This is currently the leading case on the scope of the First Amendment’s prohibition against laws that ‘‘prohibit the free exercise’’ of religion. The case attracted little notice during its prolonged consideration by the Court. However, in its opinion, the Court’s majority announced an entirely new doctrine of free exercise, reinterpreting or discarding much seemingly settled doctrine and sharply limiting the effect of the Free Exercise Clause. In Smith, the Court held that ‘‘neutral, generally applicable laws’’ do not violate the clause even when they limit or entirely prohibit the practice of minority religions. The clause, the Court said, is violated only when government intentionally targets religious practice. The result has since been subject to withering academic and public criticism, all the more intense because the Court gave no hint to the parties or the public that it was considering abandoning precedent and fashioning a new rule. Smith remains controversial today, and has inspired no fewer than three federal statutes designed to overturn its result in whole or part.
The case arose in 1984, when a private, government- funded alcohol and drug abuse treatment agency in Roseburg, Oregon, fired two of its employees, Alfred Leo Smith, Jr. and Galen W. Black, because they had participated in the tipi ceremony of the Native American Church and had consumed peyote as part of the ceremony. The Native American Church, a loose federation of congregations and church bodies, is the main representative in the United States of peyotism, the religious worship of the hallucinogenic peyote cactus. Indian lore and anthropological records suggest that people in the New World have been making ceremonial use of peyote for well over 10,000 years. In the nineteenth century, peyotism assumed its present shape in the United States, and during the late twentieth century public health specialists studying native people began to suggest that the ritual and peyote itself were useful methods of treating alcoholism and drug addiction, at least among indigenous populations. It was this possibility that led Galen Black, a white man and a recovering alcoholic, to participate in a tipi ceremony in late 1983. When his employers found out that he had consumed peyote at the ceremony, they dismissed him, suggesting that the use of peyote constituted ‘‘drug abuse’’ and ‘‘relapse’’ into substance abuse. Al Smith, a Klamath Indian with many years of experience with the church, then also consumed peyote to protest against what he saw as disrespect for Native-American traditions. The agency fired him as well, and the Employment Division of the State Department of Human Resources denied both men unemployment compensation, alleging that they had been dismissed for work-related ‘‘misconduct.’’
The two men brought separate lawsuits against the division in the Oregon State courts, and in 1986 the Oregon Supreme Court held that the denial of unemployment compensation violated the Free Exercise Clause. The state court relied on a precedent called Sherbert v. Verner (1963), in which the Court had ordered the State of South Carolina to pay unemployment compensation to a Seventh-Day Adventist who refused a job because it required Saturday work, forbidden by her faith. The Oregon Court reasoned that the two cases were equivalent, even though Oregon law technically forbade the use of peyote by anyone, even for religious reasons.
The U.S. Supreme Court granted certiorari, vacated the state court opinion, and remanded the case (Employment Division v. Smith , Smith I ). The Court majority ordered the state court to determine whether religious use of peyote violated state law. If so, the majority suggested, this fact might distinguish the case from Sherbert. On remand, however, the state court simply stated that Oregon law did not appear to provide a religious exemption to the prohibition on peyote. Citing its own rule against advisory opinions, it declined to consider whether the state law violated the Oregon Constitution. Instead, it reaffirmed its holding that Sherbert required payment to Smith and Black as a matter of federal constitutional law. Once again, the state petitioned the Supreme Court for certiorari, which was granted in 1989. Representatives of the Native American Church, fearing the effects of a loss, attempted to negotiate a settlement. Oregon agreed, provided that Smith and Black would return the compensation they had received. Smith refused, and the case went forward.
Smith II was briefed and argued by both parties and all amici as a case about the proper application of Sherbert. In that case, the Court had suggested that state laws that ‘‘burden[ed]’’ religious practice could pass First Amendment muster only if they furthered a ‘‘compelling state interest.’’ The State of Oregon argued that its public policy of refusing any exemptions to its drug laws was a ‘‘compelling interest’’; Smith and Black argued that, because the state had not actually prosecuted Smith and Black, the only ‘‘state interest’’ present in this case was the state’s desire to conserve funds in its unemployment compensation fund—an interest the Sherbert Court had already rejected as less than ‘‘compelling.’’
When the Court announced its opinion in Smith II, shock waves traveled around the religious community. Without giving any hint to anyone that it was considering doing so, the Court had decided, in an opinion by Justice Antonin Scalia, to scrap the Sherbert rule and replace it with a new rule, hitherto unknown, that was significantly less protective of religious minorities who found themselves in conflict with majority beliefs. Unless such a minority plaintiff could show that the law burdening her belief had been passed with the purpose or intention of discriminating on religious grounds, the Free Exercise Clause would provide no protection at all. ‘‘Neutral, generally applicable laws’’ that unintentionally gutted minority religions were not subject to any heightened scrutiny by the Court. Minorities facing such ‘‘incidental’’ burdens were directed to seek exemptions from the political process rather than from courts. In order to reach this result, Justice Scalia reinterpreted much of the Court’s prior free exercise jurisprudence as dealing with ‘‘hybrid cases,’’ involving two or more provisions of the Bill of Rights, rather than free exercise alone. He also relied heavily upon the Court’s decision in Minersville School District v. Gobitis (1940), one of the Court’s more reviled precedents— and one that had been overturned by West Virginia Board of Education v. Barnette (1943), only three years after it was decided. Justice Scalia further explained that the growing religious diversity of the American people meant that ‘‘we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.’’
Religious groups across the political and theological spectrum mobilized in opposition to the decision. In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which directed the courts to apply the Sherbert test to any state or federal law or regulation that burdened a religious practice. (Although seeking to reverse the doctrine of Smith, the religious coalition deliberately excluded peyotists and cooperated in the creation of legislative history suggesting that a prohibition of peyotism might pass the ‘‘compelling interest’’ test.) In passing RFRA, Congress relied on the enforcement clause in section 5 of the Fourteenth Amendment. In 1997, the Supreme Court, in City of Boerne, Texas v. Flores (1997), held that RFRA, as applied to states, exceeded Congress’s power under section 5. In response, Congress in 2000 enacted the Religious Land Use and Institutionalized Persons Act, which made use of the commerce and spending powers to impose the ‘‘compelling interest’’ test on state actions that burdened religious organizations or persons in zoning and prison-discipline cases. To date, the new act has been upheld by the federal courts of appeals.
Meanwhile, the Native American Church, with the assistance of Sen. Daniel Inouye, persuaded Congress in 1994 to pass theAmerican IndianReligious Freedom Act Amendments (AIRFAA). AIRFAA prohibits the federal or state governments from outlawing the use of peyote by Native Americans as part of a traditional native religion, or from denying native peyotists state benefits because of their religious use of peyote.
The Smith rule, however, remains the Court’s statement of the constitutional scope of the Free Exercise Clause. Justice David Souter, who joined the Court after its decision in Smith, has criticized the rule as leaving free exercise doctrine ‘‘in tension with itself,’’ and Justice O’Connor, who concurred in the result in Smith but defended the Sherbert rule, has also called for Smith to be overruled.
Cases and Statutes Cited