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Date Posted: Sun, 08/31/03 11:32am
Author: Steve Russell
Subject: NDN religion

Along the lines of ONB's post, it seems like every time I have a brainstorm it would be useful to speak about and get feedback on, Indianz is flooded....

I got a prison visit to Native prisoners comin' up and so I been thinkin' about the law of religious freedom lately.

I am coming around to a position I never thought I would take, ever: that Employment Division v. Smith was fundamentally right, and it is not a good idea to allow a religious exemption from a generally applicable law unless it targets religion.

My problem with the Smith case is, on one hand, it appears to target the peyote religion. But on the other hand, it involved drug counselors. But on the other other hand, the idea that the sacramental use of peyote could be drug abuse is fuckin' absurd.

With that jackass praying over his rock in Alabama, there is renewed pressure for the law to take the position I describe. And the more I think about it, the more sense it makes.

Look at the Flores case, where the Supremes declared the Religious Freedom Restoration Act unconstutional. What bugs me about that case is that there was no real free exercise issue in it. (Should a Catholic parish in a church designated historical be allowed to expand the building in the face of a generally applicable historical preservation ordinance?)

The Catholic faith, unlike Indian religion, recognizes no sacred spaces that are not portable, that cannot be sanctified and de-sanctified. They are not denied the right to worship if they have to attend Mass in shifts or simply go somewhere else. Yet the courts bought into their argument because they didn't want to rule on the ins and outs of a mainstream religion. Indians will never get that kind of deference.

Problem is, we have some religious practices that are banned by generally applicable laws--eagle parts and peyote come to mind--where if we are not exempt and there was suddenly aggressive enforcement the results would be unthinkable. Elders who barely speak English locked up.

In the case of eagle parts and peyote, if the general prohibition was not there, then there would quickly be no eagle parts or peyote. So it's not a case of stupid laws. Eagles would in fact become extinct. Peyote in fact is in short supply, and it's not clear to me how easy it would be to expand the supply.

Historically, those who advocated for our side have coattailed on mainstream religion. I'm not sure we can continue to do that. It seems to me that our argument has to be not a general religious freedom argument, but rather one based on our pre-Constitutional status. A hard row to hoe politically, particularly without mainstream allies....

Steve Russell

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