Writing Sample 3

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

In the case of Employment Division, Department of Human Resources of the State of Oregon, et al. v. Alfred Smith,[1] the state of Oregon Employment Division did not want to honor the claim to unemployment benefits due to the fact that they lost their jobs for use of peyote, a controlled substance. Smith claimed that it was a violation of their rights according to the first Amendment, Free Exercise Clause. The state argued that the use of a prohibited substance was a violation regardless of the use. The Religious act was not prohibited by the state law but the use of the controlled substance was. Since the religious act itself was not prohibited, the court was not in violation of the amendment.

Majority opinion argued that the state was not trying to regulate religious beliefs. The use of peyote was prohibited and the law was not directed at religious use or religious ceremony, it was prohibited in a general way to anyone who might possess it. The court further argued that to disobey a general law under the guise of religious practice did not fall under the protection of the Free Exercise Clause. The courts did not allow the people to avoid other general laws, such as child labor laws, because of religious belief, so to allow an exemption for the use of an illegal substance under the protection of the First Amendment was not acceptable. The Majority opinion delivered by Scalia, was joined by Rehnquist, White, Stevens, and Kennedy, for a vote of 5-4.

The Concurring opinion was not in agreement with the analysis based on the compelling interest test. If the law denies a person the freedom to pursue religious practices based on general applicability, it is still a violation of the First Amendment which states that religious liberty is independent and becomes a preferred position [1]. To enforce a general law was an encroachment on this liberty and a violation of the Free Exercise Clause. The Native American Church uses peyote as a sacrament in religious ceremony, church members are forced to either avoid using it or face possible criminal prosecution, which is sufficient argument for First Amendment scrutiny. The concurring argument did however, concede that the law prohibits the use of a controlled substance based on the health effects, even for religious use, and was in society’s best interest. The concurring opinion, delivered by O'Connor, was joined by Brennan, Marshall, and Blackmun (parts I, II) for a vote of 4-5.

The dissenting opinion agreed that the need to apply the compelling interest test was present but disagreed that the law was supported by compelling interest. Because Black and Smith had not been criminally charged for the use of peyote, the states actually enforcement of the law was questioned. The argument was made that even the interest of the war on drugs was not compelling enough to ignore constitutional rights. Because the use of peyote was for ceremonial purposes and not used recreationally, but supervised by a church that discouraged non-religious use, it did not fall under the state’s interest of the war on drug trafficking. The act of eating peyote was a religious form of communion, and if the state was going to present a “hostile environment” towards a minority religion then its constituents would be forced to leave the state for asylum elsewhere, which is a violation of the First Amendment [1]. The dissenting opinion delivered by Blackmun, was joined by Brennan, and Marshall for a vote of 3-6.

As a result of the hearing, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993, which required the application of strict scrutiny. In response to the Supreme Court's 1997 ruling in City of Boerne v. Flores, which declared the RFRA unconstitutional as applied to the states, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, which grants special privileges to religious land owners.[1][2]

This was a case of judicial activism and a violation of constitutional rights. The state did not practice prosecution for the religious use of peyote, yet claimed compelling interest as a reason to deny unemployment benefits. The law is both generally applicable and enforced, or it is not, and should not be used by the state when it suits a need. To use the law against a minority religion if not generally applied, is a civil rights infraction, as well as, a violation of the First Amendment. The Civil Rights Act of 1991 protects people from discrimination in the workplace, the release of Smith and Black appears to be a violation of the Free Exercise Clause as well.[3] To deny them benefits under this determination, when so many constitutional rights had been violated, was justice not well served.

[1] http://en.wikipedia.org/wiki/Employment_Division_v._Smith

[2] Hamilton, Marci. 2005. God vs. the gavel: religion and the rule of law. Cambridge, NY: Cambridge

    University Press. ISBN 978-0-521-85304-0

[3]  http://en.wikipedia.org/wiki/Free_Exercise_Clause