(Cite as: 61 Cal.2d 716, 394 P.2d 813, 40 Cal.Rptr. 69)
The PEOPLE, Plaintiff and
Respondent,
v.
Jack WOODY et al.,
Defendants and Appellants.
Cr. 7788.
Supreme Court of California, In Bank.
Aug. 24, 1964.
Defendants were convicted
before the Superior Court, San Bernardino County, Carl B. Hilliard, J., of
illegal possession of peyote, and they appealed. The Supreme Court, Tobriner, J., held that California could not
constitutionally apply statute proscribing use of peyote so as to prevent
Indian tribe from using peyote as sacramental symbol similar to bread and wine
used in Christian churches.
Judgment reversed.
Opinion, 35 Cal.Rptr. 708,
vacated.
CAL. 1964.
***70 **814 *716 Rufus
W. Johnson, Anaheim, for defendants and appellants.
*717 Mitchel J. Ezer, Beverly
Hills, A. L. Wirin and Fred Okrand, Los Angeles, as amici curiae on behalf of
defendants and appellants.
Stanley Mosk, Atty. Gen.,
William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for
plaintiff and respondent.
TOBRINER, Justice.
On April 28, 1962, a group
of Navajos met in an Indian hogan in the desert near Needles, California, to
perform a religious ceremony which included the use of peyote. Police officers, who had observed part of
the ceremony, arrested defendants, who were among the Indians present. Defendants were later convicted of violating
section 11500 of the Health and Safety Code, which prohibits the unauthorized
possession **815 ***71 of
peyote. We have concluded that since
the defendants used the peyote in a bona fide pursuit of a religious faith, and
since the practice does not frustrate a compelling interest of the state, the
application of the statute improperly defeated the immunity of the First
Amendment of the Constitution of the United States.
When the police entered
the hogan and charged the participants with the use of peyote, one of the
Indians handed the officers a gold‑colored portrait frame containing a
photostatic copy of the articles of incorporation of the Native American Church
of the State of California. The
articles declared: 'That we as a people place explicit faith and hope and
belief in the Almighty God and declare full, competent, and everlasting faith
in our Church things which and by which we worship God. That we further pledge ourselves to work for
unity with the sacramental use of peyote and its religious use.'
The state stipulated at
trial at the time of the arrest defendants and the other Indians were
performing a religious ceremony which involved the use of peyote. Defendants pleaded not guilty to the crime
of illegal possession of narcotics, contending that their possession of peyote
was incident to the observance of their faith and that the state could not
constitutionally invoke the statute against them without abridging their right
to the free exercise of their religion.
The trial proceeded without a jury; the court held defendants guilty and
imposed suspended sentences.
[1][2] Defendants'
defense, if any, must lie in their constitutional objection. We do not doubt that even though technically
peyote is an 'hallucinogen' rather than a narcotic, the state, pursuant to the
police power, may proscribe its *718
use. (Reetz v Michigan (1903) 188 U.S.
505, 23 S.Ct. 390, 47 L.Ed. 563; Sandelin v. Collins (1934) 1 Cal.2d 147, 33
P.2d 1009, 93 A.L.R. 956.) Only if the application of the proscription
improperly infringes upon the immunity of the First Amendment can defendants
prevail; their case rests upon that Amendment, which is operative upon the
states by means of the Fourteenth Amendment (Cantwell v. Connecticut (1940) 310
U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352). The First Amendment reads 'Congress shall
make no law respecting an establishment of religion, or prohibiting the free
exercise thereof. * * *' [FN1]
FN1. Defendants also rely
upon Cal.Const. art. I, Section 4, which provides: 'The free exercise and
enjoyment of religious profession and worship, without discrimination or
preference, shall forever be guaranteed in this State; and no person shall be
rendered incompetent to be a witness or juror on account of his opinions on
matters of religious belief; but the liberty of conscience hereby secured shall
not be so construed as to excuse acts of licentiousness, or justify practices
inconsistent with the peace or safety of this State.'
[3][4] Although the
prohibition against infringement of religious belief is absolute, the immunity
afforded religious practices by the First Amendment is not so rigid. (Sherbert v. Verner (1963) 374 U.S. 398,
403, 83 S.Ct. 1790, 10 L.Ed.2d 965; In re Jenison (1963) 375 U.S. 14, 84 S.Ct.
63, 11 L.Ed.2d 39; West Virginia State Board of Education v. Barnette (1942)
319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674; Braunfeld v. Brown
(1960) 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563; Cantwell v. Connecticut,
supra, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; Reynolds v.
United States (1878) 98 U.S. 145, 25 L.Ed. 244.) But the state may abridge
religious practices only upon a demonstration that some compelling state
interest outweighs the defendants' interests in religious freedom. (Sherbert v. Verner, supra, 374 U.S. 398,
406, 83 S.Ct. 1790, 10 L.Ed.2d 965; In re Jenison, supra, 375 U.S. 14, 84 S.Ct.
63, 11 L.Ed.2d 39; Braunfeld v. Brown, supra, 366 U.S. 599, 613‑614, 81
S.Ct. 1144, 6 L.Ed.2d 563; Cantwell v. Connecticut, supra, 310 U.S. 296, 311,
60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; West Virginia ***72 **816 State Board of Education v. Barnette, supra, 319 U.S.
624, 643‑644, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674.)
The Supreme Court of the
United States recently in Sherbert v. Verner, supra, restated the rule. In Sherbert a South Carolina employer
discharged appellant, a Seventh‑day Adventist, because she refused to work
on Saturdays. Since her 'conscientious scruples' against Saturday work
precluded her from obtaining other employment, appellant applied for
unemployment compensation benefits. The
South Carolina Employment Security Commission rejected appellant's claim *719 upon the ground that she had '* *
* failed, without good cause * * * to accept available suitable work. * * *' The South Carolina courts affirmed
the commission's ruling despite appellant's contention that application of the
disqualifying provision of the statute abridged her right to the free exercise
of her religion.
The United States Supreme
Court reversed, finding, first, that the denial of compensation benefits clerly
constituted a burden upon the free exercise of appellant's religion. The court then stated that it must '* * *
consider whether some compelling state interest enforced in the eligibility
provisions of the South Carolina statute justifies the substantial infringement
of appellant's First Amendment right.
It is basic that no showing merely of a rational relationship to some
colorable state interest would suffice; in this highly sensitive constitutional
area, '(o)nly the gravest abuses, endangering paramount interests, give
occasion for permissible limitation.
(Citation.) " (374 U.S. p. 406, 83 S.Ct. p. 1795.)
Despite the plea by South
Carolina that fraudulent religious objections to Saturday work would dilute the
state compensation fund and interfere with employers' scheduling of necessary
Saturday work, the court held that 'no such abuse or danger has been advanced
in the present case' which would justify the abridgement of appellant's
religious freedom.
The court in Sherbert thus
utilized a two‑fold analysis which calls for a determination of, first,
whether the application of the statute imposes any burden upon the free
exercise of the defendant's religion, and second, if it does, whether some
compelling state interest justifies the infringement. [FN2]
FN2. The court's
requirement of a 'compelling state interest' echoes Justice Jackson's statement
in West Virginia State Board of Education v.
Barnette, supra, 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628, 147
A.L.R. 674, that 'The right of a State to regulate, for example, a public
utility may well include * * * power to impose all of the restrictions which a
legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship
may not be infringed on such slender grounds.
They are susceptible of restriction only to prevent grave and immediate
danger to interests which the state may lawfully protect.' (Italics added; see also N. A. A. C. P. v.
Button (1963) 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.ed.2d 405; American Civil
Liberties Union of Southern California v. Board of Education (1961) 55 Cal.2d
167, 178, 10 Cal.Rptr. 647, 359 P.2d 45, 94 A.L.R.2d 1259; Wollam v. City of
Palm Springs (1963) 59 Cal.2d 276, 286, 29 Cal.Rptr. 1, 379 P.2d 481.)
[5] The first step
requires an exploration into the particulars of this case to determine whether
section 11500 of *720 the Health and
Safety Code imposes any burden upon the free exercise of defendants'
religion. An examination of the record
as to the nature of peyote and its role in the religion practiced by defendants
as members of the Native American Church of California compels the conclusion
that the statutory prohibition most seriously infringes upon the observance of
the religion.
The plant Lophophora
williamsii, a small, spineless cactus, found in the Rio Grande Valley of Texas
and northern Mexico, produces peyote, which grows in small buttons on the top
of the cactus. Peyote's principal constituent is mescaline. When taken internally by chewing the buttons
or drinking a derivative tea, peyote produces several types of hallucinations,
depending primarily upon the user. In most subjects it causes ***73 **817 extraordinary vision
marked by bright and kaleidoscopic colors, geometric patterns, or scenes
involving humans or animals. In others it engenders hallucinatory symptoms similar
to those produced in cases of schizophrenia, dementia praecox, or paranoia.
Beyond its hallucinatory effect, peyote renders for most users a heightened
sense of comprehension; it fosters a feeling of friendliness toward other
persons.
Peyote, as we shall see,
plays a central role in the ceremony and practice of the Native American
Church, a religious organization of Indians.
Although the church claims no official prerequisites to membership, no
written membership rolls, and no recorded theology, estimates of its membership
range from 30,000 to 250,000, the wide variance deriving from differing
definitions of a 'member.' As the
anthropologists have ascertained through conversations with members, the
theology of the church combines certain Christian teachings with the belief
that peyote embodies the Holy Spirit and that those who partake of peyote enter
into direct contact with God.
Peyotism discloses a long
history. A reference to the religious
use of peyote in Mexico appears in Spanish historical sources as carly as
1560. Peyotism spread from Mexico to
the United States and Canada; American anthropologists describe it as well
established in this country during the latter part of the nineteenth century. Today,
Indians of many tribes practice Peyotism.
Despite the absence of recorded dogma, the several tribes follow
surprisingly similar ritual and theology; the practices of Navajo members in
Arizona practically parallel those of adherents in California, Montana,
Oklahoma, Wisconsin, and Saskatchewan.
The 'meeting,' a ceremony
marked by the sacramental use of peyote, composes the cornerstone of the peyote
religion. *721 The meeting convenes in an enclosure and continues from
sundown Saturday to sunrise Sunday. To
give thanks for the past good fortune or find guidance for future conduct, a
member will 'sponsor' a meeting and supply to those who attend both the peyote
and the next morning's breakfast. The
'sponsor,' usually but not always the 'leader,' takes charge of the meeting; he
decides the order of events and the amount of peyote to be consumed. Although the individual leader exercises an
absolute control of the meeting, anthropologists report a striking uniformity
of its ritual.
A meeting connotes a
solemn and special occasion. Whole families
attend together, although children and young women participate only by their
presence. Adherents don their finest
clothing, usually suits for men and fancy dresses for the women, but sometimes
ceremonial Indian costumes. At the
meeting the members pray, sing, and make ritual use of drum, fan, eagle bone,
whistle, rattle and prayer cigarette, the symbolic emblems of their faith. The central event, of course, consists of
the use of peyote in quantities sufficient to produce an hallucinatory state.
At an early but fixed
stage in the ritual the members pass around a ceremonial bag of peyote
buttons. Each adult may take four, the
customary number, or take none. The
participants chew the buttons, usually with some difficulty because of extreme
bitterness; later, at a set time in the ceremony any member may ask for more
peyote; occasionally a member may take as many as four more buttons. At sunrise
on Sunday the ritual ends; after a brief outdoor prayer, the host and his
family serve breakfast. Then the
members depart. By morning the effects
of the peyote disappear; the users suffer no aftereffects.
Although peyote serves as
a sacramental symbol similar to bread and wine in certain Christian churches,
it is more than a sacrament. Peyote constitutes in itself an object of worship;
prayers are directed to it much as prayers are devoted to the Holy Ghost. On the other hand, to use peyote for
nonreligious purposes is sacrilegious.
Members of the church regard peyote also as a 'teacher' because it induces
a feeling of brotherhood with other members; indeed, it enables the participant
to experience ***74 **818 the Deity.
Finally, devotees treat peyote as a 'protector.' Much as a Catholic carries his medallion, an Indian G.I. often
wears around his neck a beautifully beaded pouch containing one large peyote
button. [FN3]
FN3. Although Peyotism has
not assumed a major role in American Indian life, it has in some respects
affected it. On the one hand, no extant
Indian nation recognizes it as its national religion; the Navajo Tribal Code
forbids the possession of peyote, the driving of a car while under the
influence of peyote, and the sale of peyote on the reservation. On the other hand, however, most
anthropological authorities holdPeyotism to be a positive, rather than
negative, force in the lives of its adherents.
Since the church forbids the use of alcohol and has adopted many of the
moral precepts of Christianity, these authorities conclude that members observe
higher standards than nonmembers.
*722 The record thus
establishes that the application of the statutory prohibition of the use of
peyote results in a virtual inhibition of the practice of defendants'
religion. To forbid the use of peyote
is to remove the theological heart of Peyotism. Having reached this conclusion, we must undertake the second step
in the analysis of the constitutional issue: a determination of whether the
state has demonstrated that 'compelling state interest' which necessitates an
abridgement of defendants' First Amendment right. (Sherbert v. Verner, supra, 374 U.S. 398, 406, 83 S.Ct. 1790, 10
L.Ed.2d 965; see West Virginia State Board of Education v. Barnette, supra, 319
U.S. 624, 643‑644, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674; N.A.A.C.
P. v. Button, supra, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405; American
Civil Liberties Union v. Board of Education, supra, 55 Cal.2d 167, 178, 10
Cal.Rptr. 647, 359 P.2d 45, 94 A.L.R.2d 1259.)
The state asserts that the
compelling reason for the prohibition of Peyotism lies in its deleterious
effects upon the Indian community, and even more basically, in the infringement
such practice would place upon the enforcement of the narcotic laws because of
the difficulty of detecting fraudulent claims of an asserted religious use of
peyote. The prosecution further claims
that the cases support these positions.
We set forth the reasons why we believe the contentions to be unfounded.
The People urge that 'the
use of peyote by Indians in place of medical care, the threat of indoctrination
of small children,' and the 'possible correlation between the use of this drug
and the possible propensity to use some other more harmful drug' justify the
statutory prohibition. The record,
however, does not support the state's chronicle of harmful consequences of the
use of peyote.
The evidence indicates
that the Indians do not in fact employ peyote in place of proper medical care;
and, as the Attorney General with fair objectivity admits, 'there was no
evidence to suggest that Indians who use peyote are more liable to become
addicted to other narcotics than non‑peyoteusing Indians.' Nor does the
record substantiate the state's fear of the 'indoctrination of small children';
it shows that Indian children never, and Indian teenagers rarely, use peyote. Finally, as the Attorney General likewise
admits, the opinion *723 of
scientists and other experts is 'that peyote * * * works no permanent
deleterious injury to the Indian. * *
*' Indeed, as we have noted, these experts regard the moral standards of
members of the Native American Church as higher than those of Indians outside
the church.
[6] The Attorney General
also argues that since 'peyote could be regarded as a symbol, one that
obstructs enlightenment and shackles the Indian to primitive conditions' the
responsibility rests with the state to eliminate its use. We know of no doctrine that the state, in
its asserted omniscience, should undertake to deny to defendants the observance
of their religion in order to free them from the suppositious 'shackles' of
their 'unenlightened' and 'primitive condition.'
Turning to the state's
second contention, that the threat of fraudulent assertions of ***75 **819 religious immunity will
render impossible the effective enforcement of the narcotic laws, we note that
South Carolina in Sherbert v. Verner, supra, unsuccessfully urged to the United
States Supreme Court a substantially similar contention. It argued that 'a possibility that the
filing of fraudulent claims by unscrupulous claimants feigning religious
objections to Saturday work might * * * dilute the unemployment compensation
fund * * * (and) hinder the scheduling by employers of necessary Saturday
work.' (374 U.S. at p. 407, 83 S.Ct. at
1795.) The Supreme Court held among its alternate grounds for disposing of this
contention, that 'there is no proof whatever to warrant such fears of
malingering or deceit as those which the respondents now advance.' (Id. at p. 407, 83 S.Ct. at 1795.) Further,
the court pointed out that 'even if the possibility of spurious claims did
threaten to dilute the fund and disrupt the scheduling of work, it would
plainly be incumbent upon the (state) to demonstrate that no alternative forms
of regulation would combat such abuses without infringing First Amendment
rights.' (Id. at p. 407, 83 S.Ct. at
1796.) In the instant case, as in Sherbert, the state produced no evidence that
spurious claims of religious immunity would in fact preclude effective
administration of the law or that other 'forms of regulation' would not accomplish
the state's objectives.
That other states have
excepted from the narcotic laws the use of peyote, and have not considered such
exemption an impairment to enforcement, weakens the prosecution's
forebodings. New Mexico in 1959, and
Montana in 1957, amended their narcotics laws to provide that the prohibition
against narcotics 'shall not apply to the possession, sale or gift of peyote
for religious sacramental purposes by any bona fide *724 religious organization incorporated under the laws of the state.'
[FN4] Arizona has reached a similar
result by judicial decree. [FN5]
FN4. New Mexico Statutes
(1959) 54‑5‑16; Montana Statutes (1959) 94‑35‑123.
FN5. In Arizona v.
Attakai, Criminal No. 4098, Coconino County, July 26, 1960; appeal by State
dismissed by Arizona Supreme Court. The Arizona court held that its narcotics
statute could not constitutionally be applied to members of the Native American
Church.
[7] That the state's
showing of 'compelling interest' cannot lie in untested assertions that recognition
of the the religious immunity will interfere with the enforcement of the state
statute, finds illustration in the Minnesota litigation culminating in In re
Jenison (Minn.1963) 125 N.W.2d 588. In
the original Jenison case, the Minnesota Supreme Court, prior to the decision
in Sherbert v. Verner, affirmed the criminal contempt conviction of a woman who
refused to serve on a jury because of religious objections. (In re Jenison (Minn.1963) 120 N.W.2d 515.) The
United States Supreme Court reversed per curiam and remanded the case to the
Minnesota Supreme Court 'for further consideration in light of Sherbert v.
Verner. * * *' (In re Jenison (1963)
375 U.S. 14, 84 S.Ct. 63, 11 L.Ed.2d 39.) Upon remand the state court reversed
the conviction, stating that 'there has been an inadequate showing that the
state's interest in obtaining competent jurors requires us to override
relator's right to the free exercise of her religion. Consequently we hold that until and unless further experience
indicates that the indiscriminate invoking of the First Amendment poses a
serious threat to the effective functioning of our jury system, any person
whose religious convictions prohibit compulsory jury duty shall henceforth be
exempt.' (Id. at p. 589, 125 N.W.2d)
We turn to the several
cases cited by the Attorney General which uphold statutes restricting religious
practices. The People principally rely
upon Reynolds, v. United States (1878) 98 U.S. 145, 25 L.Ed. 244, which ruled
that Congress could constitutionally apply to Mormons a prohibition against
polygamy. The Mormon doctrine of
polygamy rested in alleged divine origin and imposed upon male members,
circumstances **820 ***76
permitting, the observance of the practice upon pain of eternal damnation.
The Supreme Court held
that the history of the laws against polygamy showed that the condemnation of
the practice was a matter of the gravest social importance. It found in polygamy *725 the seed of destruction of a democratic society. [FN6] Viewing the practice as highly injurious to
its female adherents, the Court classed polygamy with such religious rites as
sacrifice of human beings and funereal immolation of widows.
FN6. The court declares:
'Upon (marriage) society may be said to be built, and out of its fruits spring
social relations and social obligations and duties, with which government is
necessarily required to deal. In fact,
according as monogamous or polygamous marriages are allowed, do we find the
principles on which the government of the people, to a greater or less extent,
rests. Professor Lieber says, polygamy
leads to the patriarchal principles, and which, when applied to large
communities, fetters the people in stationary despotism, while that principle cannot
long exist in connection with monogamy.
* * *' (Id. 98 U.S. 145, 25 L.Ed. 244 at pp. 165‑166)
Reynolds v. United States
must be distinguished from the instant case for two fundamental reasons. The test of constitutionality calls for an
examination of the degree of abridgement of religious freedom involved in each
case. Polygamy, although a basic tenet
in the theology of Mormonism, is not essential to the practice of the religion;
peyote, on the other hand, is the sine qua non of defendants' faith. It is the sole means by which defendants are
able to experience their religion; without peyote defendants cannot practice
their faith. Second, the degree of
danger to state interests in Reynolds far exceeded that in the instant case. The Court in Reynolds considered polygamy as
a serious threat to democratic institutions and injurious to the morals and
well‑being of its practitioners.
As we have heretofore indicated, no such compelling state interest
supports the prohibition of the use of peyote.
Similarly, Braunfeld v.
Brown (1960) 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563, cited by the People,
upholding the Pennsylvania Sunday Law against a free exercise objection by
Sabbatarians, differs from the present case.
Braunfeld represents only an 'incidental' [FN7] infringement of
religious freedom contrasted with 'a strong state interest in providing one
uniform day of rest for all workers.
That secular objective could be achieved * * * only by declaring Sunday
to be that day of rest. Requiring
exemptions for Sabbatarians, *726
while theoretically possible, appeared to present an administrative problem of
such magnitude * * * that such a requirement would have rendered the entire
statutory scheme unworkable.' (Sherbert
v. Verner (1963) 374 U.S. 398, 408, 409, 83 S.Ct. 1790, 1796, 10 L.Ed.2d 965.)
[FN8]
FN7. The court stated: '*
* * the statute at bar does not make unlawful any religious practices of
appellants; the Sunday law simply regulates a secular activity and, as applied
to appellants, operates so as to make the practice of their religious beliefs
more expensive. Furthermore, the law's
effect does not inconvenience all members of the Orthodox Jewish faith but only those who believe it necessary to
work on Sunday. And even these are not
faced with as serious a choice as forsaking their religious practices or
subjecting themselves to criminal prosecution.' (Id. 366 U.S. at p. 605, 81 S.Ct. at p. 1147, 6 L.Ed.2d 563;
italics added.)
FN8. Such cases as Prince
v. Massachusetts (1943) 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (child labor
law applied to guardian of a nine‑ year‑old Jehovah's Witness);
Jacobson v. Massachusetts (1904) 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643
(compulsory vaccination law); and In re Ferguson (1961) 55 Cal.2d 663, 12
Cal.Rptr. 753, 361 P.2d 417 (lawful incarceration restricting religious
observances) must be distinguished from the present case upon similar grounds.
[8] Finally, we deal with
the Attorney General's argument that our present conclusion requires an inquiry
in each case into the bona fides of a particular defendant's beliefs, an
inquiry which is both difficult and 'repugnant to the spirit of our law. * * *' Yet the trier of fact need inquire
only into the question of whether the defendants' ***77 **821 belief in Peyotism is honest and in good faith. As the court in United States v. Ballard
(1944) 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148, held, although judicial
examination of the truth or validity of religious beliefs is foreclosed by the
First Amendment, the courts of necessity must ask whether the claimant holds
his belief honestly and in good faith or whether he seeks to wear the mantle of
religious immunity merely as a cloak for illegal activities.
In so doing, we impose no
undue burden upon the trier of fact. We
do not doubt the capacity of judge and jury to distinguish between those who
would feign faith in an esoteric religion and those who would honestly follow
it. 'Suffice it to say that trial courts will have to determine in each
instance, with whatever evidence is at hand, whether or not the assertion of a
belief which is protected by the First Amendment is in fact a spurious
claim.' (In re Jenison, supra, 125
N.W.2d 588, 590; italics added.) Thus the court makes a factual examination of
the bona fides of the belief and does not intrude into the religious issue at
all; it does not determine the nature of the belief but the nature of
defendants' adherence to it.
Courts reach such factual
determinations in a host of related circumstances. Thus the Universal Military Training and Service Act (1948) 50
U.S.C.App. s 456(j), exempts from combat training and service any person 'who,
by reason of religious training and belief, is conscientiously opposed to
participation in war in any form.'
(See, e. g., Rempel v. United States (10th Cir. 1955) 220 F.2d 949, 951; *727 United States v. Hagaman (3rd
Cir. 1954) 213 F.2d 86, 89; In re Jost (1953) 117 Cal.App.2d 379, 387, 256 P.2d
71; revd. Jost v. United States, 347 U.S. 901, 74 S.Ct. 427, 98 L.Ed. 1061
(applying conscientious objector provision in Internal Security Act of 1950, 8
U.S.C. Sup. IV, s 935).) Significantly, Title II, section 3, of the National
Prohibition Act (1919) 41 Stat. 308‑309, exempted from prohibition the
use of wine for sacramental purposes.
[9] In the instant case,
of course, we encounter no problem as to the bona fide nature of defendants'
assertion of the free exercise clause.
The state agrees, and the evidence amply demonstrates, that defendants'
use of peyote was for a religious purpose. [FN9]
FN9. We note the our determination
that defendants are entitled to religious exemption raises no issue under the
Establishment Clause of the First Amendment.
(Sherbert v. Verner, supra, 374 U.S. at p. 409, 83 S.Ct. 1790, 10
L.Ed.2d 965.)
[10] We have weighed the
competing values represented in this case on the symbolic scale of
constitutionality. On the one side we
have placed the weight of freedom of religion as protected by the First
Amendment; on the other, the weight of the state's 'compelling interest.' Since the use of peyote incorporates the
essence of the religious expression, the first weight is heavy. Yet the use of peyote presents only slight
danger to the state and to the enforcement of its laws; the second weight is
relatively light. The scale tips in
favor of the constitutional protection.
We know that some will
urge that it is more important to subserve the rigorous enforcement of the
narcotic laws than to carve out of them an exception for a few believers in a
strange faith. They will say that the
exception may produce problems of enforcement and that the dictate of the state
must overcome the beliefs of a minority of Indians. But the problems of enforce.
here do not inherently differ from those of other situations which call
for the detection of fraud. On the
other hand, the right to free religious expression embodies a precious heritage
of our history. In a mass society,
which presses at every point toward conformity, the protection of a self‑expression,
however unique, of the individual and the group becomes ever more
important. The varying currents of the
subcultures that flow into the mainstream of our national life give it depth
and beauty. We ***78 **822 preserve a greater value than an ancient tradition
when we protect the rights of the Indians who honestly practiced an old
religion *728 in using peyote one
night at a meeting in a desert hogan near Needles, California.
The judgment is reversed.
GIBSON, C. J., and
TRAYNOR, SCHAUER, PETERS and PEEK, JJ., concur.
McCOMB, J., dissents.
END OF DOCUMENT