Session 5: The Real Harm of Biased Religious Liberty Laws, part b

Reflection: Who is right or wrong when it comes to Religious Liberty?

It shows injustice and insensitivity to a person who is not informed of her rights, as in the case of “Danita.” The case that was an important catalyst for our modern day religious liberty arguments was the Employment Division, Department of Human Resources of Oregon v. Smith case in 1990 that was decided at the U.S. Supreme Court. Known to some as the “Peyote” case, the question of the free exercise of religion was determined.

A peyote ceremony from 1892

Peyote is a cactus plant that can produce hallucinogenic effects when consumed. The Court “determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual.”8 This was an unusual case for the Court to side with the State of Oregon against the religious practice of a group. Governments have made allowances for alcohol to be used during religious rituals, but the Court determined it had no legal recourse to support the employees’ claim of wrongful termination.

Commentators noted, “The Smith decision outraged the public. Many groups came together. Both Liberal (like the American Civil Liberties Union) and Conservative groups (like the Traditional Values Coalition) as well as other groups such as the Christian Legal Society, the American Jewish Congress, the Baptist Joint Committee for Religious Liberty, and the National Association of Evangelicals joined forces to overturn laws if they burden a religion.”9

Even though a political accord was struck in the creation of the Religious Freedom Restoration Act (RFRA), which was applauded by many different religious groups, there was no shared understanding of how the law would be interpreted. On the Right, the RFRA was seen as a tool to defend their religious beliefs against the perceived threats of anti-religious Liberals. On the Left, RFRA was seen as providing a means to ensure the legal protection for a religious minority to practice its religion without threat of persecution.

The Religious Freedom Restoration Act “applies standards that are more protective of the exercise of religion than the constitutional standard. It prohibits government from ‘substantially burdening’ a person’s free exercise of religion, even if the burden is the result of a generally applied rule, unless the government demonstrates that the burden is the least restrictive means of furthering a compelling government interests.”10 These conflicting objectives quickly brought an end to any dream that there would be harmony around this issue. In fact, this issue has led to a further “ramping up” of the political bickering.

Questions: Finding Common Ground?

  1. For a time, the “Peyote” case brought together political opponents to fight together for religious liberty. Are there other social issues that you are aware of where opponents have joined forces to accomplish a shared goal?
  2. Since agreement on so many issues today is difficult to obtain, should we as citizens and as members of different Christian churches simply be content to remain separated from each other based on our disagreements over political and social issues?



8 Legal Information Institute, “Employment Division v Smith,” Cornell Law School,  (Accessed on February 19, 2016).

9 Fredrick Clarkson, “When Exemption is the Rule: The Religious Freedom Strategy of the Christian
Right.” Political Research Associates.  (Accessed on January 23, 2016).

10 Jay Michaelson, “Redefining Religious Liberty: The Covert Campaign against Civil Rights.”
Political Research Associates. (Somerville: Political Research Associates, 2013): 20.

For more information about the peyote ritual,