Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872; 110 S. Ct. 1595; 108 L. Ed. 2d 876 (1990)

Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872; 110 S. Ct. 1595; 108 L. Ed. 2d 876 (1990)

Facts—Two drug rehabilitation counselors were fired from their jobs for ingesting peyote as part of the rituals of the Native American Church to which they belonged. Oregon denied them unemployment benefits because they were fired from their jobs for criminal wrongdoing. The Oregon Court of Appeals held that this decision interfered with their free exercise rights under the First Amendment. The Oregon Supreme Court affirmed. The U.S. Supreme Court subsequently sent the case back to the Oregon Supreme Court to ascertain whether state law exempted the use of peyote for religious purposes from its criminal statutes. The Oregon Supreme Court found no such exemption but continued to insist that the denial of unemployment benefits was a denial of free exercise rights.


(a) Are the appellees entitled to unemployment benefits?

(b) Does the free exercise clause of the First and Fourteenth Amendments require a state to show a compelling interest when a generally applicable law falls with special force on a particular religion?


(a) No;

(b) No.

ReasonsJ. Scalia (6–3). The free exercise clause of the First Amendment, which applies to the states through the Fourteenth Amendment, first and foremost protects “the right to believe and profess whatever religious doctrine one desires.” This does not include the right to violate generally applicable laws that happen to fall with particular force on particular religious adherents. Court decisions that seem to imply this are in fact hybrid cases that involve the freedom of religion in conjunction with some other freedom like freedom of speech. The Court has limited the balancing test in Sherbert v. Verner, 374 U.S. 398 (1963) to employment situations and has never applied the “compelling state interest” test articulated there to cases where the conduct of individuals puts them in conflict with state criminal laws. Although it sounds familiar, employment of the compelling state interest test in matters related to free exercise is likely to lead to all kinds of problems. Although states are permitted to make exceptions for individuals who ingest peyote as part of their religion, they are not required by the First and Fourteenth Amendments to do so.

J. O’Connor’s concurring opinion advocates retaining the compelling state interest test articulated in Sherbert v. Verner for cases like this, but agrees that in the case at hand the state met such a compelling state interest in that its law was aimed at suppressing illegal drug use. J. Blackmun’s dissent argued the majority undermined “a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion.” He emphasized not the state’s broad interest in fighting drugs but its narrow interest in refusing to exempt religious adherents from this policy. He did not believe that labeling peyote as a Schedule I controlled substance is sufficient to uphold Oregon’s restrictions, argued that the ritual use of peyote was far from the drug abuse that the state was attempting to combat, and found little illegal trade in peyote. Blackmun further believed that the majority underestimated the negative impact its ruling would have on the free exercise rights of Native Americans.

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