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Regulating ReligionThe Courts and the Free Exercise Clause$
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Catharine Cookson

Print publication date: 2001

Print ISBN-13: 9780195129441

Published to Oxford Scholarship Online: November 2003

DOI: 10.1093/019512944X.001.0001

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A Critique of the Court's Free Exercise Clause Jurisprudence in the U.S. Supreme Court Case of Employment Division v. Smith

A Critique of the Court's Free Exercise Clause Jurisprudence in the U.S. Supreme Court Case of Employment Division v. Smith

Chapter:
(p.118) 6 A Critique of the Court's Free Exercise Clause Jurisprudence in the U.S. Supreme Court Case of Employment Division v. Smith
Source:
Regulating Religion
Author(s):

Catharine Cookson

Publisher:
Oxford University Press
DOI:10.1093/019512944X.003.0007

The 1990 case of Employment Division v. Smith was decided against the defendants, but when analyzed using casuistry it is found to be an easy case for upholding their free exercise right. The state lacked specific expert testimony and hard data against the use of sacramental peyote, while the evidence produced by the Native American Church's experts showed that the Native American Church was successful in fulfilling the paradigmatic goals of the War on Drugs (no addiction, productive lives, etc.) and that the nonaddictive sacramental peyote lacked the same social harms endemic to addictive drugs (illegal market traffic, gangs, etc.). The Court, however, ignored the particulars of the case and fixated solely on the illegality of the ingestion of peyote. Accordingly, the particulars are explored in great detail, placing the facts in their larger, societal contexts and highlighting the Court's conclusive presumption and radical deference to the state and total disregard of the facts and other particulars both of the defendants’ unemployment compensation context and of the Native American Church and its practices.

Keywords:   casuistry, context, deference to the state, employment division, Native American Church, paradigmatic goods, particulars, peyote, presumptions, unemployment compensation, War on Drugs

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