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SPECIAL TO THE NATIONAL LAW JOURNAL A Michigan judge has ruled that a 4-year-old boy cannot ingest peyote, resolving an issue in a custody case that pitted a mother’s concern about her son’s health against a father’s insistence that the hallucinogen played a part in the practice of his Native American religion. The dispute called into question just how far the state and federal constitutions’ guarantee of the free exercise of religion can be stretched. Martin Holmes, a North Muskegon, Mich., solo practitioner, said Jonathan Fowler’s right to practice his religion stopped at the point that it exposed his son to a potentially harmful hallucinogenic drug. Holmes represents the boy’s mother, Kristin Hanslovsky, a Roman Catholic whose main objection to her son’s participation in traditional Indian ceremonies was the use of peyote in religious rites. Judge orders wait In a decision handed down last week, Newaygo County Circuit Judge Graydon Dimkoff ruled that the boy cannot ingest the drug until he is old enough to weigh the risks of using the drug, which Dimkoff said “is dangerous, and in general should be avoided.” Fowler v. Fowler, No. 98-744-DM (Newaygo Co., Mich., Cir. Ct.). Peyote, also called “mescal,” comes from a spineless, dome-shaped cactus native to Mexico. It can be chewed fresh, or dry as a narcotic drug. The U.S. criminal code classifies peyote as a controlled substance. Dimkoff also said the boy can participate in all-night ceremonies at Fowler’s Native American Church of the Morning Star, but must have the permission of both parents before taking peyote. “It’s a good decision,” Holmes told the Associated Press. “I don’t think the judge really had any choice, given the nature of the facts.” Fowler’s attorneys, Thomas Myers and Gregory Stevens of Michigan Indian Legal Services in Lansing, Mich., have not decided whether to appeal the ruling. Thomas Silvia, a solo practitioner in Ann Arbor, Mich., who specializes in Native American and constitutional law issues, praised Dimkoff’s decision. If the case involved a minor who attended a church that practiced snake handling, Silvia said the judge essentially ruled “go to church but don’t have him pick up a snake until he’s 18.” He also said the use of peyote in religious rites is not endemic to the Great Lakes tribes as it is in the southwestern United States. Before the decision, he had questioned Fowler’s chances of prevailing. “In general there’s been an erosion in the right to use peyote,” he said. But the use of peyote was just one twist in a bizarre case that has been wending its way through the courts for four years. It began in 1999, when Hanslovsky, five months pregnant, left Fowler, whom she had married in Michigan, and moved to North Carolina. Fowler, a member of the Grand Traverse Band of Ottawa and Chippewa Indians, wanted to involve Hanslovsky in Native American religious rites, Holmes said. “He was insisting that she be involved in these peyote ceremonies,” he said. “He told her it would be disrespectful to him and to the church not to participate.” But the most serious matter in the custody case has been the potential effect of peyote on a 4-year-old. “From our point of view, this is a child-protection case. Pure and simple, protect this child,” Holmes said. “Jonathan can take peyote till the cows come home. Jonathan can participate in these ceremonies as much as he wants to . . . .What we’re trying to prevent him from doing is allowing this kid to take peyote.” The Michigan Court of Appeals indicated in its order remanding the case to Dimkoff that determining whether peyote is harmful will be a key point in deciding the case. In their unpublished opinion, appeals court judges said that Fowler’s right to his religious beliefs was unassailable. But they went on: “If, for example, ingestion of a hallucinogenic drug by a young child would pose a substantial threat to the child’s physical or mental well-being, the care and protection of the child may override the freedom of the parent to engage in religious practices.” Elrick’s e-mail address is

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