Employment Div. v. Smith

Following is the case brief for Employment Div. v. Smith, 494 U.S. 872 (1990)

Case Summary of Employment Div. v. Smith:

  • Two members of the Native American Church were fired from their jobs for using the drug peyote because the drug was illegal in Oregon.
  • The fired employees claimed that use of the peyote was an important part of Native American religious ceremonies.
  • The employees then sought unemployment compensation, which the State denied because the peyote use was considered “misconduct.”
  • The Oregon Court of Appeals held that the denial of benefits violated the First Amendment’s Free Exercise Clause, and the Oregon Supreme Court affirmed.
  • The U.S. Supreme Court reversed, holding that the Free Exercise Clause did not bar the State from prohibiting religious use of peyote.  Therefore, the denial of benefits was proper.

Employment Div. v. Smith Case Brief

Statement of the Facts:

Oregon law prohibits the use of peyote as a “controlled substance,” and those who use it can be criminally prosecuted.  Unlike a number of States, the State of Oregon does not have an exception to the law for religious use of peyote.

Two employees at a drug rehabilitation organization were fired for using peyote at a religious ceremony of the Native American Church.  They were subsequently denied unemployment benefits.  The reason for the denial was because the firing was for “misconduct,” which negates eligibility for benefits.

Procedural History:

  • On appeal, the Oregon Court of Appeals reversed the denial, holding that the denial violated the employees’ free exercise rights under the First Amendment.
  • The Oregon Supreme Court affirmed, ordering that the employees were entitled to the unemployment benefits.
  • The U.S. Supreme Court granted certiorari, vacated the Oregon Supreme Court judgment, and remanded to determine whether religious use of peyote was legal in Oregon.
  • The Oregon Supreme Court held that peyote use was illegal, with no exception for religious use of the drug.  Yet, the court also concluded that the prohibition on the use of peyote was a violation of the First Amendment, and it reaffirmed its previous holding.
  • The U.S. Supreme Court again granted certiorari.

Issue and Holding:

Does the Free Exercise Clause of the First Amendment allow a State to deny unemployment benefits for the use of religiously inspired peyote use?  Yes.


The decision of the Oregon Supreme Court is reversed.

Rule of Law or Legal Principle Applied:

There is no First Amendment violation if a prohibition on the free exercise of religion is merely an incidental result of a neutral, generally applicable law.


An individual’s religious beliefs do not excuse him or her from complying with an otherwise valid State law.  Therefore, if a law is neutral, generally applicable, and does not target a particular religious practice, then it does not violate an individual’s free exercise of religion.  The Court has held in the past that if infringement on a religious practice is merely incidental to enforcement of a neutral, universally applied law, then the law does not run afoul of the First Amendment.

Further, the Court need not evaluate the employees’ religious claim by strictly scrutinizing the law to find a compelling governmental interest.  Strict scrutiny is not necessary for a universally applied criminal drug law.  It is permissible for States to exempt religious peyote use from their criminal laws (as some States have done), but it is not constitutionally required.

Concurring and Dissenting Opinions:

Concurring Opinion (O’Connor):

The majority’s result is correct, but not its reasoning.  The majority departs dramatically from well-settled First Amendment jurisprudence for no good reason.  Consistent with precedent, the Court should have applied strict scrutiny here.

It should have required the State to justify a substantial burden on religious conduct by showing a compelling State interest and that its means to further that interest is narrowly tailored.  Using the strict scrutiny standard, the Court could have found that Oregon’s law was narrowly tailored to satisfy a compelling interest in criminalizing peyote use.

Dissenting Opinion (Blackmun):

As Justice O’Connor stated, the Court’s previous First Amendment jurisprudence should have been followed.  Simply put, the Court should have applied strict scrutiny.  However, in contrast to Justice O’Connor’s opinion, Oregon’s law prohibiting the use of peyote would not have survived strict scrutiny.

First and foremost, if banning all peyote use was such a compelling State interest, then the State would have prosecuted the employees in this case criminally.  The State did not.  Clearly, there is no epidemic of peyote use.

Second, Oregon’s law is not narrowly tailored.  Other States have carved out an exception to their criminal laws to allow the honest religious use of peyote.  Therefore, a less restrictive way to criminalize peyote, yet still satisfy the First Amendment, is to allow for a religious exception.


Employment Div. v. Smith is significant because of the majority’s departure from the Court’s well-settled First Amendment jurisprudence.  This case also prompted Congress to further protect religious freedom by passing the Religious Freedom Restoration Act in 1993.  That law required the application of strict scrutiny to challenges based on the Free Exercise Clause, as proposed by Justice O’Connor and the dissenting justices.

Student Resources:

Full Text of Opinion

Listen to the Oral Argument