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Ruling on Free Exercise Assailed : Church and state: A case involving drug use in rituals was the Supreme Court's biggest religion decision in 1990.


A Supreme Court ruling upholding the right of states to bar the use of drugs in religious rituals alarmed several advocates of church-state separation, who said it overturned a 27-year-old standard for applying the First Amendment clause guaranteeing free exercise of religion.

The high court's April 17 ruling in the case of Oregon v. Smith was perhaps the best known and most controversial church-state development during 1990, a year that was also marked by significant rulings that upheld the federal Equal Access Act and struck down a challenge to the tax-exempt status of the Roman Catholic Church in the United States.

Religious healing and the rights of students to distribute religious literature in public schools were also involved in several of the year's cases.

In its 6-3 ruling in the Oregon case, the Supreme Court said there does not have to be a "compelling state interest" in most cases involving the free exercise of religion. The "compelling state interest" test was first set forth in a 1963 case in which the court said the denial of state unemployment compensation benefits for a women who refused to work on her Sabbath imposed an unconstitutional burden on her exercise of religion.

Justice Antonin Scalia wrote the court's majority opinion, which involved the use of peyote by American Indians. Scalia said the First Amendment "is not offended" if prohibiting the exercise of religion--in this case, the use of the drug--is "merely the incidental effect of a generally applicable and otherwise valid provision."

Religious and civil liberty groups urged the court to reconsider. The court declined, then several congressmen introduced a bill, the Religious Freedom Restoration Act, designed to restore the "compelling interest" test in such cases involving the "free exercise of religion." Rep. Stephen J. Solarz (D-N.Y.), one of the sponsors, said that "with the stroke of a pen, the Supreme Court virtually removed religious freedom--our first freedom--from the Bill of Rights."

A week after issuing the Oregon decision, the court used it as a basis for setting aside a Minnesota Supreme Court ruling that the state's Amish people cannot be forced to equip their horse-drawn buggies with triangular signs warning of slow-moving vehicle. However, the justices asked the state court to reconsider the Amish case in light of the Oregon ruling, rather than issue a final judgment. The Minnesota court then cited a religious-freedom provision of the state Constitution in ruling that the Amish are exempt from the state traffic law.

In an 8-1 ruling issued June 4, the Supreme Court upheld the constitutionality of the 1984 Equal Access Act, which gives high school religious clubs the same right to meet on school property as other non-academic extracurricular groups.

Ruling against school officials in Omaha who refused to grant permission to a group of students to form a Christian Bible club to meet on a high school campus, Justice Sandra Day O'Connor wrote for the majority that "since denial of such recognition is based on the religious content of the meetings respondents wish to conduct within the school's limited open forum, it violates the act."

Although the decision reflected near unanimity, it got disparate reactions from religious groups that filed briefs. Some praised the ruling as a victory for free expression, while others said it raised the specter of extremist groups recruiting members in public schools.

Attorney Jay Sekulow of Christian Advocates Serving Evangelism, who represented the Christian students in the Omaha equal access case, said his office was "getting calls from all over the country, from students asking about their rights to evangelize and to distribute materials."

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