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Employment
Division v. Smith
485
U.S. 660 (1990)
Two
Commentaries:
I.
Commentary
by Samuel M. Ventola, Esq.
Rothgerber
Johnson & Lyons Religious Institutions Group
Copyright,
September 2001
In
the Smith decision, the Court held that First Amendment
right to exercise of religious freedom by Native Americans
participating in the ritual use of peyote did not permit
such individuals to engage in the illegal smoking of peyote.
The Court held that because government regulation against
illegal drugs was "generally applicable," and not specifically
targeted to religious practices, it did not violate the
First Amendment, and the government was not required to
demonstrate that the regulation was necessary to a compelling
government interest.
The
Smith decision recognized three exceptions to the
"general applicability" doctrine. First, individuals may
still be protected from government actions which affected
other rights, such as the freedom of speech, in addition
to the freedom of religion. In such "hybrid rights" cases,
citizens are permitted to invoke the stronger protection
of the other right. Second, the doctrine of general applicability
does not apply to government regulation which allows for
exceptions on a case-by-case basis. Although the Court did
not give any examples of such regulation, it should be noted
that much of the regulation which would affect religious
practices, such as land use regulation, negligence lawsuits,
and court discovery rules, have a process for making case-by-case
exceptions, and therefore may not be governed by the "general
applicability" doctrine. Finally, the Court recognized the
Doctrine of Church Autonomy, and apparently would not allow
government regulation which would interfere with internal
Church decisions, even through "generally applicable" regulation.
(See major case commentary on Watson v. Jones
in the RJ&L Religious Liberty Archive at www.churchstatelaw.com
for discussion on the Doctrine of Church Autonomy.)
II.
The
Rothgerber Johnson & Lyons Religious Institutions
Group gratefully acknowledges the contribution of the
Ethics and Public Policy Center which provided the following case commentary taken from Terry Eastland, Religious
Liberty in the Supreme Court: The Cases That Define
the Debate over Church and State (1993).
A
state may deny unemployment benefits to persons dismissed
from their jobs on account of illegal drug use, even if
the use of the drug is religiously based. So said the Supreme
Court in its highly controversial Smith decision.
Not since Minersville v. Gobitis (1940) had a free-exercise
decision drawn as much negative commentary in the press
and the academy, and a major legislative effort was soon
mounted to change it. In Smith, the Court, with Justice
Antonin Scalia writing, limited the implications of Sherbert
v. Verner (1963), which exempted religious believers
from a non-discriminatory secular law that inhibited the
exercise of their religious beliefs, and seemed to some
observers to revive Gobitis. The Smith case,
taken together with Board of Education v. Mergens
(see Case 24), also decided in 1990, suggested the Court's
willingness (short-lived, in light of its decision two years
later in Lee v. Weisman, Case 25) to defer to the
political process on questions of church and state.
Oregon
law prohibited the knowing or intentional possession of
a "controlled substance" unless it had been medically prescribed.
Anyone violating the law was guilty of a felony. Alfred
Smith and Galen Black were fired from their jobs with a
private drug-rehabilitation organization because they ingested
the hallucinogenic drug peyote, used for sacramental purposes
at a ceremony of the Native American Church. When they applied
to the state Employment Division for unemployment compensation,
they were judged ineligible for benefits because they had
been fired for work-related "misconduct" — i.e., their use
of a "controlled substance" that could not be lawfully possessed
in Oregon.
Smith
and Galen challenged the decision on free-exercise grounds.
The case went through the Oregon courts, with its supreme
court deciding that the petitioners were entitled to unemployment
benefits. When the case first came to the U.S. Supreme Court,
it was sent back to Oregon so that state courts could decide
whether sacramental use of peyote was in fact proscribed
by the state's controlled-substance law—a matter disputed
by the parties. The Oregon Supreme Court held that the petitioners'
apparently religiously inspired use of peyote did indeed
fall within the prohibition of the Oregon statute, which
"makes no exception for the sacramental use" of the drug.
That court then concluded that this prohibition violated
the free-exercise provision, and that the petitioners were
therefore entitled to unemployment compensation. On appeal,
the U.S. Supreme Court reversed this judgment: "[A]n individual's
religious beliefs [do not] excuse him from compliance with
an otherwise valid law prohibiting conduct that the State
is free to regulate." (A year later the Oregon legislature
voted to change the law so that such persons as Alfred Smith
and Galen Black would be eligible for unemployment benefits;
see note 8 in the opinions.)
The
case produced three opinions—Scalia's, for the Court, expressing
the views of five members; Justice Sandra Day O'Connor's,
concurring in the judgment but disagreeing with the Court's
jurisprudence; and Justice Harry Blackmun's, in dissent.
All three are presented here.
The
decision in Smith was sharply criticized by groups
and individuals ordinarily on opposite sides of the theological
and political spectrum. Both religious liberals (the National
Council of Churches) and religious conservatives (including
Richard John Neuhaus, editor of First Things) faulted Scalia's
opinion, as did both the American Jewish Committee, sponsor
of Commentary, and the liberal American Jewish Congress.
The American Civil Liberties Union, People for the American
Way, and the American Humanist Association denounced the
decision. Joining them were constitutional lawyers normally
not aligned with their positions, such as Michael McConnell
of the University of Chicago Law School. For negative evaluations
of Smith, see Edward McGlynn Gaffney, Douglas Laycock,
and Michael W. McConnell, "An Open Letter to the Religious
Community," First Things, March 1991. For a view substantially
in agreement with Justice Scalia's opinion, see Gerard V.
Bradley, "Beguiled: Free Exercise Exemptions and the Siren
Song of Liberalism," Hofstra Law Review 20 (1991):
245. By the spring of 1993, legislation to restore the conduct
exemption to free-exercise jurisprudence seemed a strong
possibility. Also in 1993, the Court explicitly reaffirmed
the Smith decision in Church of the Lukumi v.
Hialeah.
Participating
in Employment Division v. Smith, decided April 17,
1990, were Chief Justice William H. Rehnquist and Associate
Justices Harry A. Blackmun, William J. Brennan, Jr., Thurgood
Marshall, Sandra Day O'Connor, Lewis F. Powell, Jr., Antonin
Scalia, John Paul Stevens, and Byron R. White.
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