Employment Division, Department of Human Resources of Oregon vs. Smith, 494 U.S. 872, is a United
States Supreme Court case that determined that the state could deny unemployment benefits
to a person fired for violating a state prohibition on the use of peyote, even though the use
of the drug was part of a religious ritual. Although states have the power to accommodate
otherwise illegal acts done in pursuit of religious beliefs, they are not required to
do so.
Facts Alfred Smith and Galen Black were members
of the Native American Church and counselors at a private drug rehabilitation clinic. They
were both fired because they had ingested peyote, a powerful entheogen, as part of their
religious ceremonies as members of the Native American Church. At that time intentional
possession of peyote was a crime under Oregon law without an affirmative defense for religious
use. The counselors filed a claim for unemployment compensation with the state, which was denied
because the reason for their dismissal was deemed work-related "misconduct." The Oregon
Court of Appeals reversed that ruling, holding that denying them unemployment benefits for
their religious use of peyote violated their right to exercise their religion. The Oregon
Supreme Court agreed, although it relied not on the fact that peyote use was a crime but
on the fact that the state's justification for withholding the benefits—preserving
the "financial integrity" of the workers' compensation fund—was outweighed by the
burden imposed on Smith's and Black's exercise of their religion. The state appealed to the
U.S. Supreme Court, again arguing that denying the unemployment benefits was proper because
using peyote was a crime. The U.S. Supreme Court left the Oregon Supreme
Court's judgment against the disgruntled employees, and returned the case to the Oregon courts
to determine whether or not sacramental use of illegal drugs violated Oregon's state drug
laws). On remand, the Oregon Supreme Court concluded that while Oregon drug law prohibited
the consumption of illegal drugs for sacramental religious uses, this prohibition violated
the free exercise clause. The case returned to the U.S. Supreme Court in this new posture.
The state asked the U.S. Supreme Court to review this second decision of the Oregon
Supreme Court, and it agreed to do so. In earlier rulings, the Court had deliberated
that the government could not condition access to unemployment insurance or other benefits
on an individual's willingness to give up conduct required by their religion. However,
the Supreme Court did not find that this principle also applied when the conduct in question
is justifiably prohibited by law. For the first time in an unemployment compensation
case, the Court found against the believer and for the state.
Of particular importance was the fact that the Oregon law was not directed at the Native
Americans' religious practice specifically; thus, it was deemed constitutional when applied
to all citizens: "It is a permissible reading of the [free
exercise clause]...to say that if prohibiting the exercise of religion is not the object
of the [law] but merely the incidental effect of a generally applicable and otherwise valid
provision, the First Amendment has not been offended....To make an individual's obligation
to obey such a law contingent upon the law's coincidence with his religious beliefs, except
where the State's interest is 'compelling' - permitting him, by virtue of his beliefs,
'to become a law unto himself,' contradicts both constitutional tradition and common sense.'
To adopt a true 'compelling interest' requirement for laws that affect religious practice would
lead towards anarchy." Majority opinion
The majority opinion was delivered by Justice Scalia. The First Amendment forbids government
from prohibiting the "free exercise" of religion. This means, of course, that government may
not regulate beliefs as such, either by compelling certain beliefs or forbidding them. Religious
belief frequently entails the performance of physical acts—assembling for worship,
consumption of bread and wine, abstaining from certain foods or behaviors. Government
could no more ban the performance of these physical acts when engaged in for religious
reasons than it could ban the religious beliefs that compel those actions in the first place.
"It would doubtless be unconstitutional, for example, to ban the casting of statues that
are to be used for worship purposes or to prohibit bowing down before a golden calf."
But Oregon's ban on the possession of peyote is not a law specifically aimed at a physical
act engaged in for a religious reason. Rather, it is a law that applies to everyone who might
possess peyote, for whatever reason—a "neutral law of general applicability," in the Court's
phrasing. The Court characterized Smith's and Black's argument as an attempt to use
their religious motivation to use peyote in order to place themselves beyond the reach
of Oregon's neutral, generally applicable ban on the possession of peyote. The Court
held that the First Amendment's protection of the "free exercise" of religion does not
allow a person to use a religious motivation as a reason not to obey such generally applicable
laws. "To permit this would be to make the professed doctrines of religious belief superior
to the law of the land, and in effect to permit every citizen to become a law unto himself."
Thus, the Court had held that religious beliefs did not excuse people from complying with
laws forbidding polygamy, child labor laws, Sunday closing laws, laws requiring citizens
to register for Selective Service, and laws requiring the payment of Social Security taxes.
By contrast, the cases in which the Court had allowed a religious motivation to exempt
a person from a neutral, generally applicable law involved the assertion of both the right
of free exercise along with some other right. Thus, religious publishers are exempt from
a law requiring them to obtain a license if that license may be denied to any publisher
the government deems nonreligious. The government may not tax religious solicitors. The government
may not require the Amish to send their children to school because their religion demands otherwise,
and Amish parents, like all parents, have the right to direct the education of their
children. Because Smith and Black were not asserting a hybrid right, they could not claim
a religious exemption under the First Amendment from Oregon's ban on peyote.
In the alternative, Smith and Black argued that at the very least, the Court should only
uphold Oregon's ban on peyote as applied to them if Oregon had a compelling interest in
prohibiting their religious use of peyote. The Court had, after all, invalidated three
other unemployment compensation restrictions under this standard. But those other restrictions
themselves required consideration of individualized circumstances, such as when unemployment compensation
was denied to a person who could not, for religious reasons, work on Saturdays. If a
state has in place a system of individualized consideration, the constitution did not allow
the state to refuse to extend that system to cases of religious hardship without a compelling
reason. But the difference between the other unemployment
cases the Court had decided and Smith's and Black's case was that Oregon's ban on peyote
applied to everyone equally—in other words, it made no room for individualized consideration
of the reasons a person might want to use peyote.
Rather than interpret the First Amendment to require the exemption that Smith and Black
sought, the Court encouraged them to seek redress in the legislature. It observed that
Arizona, Colorado, and New Mexico already specifically exempted religious uses from
their otherwise generally applicable peyote bans. "Just as a society that believes in
the negative protection accorded to the press by the First Amendment is likely to enact
laws that affirmatively foster the dissemination of the printed word, so also a society that
believes in the negative protection afforded to religious belief can be expected to be
solicitous of that value in its legislation as well." To be sure, requiring claims for
religious exemptions to be vetted through the legislative process might put less popular
religions at a disadvantage. But the Court held that this situation was preferable to
the relative anarchy that would result from "a system in which each conscience is a law
unto itself." Concurring opinion
Justice O'Connor took issue with the analytical framework the majority had constructed, preferring
to apply the traditional compelling interest test to Oregon's ban on peyote. She agreed
with the Court's initial premise that the Free Exercise Clause applied to religiously
motivated conduct as well as religious beliefs. She pointed out, however, that even a so-called
neutral law of general applicability imposes a burden on a person's exercise of religion
if that law prevents a person from engaging in religiously motivated conduct or requires
a person to engage in conduct forbidden by his or her religion. The First Amendment has
to reach both laws that expressly target religion as well as generally applicable laws; otherwise,
the law would relegate the constitutional protection of the free exercise of religion
to "the barest level of minimum scrutiny that the Equal Protection Clause already provides."
However, First Amendment rights are not absolute. The law tolerates burdens on the free exercise
of religion that serve a compelling governmental interest and are narrowly tailored to meet
that interest. "The compelling interest test effectuates the First Amendment's command
that religious liberty is an independent liberty, that it occupies a preferred position, and
that the Court will not permit encroachment upon this liberty, whether direct or indirect,
unless required by clear and compelling governmental interests of the highest order."
"Thus, the critical question in this case is whether exempting respondents from the
State's general criminal prohibition "will unduly interfere with fulfillment of the governmental
interest," Justice O'Connor stated. "Although the question is close, I would conclude that
uniform application of Oregon's criminal prohibition is 'essential to accomplish,' its overriding
interest in preventing the physical harm caused by the use of a Schedule I controlled substance."
First, Justice O'Connor considered the interest of Smith and Black. It was not doubted that
the exemption from Oregon's ban on peyote was not a pretext for Smith and Black. It
was directly linked to the exercise of their religious beliefs, the sincerity of which
the Court does not and should not question. Peyote is a sacrament in the Native American
Church; thus, members must "choose between carrying out the ritual embodying their religious
beliefs and avoidance of criminal prosecution. That choice is ... more than sufficient to
trigger First Amendment scrutiny." Despite this, "Oregon's criminal prohibition
represents that state's judgment that the possession and use of controlled substances,
even by only one person, is inherently harmful and dangerous," Justice O'Connor stated. "Because
the health effects caused by the use of controlled substances exist regardless of the motivation
of the user, the use of such substances, even for religious purposes, violates the very
purpose of the laws that prohibit them." Furthermore, society's interest in preventing trafficking
in controlled substances was similarly central to effectuating Oregon's ban on peyote. Justice
O'Connor likewise suggested that Smith and Black seek redress in the state legislature
and not the courts, for the fact that other states allow religious use of peyote does
not compel Oregon to follow suit. Indeed, not even Smith and Black disputed that Oregon's
interest in outlawing peyote was compelling. Dissenting opinion
Justice Blackmun agreed with Justice O'Connor that the compelling interest test should apply
to Oregon's ban on peyote, but disagreed with her that the ban was supported by a compelling
interest that was narrowly tailored. Blackmun began by "articulat[ing] in precise terms
the state interest involved" in the ban. Blackmun focused narrowly on the state's interest in
not exempting religious use from its otherwise generally applicable ban on peyote rather
than the state's broader interest in "fighting the critical 'war on drugs.'" Blackmun framed
the issue as he did because "failure to reduce the competing interests to the same plane
of generality tends to distort the weighing process in the state's favor." Blackmun questioned
whether Oregon actually did enforce its criminal prohibition on peyote against religious users,
noting that it had not actually prosecuted Smith or Black. Because Oregon had not prosecuted
any religious users of peyote, its "asserted interest thus amounts only to the symbolic
preservation of an unfettered prohibition. But a government interest in symbolism, even
symbolism for so worthy a cause as the abolition of unlawful drugs, cannot suffice to abrogate
the constitutional rights of individuals." Oregon also claimed an interest in protecting
the health and safety of its citizens from the dangers of illegal drug use. But there
was no evidence that religious use of peyote actually harmed anyone. The fact that peyote
was a Schedule I drug did not persuade Blackmun. The federal government may have placed peyote
on Schedule I, but the federal government also tolerated the religious use of peyote.
In addition, other Schedule I drugs have lawful uses. Religious use was not recreational use;
the Native American Church ritual in which peyote is consumed is heavily supervised,
thus mitigating Oregon's health and safety concerns. The religious use occurs in a context
that harmonizes with the state's general ban. The Native American Church discourages nonreligious
use of peyote, and promotes family harmony, self-reliance, and abstinence from alcohol.
Research suggests that religious use of peyote can help curb "the tragic effects of alcoholism
on the Native American population." And as for the state's interest in abolishing drug
trafficking, Blackmun pointed out that there is "practically no illegal traffic in peyote."
Finally, Blackmun expressed concern for "the severe impact of a state's restrictions on
the adherents of a minority religion." Eating peyote is "an act of worship and communion,"
a "means for communicating with the Great Spirit." If Oregon is a hostile environment
in which to practice the Native American religion, its adherents might be forced to "migrate
to some other and more tolerant region." Blackmun felt it inconsistent with First Amendment
values to denigrate an "unorthodox" religious practice in this way.
Aftermath Congress passed the Religious Freedom Restoration
Act in 1993, which required the application of strict scrutiny. In response to the Supreme
Court's 1997 ruling in City of Boerne v. Flores, which declared the RFRA unconstitutional as
applied to the states, Congress passed the Religious Land Use and Institutionalized Persons
Act in 2000, which grants special privileges to religious land owners.
Current Oregon law on religious use of peyote Oregon Revised Statutes
475.840 (4) In any prosecution under this section
for manufacture, possession or delivery of that plant of the genus Lophophora commonly
known as peyote, it is an affirmative defense that the peyote is being used or is intended
for use: (a) In connection with the good faith practice
of a religious belief; (b) As directly associated with religiously
done practices; and (c) In a manner that is not dangerous to the
health of the user or others who are in the proximity of the user.
(5) The affirmative defense created in subsection of this section is not available to any person
who has possessed or delivered the peyote while incarcerated in a correctional facility
in this state. [Formerly 475.992] Fetched 082009
See also Religious Freedom Restoration Act of 1993
List of United States Supreme Court cases Lists of United States Supreme Court cases
by volume List of United States Supreme Court cases,
volume 494 List of United States Supreme Court cases
by the Rehnquist Court
References ^ http:www.oyez.org1980-19891989_88_1213
^ 494 U.S. at 885. ^ 494 U.S. at 888-89.
^ Hamilton, Marci. 2005. God vs. the gavel: religion and the rule of law. Cambridge, NY:
Cambridge University Press. ISBN 978-0-521-85304-0 ^ http:www.leg.state.or.us475.html
Further reading Alley, Robert S.. The Constitution & Religion:
Leading Supreme Court Cases on Church and State. Amherst, NY: Prometheus Books. pp. 483–501.
ISBN 1-57392-703-1. External links
Text of Employment Division v. Smith, 494 U.S. 872 is available from: Findlaw Justia LII UMKC