In 1988, twenty-eight (28) states recognized a religious exception from criminal drug laws for sacramental use of peyote in bona fide religious ceremonies. Oregon was not one of them.
Alfred Smith and Galen Black were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native American Church. Smith and Black were denied unemployment benefits in Orgeon because they had been discharged for work-related "misconduct." The Oregon appellate courts held first that the denial of benefits violated respondents' free exercise rights under the First Amendment, and then also that Oregon’s law prohibiting use of peyote also violated the First Amendment, because it lacked an exception for sacramental use.
The United States Supreme Court in Employment Division v. Smith, 494 U.S. 872 (1990), held that the Free Exercise Clause of the First Amendment to the United States Constitution did not invalidate either Oregon’s criminal law or its unemployment law.
What makes Smith important, however, is the rationale. Justice Antonin Scalia, writing for the majority, reasoned that it was unnecessary to balance the government’s interest in prohibiting peyote abuse against the burden on religious practice. No balancing was necessary because the law prohibited criminal conduct and was neutral on its face toward religion.
This rolled the clock back to Reynolds v. United States, 98 U.S. 145 (1879) which upheld federal laws against polygamy against Mormon challenges under the Free Exercise Clause.
In between, there was substantial precedent making it unconstitutional to deny unemployment benefits to persons who have lost a job because they sought to practice their religion. Sherbert v. Verner, 374 U.S. 398 (1963); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 (1981); Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136 (1987). These cases all involved Seventh Day Adventists or Jehovah’s Witnesses who refused to work on the Sabbath, or manufacture weapons. Justice Scalia distinguished these cases on the ground that none involved criminal conduct.
Justice Scalia then distinguished Free Exercise Clause cases which did involve criminal conduct on the ground that they were “hybrid” cases involving two or more fundamental rights, not just religious freedom. For example, Justice Scalia characterized Yoder v. Wisconsin, 406 U.S. 205 (1972), which held that Wisconsin’s compulsory education laws could not be enforced against Amish parents who wanted to keep their kids out of school for religious reasons, as a hybrid between free excerise and the rights of parents to educate their children.
An ideological bias in favor of strict protection for freedom of expression is defensible, since free expression is clearly protected by the First Amendment and directly affects the political process. Free speech rights underpin the very structure of a free society, and require special protection. In the case of Yoder, however, a merely conservative ideological bias is exposed, since there is no support for “parental rights” in the history or text of the Constitution, nor are “parental rights” implicit in the structure of our republican form of government.
The implication of the case were abundantly clear to religious groups, who lobbied Congress to restore the “balancing test” jurisprudence of prior cases. This Congress did, with the Religious Freedom Restoration Act, 42 USC Section 2000bb. Also, the American Indian Religious Freedom Act Amendments of 1994 imposed the exception for sacramental use of peyote, which had hitherto existed just in federal law and most states, throughout the United States. See 42 USC Section 1996.
In 1997, however, the Supreme Court struck down the Religious Freedom Restoration Act, holding that it exceeded Congress’ Fourteenth Amendment powers to pass “appropriate” legislation to protect the privileges and immunities of all persons. The Supreme Court, not the people’s representatives, will decide how the Free Exercise Clause will be intepreted.
City of Boerne was just the beginning. The United States Supreme Court has since struck down the Violence Against Women Act, and portions of several civil rights statutes which allowed civil rights lawsuits against State governments. This power grab by the conservative majority on the Supreme Court is known as the New Federalism, because it ostensibly protects State’s rights against interference by the federal Congress.