Today in Supreme Court History: November 6, 1989

11/6/1989: Employment Division v. Smith argued.

Employment Division of Oregon

Comments

[JoeFromtheBronx]

Today is the anniversary of the second oral argument in this case.

Oregon v. Smith began as a narrower case concerning the scope of the traditional rule that protected unemployment benefits for individuals unable to perform tasks due to religious reasons.

The Supreme Court decided to address the wider issue of religious exemptions from criminal laws. An earlier case, involving a woman with a religious opposition to having her picture taken for her driver's license, seemed likely to provide a means to cabin the Free Exercise Clause. A justice changed sides, and it fell 4-4.

The case had an interesting backstory, which helped lead to at least two books being written about it. For instance, David B. Frohnmayer, for the state, worried about troublesome religious groups, including one that took over a town. If you allowed an exemption for peyote, why not marijuana and other drugs? etc.

(He also had personal burdens, including multiple children with a serious and often fatal medical condition.)

Justice Scalia, somewhat artificially limiting a case involving exemptions to a (criminal) mandatory schooling law, set forth a general principle that generally applicable criminal laws do not have a constitutionally mandatory religious exemption. The government could voluntarily supply them.*

The broad result, which eventually led to a national law protecting religious exemptions, could have been avoided. The case ultimately was about employment benefits. The state court relied on that narrow ground, not some open-ended rule protecting all people with a religious exemption from criminal laws.

The government showed little concern about enforcing criminal laws against peyote. Also, drug usage by the drug counsellors involved in this case raised a special concern.

The Supreme Court generally avoided deciding the broad question and didn't have to reach out to have a second oral argument (though the advocate for Smith did a better job this time).

It was an example, for good or ill, of judicial activism.

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* Justice Stevens, a strong supporter of the separation of church and state, joined the majority opinion. Three liberals dissented. O'Connor only concurred in judgment.

Scalia was partially concerned about judges having the ability to weigh various criteria to determine if a government policy was compelling enough to override religious practice.

This has some constitutional implications, but he did not bring up the concern later on when religious exemption laws raised complications.

[JoeFromtheBronx]

The first oral argument is here:

https://www.oyez.org/cases/1987/86-946