Black v. Employment Division , 75 Or. App. 735 ( 1985 )

BUTTLER, J.,

dissenting.

Although I agree with the majority’s discussion of a person’s constitutional right to practice his religion, the question here is whether petitioner’s ingestion of peyote, a controlled substance, is a protected practice just because it is a part of the ritual of the Native American Church to which he belongs.

The majority recognizes correctly that a religious practice, as opposed to beliefs, may be prohibited if the state has a compelling interest in doing so. In State v. Soto, 21 Or App 794, 537 P2d 142, rev den (1975), cert den 424 US 955 (1976), we held that the state has a compelling interest in prohibiting the use of peyote that outweighed the defendant’s interest in practicing his religion as a member of the Native American Church. So long as Soto remains the law, plaintiff does not have a protectible constitutional right on which to base his claim.

The Oregon Supreme Court denied review in State v. Soto, supra, and the United States Supreme Court denied certiorari. If that decision is to be overruled, I do not think that this is the case in which to do so.

I would affirm the Board; therefore, I dissent.

Joseph, C. J., and Warden, J., join in this dissent.