Employment Division v. Smith: The Case That Reshaped Religious Freedom in America
The Supreme Court case Employment Division, Department of Human Resources v. Smith (1990) stands as one of the most consequential decisions in American constitutional law regarding religious liberty. It fundamentally altered the legal standard for evaluating laws that burden religious practices, triggering a legislative and political response that reshaped the landscape of religious freedom protections in the United States. Understanding this case requires examining its facts, the legal principles at stake, the Court's reasoning, and the far-reaching consequences that followed It's one of those things that adds up..
Background and Facts of the Case
The case originated in Oregon, where two counselors at a private drug rehabilitation center, Alfred Smith and Galen Black, were fired after they ingested peyote as part of a religious ceremony of the Native American Church. Peyote, a cactus containing the psychoactive alkaloid mescaline, has been used for centuries by Indigenous peoples in religious and healing rituals. The Native American Church, which blends traditional Native American spirituality with Christian elements, considers peyote a sacred sacrament essential to its worship.
Smith and Black were members of this church and participated in a peyote ceremony at a church member's home. Following their termination, they applied for unemployment benefits from the Oregon Employment Division. That said, the state denied their claims, citing that they had been discharged for work-related misconduct — specifically, the use of a controlled substance. Under Oregon law, the use of peyote was a crime, regardless of whether it was undertaken for religious purposes Took long enough..
The counselors appealed the denial of benefits through the state court system. The Oregon Court of Appeals ruled in their favor, and the Oregon Supreme Court upheld that decision. That said, the state high court held that the Oregon statute prohibiting peyote use violated the Free Exercise Clause of the First Amendment because it burdened religious conduct without a compelling justification. The case then made its way to the United States Supreme Court.
The Legal Framework Before Smith
Prior to Smith, the prevailing legal standard for evaluating free exercise claims was the compelling interest test, also known as strict scrutiny. Plus, under this framework, when a law burdened religious practice, the government had to demonstrate a compelling interest and show that the law was narrowly built for achieve that interest. Worth adding: verner* (1963) and *Wisconsin v. Which means this standard had been established in cases such as Sherbert v. Yoder (1972).
The official docs gloss over this. That's a mistake.
The compelling interest test placed a heavy burden on the government. That's why if a law incidentally burdened religious exercise, the state needed to justify it with more than a rational basis — it needed to prove that the law served a compelling purpose and was the least restrictive means of achieving that purpose. This framework had been used successfully to protect religious minorities from laws that appeared neutral but disproportionately affected their practices Easy to understand, harder to ignore..
The Supreme Court's Decision
The Supreme Court heard the case and issued its ruling in a 6-3 decision authored by Justice Antonin Scalia. The majority reversed the Oregon Supreme Court, holding that the Free Exercise Clause does not exempt individuals from compliance with valid, neutral, generally applicable criminal laws, even when those laws burden religious practices.
Scalia's opinion grounded its reasoning in the text and history of the First Amendment. He argued that the Free Exercise Clause protects the right to believe whatever one chooses about religious matters, but it does not protect the right to act on those beliefs in violation of generally applicable laws. He wrote that allowing religious exemptions from criminal laws would elevate individual conscience above the rule of law, creating an unsustainable precedent.
Easier said than done, but still worth knowing.
The majority distinguished between laws that target religious practice specifically — which would receive strict scrutiny — and laws that are neutral and generally applicable. Because Oregon's ban on peyote was a neutral criminal statute that applied to everyone regardless of religious motivation, it did not trigger the compelling interest test. Smith and Black were free to practice their religion, the Court reasoned, but they could not use their religious beliefs as a defense against criminal prosecution or its civil consequences.
Scalia acknowledged the harshness of the result, noting that the counselors had been fired and denied unemployment benefits solely because their religious practice conflicted with a criminal statute. He suggested that legislative remedies, such as state religious exemption statutes, were the appropriate avenue for addressing such conflicts rather than judicial interpretation of the Constitution.
The Dissent
Justice Harry Blackmun wrote a dissent, joined by Justices William Brennan and Thurgood Marshall. Plus, blackmun argued that the majority's decision effectively gutted the Free Exercise Clause by reducing it to a protection of belief alone, stripping it of any practical force in the realm of conduct. He contended that the compelling interest test should have been applied, and that Oregon's interest in prohibiting peyote use did not justify the burden on sincere religious practice Less friction, more output..
Most guides skip this. Don't.
Blackmun also criticized the majority for ignoring the historical context of the Free Exercise Clause, which was adopted in response to laws that specifically targeted religious minorities. He argued that a rigid application of neutral laws would allow the majority to impose its values on religious minorities through ostensibly neutral legislation.
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The Legislative Response: RFRA
The Smith decision provoked an immediate and intense political reaction. Religious communities, civil liberties organizations, and advocacy groups across the political spectrum expressed alarm at the narrowing of religious freedom protections. Congress responded by passing the Religious Freedom Restoration Act (RFRA) in 1993, which was signed into law by President Bill Clinton Still holds up..
RFRA reinstated the compelling interest test for federal laws that burden religious practice. Now, it stated that the government shall not substantially burden a person's exercise of religion unless the government can demonstrate that the burden serves a compelling governmental interest and is the least restrictive means of furthering that interest. The law was intended to restore the legal framework that had existed before Smith.
RFRA was applied in numerous cases involving a wide range of issues, from prison religious accommodations to healthcare mandates. On the flip side, its application to state governments became a subject of constitutional debate Simple, but easy to overlook..
City of Boerne v. Flores and Its Aftermath
In City of Boerne v. The Court held that it did not. Flores (1997), the Supreme Court addressed whether Congress had the authority under the Fourteenth Amendment to apply RFRA to state and local governments. The majority, writing for a 6-3 decision, ruled that RFRA went beyond what Congress could legitimately enact under its enforcement power, as it substantially expanded existing free exercise protections rather than remedying or preventing unconstitutional conduct by states.
This ruling effectively limited RFRA's reach to federal laws and federal actions. That said, in response, many states enacted their own versions of RFRA, creating a patchwork of state-level religious freedom protections. As of the writing of this article, approximately twenty states have enacted religious restoration statutes modeled on the federal RFRA And that's really what it comes down to. Worth knowing..
Subsequent Developments
The Smith decision continued to influence religious freedom jurisprudence in the decades that followed. Even so, * (2014), the Court applied RFRA to closely held for-profit corporations, holding that the Affordable Care Act's contraceptive mandate substantially burdened the religious exercise of certain business owners. Day to day, hobby Lobby Stores, Inc. Even so, in *Burwell v. The decision relied heavily on RFRA rather than the First Amendment directly, reflecting the enduring impact of the legislative response to Smith.
More recently, cases involving religious objections to COVID-19 vaccine mandates and other public health measures have tested the boundaries of the Smith framework. The Court has at times shown greater
