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Employment Division, Department of Human Resources of Oregon v. Smith (1990)

Equal Laws for All, or Special Rights for Religious Believers?


Should religious groups be able to ignore generally applicable laws? If religious believers think that they have religious reasons for some activity that is otherwise illegal, should they be allowed to do it freely while others are prosecuted and jailed for the same activity? That was the question raised in Oregon v. Smith, where adherents of a Native American religious group argued they should be allowed to use peyote in religious services while everyone else is banned from using peyote.


Background Information

In Oregon, two counselors in a program for chemically dependent persons agreed, as a condition of their employment, not to use any addictive substances. But as Native Americans and members of the Native American Church, they used peyote as part of their traditional worship service. Peyote is a mild hallucinogenic drug derived from mescaline cactus.

The two counselors were fired from their jobs when their employer discovered that they took peyote for sacramental purposes and then later denied unemployment compensation on the because their dismissal was for work-related 'misconduct'.

The Oregon Supreme Court first ruled that the two deserved the unemployment benefits because the state's interest in its compensation fund did not outweigh the burden that the decision placed on their religious beliefs. The U.S. Supreme Court sent the case back to the state court for them to decide whether it was constitutional to proscribe the use of sacramental peyote in the first place. The Oregon Supreme Court ruled that such a law was constitutional, and the case was then returned to the U.S. Supreme Court.


Court Decision

With the majority opinion written by Justice Scalia, the Supreme Court ruled 6-3 in 1990 that the Oregon law was constitutional and that, therefore, the denial of unemployment benefits was permissible.

In earlier rulings, the Court had ruled that the government could not condition access to unemployment insurance or other benefits on an individual's willingness to give up conduct required by their religion. However, the Supreme Court did not find that this principle also applied when the conduct in question is justifiably prohibited by law. For the first time in an unemployment compensation case, the Court found against the believer and for the state.

Of particular importance was the fact that the Oregon law was not directed at the Native Americans' religious practice specifically; thus, it was deemed constitutional when applied to all citizens:

It is a permissible reading of the [free exercise clause]...to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended....To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling' - permitting him, by virtue of his beliefs, 'to become a law unto himself,' contradicts both constitutional tradition and common sense.' To adopt a true 'compelling interest' requirement for laws that affect religious practice would lead towards anarchy.

The overriding principle for the court was the fact that the laws in question were never created with religion in mind and were generally applicable to all citizens.



Just as it did in the ruling in Lying v. Northwest Indian Cemetery Association, the Court focused of the problems that might occur with allowing a minority religious group to have veto power over general laws. In this case, the Court specifically discontinued the use of the "Sherbert" test, which provided that the state needed a "compelling interest" in order to interfere with religious freedom. Now, all that was required of the state was to demonstrate that it needed to regulate behavior with generally applicable laws.

It is important to note that the Court effectively ruled that the Free Exercise Clause of the Constitution is null and void and does not apply to laws which are aimed at general behavior rather than at specific religions. The only way to use the Free Exercise Clause against a law of general applicability is if it is used in combination with some other constitutional right, like the freedom of speech or assembly.

According to Scalia, traditional concerns for religious freedom, which were originally the basis for the "compelling interest" test, are now a "luxury" which "we cannot afford" any more. Although this might place extra burdens on minority religious groups which could not easily influence state legislatures, Scalia regarded this as simply an "unavoidable consequence of democratic government." It must be remembered that Scalia's chief concern was to prevent "anarchy," not infringements on religious liberty.

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