Employment Div. v. Smith,
494 U.S. 872 (1990)

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U.S. Supreme Court

Employment Div. v. Smith., 494 U.S. 872 (1990)

Employment Division, Department of

Human Resources of Oregon v. Smith

No. 88-1213

Argued Nov. 6, 1989

Decided April 17, 1990

494 U.S. 872


Respondents Smith and Black were fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. Their applications for unemployment compensation were denied by the State of Oregon under a state law disqualifying employees discharged for work-related "misconduct." Holding that the denials violated respondents' First Amendment free exercise rights, the State Court of Appeals reversed. The State Supreme Court affirmed, but this Court vacated the judgment and remanded for a determination whether sacramental peyote use is proscribed by the State's controlled substance law, which makes it a felony to knowingly or intentionally possess the drug. Pending that determination, the Court refused to decide whether such use is protected by the Constitution. On remand, the State Supreme Court held that sacramental peyote use violated, and was not excepted from, the state law prohibition, but concluded that that prohibition was invalid under the Free Exercise Clause.

Held: The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use. Pp. 494 U. S. 876-890.

(a) Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. See, e.g., Reynolds v. United States, 98 U. S. 145, 98 U. S. 166-167. The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional

Page 494 U. S. 873

protections. See, e.g., Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 304-307; Wisconsin v. Yoder, 406 U. S. 205. Pp. 494 U. S. 876-882.

(b) Respondents' claim for a religious exemption from the Oregon law cannot be evaluated under the balancing test set forth in the line of cases following Sherbert v. Verner, 374 U. S. 398, 374 U. S. 402-403, whereby governmental actions that substantially burden a religious practice must be justified by a "compelling governmental interest." That test was developed in a context -- unemployment compensation eligibility rules -- that lent itself to individualized governmental assessment of the reasons for the relevant conduct. The test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by "compelling governmental interest" on the basis of religious belief. Nor could such a right be limited to situations in which the conduct prohibited is "central" to the individual's religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith. Cf. Hernandez v. Commissioner, 490 U. S. 680, 490 U. S. 699. Thus, although it is constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not constitutionally required. Pp. 494 U. S. 882-890.

307 Or. 68, 763 P.2d 146, reversed.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, in Parts I and II of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined without concurring in the judgment, post, p. 494 U. S. 891. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 494 U. S. 907.

Page 494 U. S. 874

Primary Holding

A law is constitutional under the Free Exercise Clause if it is facially neutral and generally applied.


A private drug rehabilitation clinic fired two members of the Native American Church, Alfred Smith and Galen Black, for using the drug peyote. They maintained that peyote was an integral part of Native American religious ceremonies. However, possession of the drug was illegal in Oregon, and the law did not provide for any exceptions related to religious use. When Smith and Black brought a claim for unemployment compensation, the state denied them benefits because their use of peyote was viewed as misconduct. Unemployment benefits are not available to individuals who are terminated from their jobs because of related misconduct.

(The ensuing set of appeals made a long journey through the court system that is traced in the Procedural History below.)

Procedural History

Oregon Court of Appeals - 75 Or.App. 764, 709 P.2d 246

Reversed. The Employment Appeals Board erred in withholding unemployment benefits because using peyote for religious reasons is constitutionally permissible under the First Amendment, which trumps state law.

Oregon Supreme Court - 301 Or. 209, 721 P.2d 445

Affirmed. While the state has an interest in upholding the financial integrity of the benefits system, the individual right to the free exercise of religion is more important and cannot be burdened so onerously.

US Supreme Court - 485 U.S. 660

Vacated with question to state court. Before making a final decision on the merits, the Supreme Court asked the Oregon courts to address the issue of whether using controlled substances for religious reasons violated state law.

Oregon Supreme Court - 307 Ore. 68, 763 P.2d 146

Reaffirmed. The state law against drug possession does prohibit the use of controlled substances for religious reasons, but this section of the law is unconstitutional under the Free Exercise Clause of the First Amendment.



  • Antonin Scalia (Author)
  • William Hubbs Rehnquist
  • Byron Raymond White
  • John Paul Stevens
  • Anthony M. Kennedy

This was a rare occasion on which the Court ruled for a state against an individual appealing a denial of public benefits under the Free Exercise Clause. Scalia noted that the law against possessing peyote does not contain language that targets believers of a particular religion but instead extends generally to anyone in possession of the controlled substance. He argued that allowing an individual's beliefs to shield them from the application of a law would allow people to do as they pleased if they could cite a religious justification for their actions. For example, they could choose not to pay taxes, to take multiple wives, or to hire child workers. While some neutral laws of general applicability had been struck down before, Scalia found that these were situations in which additional constitutional grounds beyond the Free Exercise Clause had been relevant. The lack of a "hybrid right" was fatal to the claim of the terminated employees.

Earlier decisions on the withholding of unemployment benefits had used a strict scrutiny standard of review, which requires identifying a compelling government interest. However, the state administrative schemes in those situations had provided internally for a more individualized consideration of circumstances than what Oregon allowed. As he often does, Scalia noted that people in a similar position to the terminated employees could pursue legislative reform to amend the law. A handful of other states with substantial Native American populations had crafted their laws prohibiting peyote possession to include exceptions for religious uses. Scalia was not overly concerned that Native Americans might struggle to achieve this legislative reform, despite their status as a minority.


  • Sandra Day O'Connor (Author)

Although she also noted that the First Amendment is not a blank check for individuals asserting religious beliefs, O'Connor would have applied the strict scrutiny standard of review and examined whether the state had a compelling interest. She acknowledged that neutral laws of general applicability still can have an impact on the free exercise of religion, but she felt that the state could meet the strict scrutiny standard. Arguing that controlling the possession, distribution, and use of dangerous substances is a compelling state interest, O'Connor found that it could not have chosen a less restrictive means to further that objective. This was sufficient to uphold the law despite her respect for the religious observances of Native Americans.


  • Harry Andrew Blackmun (Author)
  • William Joseph Brennan, Jr.
  • Thurgood Marshall

These Justices joined O'Connor in finding that strict scrutiny should apply to evaluating the state law and that a compelling interest needed to be identified. However, Blackmun found that the ban on peyote possession did not meet this standard. He felt that the state easily could have included a religious exception in this law, as several other states had, so the absence of this exception meant that it had not chosen the most narrowly tailored means possible. Blackmun also noted that the state did not generally enforce this law and had not prosecuted the two individuals in this case. He felt that this suggested that the state's interest was not very compelling, or otherwise it would prosecute violations of the law more rigorously. A symbolic ban, according to Blackmun, could not override individual rights under the Constitution.

The dissenters observed that it was unclear whether using peyote in religious ceremonies actually caused physical harm, as the state asserted in arguing that the ban served a compelling interest. Blackmun distinguished religious use from pure recreational use and pointed out that the federal government allowed peyote's religious use. There was also little reason to fear that allowing religious users to possess peyote would facilitate drug trafficking, since there was no meaningful traffic in it.

Case Commentary

State action is usually valid if it regulates conduct generally, while happening to include religious conduct. By contrast, it is invalid if it interferes with beliefs rather than conduct or regulates solely religious conduct. There is no exemption for individuals who hold a certain religious belief if a generally applicable rule happens to place a burden on exercising that belief.

In response to this decision, Congress passed the Religious Freedom Restoration Act in 1993. This law required the application of strict scrutiny to challenges based on the Free Exercise Clause, as O'Connor and the dissenters had proposed. However. the tension between the Court and Congress in this area would continue. Four years after RFRA was passed, the Court struck it down as applied to the states in City of Boerne v. Flores. A frustrated Congress then passed the Religious Land Use and Institutionalized Persons Act in 2000 to clarify its intent to protect owners of religious land.

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