Employment Division v. Smith: Ruling, RFRA, and Aftermath

In Employment Division v. Smith (1990), the Supreme Court ruled 6–3 that the Free Exercise Clause of the First Amendment does not excuse a person from obeying a neutral law that applies to everyone, even when that law burdens a sincere religious practice.¹ The decision replaced a much tougher standard that had required the government to prove a compelling reason for any law interfering with religious exercise, and it triggered a bipartisan backlash that reshaped federal and state religious-liberty law for the next three decades.

The Facts Behind the Case

Alfred Smith and Galen Black worked at a private drug rehabilitation organization in Oregon. Both belonged to the Native American Church, which uses peyote, a small cactus containing the hallucinogen mescaline, as a sacrament. Oregon classified peyote as a controlled substance with no exception for religious use.² After the two men participated in a ceremony involving peyote, their employer fired them.

They applied for unemployment benefits. Oregon denied the claims, treating the terminations as work-related misconduct that disqualified them from compensation. Smith and Black challenged the denial, arguing that punishing them for a sincere religious act violated the First Amendment.

The Constitutional Question

The dispute came down to a single question: does the Free Exercise Clause require a state to grant a religious exemption from a criminal drug law? Smith and Black relied on Sherbert v. Verner (1963), which required the government to show a compelling interest before substantially burdening religious practice. Oregon argued its drug ban applied to everyone regardless of belief and did not owe any religion a carve-out.

What the Supreme Court Held

Justice Antonin Scalia, writing for the majority, sided with Oregon and did more than resolve the specific dispute. He rewrote the framework. If a law is facially neutral toward religion and applies generally, the Court held, it does not need to survive heightened scrutiny simply because it incidentally burdens someone’s religious practice.² The Free Exercise Clause, Scalia wrote, does not relieve a person of the duty to comply with a valid law that happens to forbid conduct their religion requires, as long as the law is not aimed at religious practice.¹

The Court distinguished the earlier unemployment cases like Sherbert and Thomas v. Review Board by noting that those systems were designed for individualized assessment of each claimant’s reasons for leaving work. Oregon’s drug ban was different: a blanket prohibition on conduct, not a scheme that invited case-by-case weighing.¹ The compelling interest test, the Court said, belonged to the individualized-assessment context.

Scalia acknowledged that some earlier decisions had struck down neutral laws burdening religion, but he grouped those as “hybrid rights” cases, where a free exercise claim was paired with another constitutional right such as a parent’s authority over a child’s education. Without a companion right, Smith and Black’s claim failed.² The opinion warned that allowing religious exemptions from every neutral law would make each person a law unto themselves, and it suggested that religious groups seeking accommodations should turn to legislatures rather than courts.

O’Connor’s Concurrence and the Dissent

Justice Sandra Day O’Connor agreed that Oregon could deny the benefits but rejected the majority’s reasoning. She would have applied the compelling interest test and concluded that Oregon’s drug-control interest was strong enough on these facts. Her deeper worry was structural: leaving religious minorities to the democratic process, she argued, would predictably protect mainstream faiths while leaving smaller groups without recourse. Justices Brennan, Marshall, and Blackmun joined the parts of her opinion criticizing the majority, though they disagreed with her conclusion on the merits.

Justice Harry Blackmun’s dissent, joined by Brennan and Marshall, argued that Oregon had failed to show a concrete interest in denying a religious exemption. Several other states and the federal government already permitted sacramental peyote use.² The dissent viewed the majority as dismantling more than a century of free exercise principles without adequate justification.

The Religious Freedom Restoration Act

The reaction to Smith was unusually broad. A coalition that ran from the ACLU to evangelical organizations pushed Congress to reverse the decision by statute. In 1993, Congress passed the Religious Freedom Restoration Act by a Senate vote of 97 to 3, and President Clinton signed it.³

RFRA’s stated purpose was to undo Smith. Congress found that the decision “virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion,” and it restored the compelling interest test from Sherbert, requiring the government to show that any substantial burden on religious exercise serves a compelling interest through the least restrictive means.⁴

Congress also addressed the specific injustice at the heart of the case. A 1994 amendment to the American Indian Religious Freedom Act made traditional ceremonial peyote use by Native Americans lawful under federal and state law and barred penalties including the denial of public benefits.⁵ The facts of Smith could not recur today.

Boerne and the State Patchwork

RFRA’s reach was tested in City of Boerne v. Flores (1997), where the Supreme Court struck it down as applied to state and local governments. The Court held that Congress had exceeded its Fourteenth Amendment enforcement power by trying to redefine the scope of a constitutional right that the Court itself had interpreted in Smith.⁶ After Boerne, RFRA still governed federal action but no longer bound the states, leaving Smith as the constitutional floor for state and local laws.

Roughly two dozen states responded by enacting their own versions of RFRA. Others reached similar protections through state constitutional rulings. Protection against state laws now varies significantly depending on where you live.

How Courts Have Narrowed Smith

Despite the criticism, the Smith framework still governs Free Exercise Clause claims against state and local governments that lack their own RFRA. Courts have spent three decades defining what “neutral” and “generally applicable” actually mean, and those terms have more bite than early critics feared.

Laws Targeting Religion Still Get Strict Scrutiny

In Church of the Lukumi Babalu Aye v. City of Hialeah (1993), a Florida city passed ordinances prohibiting ritual animal sacrifice after a Santeria church announced plans to open. The Supreme Court struck the laws down unanimously, finding they were neither neutral nor generally applicable: they targeted Santeria while exempting hunting, pest control, and kosher slaughter. A law that burdens religious conduct while leaving similar secular conduct alone must survive the most rigorous scrutiny.⁷

Discretionary Exemptions Defeat General Applicability

In Fulton v. City of Philadelphia (2021), the city refused to contract with Catholic Social Services for foster care because the agency would not certify same-sex couples. Philadelphia’s contract, however, gave the Commissioner sole discretion to grant exceptions to its non-discrimination requirement. That was fatal. A policy that allows individualized exemptions is not generally applicable under Smith, the Court held unanimously, and the government cannot withhold such exceptions from religious objectors without a compelling reason.⁸

Will Smith Survive?

Smith has held for more than three decades, but its future is uncertain. When the Court took up Fulton, it granted review specifically to consider whether Smith should be overruled. The Court resolved the case on narrower grounds, but the concurrences were revealing. Justice Alito, joined by Justices Thomas and Gorsuch, wrote that Smith “failed to respect this Court’s precedents, was mistaken as a matter of the Constitution’s original public meaning, and has proven unworkable in practice.” Justice Barrett, joined by Justice Kavanaugh, agreed that serious arguments favor overruling it but hesitated over what should replace it.⁹ At least five sitting justices have signaled skepticism of the framework without agreeing on an alternative.

For now, Smith governs Free Exercise Clause challenges to neutral, generally applicable state and local laws in jurisdictions without their own RFRA. Federal actions face the higher RFRA standard. When a law is not truly neutral or not truly generally applicable, strict scrutiny returns. The rule Scalia announced in 1990 remains the constitutional baseline, but it now operates inside a web of federal statutes, state statutes, and judicial exceptions that have substantially narrowed its practical reach.

1
Legal Information Institute. Employment Division, Department of Human Resources of Oregon v. Smith
2
Justia. Employment Division v. Smith, 494 U.S. 872 (1990)
3
U.S. Senate. Roll Call Vote 103rd Congress – 1st Session
4
Office of the Law Revision Counsel. 42 U.S. Code 2000bb – Congressional Findings and Declaration of Purposes
5
Office of the Law Revision Counsel. 42 USC 1996a
6
U.S. Department of Labor. Supreme Court’s Decision Overturning the Religious Freedom Restoration Act of 1993
7
Justia. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah
8
Supreme Court of the United States. Fulton v. City of Philadelphia, Pennsylvania
9
Justia. Fulton v. Philadelphia, 593 U.S. ___ (2021)