409 lines
21 KiB
Plaintext
409 lines
21 KiB
Plaintext
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*=-- --=*
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{ the }
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-=*/> Buzzz Bros. <\*=-
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present:
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The Supreme Bunch
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of INjustices
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vs Peyote
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Part I of II
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{ }
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*=-- --=*
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The following 13 messages, retrieved from PeaceNet, discuss the recent
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Supreme Court ruling permitting states to prohibit sacramental use of
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peyote.
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Supreme Court Continues Chipping Away At Citizen's 1st Amendment Rights,
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Part 1.
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-------------------------------------------------------------------------
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Exerpts from the following article detailing the April 17th ruling
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by the US Supreme Court which decided that Native Americans could
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no longer use peyote in their religious practices:
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"For all practical purposes, a majority of the Supreme Court has
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eliminated the Free Exercise clause of the First Amendment from our Bill
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of Rights," said American Jewish Congress Executive Director Henry Siegman.
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"The court's decision in the peyote case can have the most far-
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reaching consequences for all religions, but primarily for religious
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minorities," continued Siegman. "It is precisely such minorities the
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Bill of Rights sought to protect, for it is they who are particularly
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vulnerable to the depredations of momentary and localized majorities."
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... Dr. Robert L. Maddox, executive director of Americans United
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for Separation of Church and State, said the "Smith" ruling is cause for
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concern...
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"We are concerned," he continued, "that this ruling will have a
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negative effect on minority religions. Mainstream faiths will probably
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have little difficulty getting the exemptions they need; smaller groups
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with less political influence will have a tougher time of it. That is
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unfortunate. Religious freedom should not be left to the whim of state
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and federal lawmakers.
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"No one wants anarchy in the name of religion," he added, "but do we
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really want more and more government regulation of religion? What
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bothers us most is the movement away from individual liberty and toward
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statism--whatever the government wants, goes."
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[2]
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The following article appeared in the June 1990 issue of "Church and State",
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a publication of Americans United for Separation of Church and State, 8120
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Fenton St., Silver Spring, MD, 20910, and is reprinted here w/permission.
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-----------------------------------------------------------------------------
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The Day 'Sherbert' Melted
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by Rob Boston
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Discarding A 27-Year-Old Test For Religious Liberty Cases, The Supreme
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Court Says Government May Restrict Religiously Motivated Conduct
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Alfred Smith considers himself apolitical; he's not even registered
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to vote. But, in light of what the Supreme Court did April 17, the 70-
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year-old Oregonian is ready to jump into politics in a big way.
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The high court ruled 6-3 that day that Native Americans do not have a
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constitutional right to use the drug peyote during their religious
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ceremonies. Smith, one of the plaintiffs who helped bring the case
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before the nation's highest court, is angry--angry enough to take his
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fight to the polls.
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"I'm encouraging all people to register and vote this year," Smith
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said. "This is the time for it. I have never voted before because I
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don't care to condone the system, but I have made a stand here with this
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case."
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The political route Smith proposes may be one many members of minority
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religions are forced to take in the future, thanks to the Supreme
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Court's decision in the "Employment Division v. Smith" case. The
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justices' ruling marks an abrupt shift in free exercise jurisprudence,
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granting government broad new powers over religious practices.
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What makes the "Smith" decision so significant is that in reaching it
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five justices voted to abandon the court's doctrine of "compelling state
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interest," a move with far-reaching implications for religious liberty.
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In a nutshell, the 27-year-old doctrine says that the government can
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restrict religious freedom only when it proves there is a compelling
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interest to do so and that there is no less intrusive alternative
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available to achieve the state's goals. The judicial rule grew out of
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the 1963 "Sherbert v. Verner" decision and is usually called the
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"Sherbert" Test.
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In the recent peyote case the court rejected the "Sherbert" standard
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in favor of a much narrower test, holding that government may offer
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religiously based exemptions from generally applicable laws if it
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chooses, but it is under no constitutional obligat
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ion to do so.
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Wrote Justice Antonin Scalia for the majority, "We have never held
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that an individual's religious beliefs excuse him from compliance with
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an otherwise valid law prohibiting conduct that the State is free to
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regulate."
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[3]
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Scalia went on to say that applying the doctrine of compelling state
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interest in the peyote dispute and similar cases would create "a private
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right to ignore generally applicable laws [which would be] a
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constitutional anomaly." Rigorous application of the "Sherbert"
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approach, he said, would be "courting anarchy."
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Later in the opinion, Scalia admitted that the ruling will force
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minority religious groups to seek relief from oppressive laws by
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lobbying elected officials, and some may fail in their efforts. But he
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excused this as unavoidable. "It may fairly be said," observed Scalia,
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"that leaving accommodation to the political process will place at a
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relative disadvantage those religious practices that are not widely
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engaged in; but that unavoidable consequence of democratic government
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must be preferred to a system in which each conscience is a law unto
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itself or in which judges weigh the social importance of all laws
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against the centrality of all religious beliefs."
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The court majority acknowledged that judicial exemptions from neutral
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laws have sometimes been granted for religious reasons. But, Scalia
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argued, such exemptions have generally been granted in conjunction with
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another constitutional right--such as free speech. He called these
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examples "hybrids" and implied they are special cases. Other than that,
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said Scalia, the only legal disputes where the "Sherbert" analysis has
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been applied consistently and usefully are unemployment compensation
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rulings, such as the line of decisions approving jobless benefits for
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workers who are fired for refusing to work on their sabbath.
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Ironically the "Smith" case involved just such an unemployment
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controversy. It started in 1984 when Smith, a Klamath Indian, and
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another man, Galen W. Black, a non-Indian, were fired from their jobs
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as drug counselors after the agency they worked for learned the pair had
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used the drug peyote during ceremonies in the Native American Church.
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The Council on Alcohol and Drug Abuse Prevention Treatment (ADAPT) had
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a policy stating that all employees must be drug free. Smith and Black
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thought an exemption would be made for their religious use of peyote, a
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mild hallucinogen derived from some cactus plants, but ADAPT officials
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saw things differently: Both men were dismissed.
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[4]
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When Smith and Black subsequently applied for unemployment benefits,
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they were turned down. Officials with the state Employment Division
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said the two had been fired for misconduct and therefore did not
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qualify. The duo took the case to the courts.
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Four years later the Oregon Supreme Court ruled that the ceremonial
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use of peyote is permissible under state law and is even protected by
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the First Amendment. The Supreme Court's recent action overturns that
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decision.
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The "Smith" majority drew upon a somewhat unusual alignment of
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justices. Scalia, Chief Justice William Rehnquist and Justices Anthony
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Kennedy and Byron R. White were predictable allies. All four have
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argued for a narrower reading of the First Amendment's religious liberty
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clauses.
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Justice John Paul Stevens, however, provided the key fifth vote.
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Stevens, often thought of as a member of the court's liberal wing,
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favors a strict separationist reading of the Establishment Clause, but
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has argued in past cases for a less expansive reading of the Free
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Exercise Clause.
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Justice Sandra Day O'Connor concurred in the "Smith" outcome, but
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wrote a separate dissent that accused the majority of going too far.
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"Although I agree with the result the Court reaches in this case, I
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cannot join its opinion," asserted O'Connor. "In my view, today's
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holding dramatically departs from well-settled First Amendment
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jurisprudence, appears unnecessary to resolve the question presented,
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and is incompatible with our Nation's fundamental commitment to
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individual religious liberty."
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The free exercise of religion, O'Connor added, is a "preferred
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constitutional activity," entitled to "heightened judicial scrutiny."
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The "Sherbert" Test, she continued, has worked well to "strike sensible
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balances between religious liberty and competing state interests."
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Justices Harry A. Blackmun, William J. Brennan Jr. and Thurgood
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Marshall indicated agreement with O'Connor's opinion, although they said
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they would have gone further and upheld the Native American Church
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members' claim. The court's liberal wing criticized the majority for
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"mischaracterizing this Court's precedents" and engaging in a "wholesale
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overtuning of settled law concerning the Religion Clauses of our
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Constitution."
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[5]
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Wrote Blackmun, "One hopes that the Court is aware of the
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consequences, and that its result is not a product of over-reaction to
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the serious problems the country's drug crisis has generated."
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The justice insisted that ritual peyote use by Native Americans could
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be tolerated without jeopardizing the nation's campaign to curb drug
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abuse. He noted that the federal government allowed the Roman Catholic
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Church to employ sacramental wine at masses during Prohibition.
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Said Blackmun, "I do not believe the Founders thought their dearly
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bought freedom from religious persecution a 'luxury,' but an essential
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element of liberty--and they could not have thought religious
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intolerance 'unavoidable,' for they drafted the Religion Clauses
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precisely in order to avoid that intolerance."
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Even though the case dealt with the sensitive issue of drug use,
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several religious organizations had sided with the Native American
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Church members, most notably the American Jewish Congress, which filed a
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friend-of-the-court brief in support of Smith and Black.
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"For all practical purposes, a majority of the Supreme Court has
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eliminated the Free Exercise clause of the First Amendment from our Bill
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of Rights," said AJC Executive Director Henry Siegman.
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"The court's decision in the peyote case can have the most far-
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reaching consequences for all religions, but primarily for religious
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minorities," continued Siegman. "It is precisely such minorities the
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Bill of Rights sought to protect, for it is they who are particularly
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vulnerable to the depredations of momentary and localized majorities."
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Three weeks after the decision the AJC and an extraordinarily diverse
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coalition of religious and civil liberties groups filed a petition for
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rehearing before the Supreme Court. The petition urged the justices to
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hear the case again so the organizations will have the opportunity to
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address their free exercise concerns in friend-of-the-court briefs.
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Groups joining the AJC include: the Baptist Joint Committee on Public
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Affairs, the National Council of Churches, the National Association of
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Evangelicals, People for the American Way, the Presbyterian Church
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U.S.A., the American Civil Liberties Union, the Christian Legal Society,
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the American Jewish Committee, the Unitarian-Universalist Association,
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the General Conference of the Seventh-day Adventist Church, the
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Worldwide Church of God and the Lutheran Church, Missouri Synod.
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Americans United for Separation of Church and State also signed the
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petition.
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[6]
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Attorney Oliver S. Thomas of the Baptist Joint Committee said it is
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important that religious and civil liberties groups have the opportunity
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to express their views to the court. He said the court's abandonment of
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the "Sherbert" Test could have a wide impact.
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"Taxation of church assets, regulation of church schools and child-
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care centers, zoning and other land-use questions are all areas of the
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law where we've relied upon the compelling state interest test to
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provide churches with exemptions," Thomas told the Baptist Press. "With
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a stroke of his pen, Justice Scalia has overturned 27 years of legal
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precedent and made the 'first liberty' a constitutional stepchild."
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The Rutherford Institute, a conservative legal aid group that
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frequently litigates free exercises cases, was also dismayed by the
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ruling. Said Institute President John W. Whitehead in a press
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statement, "Justice Scalia's opinion rejects the notion that free
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exercise of religion is a preferred right. Rather, in most situations
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it is valid only when coupled with another constitutional right.
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"Armed with this opinion, a state may draft a law that violates
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religious liberty, claim it is `religiously neutral' and those affected
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by it may have no recourse under the Constitution."
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Constitutional scholars were particularly amazed that the majority in
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the peyote case relied heavily on "Minersville School District v.
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Gobitis," a 1940 Supreme Court decision that said Jehovah's Witness
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children in public schools could be forced to say the Pledge of
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Allegiance. "Gobitis" was overturned three years later in the
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"Barnette" decision and has been roundly criticized ever since as one of
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the court's biggest mistakes.
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Observed Douglas Laycock, law professor at the University of Texas,
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"The court repeatedly quotes "Gobitis" without noting that it was
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overruled in "Barnette," and without noting that it triggered a
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nationwide outburst of violence against Jehovah' s Witnesses. Until the
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opinion in this case, "Gobitis" was thoroughly discredited."
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But not all courtwatchers were chagrined by the ruling. Jules B.
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Gerard, a constitutional law professor at Washington University in St.
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Louis, told Religious News Service there has been a lot of overreaction.
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Gerard said the decision "overturns very little" and accused those who
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have protested it of "hysterical talk."
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[7]
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Bruce Fein, a conservative constitutional scholar, went even further,
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applauding the ruling in a column in "The Washington Times." Fein
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wrote, "It is both counter-intuitive and contrary to American political
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experience to suppose the "Smith" ruling portends an epitaph for
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religious tolerance and accommodation in generally applicable
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legislative enactments. And when religion must yield to secular law,
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the former continues to prosper."
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Fein went on to say that religions can drop fundamental tenets and
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still survive, pointing out that the Church of Jesus Christ of Latter-
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day Saints (the Mormons) in 1890 dumped its support for plural marriage
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after the Supreme Court refused to allow the practice for religious
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reasons.
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Conservative columnist George Will also was pleased with the "Smith"
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decision. "A central purpose of America's political arrangements is the
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subordination of religion to the political order, meaning the primacy of
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democracy," he observed. "The Founders, like Locke before them, wished
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to tame and domesticate religious passions of the sort that convulsed
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Europe....Hence, religion is to be perfectly free as long as it is
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perfectly private--mere belief--but it must bend to the political will
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(law) as regards conduct."
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However, Dr. Robert L. Maddox, executive director of Americans United
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for Separation of Church and State, said the "Smith" ruling is cause for
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concern.
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"If a majority of the justices did not believe the Native American
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Church members had a valid claim, they could have rejected them by
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relying on the doctrine of compelling state interest," said Maddox.
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"But a majority chose to go much further, effectively weakening the
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protection the court has extended to religious free exercise.
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"We are concerned," he continued, "that this ruling will have a
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negative effect on minority religions. Mainstream faiths will probably
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have little difficulty getting the exemptions they need; smaller groups
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with less political influence will have a tougher time of it. That is
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unfortunate. Religious freedom should not be left to the whim of state
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and federal lawmakers.
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"No one wants anarchy in the name of religion," he added, "but do we
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really want more and more government regulation of religion? What
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bothers us most is the movement away from individual liberty and toward
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statism--whatever the government wants, goes."
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The decision has already had a practical consequence for one minority
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faith. Just six days after the "Smith" ruling, the justices, by a 7-2
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vote, ordered the Minnesota Supreme Court to reconsider a recent
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decision it made exempting an Amish group from complying with a highway
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safety law.
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[8]
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Members of the Old Order Amish had protested a state law requiring
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them to display orange safety triangles on their horse-drawn buggies.
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The Amish said the bright symbols violated their belief in a plain
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lifestyle. The Minnesota high court agreed in 1989, but now may be
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forced to reverse the "State v. Hershberger" decision in light of the
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"Smith" ruling.
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In Eugene, Ore., meanwhile, Al Smith has no more faith in the courts.
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After joining about 100 people in a protest of the decision that bears
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his name at a Eugene federal building April 20, Smith told reporters he
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is backing proposed legislation suggested by state representative Jim
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Edmunson of Eugene that would allow Native Americans to use peyote in
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religious rituals in Oregon. If that fails, Smith said, the Oregon
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Supreme Court could decide Native American peyote use is permissible
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under the state constitution.
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Smith told "Church & State" he is also working with Native American
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groups in the United States that are considering filing a protest before
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the International Court of Justice (commonly called the World Court) in
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The Hague, Netherlands.
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"The United States is saying the original people of this land can't
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worship," Smith told Church & State. "We were worshipping a long time
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before the white man ever set foot on this turtle island.
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"The issue is not dead, by no means," continued Smith. "I'm not
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giving up; I have committed no crime. It's not a crime to pray in the
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old way."
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KOYAANISQATSI
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ko.yan.nis.qatsi (from the Hopi Language) n. 1. crazy life. 2. life
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in turmoil. 3. life out of balance. 4. life disintegrating.
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5. a state of life that calls for another way of living.
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---------> Buzzz Bros. <---------
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See Part Two
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X-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-X
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Another file downloaded from: NIRVANAnet(tm)
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& the Temple of the Screaming Electron Jeff Hunter 510-935-5845
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Rat Head Ratsnatcher 510-524-3649
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Burn This Flag Zardoz 408-363-9766
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realitycheck Poindexter Fortran 415-567-7043
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Lies Unlimited Mick Freen 415-583-4102
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Specializing in conversations, obscure information, high explosives,
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arcane knowledge, political extremism, diversive sexuality,
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insane speculation, and wild rumours. ALL-TEXT BBS SYSTEMS.
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Full access for first-time callers. We don't want to know who you are,
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"Raw Data for Raw Nerves"
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