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Smith v. Oregon Employment


SMITH V. OREGON EMPLOYMENT (Employment Division, Department of Human Resources of Oregon et al. v. Smith et al., 494 U.S. 872,1990). Alfred Smith and Galen Black were fired from their jobs because they ingested the illegal hallucinogen peyote for sacramental purposes during a Native American religious ceremony. When the men applied for unemployment benefits, the Employment Division denied the benefits because they had been discharged for "misconduct." The Oregon Supreme Court held the denial violated the men's rights under the First Amendment, which protects the "free exercise" of religion.

In an opinion written by Justice Antonin Scalia, the U.S. Supreme Court reversed, holding that the free exercise clause permits states to prohibit sacramental peyote use and to deny unemployment benefits to persons discharged for such use. The Court reasoned that the clause does not excuse an individual from compliance with a neutral law not particularly aimed at religious conduct. The Court cited the 1879 case of Reynolds v. United States, which upheld the criminalization of polygamy, even as applied to individuals whose religion required it.

Four Justices (Harry Blackmun, W. J. Brennan, Jr., Thurgood Marshall, and Sandra Day O'Connor) disagreed, arguing that the opinion ignored precedent that required the government, unless it could show a compelling interest otherwise, to accommodate religiously motivated activities. Smith thus marked a shift in free exercise jurisprudence away from requiring government accommodation of religious activity toward an emphasis on formal governmental neutrality. As the Court admitted, this shift placed minority religions "at a relative disadvantage," because accommodation has to be won in the political process rather than through the courts.

Smith has been the focus of much criticism. The decision's most outspoken opponent on the Court is Justice David Souter, who joined the Court the year after Smith. Souter wrote a separate concurrence in the 1993 case of Church of the Lukumi Babalu Aye v. City of Hialeah to argue that Smith should be overturned.


McConnell, Michael W. "Free Exercise Revisionism and the Smith Decision." University of Chicago Law Review 57 (1990): 1109–1153. McConnell is a leading critic of Smith.

Rotunda, Ronald D., and John E. Nowak. Treatise on Constitutional Law: Substance and Procedure. 3d ed. Volume 5. St. Paul, Minn.: West, 1999. Good overview of freedom of religion jurisprudence.


See alsoIndian Religious Life .

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