To an Unknown God: The Hidden History of Employment Division v. Smith

Abstract

Supreme Court's decision in Employment Division v. Smith, is once again law of land-and once again, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.In City of Boerne v. Flores, Court invalidated, at least as applied to State governments, Religious Freedom Restoration Act (RFRA). RFRA was passed by Congress with explicit aim of voiding Smith's holding that the right of free exercise does not relieve an individual of obligation to comply with a 'valid and neutral law of general applicability on ground that law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).' The Smith doctrine was at least implicitly upheld by six-Justice majority in Flores. opinion not only restated Smith rule, it further repeated controversial hybrid doctrine enunciated for first time by Justice Scalia in Smith II: The only instances where a neutral, generally applicable law had failed to pass constitutional muster, Smith Court noted, were cases in which other constitutional protections were at stake.The Flores Court's implied reaffirmation of Smith is remarkable because Smith was one of most unpopular decisions in Court's recent history. Learned commentators have almost unanimously excoriated Court's result and rationale. Journalistic commentators have been scathing. United States Congress expressed its opinion of decision in unmistakable terms by its passage of not one but two statutes purporting to void result. Besides RFRA, which mentions Smith II by name, Congress in 1994 also passed amendments to American Indian Religious Freedom Act that mandate an exemption from state and federal drug laws for religious use of peyote by Native Americans. Despite this repudiation, Court has seemingly embraced Smith II once again. time is more than ripe, therefore, for an examination of case that has brought us to this point.In 1994, I set out to find and document actual people and decisions that created case. technique I used is familiar to historians - interviews designed to supplement and illuminate written record.' use of oral history is designed to elicit kind of information often omitted by those who prepare written documents.Part II of this Article is a summary of Al Smith's remarkable life, much of it in his own words; a brief profile of Galen Black, his Anglo co-claimant; and an account of career of Smith's tenacious adversary, Dave Frohnmayer. Part III provides an introduction to legal and constitutional background in Oregon at time case arose, with emphasis on violent encounter between State and religious commune in eastern Oregon known as Rajneeshpuram. Part IV details dispute that led to dismissal of Black and Smith. Parts V-VII consider case in its first iteration through state courts and U.S. Supreme Court. Part VIII details extraordinary efforts at settlement of case that took place shortly before argument in Smith II. Part IX describes argument from point of view of participants. Part X analyzes response to Smith II, in Oregon and across nation. In my Conclusion, I argue that difficulties our legal system has had in dealing with Smith II are but a foretaste of coming religion cases, as our courts grapple with Free Exercise Clause-our Constitution's altar to an unknown god.