Master Supreme Court held that the Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws. with this comprehensive case brief.
Employment Division v. Smith is a cornerstone Free Exercise Clause decision that reshaped the constitutional framework for religious liberty claims. The Supreme Court held that the First Amendment does not mandate religious exemptions from neutral, generally applicable laws, even when such laws incidentally burden religious practice. This marked a decisive turn away from the case-by-case compelling interest analysis that many lower courts had read into earlier Free Exercise precedents.
The decision narrowed the contexts in which strict scrutiny applies to Free Exercise claims, emphasizing that religiously neutral and uniformly applied laws generally do not trigger constitutional exemptions. Smith has had lasting consequences: it prompted Congress to pass the Religious Freedom Restoration Act (RFRA), spurred many states to adopt their own RFRAs or heightened protections, and remains the baseline rule unless a law targets religion, contains individualized exemptions, or implicates additional constitutional rights.
Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (U.S. Supreme Court)
Respondents Alfred Smith and Galen Black, members of the Native American Church, were employed as counselors at a private drug rehabilitation organization in Oregon. They were terminated after ingesting peyote, a Schedule I controlled substance under Oregon law, during a religious ceremony. The Employment Division denied them unemployment benefits on the ground that they were discharged for work-related misconduct involving the violation of state criminal law. The Oregon Court of Appeals reversed, and the Oregon Supreme Court ultimately held that Oregon's criminal prohibition applied to sacramental peyote use but that applying it to respondents violated the Free Exercise Clause under the Sherbert compelling interest test. The case came to the U.S. Supreme Court once before on a related question (Smith I, 485 U.S. 660 (1988)), which remanded for clarification of state law; on remand, after the Oregon Supreme Court reaffirmed its constitutional ruling, the U.S. Supreme Court granted review again and addressed whether the Free Exercise Clause mandates an exemption from a neutral, generally applicable criminal law and the consequent denial of unemployment benefits.
Does the Free Exercise Clause require a state to provide a religious exemption from a neutral, generally applicable criminal law prohibiting peyote, and thereby preclude the denial of unemployment benefits to employees fired for violating that law due to religious use?
The Free Exercise Clause does not relieve an individual from complying with a neutral, generally applicable law that incidentally burdens religious practice. Strict scrutiny under the compelling interest test is not triggered merely because a law burdens religion. Heightened scrutiny applies when a law targets religious conduct, when the regulatory scheme involves individualized assessments that invite discrimination against religious reasons, or when free exercise is combined with other constitutional protections.
No. The Free Exercise Clause does not require Oregon to provide a religious exemption from its neutral, generally applicable prohibition on peyote, and Oregon could deny unemployment benefits to employees terminated for violating that law.
The Court, per Justice Scalia, grounded its decision in both text and precedent. The Free Exercise Clause protects religious belief absolutely, but conduct remains subject to regulation, and longstanding precedent permits the government to enforce neutral laws that incidentally burden religious practices. Cases such as Reynolds (upholding prohibition on polygamy), Prince (child labor and public welfare), Braunfeld (Sunday closing laws), and United States v. Lee (Social Security taxes) demonstrate that general laws need not yield to religious objections. The Court distinguished Sherbert v. Verner, which required a compelling interest in the context of unemployment compensation decisions featuring individualized eligibility determinations. In Sherbert-type regimes, the risk of discriminatory application against religious claimants justifies heightened scrutiny. By contrast, across-the-board criminal prohibitions lack such discretionary exceptions and are quintessentially generally applicable. Applying Sherbert universally would, in the Court's view, risk making each person a law unto himself and invite a patchwork of religious exemptions that could undermine law enforcement and civic order. The Court emphasized that the political process, not the Constitution, is the primary vehicle for obtaining religious accommodations from neutral laws. Many jurisdictions voluntarily exempt sacramental peyote use, but the Free Exercise Clause does not compel that result. The opinion also noted that strict scrutiny still applies when a law is not neutral or generally applicable, or when free exercise is asserted alongside other constitutional rights (sometimes described as hybrid rights). Because Oregon's drug law was neutral and generally applicable, the denial of unemployment benefits for respondents' violation of that law did not offend the Free Exercise Clause. Justice O'Connor concurred in the judgment, arguing that the Sherbert compelling interest test should apply but concluding that Oregon's interest in uniform enforcement of drug laws was compelling enough to justify the burden. Justice Blackmun, joined by Justices Brennan and Marshall, dissented, maintaining that the state had not shown a compelling interest in prohibiting the limited sacramental use of peyote and that the Free Exercise Clause should protect respondents.
Smith is the leading case establishing that neutral, generally applicable laws need not accommodate religious practice under the Free Exercise Clause. It narrowed the reach of Sherbert and reframed Free Exercise doctrine around neutrality and general applicability. The decision prompted Congress to enact RFRA to reimpose a statutory compelling interest test; RFRA still binds the federal government, while, after City of Boerne v. Flores, it does not bind the states absent state RFRAs or state constitutional protections. Smith also set the stage for Church of the Lukumi Babalu Aye, which invalidated laws targeting religion, and informs modern cases about individualized exemptions and neutrality, including Fulton v. City of Philadelphia. For law students, Smith is essential to understanding the baseline constitutional standard, the role of political and statutory accommodations, and the contours of when strict scrutiny is triggered in Free Exercise cases.
Sherbert applied a compelling interest test to an unemployment benefits scheme that involved individualized, discretionary determinations, holding the state could not deny benefits based on religiously motivated conduct without a compelling interest and narrow tailoring. Smith limits Sherbert, holding that neutral, generally applicable laws do not trigger strict scrutiny merely because they burden religion. Sherbert still has force where the government employs a system of individualized exemptions or discretion that permits case-by-case exceptions but refuses to extend them to religious reasons.
A law is neutral if it does not target religion or religious practices on its face or in purpose, and it is generally applicable if it applies uniformly without selectively burdening religious conduct. If a law singles out religious practices for adverse treatment or is riddled with secular exceptions that undermine its asserted interests while denying similar religious exceptions, it is not generally applicable and triggers strict scrutiny, as clarified in Church of the Lukumi Babalu Aye and later cases such as Fulton.
Congress responded to Smith by enacting the Religious Freedom Restoration Act of 1993, which restores the compelling interest test as a statutory matter for burdens on religious exercise. However, in City of Boerne v. Flores (1997), the Supreme Court held RFRA unconstitutional as applied to the states. RFRA still applies to the federal government, and many states have enacted their own RFRAs or interpret their constitutions to provide greater protection than Smith. Where RFRA applies, government must meet strict scrutiny; otherwise, Smith generally controls.
Strict scrutiny applies when a law is not neutral or generally applicable (targeting religion), when the government administers a regime of individualized exemptions and refuses to extend comparable accommodations to religious claims, or when the Free Exercise claim is coupled with other fundamental rights (often referred to as hybrid rights). Additionally, statutory protections like RFRA and RLUIPA can independently impose strict scrutiny on governmental action, even if the Constitution does not.
Although the Court held the Constitution does not require an exemption, many governments have provided one by statute or regulation. Congress amended federal law in 1994 to protect the sacramental use of peyote by members of federally recognized tribes, and numerous states similarly accommodate Native American Church practices. These political and statutory accommodations exemplify the Smith Court's point that exemptions are often achieved through the legislative process rather than constitutional mandate.
Employment Division v. Smith established that the Free Exercise Clause does not constitutionally require exemptions from neutral, generally applicable laws, steering Free Exercise doctrine toward a focus on neutrality and uniformity while reserving strict scrutiny for laws that target religion, involve discretionary systems, or implicate other constitutional rights. The Court channeled most requests for religious accommodation to the political and legislative processes.
For students and practitioners, Smith remains the baseline constitutional rule. Its legacy includes both the doctrinal framework for assessing neutrality and general applicability and the significant statutory overlay created by RFRA, RLUIPA, and state analogues. Mastery of Smith is essential to understanding modern religious liberty litigation and the interplay between constitutional and statutory protections.