Employment Div., Dept. of Human Resources of Ore. v. Smith

485 U. S. 660

April 27, 1988

Alfred Smith used some peyote for a Native American religious ceremony. Because of this, he was fired from his job as a (wait for it…) drug abuse counselor. Smith was subsequently denied unemployment benefits, and so he sued, citing the traditional Free Exercise & unemployment benefits cases of Sherbert, Thomas, and Hobbie. The Employment Division responded that this case was different because Smith’s act of ingesting peyote was actually illegal.

By a 5-3 vote the Court remanded the case to Oregon for more clarification on peyote’s legal status (Kennedy did not participate). The previous cases all involved legal religious activity like not working on the Sabbath, which the state had no compelling interest to thwart. In contrast, Stevens said that illegal conduct was a compelling reason to withhold benefits from those claiming religious free exercise. If they could Constitutionally put you in jail for it, they could deny you benefits for it as well. Nonetheless, it wasn’t entirely clear whether ceremonial peyote use actually violated Oregon law, so a remand was necessary to figure that out.

Brennan, joined by Marshall and Blackmun, dissented. He said that the courts in Oregon had already denied the Employment Division any right to deny benefits based on illegal activity. Because, according to Oregon, illegal activity could not be a valid reason for benefits being withheld, the legal status of ceremonial peyote use was irrelevant. In the end, said Brennan, the case really was just like Sherbert and the others. What’s most remarkable about this case is how little warning there was that such a massive change in Free Exercise jurisprudence would come when the case returned in 1990.

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