A DRUG APPEAL THAT WILL GO UP IN SMOKE

Balancing the Free Exercise of Religion and the Needs Of Society

Rohi Israel may think he's found a constitutional loophole allowing him to
smoke marijuana with impunity, but he's just blowing smoke. He says his
religion - he's a Rastafarian - allows him to indulge despite laws to the
contrary. U.S. District Judge William C. Lee has ruled that Israel should
serve 11 months for smoking marijuana in violation of his prison-release
agreement, but agreed to delay the sentencing pending an appeal by Israel.
Lee's decision holds out false hope for Israel.

It's true that the Supreme Court has been all up and down the spectrum on
interpretation of the First Amendment's Free Exercise Clause.

In its first ruling in 1878, it interpreted that freedom very narrowly.
Ruling that the clause protects only religious beliefs, not practices, it
forbade the Mormons from violating federal anti-polygamy law. But by the
1960s and continuing through the '70s, the court took a more expansive
view. Government must accommodate religion unless a "compelling state
interest" could be cited, and even then actions against religion must be
the least-burdensome. A Seventh Day Adventist was allowed to refuse a job
opportunity that included Saturday work. Amish were allowed to keep their
children out of schools. An Alaskan tribe was allowed to hunt moose out of
season.

But in the mid-'80s, the court started going back the other way, and by the
1990s, it had gone full circle. The state, it said, did not have to show a
compelling interest but merely had to cite "generally applicable criminal
laws." A road was allowed through a national forest, even though the area
was considered sacred to a Native-American religion. An Orthodox Jew wasn't
allowed to wear a yamulke while on military duty. Most ominously for Mr.
Israel, the Native American Church was not allowed to use peyote.

Israel has two problems. Even under looser Free Exercise interpretations,
the state would have no trouble showing a compelling interest in enforcing
anti-drug laws. And the current Supreme Court isn't likely to go back to
that standard.

Government cannot specifically target a religious practice (animal
sacrifice practiced by only one religion, for example). But neither can
religions selectively ignore a specific law that applies to everybody else.
That's not a bad balance in a free society.