Brooklyn Law Review Volume 70 | Issue 3 Article 3 2005 Some Kind of Religious Freedom: National Prohibition and the Volstead Act's exemption for the Religious Use of Wine Michael deHaven Newsom Follow this and additional works at: https://brooklynworks.brooklaw.edu/blr Recommended Citation Michael d. Newsom, Some Kind of Religious Freedom: National Prohibition and the Volstead Act's exemption for the Religious Use of Wine, 70 Brook. L. Rev. (2005). Available at: https://brooklynworks.brooklaw.edu/blr/vol70/iss3/3 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks. Some Kind of Religious Freedom: National Prohibition and the Volstead Act's Exemption for the Religious Use of Wine- Michael deHaven Newsomt I. INTRODUCTION Employment Division v. Smith' represents, in the view of many, a low-water mark in American constitutional free exercise jurisprudence,2 at least at the doctrinal level.3 The United States Supreme Court held that Oregon was within its rights to apply an Oregon statutory prohibition against the possession of peyote to members of the Native American Church, effectively subordinating religious freedom to Oregon's war against drugs.4 That many other states and the federal government had found a way to accommodate the religious use of peyote by expressly exempting the sacramental use of peyote from the reach of their anti-drug laws, 5 was of no avail in the * Copyright Michael deHaven Newsom 2005. All Rights Reserved. t Professor, Howard University School of Law, B.A. Amherst College 1964, LL.B. Harvard Law School 1967. 494 U.S. 872 (1990). 2 See, e.g., Steven H. Aden and Lee J. Strang, When a "Rule"Doesn't Rule: The Failure of the Oregon Employment Division v. Smith "Hybrid Rights Exception", 108 PENN. ST. L. REV. 573, 581-87 (2003) (stating that "Smith has the rather unusual distinction of being one case that is almost universally despised.., by both liberals and conservatives'). 3 Regardless of doctrine, religious minorities, especially non-Christians, have fared poorly in seeking judicially-mandated accommodations. See Lyng v. Northwestern Indian Cemetery Protective Ass'n, 485 U.S. 439, 441-42 (1988) (denying exemption for lands sacred to Native Americans from a government road-building program); O'Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987) (denying accommodation for prison inmates attending Islamic Friday afternoon religious services); Goldman v. Weinberger, 475 U.S. 503, 504 (1986) (denying an exemption to the military dress code for a yarmulke). 4 Smith, at 890, 906 (O'Connor, J., concurring in judgment). 5 Id. at 890. BROOKLYN LAW REVIEW [Vol. 70:3 face of the Court's obsequious deference to majoritarianism, a deference arising out of an unsubstantiated and undocumented fear of anarchy and judicial activism. As Justice Scalia warned: It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social 6 importance of all laws against the centrality of all religious beliefs. Justice Blackmun, writing for himself, and Justices Brennan and Marshall dissented. They would have required the state of Oregon to meet a tougher standard in order to justify the refusal to exempt the religious use of peyote: that the statute was the least restrictive means to achieve a compelling state interest. 7 Justice Blackmun noted that 6 Id. Justice Scalia, writing for the majority, made no attempt to connect his fears with real-world facts. Whether there is an empirical basis for these fears, particularly an imagined, make-believe world in which everyone could reasonably become a "law unto herself' by reason of religious choice is, of course, a highly contestable matter, and Scalia offers no evidence to support his parade of horribles. Scalia uses parades of horribles merely as a rhetorical device. See Michael Frost, Justice Scalia's Rhetoric of Dissent:A Greco-Roman Analysis of Scalia'sAdvocacy in the VMI Case, 91 KY. L.J. 167,174 (stating that "[s]ome judges, Justice Scalia among them, use their dissents to publicly rebuke their colleagues or to provide a parade of horribles that will inevitably flow from the ruling'). And use them he does. See Lawrence v. Texas, 539 U.S. 558, 586-06 (2003) (Scalia, J., dissenting); PGA Tour v. Martin, 532 U.S. 661, 702-03 (2001) (Scalia, J., dissenting); Monge v. California, 524 U.S. 721, 738 (1998) (Scalia, J., dissenting); J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 161-62 (1994) (Scalia, J., dissenting); Mistretta v. United States, 488 U.S. 361, 414-15 (1989) (Scalia, J., dissenting); Morrison v. Olson, 487 U.S. 660, 727-34 (1988) (Scalia, J., dissenting). Scalia's dire predictions in Morrison v. Olson indeed came to pass. See Michael deHaven Newsom, Independent Counsel? No. Ombudsman? Yes: A Parable of American Ideology and Myth, 5 WIDENER L. SYMP. J. 141 (2000). But all that one can fairly say is that Scalia got lucky in that case. Lawrence v. Texas still has yet to play itself out. It is most unlikely that same-sex marriages will become part of the American social and legal terrain anytime soon, if ever. The fact that Scalia authored the majority opinion in Smith does nothing to make Scalia's cheap and tawdry rhetorical technique any more defensible there than when he employs it in his bombastic dissents. However, one would hope that in writing opinions, the Justices would not indulge in rhetorical flights of contestable fancy. See Michael deHaven Newsom, Common School Religion: Judicial Narratives in a Protestant Empire, 11 S. CAL. INTERDISC. L.J. 219, 328 (2002) [hereinafter Common School Religion] (arguing that "[tlhere is virtue in requiring the law to offer the best explanation possible for its decisions"). 7 Smith, 494 U.S. at 907-09 (Blackmun, J., dissenting). Justice O'Connor also would have required Oregon to satisfy a tougher standard, but the Justice managed to misapply the standard largely by failing to adequately assess that many jurisdictions granted exemptions for the religious use of peyote. Id. at 893-905 (O'Connor, J., concurring in judgment). These jurisdictions necessarily challenged any claim that Oregon had a compelling state interest in not exempting the religious use of peyote from the reach of its anti-drug laws. The hard factual question is why Oregon found it impossible to do what other states had managed to do; why Oregon was 2005] SOME KIND OF RELIGIOUS FREEDOM "[d]uring Prohibition, the Federal Government exempted [the sacramental use of wine by the Roman Catholic Church] from its general ban on possession and use of alcohol."8 The clear intendment of Blackmun's remark is that Congress was far more attentive to the religious freedom or liberty interests of Roman Catholics when it passed the National Prohibition Act (the Volstead Act)9 than the state of Oregon was to the free exercise rights of members of the Native American Church when it enacted the anti-drug law at issue in Smith.1o The Volstead Act consisted of three titles, but only Title II, which concerned the "Prohibition of Intoxicating Beverages," is of relevance here." Its exemption for the religious use of wine actually consisted of several provisions. The first, the one to which Justice Blackmun referred, found in § 3, established the general rule of prohibition: No person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this Act, and all the provisions of this Act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented.12 Section 3 then provided that "wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished and possessed, but only as herein provided .... ,13 This is a clear and succinct statement of an exemption for the use of wine--for somehow different from these other jurisdictions. In other words, what is it about Oregon that compelled it not to accommodate the religious use of peyote? Justice O'Connor had no answer. 8 Id. at 913, n.6. The exemption appears in a different form and guise elsewhere in the National Prohibition Act. See infra notes 16-23 and accompanying text. 9 The National Prohibition Act is frequently referred to as the Volstead Act, see HERBERT ASBURY, THE GREAT ILLUSION: AN INFORMAL HISTORY OF PROHIBITION 112 (1968); NORMAN H. CLARK, DELIVER US FROM EVIL: AN INTERPRETATION OF AMERICAN PROHIBITION 130-31 (1976) [hereinafter DELIVER]; THOMAS M. COFFEY, THE LONG THIRST-PROHIBITION IN AMERICA: 1920-1933, at 8 (1976); MARTIN E. MARTY, PILGRIMS IN THEIR OWN LAND 376-78 (1984) [hereinafter PILGRIMS], named for the Congressman who introduced the Act, see JAMES H. TIMBERLAKE, PROHIBITION AND THE PROGRESSIVE MOVEMENT: 1900-1920, at 181 (1970), and will be so referred to in this article. 1o OR. REV. STAT. § 475.992 (1987). 11 The Volstead Act, ch. 85, 41 Stat. 307 (1919). 12 Id. at 308. 13 Id. at 307-08. BROOKLYN LAWREVIEW [Vol. 70:3 at least Christian religious purposes 14-from prohibition, although not from regulation. Title II went further. An amendment to § 6 of Title II of the Volstead Act added by the Senate as part of its consideration of H.R.