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

Christopher Hurtado —  March 16, 2010
Employment Division v. Smith, 494 U.S. 872 (1990) | Christopher Hurtado


Two Native American’s working as counselors at a private drug rehabilitation facility used peyote (a hallucinogen) as part of their religious ceremonies as members of the Native American Church. They were fired from their jobs for this behavior and subsequently filed a claim for unemployment compensation. They were denied benefits by the government on work-related “misconduct” grounds. They lost in state court, but the Supreme Court vacated the Oregon Supreme Court’s judgement and returned the case to the Oregon courts to determine whether religious use of illegal drugs violated state law (485 U.S. 660 (1988)). The Oregon Supreme Court concluded that religious use of illegal drugs did violated the law, but that the law violated the free exercise clause. The case was then returned to the Supreme Court.


Can a state deny unemployment benefits to workers fired for using illegal drugs for religious purposes?


Yes. Justice Antonin Scalia, who delivered the majority opinion, argued that the Court has never held that an individual’s religious beliefs exempt the individual from compliance with laws prohibiting conduct the government is free to regulate. He added that allowing exceptions to all state laws or regulations affecting religion “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.” He cited examples such as compulsory military service, payment of taxes, vaccination requirements an child-neglect laws.


It is permissible to read the free exercise clause such that if prohibiting the exercise of religion is not the object of a law, but only the incidental effect of an otherwise valid generally applicable law, then it does not violate First Amendment rights. Were an individual’s obligation to obey the law contingent upon the law’s coincidence with his religious beliefs, unless the state has a compelling interest, the individual would become a law unto himself. This would be contradictory to constitutional tradition and to common sense. Adopting a true compelling interest requirement for laws affecting religious practices would lead to anarchy.

Consenting and Dissenting Opinions

Scalia, J., delivered the opinion of the Court. Rehnquist, C.J., and White, Stevens, and Kennedy, JJ., joined Scalia. O’Connor, J., filed an opinion concurring in the judgment, in Parts I and II. Brennan, Marshall, and Blackmun, JJ., joined O’Connor without concurring in the judgment, post, p. 891. Blackmun, J., filed a dissenting opinion. Brennan and Marshall, JJ., joined Blackmun, post, p. 907.

Christopher Hurtado

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Christopher Hurtado is President and CEO of Linguistic Solutions and Adjunct Instructor of Philosophy and Political Science at Utah Valley University. He holds a BA in Middle East Studies/Arabic and Philosophy and an MA in Nonproliferation and Terrorism Studies. He coauthored Vacation Spanish: A Survival Guide for Mexico, the Caribbean, Central & South America. He is married to children's book author and homeschool mom, Alysia Gonzalez. Together they have nine children. They are active in their church and in their community.