Employment Division v. Smith (1990)

Smith was a wholly unexpected and precedent-shattering decision that severely cut back on free exercise rights for individuals and groups seeking religious exemption from government requirements. Ironically, it was written by Justice Scalia, who had been one of the greatest supporters of religious freedom rights. But Scalia and a majority of Justices held that no exemptions were permitted from a law of general applicability the words of which were neutral with respect to religion. Thus, under Scalia’s decision, a person whose religion celebrates the Sabbath on Saturday could not object to a law that forbade work on Sundays (instead of Saturdays) if the law was purportedly neutral with respect to religion.

The case itself involved Oregon’s denial of unemployment benefits to a Native American who had been fired for smoking peyote as part of a religious ceremony (not on the job). Oregon law prohibited smoking peyote and made no provision for religious or other exceptions. The Court upheld the Oregon statute, finding it to be “valid and neutral,” applying to everyone and not specifically aimed at a physical act engaged in for a religious reason. The Court then held that, because ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon did not violate the Free Exercise Clause in denying persons unemployment compensation when their dismissal results from use of the drug.

The Court did find that Smith would not apply in certain key contexts. The most important of these is where a statute, neutral on its face, nevertheless was enacted with the intent of, or had the effect of, disfavoring religion in general, or a specific religious group in particular. The Court stated, “The government may not … lend its power to one or the other side in controversies over religious authority or dogma.” Many subsequent cases found that Smith did not apply for those reasons.

Smith was greeted by broad-based concern and opposition by all religious groups as well as constitutional experts. In response, Congress, with only one dissenting vote, enacted the Religious Freedom Restoration Act (RFRA), which specifically was intended to restore the strict scrutiny doctrine of Sherbert, Thomas and Yoder. Under RFRA, a person who could show that a neutral law not intended to interfere with religious practice, but nevertheless did interfere with religious practice, would be entitled to sue for an order exempting them from the law. The government could overcome such a claim only by showing that the law in question was necessary to a compelling state interest, and that it furthered that state interest by the means least restrictive on the religious practice or beliefs of the person suing. This test of compelling state interest/least restrictive means is known as the “strict scrutiny” test, which was the standard generally applied to religious exemption claims prior to the Smith decision, in cases such as Sherbert v. Verner and Wisconsin v. Yoder.

In response, in Flores v. City of Boerne, the Supreme Court narrowed RFRA to apply only to the federal government and not the states. The decision was not based on an interpretation of religious freedom law, but rather on the basis of “federalism,” the concept that Congress’ power to legislate with respect to the states is limited. In counter response, Congress then enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) which expand RFRA and applied to the states in certain specific contexts—specifically zoning and land use regulation that might be applied to churches, and cases involving institutionalized persons such as convicts. Similarly, numerous states have enacted their own RFRA statutes. In later decisions, members of the Supreme Court stated that Smith should be overruled in its entirety.