether it is criminal under Oregon law is irrelevant--
David B. Frohnmayer: --That is correct.
Byron R. White: --but, but we don't need to think that it is irrelevant to the First Amendment issue.
David B. Frohnmayer: And we hope that you do not. It is clear that--
Byron R. White: That is why we... I suppose that is why we remanded.
David B. Frohnmayer: --That's... and we believe that a different answer would have been forthcoming on remand, because we believe that it is relevant and it is a distinguishing factor. Third is a factual point, Mr. Chief Justice, and that is that it is generally agreed that the ingestion of four buttons of peyote is sufficient to induce a hallucinogenic state. Both Petitioners and Respondents cite essentially the same anthropological and sociological studies in terms of the variabilities of this practice. They are referred to in our briefs, and we would refer this Court to our reply brief in terms of citations to the authorities which would describe the variations in ceremonies.
Byron R. White: General, suppose you just frankly said, or just from experience you would conclude that the state's criminal law, even if they could apply it, is just never applied to these ceremonies. They are just never going to do it. I guess the case is still alive because of this... this workmen's compensation issue.
David B. Frohnmayer: At the very least it is alive because of that, and also because there is on the books a very adverse precedent decided by the Oregon Supreme Court purporting to construe federal law in a way which we believe is not consistent with the teachings of this Court. Thank you very much.
William H. Rehnquist: Thank you, General Frohnmayer. The case is submitted.