Free Exercise cases and jurisprudence and employment division v. smith and black and peyote and ingestion of peyote in religious ceremony and sherbert

Even though the "big" Smith case is the second one (1990), I am summarizing this one here because it almost imperceptibly shows the tensions that are beginning to arise between two approaches to Free Exercise (FE) of religion jurisprudence which will come into the open in Smith II. This essay will summarize those two approaches and then provide the facts and relevant procedural history of Smith I.

Two Approaches to Free Exercise of Religion

The Sherbert case in 1963 provided the occasion for Justice William Brennan, probably the most influential Justice in the 1970s-1980s, to articulate a theory of FE of religion. If a law or government action burdened the practice of religion, that burdening could only survive constitutional scrutiny if the government interest in so burdening religion was "compelling." This is a species of "strict scrutiny," familiar to those who have dealt with due process constitutional claims. It is very difficult for governments to get over the hurdle of strict scrutiny, though government was able to do so in the Lee case (1982), which concerned mandatory payments into the Social Security fund by employers, even by those who didn't draw upon it--Old Order Amish. With this high barrier in place, the Court consistently held that people discharged for religious reasons (they refused to work on their Sabbath; they refused to work in armament production, which was against the dictates of their religion) could not be denied unemployment compensation benefits. One of the criticisms of this expansive approach to FE, which dissenting justices noted as early as 1963, was that it seemed to bring the FE clause in direct conflict with the Court's growing Establishment Clause jurisprudence.

Despite the objections of Justices Harlan and Stewart in the 1960s and early 1970s, it was not until 1981 that William Rehnquist, who had been on the Court since January 1972, articulated a different approach to FE. In his dissenting opinion in Thomas, Rehnquist stated his "test": that if there was a law of general application that did not specifically refer to religion, and if it burdened religious practice, the burden could be sustained if it was reasonably related to an important government interest. This, as those who have studied constitutional law know, is the "rational basis" test, and is the most "pro-government" test that can be articulated. Thus, the difference between the two approaches is massive, and would lead to different results in almost every instance. For example, in the unemployment context under the Rehnquist test, if an employee decided s/he couldn't work on the Sabbath and was discharged, unemployment benefits would not be available to him/her as long as the statute was of general application and neutral terms.*

[*I am being purposely vague on which statute is meant when I refer to "the statute." As we will see in Smith II, the Court disagreed about whether the relevant statute was a criminal law forbidding use of peyote or the state's unemployment compensation statute.]

Facts of the Case

Though Smith I didn't deal with this growing rift in the Court, it added an interesting dimension that would heighten the tension in Smith II, because one of the statutes at issue in Smith was a criminal law. Smith and Black were employed by a Douglas County (OR) drug prevention clinic. They both belonged to a Native American church, and as part of their sacramental ritual they ingested a small portion of peyote. Because non-ingestion of alcohol and illegal drugs was a requisite for them to hold their jobs, both were terminated. They applied for unemployment compensation but were turned down because they had been discharged for work-related "misconduct" within the meaning of the Oregon unemployment compensation statute. The Oregon Supreme Court reversed, not under the FE of religion provision of the Oregon Constitution but of the US Constitution.

The Oregon Court analyzed the peyote use under Sherbert and Thomas. Under Oregon law, possession of peyote was a crime. Despite this, the court concluded that the State's interest in denying benefits was not greater in this case than in those cases. As the US Supreme Court said:

"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."

In the words of the Oregon Supreme Court:

"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."

Because the Employment Division conceded that the commission of an illegal act is not, in and of itself, grounds for denying unemployment benefits, the legality or illegality of peyote possession was irrelevant for the case.

Deciding to Remand the Case

However, the US Supreme Court (opinion by Stevens) was clearly troubled by the illegality of the use of peyote. They framed their concern as follows: "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." The Oregon Supreme Court had not been confronted with the question of "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." Several states permitted a "peyote exception" for religious practice. The US Supremes wanted to know if Oregon also had such an exception. If it did so, "respondents' conduct may well be entitled to constitutional protection." If, however, it did not have such an exception, there might be no federal right to engage in that conduct in Oregon. If that is the case, then State would be justified in withholding unemployment compensation from Smith and Black, despite their religious motivations for their action.

Conclusion

It will be this larger issue of "criminal conduct" that provides the means for the Rehnquist approach to FE to triumph over the Brennan approach in Smith II , despite the fact that Brennan was still on the Court.

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