Employment Division, Department of Human Resources of Oregon v. Smith 484 U.S. 872 (1990)

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EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH 484 U.S. 872 (1990)

Two drug and alcohol abuse counselors were fired from their jobs after ingesting the hallucinogenic drug peyote during a religious ceremony of the Native American Church. They were subsequently denied unemployment compensation by the state of Oregon because the state determined they had been discharged for work-related "misconduct." The workers filed suit, alleging that the denial of compensation violated the free exercise clause of the first amendment. The Supreme Court disagreed by a vote of 6–3.

If the Court had handled Smith as it had handled most of its previous cases in the field of religious liberty, it would have first asked whether Oregon had a compelling state interest to deny unemployment compensation to the fired workers. If Oregon could demonstrate such an interest, and the denial of compensation was narrowly tailored to further that end, the denial would have been upheld. But the Court did not treat Smith as it had previous cases. Instead, it used Smith to abolish the compelling-interest standard for challenges brought under the free exercise clause.

Writing for five members of the Court, Justice antonin scalia made the astonishing claim that the Court had never really applied the compelling-interest standard to free exercise claims. According to Scalia, the Court had "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." Of course, the Court had held precisely that in several cases, most notably cantwell v. connecticut (1943) and wisconsin v. yoder (1972). But Scalia noted that these cases implicated other constitutional rights besides free exercise, and he suggested that those other rights were the decisive factor in the Court's decisions to hold unconstitutional particular applications of certain general laws. In Cantwell, the invalidated licensing law impinged on the freedom of speech;in Yoder, the compulsory education law infringed on the "right of parents … to direct the education of their children." Scalia concluded from this that only when the free-exercise clause is joined with other constitutional protections may it invalidate particular applications of general laws. As a practical matter, this means that the free exercise clause alone means very little. Generally applicable laws that do not implicate other constitutional rights are constitutional, no matter how difficult they make it for certain persons to practice their religion; indeed, it is conceivable that a generally applicable law could destroy certain religious groups entirely and yet survive a free exercise challenge under Scalia's approach. Only laws that expressly seek to regulate religious beliefs or to proscribe certain actions only when they are engaged in for religious reasons violate the free exercise clause according to the Court's new standard.

Concurring in the judgment, but disavowing the Court's reasoning, Justice sandra day o'connor attacked the majority opinion as "incompatible with our Nation's fundamental commitment to individual religious liberty." Carefully recalling prior precedents, O'Connor showed that the compelling-interest test had been applied much more consistently by the Court in free exercise cases than Scalia had suggested. O'Connor further defended the test as an appropriate method by which to enforce "the First Amendment's command that religious liberty is an independent liberty.…" Applied to the case at hand, O'Connor believed that the free exercise claim could not prevail, however, because exempting the two workers from drug laws would significantly impair the government's "overriding interest in preventing the physical harm caused by the use of a Schedule I controlled substance."

Justices thurgood marshall, william j. brennan, and harry a. blackmun joined most of Justice O'Connor's concurring opinion, but they disagreed with her ultimate conclusion, arguing that enforcement of drug laws against the religious ingestion of peyote was in no way necessary to fulfill the state's legitimate interest in circumscribing drug use. The state had argued that an exemption of the claimants in Smith would invite a flood of other claims for exemption to drug laws based on religious beliefs; but Blackmun pointed out that many states already have statutory exemptions for religious peyote use and have suffered no such difficulty.

The debate on the Court that erupted in Smith over what standard to apply to free exercise claims was dramatic; and yet it was not entirely unexpected, having been foreshadowed in several previous cases, including goldman v. weinberger (1986) and O ' lone v. estate of shabazz (1987). It also had been preceded for some years by a vigorous debate among scholars such as Walter Berns and Michael McConnell. Berns had long characterized the Court's decision in Yoder as contrary to American republicanism. His view clearly triumphed in Smith. Whether or not the Court's new approach is any better than its old one, however, is open to question.

One can certainly understand why the Court might want to restrict challenges under the free exercise clause. When only the members of a particular religious group may use an illegal drug or ignore compulsory education laws, the free exercise clause appears to undermine the equality before the law established by the rest of the Constitution. Scalia's approach seeks to avoid this contradiction by defining free exercise in terms of other constitutional rights, such as freedom of speech, freedom of association, and equal protection. Scalia has a keen theoretical mind, and one can readily see the analytical power of his approach. Under his scheme, religious liberty will be protected by general rights applicable to all, rather than by specific exemptions granted only to those who hold peculiar religious beliefs. The principle of equality before the law will be maintained. That this approach may indeed afford protection to religious liberty is demonstrated by the recent development of the doctrine of equal access, which is premised on free-speech and free-association protections rather than the free-exercise clause.

Yet one can legitimately wonder—as Justice O'Connor did in Smith— whether Scalia's approach will actually protect the free exercise of religion to its fullest extent. One suspects that it could only do so if the Court were willing to give an expansive reading to other constitutional rights in order to make up for its restricted interpretation of free exercise. Indeed, Scalia himself had to resort to an unenumerated right of parental control over a child's education to explain the Court's previous ruling in Wisconsin v. Yoder within his framework. But the rehnquist court appears to be in no mood to give a broad reading to any rights just now, which makes its evisceration of the free exercise clause all the more troubling.

Government today wields a wide array of regulatory powers that the Court no longer even presumes to question; the "compelling state interest" test may be the only practical way to insulate religious groups from the destructive effects of such regulatory powers. The Court's failure to appreciate this fact raises troubling questions about its commitment to religious freedom for all.

John G. West, Jr.
(1992)