On the basis of their employer's policy prohibiting its
employees from using illegal nonprescription drugs, respondent drug
and alcohol abuse rehabilitation counselors were discharged for
ingesting a small quantity of peyote, a hallucinogenic drug, for
sacramental purposes during a religious ceremony of the Native
American Church. It is undisputed that respondents are members of
that church and that their religious beliefs are sincere.
Respondents applied for and were denied unemployment compensation
by petitioner Employment Division under an Oregon statute
disqualifying employees discharged for work-connected misconduct.
The State Court of Appeals reversed. The State Supreme Court
affirmed, reasoning that, although the benefits denials were proper
under Oregon law,
Sherbert v. Verner, 374 U.
S. 398, and
Thomas v. Review Bd., Indiana Employment
Security Div., 450 U. S. 707,
required the court to hold that the denials significantly burdened
respondents' religious freedom in violation of the Free Exercise
Clause of the First Amendment to the Federal Constitution. In
reaching that conclusion, the court attached no significance to the
fact that peyote possession is a felony in Oregon, declaring that
the legality of ingesting peyote did not affect its analysis of the
State's interest in denying benefits, which must be found in the
unemployment compensation, rather than the criminal, statutes.
Held: These cases must be remanded to the State Supreme
Court for a definitive ruling as to whether the religious use of
peyote is legal in Oregon, since that question is relevant to the
federal constitutional analysis. Although
Sherbert,
Thomas, and
Hobbie v. Unemployment Appeals Comm'n,
480 U. S. 136,
prohibited the denial of unemployment compensation to employees
required to choose between fidelity to their religious beliefs and
cessation of work, those cases all involved employee conduct that
was perfectly legal. Their results might well have been different
had the employees been discharged for criminal conduct, since the
First Amendment protects "
legitimate claims to the
free exercise of
Page 485 U. S. 661
religion,'"
see Hobbie, 480 U.S. at
480 U. S. 142,
not conduct that a State has validly proscribed. If Oregon does
prohibit the religious use of peyote, and if that prohibition is
consistent with the Federal Constitution (a question that is not
decided here), there is no federal right to engage in that conduct
in Oregon, and the State is free to withhold unemployment
compensation from respondents. If, on the other hand, Oregon is
among those States that exempt the religious use of peyote from
statutory controlled substances prohibitions, respondents' conduct
may well be entitled to constitutional protection. Pp.
485 U. S.
669-674.
No. 86-946, 301 Ore. 209,
721 P.2d
445, and No. 86-947, 301 Ore. 451,
721 P.2d
451, vacated and remanded.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL and
BLACKMUN, JJ., joined,
post, p.
485 U. S. 674.
KENNEDY, J., took no part in the consideration or decision of the
cases.
JUSTICE STEVENS delivered the opinion of the Court.
Respondents are drug and alcohol abuse rehabilitation counselors
who were discharged after they ingested peyote, a hallucinogenic
drug, during a religious ceremony of the Native American Church.
Both applied for and were denied unemployment compensation by
petitioner Employment Division. The Oregon Supreme Court held that
this denial, although
Page 485 U. S. 662
proper as a matter of Oregon law, violated the Free Exercise
Clause of the First Amendment to the Federal Constitution.
[
Footnote 1] In reaching that
conclusion, the state court attached no significance to the fact
that the possession of peyote is a felony under Oregon law
punishable by imprisonment for up to 10 years. [
Footnote 2] Because we are persuaded that the
alleged illegality of respondents' conduct is relevant to the
constitutional analysis, we granted certiorari, 480 U.S. 916
(1987), and now vacate the judgments and remand for further
proceedings.
I
Respondents Alfred Smith and Galen Black were employed by the
Douglas County Council on Alcohol and Drug Abuse Prevention and
Treatment (ADAPT), a nonprofit corporation that provides treatment
for alcohol and drug abusers. Both were qualified to be counselors,
in part, because they had former drug and alcohol dependencies. As
a matter of policy, ADAPT required its recovering counselors to
abstain from the use of alcohol and illegal drugs. [
Footnote 3] ADAPT terminated
Page 485 U. S. 663
respondents' employment because they violated that policy. As to
each of them, the violation consisted of a single act of ingesting
a small quantity of peyote for sacramental purposes at a ceremony
of the Native American Church. It is undisputed that respondents
are members of that church, that their religious beliefs are
sincere, and that those beliefs motivated the "misconduct" that led
to their discharge.
Both respondents applied for unemployment compensation.
Petitioner Employment Division considered the applications in a
series of administrative hearings and appeals, [
Footnote 4] at the conclusion of which it
determined that the applications should be denied. [
Footnote 5] Petitioner considered and
rejected respondents' constitutional claim and concluded that they
were
Page 485 U. S. 664
ineligible for benefits because they had been discharged for
work-related "misconduct." [
Footnote 6]
The Oregon Court of Appeals, considering the constitutional
issue en banc, reversed the Board's decisions. [
Footnote 7] The Oregon Supreme Court granted the
State's petitions for review in both cases to consider whether the
denial of benefits violated the Oregon Constitution [
Footnote 8] or the First Amendment to the
Federal Constitution. The cases were argued together, but the court
issued separate opinions, fully analyzing the constitutional issues
only in
Smith.
Page 485 U. S. 665
In accordance with its usual practice, [
Footnote 9] the court first addressed the Oregon
constitutional issue. The court concluded:
"Under the Oregon Constitution's freedom of religion provisions,
claimant has not shown that his right to worship according to the
dictates of his conscience has been infringed upon by the denial of
unemployment benefits. We do not imply that a governmental rule or
policy disqualifying a person from employment or from public
services or benefits by reason of conduct that rests on a religious
belief or a religious practice could not impinge on the religious
freedom guaranteed by Article I, sections 2 and 3. Nor do we revive
a distinction between constitutional 'rights' and 'privileges.' But
here it was not the government that disqualified claimant from his
job for ingesting peyote. And the rule denying unemployment
benefits to one who loses his job for what an employer permissibly
considers misconduct, conduct incompatible with doing the job, is
itself a neutral rule, as we have said. As long as disqualification
by reason of the religiously based conduct is peculiar to the
particular employment and most other jobs remain open to the
worker, we do not believe that the state is denying the worker a
vital necessity in applying the 'misconduct' exception of the
unemployment compensation law."
301 Ore. 209, 216,
721 P.2d
445, 448-449 (1986).
Turning to the federal issue, the court reasoned that our
decisions in
Sherbert v. Verner, 374 U.
S. 398 (1963), and
Page 485 U. S. 666
Thomas v. Review Bd., Indiana Employment Security Div.,
450 U. S. 707
(1981), required it to hold that the denial of unemployment
benefits significantly burdened respondent's religious freedom. The
court also concluded that the State's interest in denying benefits
was not greater in this case than in
Sherbert or
Thomas. This conclusion rested on the premise that the
Board had erroneously relied on the State's interest in proscribing
the use of dangerous drugs, rather than just its interest in the
financial integrity of the compensation fund. Whether the state
court believed that it was constrained by
Sherbert and
Thomas to disregard the State's law enforcement interest,
or did so because it believed petitioner to have conceded that the
legality of respondent's conduct was not in issue, is not entirely
clear. The relevant paragraph in the court's opinion reads as
follows:
"Nor is the state's interest in this case a more 'overriding' or
'compelling' interest than in
Sherbert and
Thomas. The Board found that the state's interest in
proscribing the use of dangerous drugs was the compelling interest
that justified denying the claimant unemployment benefits. However,
the legality of ingesting peyote does not affect our analysis of
the state's interest. The state's interest in denying unemployment
benefits to a claimant discharged for religiously motivated
misconduct must be found in the unemployment compensation statutes,
not in the criminal statutes proscribing the use of peyote. The
Employment Division concedes that 'the commission of an illegal act
is not, in and of itself, grounds for disqualification from
unemployment benefits.' ORS 657.176(3) permits disqualification
only if a claimant commits a felony in connection with work. . . .
[T]he legality of [claimant's] ingestion of peyote has little
direct bearing on this case."
301 Ore. at 218-219, 721 P.2d at 450.
Page 485 U. S. 667
The court noted that, although the possession of peyote is a
crime in Oregon, such possession is lawful in many jurisdictions.
[
Footnote 10]
In its opinion in
Black, the court rejected the Court
of Appeals' conclusion that the case should be remanded for factual
findings on the religious character of respondent's peyote use.
Although the referee's findings concerning the use of peyote were
somewhat sparse, the court found them sufficient to support the
conclusions that the Native American Church is a recognized
religion, that peyote is a sacrament of that church, and that
respondent's beliefs were sincerely held. The court noted that
other courts had acknowledged the role of peyote in the Native
American Church, and quoted at length from a decision of the
California Supreme Court. [
Footnote 11]
Page 485 U. S. 668
This extensive quotation from an opinion that explains why the
religious use of peyote is permitted in California raises the
question whether the Oregon court might reach a similar
conclusion.
Page 485 U. S. 669
II
Respondents contend that the sacramental use of small quantities
of peyote in the Native American Church is comparable to the
sacramental use of small quantities of alcohol in Christian
religious ceremonies. Even though the State may generally prohibit
the use of hallucinogenic drugs and alcohol for recreational
purposes and strictly regulate their use for medicinal purposes,
respondents assert that the Constitution requires some measure of
accommodation for religious use. Alternatively, they argue that
Oregon's general prohibition against the possession of peyote is
not applicable to its use in a genuine religious ceremony. Even if
peyote use is a crime in Oregon, since the State does not
administer its unemployment compensation program for law
enforcement purposes, they conclude that our decisions in
Sherbert and
Thomas require that they be awarded
benefits.
The Oregon Supreme Court agreed with respondents' conclusion,
but it did not endorse all of their reasoning. The state court
appears to have assumed, without specifically deciding, that
respondents' conduct was unlawful. That assumption did not
influence the court's disposition of the cases because, as a matter
of state law, the commission of an illegal act is not itself a
ground for disqualifying a discharged employee from benefits. It
does not necessarily follow, however,
Page 485 U. S. 670
that the illegality of an employee's misconduct is irrelevant to
the analysis of the federal constitutional claim. For if a State
has prohibited through its criminal laws certain kinds of
religiously motivated conduct without violating the First
Amendment, it certainly follows that it may impose the lesser
burden of denying unemployment compensation benefits to persons who
engage in that conduct.
There is no absolute
"constitutional right to unemployment benefits on the part of
all persons whose religious convictions are the cause of their
unemployment."
Sherbert v. Verner, 374 U.S. at
374 U. S.
409-410. On three separate occasions, however, we have
held that an employee who is required to choose between fidelity to
religious belief and cessation of work may not be denied
unemployment compensation because he or she is faithful to the
tenets of his or her church. As we explained in
Sherbert:
"Governmental imposition of such a choice puts the same kind of
burden upon the free exercise of religion as would a fine imposed
against appellant for her Saturday worship."
Id. at
374 U. S. 404.
In
Sherbert, as in
Thomas and
Hobbie v.
Unemployment Appeals Comm'n of Fla., 480 U.
S. 136 (1987), the conduct that gave rise to the
termination of employment was perfectly legal; [
Footnote 12] indeed, the Court assumed that
it was immune from state regulation. [
Footnote 13]
Page 485 U. S. 671
The results we reached in
Sherbert, Thomas, and
Hobbie might well have been different if the employees had
been discharged for engaging in criminal conduct. We have held that
bigamy may be forbidden, even when the practice is dictated by
sincere religious convictions.
Reynolds v. United States,
98 U. S. 145
(1879). If a bigamist may be sent to jail despite the religious
motivation for his misconduct, surely a State may refuse to pay
unemployment compensation to a marriage counselor who was
discharged because he or she entered into a bigamous relationship.
The protection that the First Amendment provides to
"
legitimate claims to the free exercise of religion,'"
see Hobbie, 480 U.S. at 480 U. S. 142
(quoting Wisconsin v. Yoder, 406 U.
S. 205, 406 U. S. 215
(1972)) (emphasis added), does not extend to conduct that a State
has validly proscribed.
Page 485 U. S. 672
Neither the Oregon Supreme Court nor this Court has confronted
the question whether the ingestion of peyote for sincerely held
religious reasons is a form of conduct that is protected by the
Federal Constitution from the reach of a State's criminal laws. It
may ultimately be necessary to answer that federal question in this
case, but it is inappropriate to do so without first receiving
further guidance concerning the status of the practice as a matter
of Oregon law. [
Footnote 14]
A substantial number of jurisdictions have exempted the use of
peyote in religious ceremonies from legislative prohibitions
against the use and possession of controlled substances. [
Footnote 15] If Oregon is one of
those States, respondents' conduct may well be entitled to
constitutional protection. On the other hand, if Oregon does
prohibit the religious use of peyote, and if that prohibition is
consistent with the Federal Constitution, there is no federal right
to engage in that conduct in Oregon. If that is the case, the State
is free to withhold unemployment compensation from respondents for
engaging in work-related misconduct, despite its religious
motivation. Thus, paradoxical as it may first appear, a necessary
predicate to a correct evaluation of respondents' federal claim is
an understanding of the legality of their conduct as a matter of
state law.
Relying on the fact that Oregon statutes prohibit the possession
of peyote,
see Ore.Rev.Stat. § 475.992(4) (1987), rather
than its use, and the further fact that the Oregon Court of Appeals
held that the ingestion of a controlled substance
Page 485 U. S. 673
into the bloodstream did not constitute "possession" within the
meaning of the predecessor statute,
State v. Downes, 31
Ore.App. 1183,
572 P.2d
1328 (1977), respondents argue that their ceremonial use of the
drug was not unlawful. [
Footnote
16] The Attorney General of the State advises us that this
argument is without merit. But in the absence of a definitive
ruling by the Oregon Supreme Court, we are unwilling to disregard
the possibility that the State's legislation regulating the use of
controlled substances may be construed to permit peyotism, or that
the State's Constitution may be interpreted to protect the
practice. [
Footnote 17] That
the Oregon Supreme Court's opinions in these cases not only noted
that other States "exempt the religious use of peyote through
caselaw," [
Footnote 18] but
also quoted extensively from a California opinion that did so,
lends credence to the possibility that this conduct may be lawful
in Oregon.
Because we are uncertain about the legality of the religious use
of peyote in Oregon, it is not now appropriate for us to decide
whether the practice is protected by the Federal Constitution.
See Ashwander v. TVA, 297 U. S. 288,
297 U. S.
346-347 (1936) (Brandeis, J., concurring). The
possibility that respondents' conduct would be unprotected if it
violated the State's criminal code is, however, sufficient to
counsel against affirming the state court's holding that the
Federal Constitution requires the award of benefits to these
respondents. If the Oregon Supreme Court's holding rests on the
Page 485 U. S. 674
unstated premise that respondents' conduct is entitled to the
same measure of federal constitutional protection regardless of its
criminality, that holding is erroneous. If, on the other hand, it
rests on the unstated premise that the conduct is not unlawful in
Oregon, the explanation of that premise would make it more
difficult to distinguish our holdings in
Sherbert, Thomas,
and
Hobbie. We therefore vacate the judgments of the
Oregon Supreme Court and remand the cases for further proceedings
not inconsistent with this opinion.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of
these cases.
* Together with No. 86-947,
Employment Division, Department
of Human Resources of the State of Oregon, et al. v. Black,
also on certiorari to the same court.
[
Footnote 1]
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof. . . ."
U.S.Const., Amdt. 1.
[
Footnote 2]
Ore. Rev.Stat. §§ 475.992(4)(a), 161.605(2) (1987);
see
301 Ore. 209, 219, n. 2,
721 P.2d
445, 450, n. 2 (1986) (quoted in n. 10,
infra).
[
Footnote 3]
This policy reflected ADAPT's treatment philosophy that
successful recovery from addiction requires complete abstinence
from the use of alcohol and nonprescription drugs. The policy also
served to assure that counselors were appropriate role models for
their clients. ADAPT's policy statement on drug and alcohol abuse
provided, in pertinent part:
"
POLICY STATEMENT"
"
ALCOHOL AND OTHER DRUG USE BY EMPLOYEES"
"In keeping with our drug-free philosophy of treatment, and our
belief in the disease concept of alcoholism, and associated complex
issues involved in both alcoholism and drug addiction, we require
the following of our employees:"
"1. Use of an illegal drug or use of prescription drugs in a
nonprescribed manner is grounds for immediate termination from
employment."
"
* * * *"
"3. Any use of alcohol by recovering staff will not be allowed,
and is grounds for immediate disciplinary action, up to and
including termination. Use shall be defined as any ingestion of an
alcoholic beverage, in any situation."
App. 11.
[
Footnote 4]
Raising identical legal issues and presenting almost identical
facts, these two cases proceeded in tandem through state
administrative proceedings and through the state courts. They were
consolidated upon order of this Court when the State's petitions
for certiorari were granted. 480 U.S. 916 (1987).
[
Footnote 5]
Each respondent requested a hearing after his application for
benefits was denied because he had been discharged for work-related
misconduct. After separate hearings, a referee decided that both
respondents were entitled to unemployment compensation benefits. In
Black's case, the referee held that his ingestion of peyote was "an
isolated incident of poor judgment," rather than misconduct. App.
3-5. In Smith's case, the referee concluded that, because
"there is no evidence in the hearing record to indicate that
granting benefits to claimants whose unemployment is caused by
adherence to religious beliefs would have any significant impact on
the trust fund, it cannot be held tha.t the alleged State interest
warrants interference with the claimant's freedom of religion."
App. to Pet. for Cert. in No. 86-946, p. A25. On review, the
Employment Appeals Board disagreed with the referee and concluded
that benefits should be denied in both cases. As to Smith, the
Board ruled that the State had shown a compelling state interest in
denying benefits. That interest was "in the proscription of illegal
drugs, not merely in the burden upon the Unemployment Compensation
Trust Fund."
Id. at A10-A20. In Black's case the Board
merely reversed the referee's finding that Black had not been fired
for misconduct without reaching the First Amendment issue. App. to
Pet. for Cert. in No. 86-947, pp. A23-A24.
[
Footnote 6]
Oregon Rev.Stat. § 657.176(2)(a) (1987) provides that
"[a]n individual shall be disqualified from the receipt of
benefits . . . if . . . the individual . . . [h]as been discharged
for misconduct connected with work."
Oregon Admin. Rule 471-30-038(3) (1987) provides:
"Under the provisions of ORS 657.176(2)(a) and (b), misconduct
is a willful violation of the standards of behavior which an
employer has the right to expect of an employee. An act that
amounts to a willful disregard of an employer's interest, or
recurring negligence which demonstrates wrongful intent is
misconduct. Isolated instances of poor judgment, good faith errors,
unavoidable accidents, absences due to illness or other physical or
mental disabilities, or mere inefficiency resulting from lack of
job skills or experience are not misconduct for purposes of denying
benefits under ORS 657.176."
[
Footnote 7]
In Black's case, the majority concluded that the denial of
benefits to persons who were discharged for engaging in a religious
act constituted a substantial burden on free exercise rights that
was not justified by the State's interest in protecting the
Unemployment Compensation Fund from depletion, and remanded for
further factual findings on the religious nature of respondent's
conduct. The dissenting judges expressed the opinion that, because
the ingestion of peyote was prohibited by Oregon law, respondent
had no protectible constitutional right on which to base his claim.
75 Ore.App. 735,
707 P.2d
1274 (1985). Smith's case was reversed and remanded for further
consideration in light of the decision in
Black. 75
Ore.App. 764,
709 P.2d
246 (1985).
[
Footnote 8]
Article I of the Oregon Constitution provides, in part:
"Section 2. Freedom of worship. All men shall be secure in the
Natural right, to worship Almighty God according to the dictates of
their own consciences."
"Section 3. Freedom of religious opinion. No law shall in any
case whatever control the free exercise, and enjoyment of religious
opinions, or interfere with the rights of conscience."
[
Footnote 9]
The Oregon Supreme Court stated in
Sterling v. Cupp,
290 Ore. 611, 614,
625 P.2d
123, 126 (1981):
"The proper sequence is to analyze the state's law, including
its constitutional law, before reaching a federal constitutional
claim. This is required, not for the sake either of parochialism or
of style, but because the state does not deny any right claimed
under the federal Constitution when the claim before the court in
fact is fully met by state law."
See also Linde, E Pluribus -- Constitutional Theory and
State Courts, 18 Ga.L.Rev. 165, 178-179 (1984).
[
Footnote 10]
The court commented in a footnote:
"Under ORS 475.992(4) and OAR 855-80-020, the possession of
peyote is a crime. Peyote (Lophophora williamsii) is a cactus that
'contains a number of active alkaloids with varying properties; the
chief hallucinogen among these alkaloids is mescaline.' Note,
Hallucinogens, 68 Colum.L.Rev 521, 525 (1968). The Oregon Court of
Appeals, construing a previous statute, has held that religious
users of peyote are not exempt from criminal sanctions. State v.
Soto, 21 Or.App 794,
537 P.2d
142 (1975),
cert. den. 424 US 955 (1976). The federal
government and several states exempt the religious use of peyote
through caselaw, statute or regulation.
See State v.
Whittingham, 19 Ariz.App. 27, 504 P.2d 950 (1973),
cert.
den., 417 U.S. 946 (1974);
People v.
Woody, 61 Cal. 2d
716, 40 Cal. Rptr. 69, 394 P.2d 813 (1964);
Whitehorn v.
State, 561 P.2d
539 (Okla.Crim.App.1977); 21 C.F.R. § 1307.31 (1985); Iowa Code
Ann. § 204.204(8) (1986); N.M.Stat.Ann. § 30-31-6(D) (1980);
S.D.Comp.Laws Ann. § 34-20B-14(17) (1977); Tex.Stat.Ann. 4476-15 §
4.11 (1976)."
301 Ore. at 219, n. 2, 721 P.2d at 450, n. 2.
[
Footnote 11]
301 Ore. 221, 225-227,
721 P.2d
451, 453-454 (1986), quoting
People v.
Woody, 61 Cal. 2d
716, 720-721, 394 P.2d 813, 817-818 (1964):
""Peyote, as we shall see, plays a central role in the ceremony
and practice of the Native American Church, a religious
organization of Indians. Although the church claims no official
prerequisites to membership, no written membership rolls and no
recorded theology, estimates of its membership range from 30,000 to
250,000, the wide variance deriving from differing definitions of a
member.' As the anthropologists have ascertained through
conversations with members, the theology of the church combines
certain Christian teachings with the belief that peyote embodies
the Holy Spirit and that those who partake of peyote enter into
direct contact with God."
"'Peyotism discloses a long history. A reference to the
religious use of peyote in Mexico appears in Spanish historical
sources as early as 1560. Peyotism spread from Mexico to the United
States and Canada; American anthropologists describe it as well
established in this country during the latter part of the
nineteenth century. Today, Indians of many tribes practice
Peyotism. Despite the absence of recorded dogma, the several tribes
follow surprisingly similar ritual and theology; the practices of
Navajo members in Arizona practically parallel those of adherents
in California, Montana, Oklahoma, Wisconsin, and Saskatchewan."
""The
meeting,' a ceremony marked by the sacramental use of
peyote, composes the cornerstone of the peyote religion. The
meeting convenes in an enclosure and continues from sundown
Saturday to sunrise Sunday. To give thanks for the past good
fortune or find guidance for future conduct, a member will
"sponsor" a meeting and supply to those who attend both the peyote
and the next morning's breakfast. The "sponsor," usually but not
always the "leader," takes charge of the meeting; he decides the
order of events and the amount of peyote to be consumed. Although
the individual leader exercises an absolute control of the meeting,
anthropologists report a striking uniformity of its
ritual."
"'A meeting connotes a solemn and special occasion. Whole
families attend together, although children and young women
participate only by their presence. Adherents don their finest
clothing, usually suits for men and fancy dresses for the women,
but sometimes ceremonial Indian costumes. At the meeting, the
members pray, sing, and make ritual use of drum, fan, eagle bone,
whistle, rattle and prayer cigarette, the symbolic emblems of their
faith. The central event, of course, consists of the use of peyote
in quantities sufficient to produce an hallucinatory state."
"At an early but fixed stage in the ritual, the members pass
around a ceremonial bag of peyote buttons. Each adult may take
four, the customary number, or take none. The participants chew the
buttons, usually with some difficulty because of extreme
bitterness; later, at a set time in the ceremony any member may ask
for more peyote; occasionally a member may take as many as four
more buttons. At sunrise on Sunday, the ritual ends; after a brief
outdoor prayer, the host and his family serve breakfast. Then the
members depart. By morning, the effects of the peyote disappear;
the users suffer no after-effects."
"Although peyote serves as a sacramental symbol similar to bread
and wine in certain Christian churches, it is more than a
sacrament. Peyote constitutes in itself an object of worship;
prayers are directed to it much as prayers are devoted to the Holy
Ghost. On the other hand, to use peyote for nonreligious purposes
is sacrilegious. Members of the church regard peyote also as a
'teacher,' because it induces a feeling of brotherhood with other
members; indeed it enables the participant to experience the Deity.
Finally, devotees treat peyote as a 'protector.' Much as a Catholic
carries his medallion, an Indian G.I. often wears around his neck a
beautifully beaded pouch containing one large peyote button.'"
(Footnote omitted.)
[
Footnote 12]
In
Sherbert v. Verner, the appellant was discharged
because she would not work on Saturday, the Sabbath Day of her
faith. When the petitioner in
Thomas v. Review Bd., Indiana
Employment Security Div., 450 U. S. 707
(1981), was required to work on turrets for military tanks, he
terminated his employment because his religious beliefs prevented
him from participating in the production of war materials. And in
Hobbie v. Unemployment Appeals Comm'n of Fla., the
appellant's religion precluded work between sundown on Friday and
sundown on Saturday; she was discharged because she therefore could
not work all of her scheduled shifts.
[
Footnote 13]
The distinction between the absolute constitutional protection
against governmental regulation of religious beliefs on the one
hand, and the qualified protection against the regulation of
religiously motivated conduct, on the other, was carefully
explained in our opinion in
Sherbert:
"The door of the Free Exercise Clause stands tightly closed
against any governmental regulation of religious beliefs as such,
Cantwell v. Connecticut, 310 U. S. 296,
310 U. S.
303. Government may neither compel affirmation of a
repugnant belief,
Torcaso v. Watkins, 367 U. S.
488; nor penalize or discriminate against individuals or
groups because they hold religious views abhorrent to the
authorities,
Fowler v. Rhode Island, 345 U. S.
67; nor employ the taxing power to inhibit the
dissemination of particular religious views,
Murdock v.
Pennsylvania, 319 U. S. 105;
Follett v.
McCormick, 321 U. S. 573;
cf. Grosjean
v. American Press Co., 297 U. S. 233. On the other
hand, the Court has rejected challenges under the Free Exercise
Clause to governmental regulation of certain overt acts prompted by
religious beliefs or principles, for 'even when the action is in
accord with one's religious convictions, [it] is not totally free
from legislative restrictions.'
Braunfeld v. Brown,
366 U. S.
599,
366 U. S. 603. The conduct
or actions so regulated have invariably posed some substantial
threat to public safety, peace or order.
See, e.g., Reynolds v.
United States, 98 U. S. 145;
Jacobson v.
Massachusetts, 197 U. S. 11;
Prince v.
Massachusetts, 321 U. S. 158;
Cleveland v.
United States, 329 U. S. 14."
"Plainly enough, appellant's conscientious objection to Saturday
work constitutes no conduct prompted by religious principles of a
kind within the reach of state legislation."
374 U.S. at
374 U. S.
402-403.
[
Footnote 14]
See nn.
10 and |
10 and S. 660fn11|>11,
supra.
[
Footnote 15]
See 21 CFR § 1307.31 (1987) (exempting use of peyote in
bona fide religious ceremonies of the Native American Church); Iowa
Code § 204.204 (8) (1985) (same); N.M.Stat.Ann. § 30-31-6(D) (1987)
(exempting use of peyote in bona fide religious ceremonies by bona
fide religious organizations); S.D.Codified Laws § 34-20B-14(17)
(1987) (exempting sacramental use of peyote in services of the
Native American Church); Tex.Rev.Civ.Stat.Ann., Art. 4476-15 § 4.11
(Supp.1988) (exempting use of peyote by Native American Church
members with not less than 25% Indian blood in bona fide religious
ceremonies). These authorities were cited by the Oregon Supreme
Court.
See n.
10
supra.
[
Footnote 16]
At the time
Downes was decided, Oregon law proscribed
both the use and possession of controlled substances. In 1977, the
Oregon Legislature passed the Uniform Controlled Substances Act,
Ore.Rev.Stat. § 475.005
et seq. (1987), which repealed the
use and possession statutes discussed in
Downes and
enacted a provision that addresses only the possession of
controlled substances.
See § 475.992(4).
[
Footnote 17]
Our concern, of course, is not with whether some fact unique to
respondents' cases bars their prosecution, but with whether Oregon
law provides a general exemption from the scope of its criminal
laws for the religious use of peyote.
[
Footnote 18]
See n.
10
supra.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN
join, dissenting.
Respondents Smith and Black were fired for practicing their
religion. The Employment Division of the Oregon Department of Human
Resources deemed respondents' worship "misconduct connected with
work," Ore.Rev.Stat. § 657.176(2)(a) (1987), and accordingly denied
them unemployment benefits. Citing a "compelling state interest . .
. in the proscription of illegal drugs," the Employment Appeals
Board rejected the assertion that the Free Exercise Clause
prohibited the denial of unemployment benefits to an employee
discharged for religious use of peyote. App. to Pet. for Cert. in
No. 86-946, p. A20. The Oregon Supreme Court, disavowing any state
interest in enforcing its criminal laws through the denial of
unemployment benefits, found the State's interest indistinguishable
from those asserted in
Sherbert v. Verner, 374 U.
S. 398,
374 U. S. 403
(1963), and
Thomas v. Review Bd., Indiana Employment Security
Div., 450 U. S. 707
(1981). On the authority of those cases, it held that the denial
violated respondents' First Amendment right to exercise their
religion freely.
Smith v. Employment Division, 301 Ore.
209, 212,
721 P.2d
445, 446 (1986);
Black v. Employment
Page 485 U. S. 675
Division, 301 Ore. 221,
721 P.2d
451 (1986). This Court today strains the state court's opinion
to transform the straightforward question that is presented into a
question of first impression that is not.
A generation ago, we established that a State may not deny
unemployment benefits to an employee discharged for her adherence
to religious practices unless the
"incidental burden on the free exercise of [her] religion [is]
justified by a 'compelling state interest in the regulation of a
subject within the State's constitutional power to regulate. . .
.'"
Sherbert, supra, at
374 U. S. 403
(citation omitted). In
Thomas, supra, and again as
recently as last Term,
see Hobbie v. Unemployment Appeals
Comm'n of Fla., 480 U. S. 136
(1987), we reaffirmed
Sherbert's holding that, where the
"
state . . . denies . . . a benefit because of conduct mandated
by religious belief,'" the resultant burden on the free exercise of
religion "must be subjected to strict scrutiny and could be
justified only by proof by the State of a compelling interest." 480
U.S. at 480 U. S. 141
(quoting Thomas, supra, at 450 U. S.
717-718) (emphasis omitted). Where the burden on
religion is imposed pursuant to a statute, we have an independent
obligation to ascertain that the legislature in fact intended to
advance the asserted interest through the statutory scheme. Cf.
Sherbert, supra, at 374 U. S. 407.
We may not, particularly when engaging in strict scrutiny, blindly
accept the interest that the State asserts in court. See, e.g.,
Mississippi University for Women v. Hogan, 458 U.
S. 718, 458 U. S. 730
(1982) (all-women state university fails intermediate scrutiny
because, "although the State recited a `benign, compensatory
purpose,' it failed to establish that the alleged objective is the
actual purpose underlying the discriminatory [statutory]
classification") (footnote omitted); Hampton v. Mow Sun
Wong, 426 U. S. 88,
426 U. S.
103-104 (1976) ("When the Federal Government asserts an
overriding national interest as justification for a discriminatory
rule, . . . due process requires that there be a legitimate basis
for presuming that the rule was actually intended to serve
that
Page 485 U. S. 676
interest");
Weinberger v. Wiesenfeld, 420 U.
S. 636,
420 U. S. 648,
n. 16 (1975) (under rationality review, "[t]his Court need not . .
. accept at face value assertions of legislative purposes, when an
examination of the legislative scheme and its history demonstrates
that the asserted purpose could not have been a goal of the
legislation").
Smith and Black -- like Sherbert, Thomas, and Hobbie -- were
discharged from their employment because their religious practices
conflicted with their employer's interests. The only difference
between the cases before us and the situations we faced in
Sherbert, Thomas, and
Hobbie is that here, the
Employment Division has asserted in court a "
compelling state
interest . . . in the proscription of illegal drugs,'" not merely
the interest in avoiding the financial "`burden upon the
Unemployment Compensation Trust Fund'" that we found not compelling
in Sherbert. Smith, supra, at 212, 721 P.2d at
446 (quoting opinion of Employment Appeals Board). Such an interest
in criminal law enforcement would present a novel issue if it were
in fact an interest that Oregon had sought to advance in its
unemployment compensation statute.
Far from validating any such state interest, however, the
State's highest court has disavowed it. In the paragraph that this
Court quotes at length,
ante at
485 U. S. 666,
the Oregon Supreme Court could scarcely have been clearer. The
state court understood that the Employment Division may not
overcome the burden of religion by invoking a theoretically
plausible interest that in fact the state legislature had no
intention of furthering when it enacted the unemployment
compensation statute:
"The state's interest in denying unemployment benefits to a
claimant discharged for religiously motivated misconduct must be
found in the unemployment compensation statutes, not in the
criminal statutes proscribing the use of peyote."
Smith, supra, at 219, 721 P.2d at 450 (footnote
omitted);
see also Black, supra, (relying on
Smith's analysis). The state court could find no
legislative
Page 485 U. S. 677
intent expressed in the unemployment statute to reinforce
criminal drug abuse laws. Although we are not bound by a state
court determination that a state legislature was actually motivated
by a particular validating purpose,
see Stone v. Graham,
449 U. S. 39,
449 U. S. 41
(1980), we have never attributed to a state legislature a
validating purpose that the State's highest court could find
nowhere in the statute. To do so would be inconsistent with our
responsibility to scrutinize strictly state-imposed burdens on
fundamental rights. At any rate, this Court offers no reason to
discount the Oregon Supreme Court's disavowal of the validating
purpose. Nor has the Employment Division asserted any further
interest other than those that
Sherbert, Thomas, and
Hobbie have rejected. I would therefore affirm the Oregon
Supreme Court.
The Court avoids this straightforward analysis, proclaiming
instead that it has difficulty discerning
"[w]hether the state court believed that it was constrained by
Sherbert and
Thomas to disregard the State's law
enforcement interest, or did so because it believed petitioner to
have conceded that the legality of respondent's conduct was not in
issue,"
ante at
485 U. S. 666.
The difficulty, however, is entirely of this Court's own making,
for it poses two entirely implausible interpretations of the
opinions below, and overlooks the only natural one.
The Oregon Supreme Court both introduced and concluded the
relevant passage by stressing the similarity between the state
interests asserted here and those asserted in
Sherbert and
Thomas. See Smith, 301 Ore. at 218, 721 P.2d at
450 (the "state's interest in this case [is no] more
overriding' or `compelling' . . . than in Sherbert and
Thomas"); id. at 219-220, 721 P.2d at 450-451
("The state's interest is simply the financial interest in the
payment of benefits from the unemployment insurance fund to this
claimant and other claimants similarly situated," which
"Sherbert and Thomas did not find . . .
`compelling' when weighed against the free exercise rights of the
claimant"). At no point in the comparison did
Page 485 U. S. 678
the state court suggest, as this Court's first alternative
interpretation does, that it could discern an additional state
interest (namely, the interest in enforcing criminal drug abuse
laws) that
Sherbert and
Thomas "constrained" it
to "disregard." Moreover, the state court did not so much as
suggest why
Sherbert and
Thomas would so
constrain the State. Even the State's attorney could not in good
conscience offer the interpretation that this Court adopts, without
the caveat "that it is not entirely apparent from the face of the
opinion," Tr. of Oral Arg. 7.
Nor is it accurate to read the passage, as this Court's second
alternative interpretation does, as merely binding the Employment
Division to a concession "that the legality of respondent's conduct
was not in issue." The Employment Division conceded only the
patently obvious point that the asserted interest in criminal law
enforcement is nowhere to "be found in the unemployment
compensation statutes," 301 Ore. at 219, 721 P.2d at 450, and that
the legality of peyote use was therefore irrelevant to the
determination whether the statute purported to deny benefits. The
Employment Division hotly disputed the proposition that it could
not answer respondents' free exercise challenge by asserting an
interest that appears nowhere in its unemployment compensation
scheme. The very passage that the Court quotes demonstrates as
much:
"The Board found that the state's interest in proscribing the
use of dangerous drugs was the compelling interest that justified
denying the claimant unemployment benefits."
Id. at 218-219, 721 P.2d at 450. The remand in these
cases thus rests on a purported ambiguity that has no basis in the
opinions below.
Perhaps more puzzling than the imagined ambiguity is the Court's
silence as to its relevance. The Court merely remands these cases
to the Oregon Supreme Court for further proceedings after
concluding that a "necessary predicate" to its analysis is a
pronouncement by the state court on whether respondents' conduct
was criminal.
Ante at
485 U. S. 672.
It seems
Page 485 U. S. 679
to me that the state court on remand could readily resolve these
cases without reaching that issue. The Court has expressed no
intention to depart from the longstanding rule that, in strictly
scrutinizing state-imposed burdens on fundamental rights, courts
may not assert on a State's behalf interests that the State does
not have.
See supra, at
485 U. S.
675-676. Accordingly, I must assume that the Court has
tacitly left the Oregon Supreme Court the option to dispose of
these cases by simply reiterating its initial opinion and
appending, "and we really mean it," or words to that effect.
A slot on this Court's calendar is both precious and costly.
Inevitably, each Term this Court discovers only after painstaking
briefing and oral argument that some cases do not squarely present
the issues that the Court sought to resolve. There is always the
temptation to trivialize the defect and decide the novel case that
we
thought we had undertaken rather than the virtual clone
of precedent that we
actually undertook. Here, however,
the Court's belated effort to recoup sunk costs is not worth the
price. Today's foray into the realm of the hypothetical will surely
cost us the respect of the State Supreme Court whose words we
misconstrue. That price is particularly exorbitant where, as here,
the state
court is most likely to respond to our efforts by merely
reiterating what it has already stated with unmistakable
clarity.
I dissent.