State v. Soto , 21 Or. App. 794 ( 1975 )

FOLEY, J.

The defendant was convicted of unlawfully possessing mescaline^ a dangerous drug, and was placed on probation for three years. He appeals, assigning as error the refusal of the trial court to allow him to present as a defense to the charge evidence of his religous beliefs, i.e., that peyote (containing mescaline) is an integral part of the religious ceremonies of his church, the Native American Church, and is carried by him only for its religious significance. He thus contends that the statute, OKS 167.207, which makes criminal possession of a dangerous drug, prevents him from engaging in the free exercise of his religion.

The First Amendment to the United States Constitution, guaranteeing the free exercise of religion, precludes the government of the United States or of any state from infringing upon a person’s religious belief.^① Cantwell v. Connecticut, 310 US 296, 60 S Ct 900, 84 L Ed 1213, 128 ALR 1352 (1940). Distinction is made, however, between religious belief and religious practice. In Reynolds v. United States, 98 US 145, 25 L Ed 244 (1878), the Supreme Court said, in denying Mormons an exception from anti-bigamy laws:

“* * * Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may [interfere] with practices. * * *” 98 US at 166.

Cantwell also pointed out the two-pronged concept of the First Amendment, saying that the First Amendment

“* * * embraces two concepts, —freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. * * *” 310 US at 303-304.

Thereafter, in accordance with the principles set forth in Cantwell and Reynolds, the Supreme Court in Braunfeld v. Brown, 366 US 599, 603-604, 81 S Ct 1144, 6 L Ed 2d 563 (1961), stated:

“* * * [T]he freedom to act, even when the action is in accord with one’s religious convictions, is not totally free from legislative restrictions. # * * [Legislative power over mere opinion is forbidden but it may reach people’s actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one’s religion. * * *”

Based upon the reasoning of the United States Supreme Court’s interpretation of the First Amendment, several courts have recognized that, under certain restricted conditions, claims of religious exemption from law violation will be honored unless a substantial state interest will be frustrated in a significant manner. Annotation, 35 ALR3d 939 (1971), and cases there cited.

Other courts have held that constitutional freedom of religious practice is not a valid defenseNo lTpeñal charge,based on possession of a drug even if defendant possessed the drug solely for the practice of his" bona fide religious beliefs. See Leary v. United States, 383 F2d 851 (5th Cir 1967), rehearing denied, 392 F2d 220 (1968), rev’d on other grounds, 395 US 6, 89 S Ct 1532, 23 L Ed 2d 57 (1969);^② Annotation, supra.

In determining when a compelling state interest justifies the substantial infringement of a person’s First Amendment right, the United States Supreme Court in Sherbert v. Verner, 374 US 398, 406, 83 S Ct 1790, 10 L Ed 2d 965 (1963), said:

“* * * It is basic that no showing merely of a rational relationship to some colorable state interesT would suffice; in this highly sensitive constitu-J tional area, ‘ [o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation,’ Thomas v. Collins, 323 US 516, 530. * * *” (Brackets theirs.)

In City of Portland v. Thornton, 174 Or 508, 149 P2d 972 cert denied, 323 US 770 (1944), the defendant was convicted for violating a city ordinance prohibiting the employment of boys and girls under certain ages in selling periodicals on the street. The defendant, a Jehovah’s Witness and professed minister of the gospel, argued that the publication was being distributed as part of the practice of her religion, and that the ordinance unconstitutionally interfered with that practice. In upholding the validity of the ordinance, Mr. Justice Belt said that it has never been held that “* * * the practice of religion is beyond reasonable limitations.” 174 Or at 513.

Baer v. City of Bend et al, 206 Or 221, 292 P2d 134 (1956), was an action to enjoin fluoridation of the city water supply. The circuit court sustained a demurrer and dismissed. The Supreme Court held that the fluoridation ordinance was not offensive to constitutional guarantees of religious liberty.

Justice Lusk, writing for the court, observed that liberties protected by the constitution may be subject to reasonable restraints imposed for the general welfare. He said:

“* * * ‘The individual cannot be permitted, on religious grounds, to be the judge of his duty to obey the regulatory laws enacted by the State in the interests of the public welfare. The mere fact that such a claim of immunity is asserted because of religious convictions is not sufficient to establish its constitutional validity.’ # * *” 206 Or at 229-30.

We hold that ORS 167.207 and 475.010(1) (b) under which defendant was arrested and convicted for knowingly and unlawfully possessing peyote (mescaline) are reasonable restraints imposed upon the conduct of individuals for the general protection of the citizens of the state. Defendant’s contention that he should have the benefit^ of the religious freedom defense if he is able to show that peyote was possessed in connection with a bona fide practice of religious belief, that it was an integral part of a religious exercise, and that lits use or possession was not dangerous to the public health, safety or morals, is in disregard of a positive legislative...declaration. Peyote and mescaline have been declared by the legislature to be dangerous drugs as a matter of law. ORS 475.010(1) (b). The preservation of the health and safety of the people is the presumed purpose behind!that”legislative declaration' and ^AWllM~and~reasonable application of the criminariaws of thbNlute. — Thtn'eb'STilrtTST'arcompelling state interest.

Affirmed.

① “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * U.S. Constitution, Amend. I.

② Sherbert v. Verner, 374 US 398, 83 S Ct 1790, 10 L Ed 2d 965 (1963), was cited as one of the grounds for reversal of the conviction of the defendant in Leary v. United States, 383 F2d 851 (5th Cir 1967), rehearing denied 392 F2d 220 (1968), reversed on other grounds 395 US 6, 89 S Ct 1532, 23 L Ed 2d 57 (1969). The United States Court of Appeals rejected Leary’s argument, saying:

“Appellant’s reliance on Sherbert v. Verner * * * for authority that the constitutionally guaranteed right of free religious exercise imposes on the Government the burden of showing a compelling interest in its abridgment, is misplaced and inapposite on the facts. * * *

“Here the paramount Government interest in the enforcement of the laws relative to marihuana is the protection of society. We cannot reasonably equate deliberate violation of federal marihuana laws with the refusal of an individual to work on her Sabbath Day * * 383 F2d at 860.