*1 31, 1984, Argued and submitted In Banc June October resubmitted reversed and remanded for reconsideration October
BLACK, Petitioner, al, DIVISION et EMPLOYMENT Respondents. A31186)
(84-AB-161; CA
ROSSMAN, J. J.,
Buttler, dissenting.
ROSSMAN, J. appeals Employment Appeals
Claimant an Board disqualified receiving unemployment order which him from compensation.1 Because EAB failed to consider claimant’s principal argument, we reverse and remand for reconsidera- tion.
Beginning September, 1982, claimant was employed by drug and alcohol treatment clinic aas resident history assistant. He drug ahas of substance abuse but has been early Employer’s personnel and alcohol free since 1982. provide rules that misuse or abuse alcohol or other mind- altering grounds suspension. substances constitute for signed copy day Claimant of those rules on his second employment. Employer contends it also was that, understood recovering any drugs alcoholics and addicts, During alcohol was considered abuse. the course of his employment, promoted twice, the last time to a position counselor in June, 1983.
Claimant is a member of the Native American weekly. Church and hearing, attends services At the indicated that he first came in contact with the church *3 through job. began attending regularly March, around approximately began working six months after he for employer. September, part 1983, as of a Native American ceremony, ingested Church claimant a small amount of peyote, containing hallucinogen a cactus “button” mes- illegal Oregon. caline, which is in ORS 475.005.He took it for spiritual testimony reasons, as a communion. There was produce any hallucinogenic amount was too small to participating ceremony, reaction. Before in the church claim- ant consulted with friends and co-workers about advisability ingesting peyote, given history drug of and required by alcohol abuse. Claimant testified that he was not peyote, personal the church to take but it that was a decision. employer When actions, learned of claimant’s he was professional asked to submit to an evaluation social placed worker, who recommended that claimant be in a outset, proceeding At the challenge should be noted that this does not employer’s discharge claimant, only unemployment decision to the state’s denial of benefits. personal for facility program an intensive
residential care the recommendation counseling. Claimant refused to follow that his opinion with employer’s he disagreed Thereafter, relapse. was practices sign were rules. employer for violation of terminated intentional application initial Claimant’s request, hearing to his compensation denied. Pursuant was held, application after and referee allowed his con- was was an instance cluding peyote that claimant’s use isolated 471-30-038(3). requested Employer judgment. OAR poor benefits. EAB, issued an order that denied review which provided: order The (1) non-profit employer FACT. The is a
“FINDINGS OF programs for engages operating various organization which (2) drug and abuse. prevention of alcohol the treatment and employer employed by June of this from claimant was drug alcoholism until as a and October (3) recovering from alcohol He was rehabilitation counsellor. time, during period of and had drug this and addiction drugs. refrained from the use of alcohol and/or “(4) policies specify that employer’s and rules employees which alcohol will avoid substance abuse involves (5) policies provide for a drugs. rules and Those and also alco- suspension if a staff member misuses and termination (6) altering beverages drugs. other mind holic and/or employer rules. was of those claimant aware “(7) claim- approximately September 1983 the On religious ceremony and native American ant attended a ingested (8) ceremony. Peyote is an part of the (9) aware its status. illegal the claimant was substance and ceremony during required not The use of this (10) ingesting optional among participants. Prior to advisability of spoke about drug the to others ceremony. consult- portion After partaking this others, ingest drug. ing the claimant decided deny doing not so. He does
“(13) employer’s he was came to the attention When this by professional social to submit to an evaluation asked mandatory (14) sick placed on indefinite He was an worker. beginning September 19 and did not work leave and vacation 1983, 3, (15) approximately On October after date. worker from the social employer the evaluation received placed which recommended that the claimant be a residen- inpatient facility abuse, tial care for alcohol and or that undergo personal program counselling. an intensive options. claimant refused these When the claimant options refused these various treatment he was terminated for employer’s violation fo the rules as set out above. disagree
“CONCLUSION AND REASONS: We with the referee and find discharged that the claimant was for miscon- duct in connection with his work. The Administrative Rule cited the referee sets out that misconduct is a wilful violation of the standards employer of behavior which an has expect employee of an and is an act that amounts disregard employer’s to a wilful interests.
“We find the instant case that the claimant’s actions constitute misconduct as defined above. He knew the employer’s prohibited rules drugs the use of and alcohol and recognized also that he could be terminated if he violated policies. those Although the illegal drug optional use of an during religious ceremony, wilfully the claimant made the ingest choice to drugs. those He did so even after he was advised others that perhaps such a choice would be improper. incorrect or Considering the seriousness of the in violating employer’s conduct rules we find exculpatory provisions of the Rule cannot come into play.”
Claimant
argued
EAB,
here,
before
as he argues
his ingestion of peyote is a constitutionally
protected religious
act which cannot constitute
disqualification.
basis for
presented
evidence to support
argument. Nevertheless,
EAB’s “findings of fact” and “conclusions
and reasons”
are
sufficiently
not
responsive to claimant’s
claims.
See Wasson
The case must be remanded for reconsideration.
AFSD,
Hillcrest
59 Or App
(1982);
THE QUESTION CONSTITUTIONAL in this case is whether the denial of compensation based on claimant’s in a Native American Church ceremony is an unconstitutional intrusion on his right to free exercise religion.
740 answering question for responsibility initial protection of Article Because he invokes falls on claimant. Constitution, the Free 3, and 1, Oregon 2 and sections Amendment to the United States of the First Exercise Clause is a question that the act in Constitution,2 he must establish substantially bur being and that it is religious expression that, then the If he establishes by state law or action. dened state, to the resolving question shifts responsibility for placed on the only justify a burden which can the least restrictive demonstrating that it is expression by v. state interest.3 Wisconsin achieving compelling a means (1972); 205, 1526, L Ed 2d 15 Yoder, 92 S Ct 32 406 US 403, 1790, 10 L Ed 2d Verner, 398, 83 S Ct v. 374 US Sherbert 965 emerge. Each
Thus, separate and distinct issues three in this case the ultimate must be addressed before can be decided:
(1) Was
religious act? bur- a substantial the denial of benefits Was
den? denial of demonstrated that the Has the state least by the compelling state interest benefits serves restrictive means? issues on the resolve the latter
Because we are able to two remand, we will us, necessity before without record initially. address them unemployment
First, the denial of we hold v. Ver In Sherbert a substantial burden. benefits constitutes to work discharged refusing ner, a Sabbatarian was supra, “worship guarantee persons provisions Oregon * * * any shall according and that law dictates of their own consciences” “[n]o to the opinions, exercise, religeous [sic] enjoyment and whatever control the free case rights of the First The Free Exercise Clause of conscience.” interfere with * * * prohibiting “Congress free provides shall make no law Amendment religion. exercise” of Constitutions, Oregon relies on both the United States Constitution, Oregon principled argument nor does based on he does not advance a supports protection suggest greater the federal constitution. than that it offers only Accordingly, principles. refer argument only we First Amendment discussing principles in his claim. those eventually Her Saturday. on refusal resulted her dis- qualification from benefits. denial, significant
Court reversed the
there
holding was a
practice
coercive
on the
religion,
effect
claim-
ant
forced
choose between state
on the
benefits
one
following
hand and
her
on
beliefs
the other. “Govern-
mental
imposition
puts
such
choice
the same kind of
upon
burden
the free
religion
exercise of
a fine
would
imposed
appellant for
against
Saturday worship.”
her
374 US
Bd.,
404.
Div.,
at
Empl.
Thomas Review
Ind.
Sec.
450 US
S Ct
Second, we hold that the state has not demonstrated a compelling justifying interest infringement. only the interest advanced the state this case is its
“* * in protecting Unemployment interest Compen- the depletion by sation Fund from undeserving those are who due conduct, to their e.g. own quit those who or are fired without good reason.”
That
interest
falls far
of compelling.
short
In both Thomas
Sherbert,
the
integrity
respective unemployment
the
funds was advanced as
compelling.
contentions were
rejected in
Bd.,
each
Empl.
instance. Thomas v. Review
Ind.
Div.,
718-19;
Verner,
Sec.
supra,
US at
Sherbert v.
supra,
We now come dispositive to the third and issue to be addressed: peyote whether claimant’s use of a bona fide religious practice deserving of protection. constitutional It is because of need factfinding the for further on this issue that we are remanding this case back to Board. the some, peyotism
To
seem
might
unconventional.
However, we cannot
a
ignore
fundamental
principle
the
simply because
facts of the case surround an
worship may
obscure church whose
mode
be controversial
Ballard,
v.
In United States
322 US
and little understood.
(1944),
87,64
L
noted
S Ct
Ed 1148
the
Court
protections:
the breadth of First Amendment
«* * *
Fathers
were not unaware of
of the Constitution
sects,
religious
violence
the varied and extreme views of
the
them,
disagreement
any
among
and of the lack of
one
They
religious
agree.
on
all men would
fashioned
creed which
envisaged
possible
the
government
a charter of
which
widest
to
God was
conflicting
toleration of
views. Man’s relation
granted
to
made no concern
the state.
the
verity
worship
pleased
man for
and to answer to no
religious
espoused
religious
views. The
views
incredible,
respondents might
preposterous,
if not
seem
subject
if
people.
most
But
those doctrines are
trial before
falsity,
jury charged
finding
truth
same
with
their
then the
any
sect.
can be
beliefs of
When
done
task,
they enter
triers of fact undertake that
a forbidden
* * *”
domain.
contention,
primary
thrust of
state’s
bona fide
practice,
is not a
centers on
peyote
use of
required
fact
was not
peyote
that claimant’s
authority
support
finding
is
by his church.
there
M
qua
“sine
non” of the Native
is the
see,
Woody,
e.g., People
Church,
61 Cal2d
American
721-22,
finding
Rptr 69,
In Thomas v. Ind. Sec. Review quitting a claimant was denied him to work reassigned position requiring to a job after he was Court military weapons. of production in the protected was a produce weapons held that his refusal to freedom, though other members religious exercise of his even do US at 715-16. The willing were so. 450 of church conduct protections extend to that constitutional court stated faith; of a in other less than all of the members engaged by mandatory. The words, is not they extend conduct that the- depend on the the constitution does not protection con- “Rather disputed conduct. ological importance of the that is by the fact triggered protection stitutional
743 McConnell, F religious.” Supp Unitarian Church West v. 337 1252, 1257 (ED 1972). Wis
Furthermore, judicial validity examination of the truth of beliefs is foreclosed the First Amendment. only may inquire courts into whether a claimant holds his good beliefs in faith or whether he seeks to wear the mantle of religious immunity merely illegal as a cloak for activities.4 Ballard, is, United supra. States v. That the issue is whether sincerely claimant’s beliefs are held. an employe’s When genuine exercise of religious employer’s beliefs clashes with an interest, there is no basis for denial of benefits. law,
Under these principles of it becomes EAB’s task to determine whether ingestion peyote this claimant’s awas religious act. made, Before that conclusion can be EAB needs to make findings of fact that following answer three questions: Is the ingestion peyote a sacrament of the
Native American Church?5 Is this claimant a member of that church?6
(3) Concerning his peyote, were claim- ant’s beliefs sincerely held?
If EAB questions resolves all three affirmatively, then it must conclude that peyote was a religious act; and, if conclusion, that is the EAB deny cannot unemployment benefits in this case. 4 practices very they suggest Some are so unusual that their nature Kuch, sincerely underlying religious lacking. See United States v. held beliefs be (D Supp 1968), 288 F 439 DC which members of the Neo-American Church were charged concerning marijuana with violation of laws and LSD. The church called its Hoos,” “Puff, song Magic Dragon,” members “Boo its theme and its motto “Victory rejected over Horseshit.” The district court the constitutional claim and group merely enjoy drugs. said that the was formed to use and matter, finding EAB must nevertheless make a fact in the on this argues peyotism religious. record now before us no one is not References to it appear early many parts as 1560. The Native American Church has adherents in membership 250,000. up the United States and in Canada. Its has been estimated at theology many tenets, church is based on Christian as well as the belief that
peyote Holy Spirit partake embodies the and that those who enter into direct People Woody, Rptr contact with God. See 61 Cal2d Cal P2d 813 disputed It does not seem to be the Native claimant was a member of American Church. *8 744
THE SOTO CASE 1975, a criminal defen- this court refused to allow possession peyote,7 dant, charged with criminal who a defense. State v. religious of his beliefs as present evidence (1975), den 424 Soto, 794, 142, rev den cert App 21 Or 537 P2d (1976).8 this case. The state that Soto controls argues 955 US that it does. We do not believe dissent, majority in worded the
Despite
strongly
a com-
presumed
assertion and
rejected the defendant’s
Soto
safety of
in
the health and
pelling
protecting
state’s interest
were
possession
use and
public from the fact that
defendant
Accordingly,
rejected
at
we
App
21 Or
798.
illegal.
to stand.
defense and allowed his conviction
religious
Soto’s
an
Here,
for a violation of
claimant was terminated
by former
drugs
the use of
or alcohol
employer
prohibiting
rule
indepen
The fact that there is an
of those substances.
abusers
coinciden
laws which made his conduct
dent set of criminal
irrelevant,
not terminated for
is
because he was
tally illegal
state’s
is not whether
breaking
question
the law. The
protecting
interest of
justified by
compelling
action can be
That
is not
public.
justification
and interest of the
the health
is
advanced,
be,
the relevant state action
nor could it
Soto,
unemploy
the denial of
charge,
as in
but
not
criminal
above,
is whether
ment benefits. As noted
denying
interest
in
compelling
state has a
address that
rule. Soto did not
personnel
because he violated a
Therefore,
inapposite.9
in
holding
Soto
question.
7
(repealed
charged
167.207
Or
had been
under
ORS
The defendant
former
1977,
54)
475.5010(1)(b)
1977,
745,
(repealed
Laws
Or
§
ch
and
ORS
Laws
former
745, 54).
§
ch
8
142,
(1975),
Soto,
App
den 424
Although
rev den
cert
v.
21 Or
P2d
State
Big Sheep,
(1976),
early
v.
75 Mont
cases like State
is consistent with some
US 955
exception
appears
the current trend
to be a distinct
Reversed BUTTLER, J., dissenting. of a majority’s I discussion agree religion,
person’s practice *9 peyote, petitioner’s here is whether substance, it is a protected practice just controlled is a the ritual of the American Church to which part of Native belongs. majority correctly that a recognizes beliefs,
practice, opposed prohibited be if the state Soto, 21 Or compelling doing has interest in so. State v. (1975), P2d cert App rev den den US held in compelling we the state has a interest prohibiting outweighed the use of the defendant’s interest in practicing religion as member of Native law, plaintiff American Church. long So as Soto remains protectible does not have a on which base claim. Oregon in Supreme Court denied review State
Soto, and the denied supra, United States Court overruled, certiorari. If that decision is to be I do not think this the case which to do so. Board; therefore, I would affirm the I dissent. J., Warden, J.,
Joseph, join C. this dissent.