by Sanchir Boldoo | Spring 2018

In the United States of America, there is a perpetual debate surrounding the predicament of as to how the state can recognize and protect religious rights while simultaneously considering and upholding general laws. Specifically, the controversy regarding religious drug use and how that should affect one’s employment or legal status has been a highly pertinent and dividing issue. Until 1990, the United States Supreme Court generally held that any government restriction on religion must provide a compelling public interest. However, in one Oregon case dealing with two Native Americans’ religious drug use of peyote, a psychoactive and illegal drug, the court majority deemed that there was nothing unconstitutional about states expecting citizens to comply with neutral and generally applicable laws – such as those criminalizing peyote – even if compliance conflicted with religious beliefs. This landmark decision, Employment Div. v. Smith, provoked a strong reaction that has ignited the pursuit for more legislative protections for religion ever since. In a nation that is incessantly conflicted in terms of balancing its commitments between the general welfare of society and the interests of religious groups, many pertinent questions arise: What is the fundamental difference between the right to exercise and the right to believe? Can the state limit one’s free exercise of religion? When should the state provide legal accommodations for individuals engaging in sacramental drug use? One could very strongly assert that the First Amendment dictates that all must receive equal treatment from the state and judiciary. Nonetheless, reasonable legal accommodations, which shall be contingent upon other societal factors, must be made in order to protect the religious practices of various groups that consider sacramental drug use as vital aspects of their lives. Through close analysis, this paper shall contend that in order to uphold religious rights, especially those of marginalized religious groups, legal exemptions from general laws must be provided to individuals who engage in sacramental drug use. Furthermore, this paper shall also assert that providing such exemptions can be done without damaging the general welfare of society with the correct implementation of an adequate checks and balances system that prevents the misuse of religious drug use exemptions. 

To support the thesis, this paper shall argue that while one’s right to religious belief cannot be infringed upon, both practically and principally, by the government, one’s right to participate in various religious acts, such as sacramental drug use, is not as unconditional. Consequently, the government should, under particular circumstances, accommodate and fully protect the rights of religious people by way of legal exemptions from general drug laws. Nevertheless, legal limitations can be imposed upon individuals who engage in religious practices that are tangibly harmful to others or society as a whole. Admittedly it remains challenging to both define “religion” and prevent individuals from abusing legal exemptions for religious drug use. However, such issues can ultimately be addressed through the implementation of a system designed to indicate authentic cultural and religious uses of various drugs. Finally, any notion of a slippery slope issue shall be refuted by the dire importance to uphold the religious rights of minority groups.

In order to ascertain both the context and argumentation of the religious drug use debate, it is vital to examine Employment Div. v. Smith, the landmark 1990 United States Supreme Court case. While Smith ruled that the state could interfere in one’s ability to participate in religious practices, allowing it to be the precedent for future decisions would be incorrect. In 1989, Alfred Smith and Galen Black, members of the Native American Church and employees at a private drug rehabilitation clinic in Oregon, were fired for ingesting peyote, a psychoactive drug that was illegal under state law, at a religious ceremony. As the possession of peyote was a crime under Oregon law, both Smith’s and Black’s claims for unemployment compensation were denied by the state. Although the Oregon Supreme Court ruled that the state’s justification for withholding benefits was outweighed by the burden of ensuring free exercise of religion, the case was ultimately brought to the U.S. Supreme Court.

Subsequently, the Supreme Court ruled against respondents Smith and Black, holding that “The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use.” In the majority opinion of the court, Justice Antonin Scalia concluded that incidental burdens placed on religious practices by general laws, such as laws banning the use of peyote, were constitutional, unless such laws specifically targeted religious acts. While the criminal law incidentally forbade an act that the religion required, it was not directed towards religious practice. As a result, Scalia argued that the state was not obligated to justify its ban by reference to a compelling government interest. This Smith decision is highly controversial and problematic due to the aforementioned lack of state obligation to provide an adequate justification for infringing upon religious rights. Firstly, the ruling is unfair because it indicates that various instances of religious drug use would be outright banned due to laws that were intended for the society as a whole. In other words, it fails to both acknowledge and respect the different needs and diverse cultural backgrounds of the American people. Secondly, the ruling is both incomprehensive and overly dismissive of religion because the state does not consider the effects of particular instances of sacramental drug use, which in many cases is far safer than typical drug use. By merely stating that incidental legal burdens are enough to restrict religious rights, the court is essentially proclaiming that religious rights can be automatically relegated to a status of secondary importance. Therefore, in a nation where due process is imperative, it is an absolute requirement that the court equally weighs and considers both the religious rights of individuals to engage in sacramental drug use and the implications that said drug use shall have on society.

 While religious belief is an unequivocal right for Americans, the right to pursuing various religious practices is by no means absolute. The precedent for this was established in the Reynolds v. United States case of 1878. In this case, George Reynolds, a member of the Mormon church, was charged for violating laws that prohibited the practice of polygamy. In his defense, Mr. Reynolds, citing religious duty, claimed that “polygamous marriages were expressly sanctioned as of divine origin, and that a plurality of wives was divinely ordained.” While the Supreme Court considered Mr. Reynolds’ argument of adhering to religious duty, it unanimously held that religious duty was not an adequate defense to criminal indictment. In the decision, Justice Waite cited the words of former U.S. president Thomas Jefferson, arguing that ‘the legislative powers of the government reach actions only, and not opinions’ and that ‘it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.’ This Reynolds case demonstrates the state’s capacity to interfere in one’s religious practices. While it is impermissible for the state to infringe upon one’s right to religious belief, it is well within the state’s jurisdiction to limit various religious practices. In practice, the values and religious tenets that one adheres to shall always be impossible for a state to regulate or constrain. In principle, religious beliefs provide individuals with a sense of autonomy and assurance in the existence of their respective cultures. However, once it comes to definite religious acts that result in tangible outcomes, the state must do what is deemed essential to ensure societal welfare isn’t harmed in the process. Therefore, Reynolds v. United States established that the state could restrict religious practice when a compelling public interest existed. This notion is clearly articulated and further solidified by the Supreme Court’s statement that “The First Amendment embraces two concepts – freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second can not be. Conduct remains subject to regulation for the protection of society.”

Conversely, if the state possesses no compelling interest in prohibiting religious drug use, then individuals should not be impeded from engaging in such religious practices.

As long as one’s sacramental drug use in a genuine religious ceremony, which is recognized by the state, poses no threat to others or the actor himself, the state should not implement overly rigid regulatory restrictions. The mere fact that a general law incidentally forbids the use of a particular drug, which could be of great significance to certain cultures or religions, is not a sufficient amount of justification to limit the free exercise of religion. As demonstrated in Employment Div. v. Smith, although a state would be prohibiting the free exercise of religion if it were to ban physical acts performed out of religious intention, the free exercise clause does not relieve an individual of the obligation to comply with laws that incidentally forbid acts that one’s religious beliefs require. This is problematic because it allows for an overly stringent restriction on religious drug use, even if the particular drug in question isn’t particularly harmful. 

In another instance, a state court in Kansas deemed the Native American community’s sacramental peyote use to be justifiable on three grounds. Firstly, peyote was used only during specific religious ceremonies by the community. Even in such ceremonies, the community used limited quantities of peyote, removing the possibility for any state fear of peyote being difficult to regulate. Secondly, the abuse of peyote was deemed to be largely uncommon, once again ridding fears of regulating drug use. Thirdly, the court recognized that the U.S. has a special duty to respect the cultural integrity of Native Americans, a minority group. Since religious drug use is, in most circumstances, unlike that of conventional drug use it would be reasonable for the state to closely examine whether the former is indisputably harmful or not. In another example, the U.S. government raised the issue of safety as a reason for denying the religious use of ayahuasca, a psychoactive drug. However, religious groups opposing the state were able to postulate their own compelling arguments, providing substantial evidence that demonstrated the safety of ayahuasca when used in religious settings. Upon review, the Court ruled against the U.S. government’s supposed interest of safety. Decisions like these demonstrate that through thorough due process, the state can both uphold religious rights and protect society and that the adherence to general laws shouldn’t be the sole factor considered. Therefore, the unique harms or benefits of differentiating cases should be addressed when determining whether to afford legal exemptions for religious drug use. In the absence of a compelling state interest, legal exemptions must be provided for religious drug use.  

As introduced previously, the state needs a compelling interest to meddle in one’s right to the free exercise of religion. In other words, if the byproduct or externality of the sacramental use of a certain drug has egregious consequences for society, then it is permissible for the state to regulate or limit that religious practice. For instance, in 1989, the U.S. Drug Enforcement Administration (DEA) denied a petition from Carl Eric Olsen, a member of the Ethiopian Zion Coptic Church, that requested a legal exemption for the religious use of cannabis due to two reasons: decreased government ability to enforce drug laws and increased potentiality for further drug use. In this scenario, the government ruled that allowing the religious use of cannabis by the Ethiopian Zion Coptic Church would inflict adverse effects upon society. Although this paper shall not dwell on whether the societal effects of marijuana or harmless or not, it shall indeed examine the judgment made on marijuana by the government and the reasoning that was provided by the state. Firstly, the DEA established that ‘the actual abuse and availability of marijuana in the United States is many times more pervasive … than that of peyote”, which would harm the government’s capacity to enforce anti-drug legislation. Secondly, it asserted that the petitioner’s religion advocated for the continual use of marijuana, whereas the Native American Church’s use of peyote is isolated to only particular religious ceremonial occasions. From this, it can be observed and ascertained that the state does its utmost to respect and attempt to recognize individual religious rights. However, it is apparent that the general societal welfare is also crucially weighed and considered, as evidenced by the DEA’s consideration of how religious marijuana use could impact other parts of society. While the state’s considerations about public safety are unquestionably justified, this particular mechanism ultimately lacks adequate assurances as the government fails to challenge the legitimacy of the asserted religion in this case. 

To prevent potential abuses of legal exemptions for religious drug use, it is vital that the state distinguishes authentic religious intentions. While one could contend that religious exemptions are excessively lenient legal provisions that provide potential drug-abusers with paths to obtaining illicit drugs, there are mechanisms that prevent such exploitations from occurring. In 1993, the Religious Freedom Restoration Act (RFRA), a law that institutes protections for religious practices, was signed into legislation. Fortunately, RFRA “requires claimants to prove that their religious practices are burdened by government laws or activities, and that the religious practice in question is central to a sincerely held religious belief.” Through such a system, the state can examine evidence of an individual’s belief system. Admittedly, the process to determine authentic religious intention could be long and bureaucratic. However, such a process could be expedited through close state cooperation with religious institutions that represent followers of the particular belief system. For instance, the Native American Church receives a regulatory exemption from the Controlled Substances act, which prohibits certain drugs, for its sacramental use of peyote and similar drugs. As a result, followers of the faith can freely exercise their religious practices through their membership with the church. Therefore, if an institution is able to establish its religious legitimacy, then its registered constituents would be permitted to engage in religious drug use that is societally harmless. 

Even if the authenticity of claimed religions were not an issue, opponents of religious drug use exemptions would still object to the state having to provide a compelling interest for each infringement on a religious practice. In other words, they often cite the difficulty of having to possibly accommodate each and every single declared religion. In fact, this slippery slope contention was the precise rhetoric used by the majority in Employment Div. v. Smith. In Smith, the majority lamented that the requirement that the state demonstrate a compelling interest ‘would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.’ However, Stephen L. Carter, law professor at Yale University, has several strong objections to the slipper slope fallacy. Firstly, “if the state bears no burden to justify its infringement on religious practice…then the only protection a religious group receives is against legislation directed at that group. In other words, even if legal exemptions were assumed to be flawed, they are still the only legitimate protection provided to religious groups. Secondly, he correctly argues that a lack of legal exemptions would be inherently advantageous for the more prevalent and more dominant religious groups in America, such as Catholicism, Protestantism, and Judaism. As pointed out by legal scholar Kathleen Sullivan, “not a single religious exemption claim has ever reached the Supreme Court from a mainstream Christian religious practitioner.” Unfortunately, the verdict of Smith demonstrates that the political process will protect only the mainstream religions, not the smaller groups such as the Native American Church. It is evident that general laws are more favorable for the majority of society, and thus it is imperative that reasonable legal exemptions for religious drug use are provided. This importance is emphasized by the reality that the primary objectors to general laws represent religious traditions that exist on the peripherals of American religious culture. As stated by Carter, “only the religions that are political outsiders are likely to object to what the state requires or forbids them to do.” Without such exemptions, the more marginalized religious groups are at a risk of being overtaken by laws that favor majoritarian religious culture.

In conclusion, it has been ascertained that legal exemptions from general drug laws for individuals participating in religious ceremonies is contingent upon three primary factors: the authenticity of the religious intention, the costs or benefits of religious drug use to society at large, and the importance to uphold the traditions of marginalized religious groups that exist on the peripherals of American religious culture. Admittedly, laws are created for a society as a whole and are not tailored to uphold all individual rights. However, in order to fulfill the needs of those who view and consider uses of various drugs as absolute necessities to their religious doctrine or way of life, it is necessary to consider their unique circumstances. It is utterly insufficient and unfair to restrict religious drug use merely due to incidental prohibitions. Instead, the state must justify its infringements on one’s right to religious acts by examining the impacts of said drug use and by demonstrating a compelling interest. While heavy administrative and practical burdens may indeed exist, particularly when determining the validity of a claimed religion, such an approach is necessary to prevent abuses of exemptions for religious drug use. Ultimately, such concerns pale in comparison to the necessity of providing judicial protections for religious groups that exist outside conventional American religious culture. In a free American society, the state must do absolutely all within its power to prevent people from forfeiting their constitutional freedoms due to faulty legislation.


[1] 21 C.F.R. § 1307.31(1989)

[2] “A Blow at Polygamy” The New York Times, January 8, 1879.

[3] Carter, Stephen L. The Culture of Disbelief: How American Law and Politics Trivialize  Religious Devotion (New York: Anchor Books, 1994): 125-135.

[4] Edge, Peter. “Religious Drug Use in England, South Africa and the United States of   America.” Religion & Human Rights 1, no. 2 (2006): 165-177.

[5] Employment Div. v. Smith., 494 U.S. 872 (1990) 

[6] Frank, Lesley R. “First Amendment: Accommodating Religious Drug Use and Society’s War on Drugs. (The D.C. Circuit Review: September 1988 – August 1989).” George Washington Law Review 58, no. 5 (1990): 1019-1043

[7] Henriques, Diana B. “Religion Trumps Regulation as Legal Exemptions Grow (National Desk).” The New York Times, October 08, 2006.

[8] Labate, Beatriz Caiuby, and Kevin Feeney. “Ayahuasca and the Process of Regulation in Brazil and Internationally: Implications and Challenged.” International Journal of Drug Policy 23, no. 2 (2011): 157-159.

[9] Linda Greenhouse. “Use of Drugs in Religious Rituals Can Be Prosecuted, Justices Rule.” The New York Times, April 18, 1990.

[10] Reynolds v. United States., 98 U.S. 145 (1878)

[11] Steinfels, Peter. “Clinton Signs Law Protecting Religious Practices.” The New York Times, November 17, 1993.

[12] Sullivan, Kathleen M. “Religion and Liberal Democracy.” University of Chicago Law Review 59 (1992): 671.

[13] Taylor, B.C. “Kansas denies religion-based defence to Rastafarian’s on marijuana charges.” Washburn Law Journal 38 (1998): 307

  • Harvard College Law Review Facebook

© 2019 by Harvard College Law Review.

All rights reserved.