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A Delicate Balance: The Free Exercise Clause and the Supreme Court

The Smith Decision

The Court Returns to the Belief-Action Distinction

As a result of the Supreme Court’s repeated refusal to uphold free exercise claims in virtually all contexts other than Yoder and a handful of unemployment compensation cases, many legal scholars began to wonder whether the distinction between religious belief and action established in the 19th century polygamy cases (and thought to be overturned in Sherbert) was still operative. In 1990, the Supreme Court seemed to settle this uncertainty when it took a dramatic and unexpected step that largely re-established that distinction.

Employment Division v. Smith (1990)

Majority: Minority:
Kennedy Blackmun
O’Connor Brennan
Rehnquist Marshall

The case, Employment Division v. Smith, involved a challenge brought by two Native Americans, Alfred Smith and Galen Black, who had been dismissed from their jobs as drug rehabilitation counselors because they had ingested the hallucinogen peyote as part of a religious ritual in the Native American Church. The state of Oregon denied their application for unemployment benefits because they had been fired for work-related misconduct. Smith and Black took their case to the courts, where they argued they should not be denied government benefits because the cause of their dismissal – the use of peyote for religious purposes – was protected by the Free Exercise Clause.

In an opinion that stunned many in the legal world, the court, by a vote of 6-3, rejected the Native Americans’ claim. Justice Antonin Scalia’s opinion, joined by four other justices, concluded that in most circumstances, generally applicable laws that impose a burden on religious practice – such as Oregon’s criminal prohibition on the use of peyote – are not subject to the compelling interest test. Scalia’s opinion explicitly hearkened back to the reasoning in Reynolds, the first polygamy case. The Free Exercise Clause protects religious beliefs, he wrote, but it does not insulate religiously motivated actions from laws, unless the laws single out religion for disfavored treatment.

Such nondiscriminatory, general laws should be evaluated, the court ruled, under the “rational basis” standard. Under this standard, which is much more deferential to the government than the compelling interest test, a law is constitutional as long as there is a rational or legitimate reason for it; it does not need to further an important or compelling government interest. Because Oregon had a rational basis for outlawing peyote – it is a hallucinogenic drug – the court concluded that the Free Exercise Clause did not exempt those who used the drug for religious reasons.

Scalia distinguished the court’s ruling in Smith from prior decisions – such as Yoder and Cantwell – by arguing that in those cases, the right to free exercise had been bolstered by a second, companion right under the Constitution. In Yoder, for instance, free exercise had been linked to the right of parents to direct and control the upbringing of their children, he wrote. In Cantwell, he pointed out, free exercise had been connected to the right of free expression. These combinations produce “hybrid” rights, Scalia asserted. Had this combination of rights not been present, he argued, the court would have rejected those religious freedom claims, just as it was now doing in Smith.

The Smith opinion narrowed the impact of Sherbert and its progeny and limited the use of the compelling interest test to circumstances in which state law already allows for certain people to be exempt from the law’s requirements for specific reasons. In Sherbert, for instance, exemptions were available to those seeking unemployment benefits in South Carolina if they could demonstrate a justifiable reason for refusing work. In cases involving unemployment compensation or other contexts where these types of exemptions are available, such as zoning, the government must have a compelling reason when it rejects religious hardship as such a cause. But where the government does not routinely grant exemptions to a law, such as in the case of most criminal prohibitions, the Free Exercise Clause does not trigger any entitlement to a religious exemption.

In the Smith decision, Scalia also asserted that those seeking exemptions from legal requirements based on religious grounds should look for redress in the political arena by petitioning the legislative or executive branches of government. He stated that the courts are not the best venue for those seeking exemptions because each judge or court can have a different view of laws and rights, and thus produce inconsistent decisions.

The court in Smith recognized that its new approach would sometimes make things difficult for religious minorities, whose need for exemption from general rules might well be ignored in the political process. Scalia concluded, however, that this “unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of … laws against … religious beliefs.”

The Smith opinion produced several forceful responses from other justices. In her concurrence, Justice Sandra Day O’Connor argued against the central thrust of the majority opinion and in favor of retaining the compelling interest test in free exercise cases as a means of protecting religious minorities. O’Connor concurred with the decision only because she agreed with the ultimate ruling in the case; she believed that Smith and Black should lose precisely because the state of Oregon had a compelling interest in outlawing all uses of peyote.

In his dissent, Justice Harry Blackmun (joined by Justices William Brennan and Thurgood Marshall) agreed with O’Connor that the compelling interest test should be retained as a way for courts to mitigate “the severe impact of a state’s restrictions on the adherents of a minority religion.” Unlike O’Connor, however, Blackmun argued that Smith and Black’s interest in using peyote in religious sacraments outweighed Oregon’s interest in applying its anti-peyote laws to them.

The Smith decision produced a significant political protest from religious organizations and civil liberties groups such as the American Civil Liberties Union. These critics saw the ruling as a serious retreat from judicial protection of free exercise rights.They argued that the decision would threaten the religious liberty of many people, and especially those of minority faiths, who engaged in religiously motivated acts that might conflict with general laws.


Photo credit: Oswald Eckstein/Corbis

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