In Employment Division v. Smith (1990), the U.S. Supreme Court held 6–3 that the Free Exercise Clause of the First Amendment does not excuse a person from obeying a neutral, generally applicable law, even when that law incidentally forbids a religious practice. The ruling ended a decades-old rule that had required the government to justify burdens on religious conduct with a compelling interest, and it shifted the work of protecting minority religious practices from the courts to legislatures.
What the Case Was About
Alfred Smith and Galen Black worked as counselors at a private drug rehabilitation clinic in Oregon. Both belonged to the Native American Church, which uses peyote as a sacrament. After ingesting peyote at a church ceremony, the clinic fired them. When they applied for state unemployment benefits, Oregon denied the claims, treating the peyote use as work-related misconduct because Oregon law criminalized peyote possession.
The unemployment dispute was the vehicle, not the point. The real question was whether the Constitution required Oregon to carve out a religious exception to its drug law before it could treat sacramental peyote use as disqualifying misconduct.
The Rule Smith Replaced
For nearly three decades, courts had evaluated free exercise claims under Sherbert v. Verner (1963), which involved a Seventh-day Adventist denied unemployment benefits after refusing Saturday work. Under the Sherbert test, a government that substantially burdened religious exercise had to show two things: a compelling interest of the highest order, and that it was using the least restrictive means to achieve it. If a gentler alternative existed, the law failed.
Smith and Black asked the Court to apply that framework to Oregon’s denial of their benefits. The Court refused, and in doing so, retired Sherbert as the general standard for free exercise challenges to neutral laws.
What the Court Held
Justice Antonin Scalia wrote the majority opinion, joined by Chief Justice Rehnquist and Justices White, Stevens, and Kennedy. Justice O’Connor concurred only in the result. Justices Blackmun, Brennan, and Marshall dissented.
The holding was direct: the Free Exercise Clause does not relieve anyone of the duty to comply with a valid, neutral law of general applicability, even if that law happens to make a religious practice illegal. Because Oregon’s drug prohibition applied to everyone rather than singling out religious conduct, the state owed no compelling justification and no religious exemption.
Scalia drew a hard line between belief and conduct. Government can never regulate what a person believes, he wrote, but it can regulate physical acts through laws that were not aimed at religion in the first place. His most-quoted line was practical rather than doctrinal: allowing every believer to demand a religious exemption from every generally applicable law would make each person “a law unto himself” and invite constitutional challenges to everything from taxes to traffic rules.
Scalia acknowledged the cost. Mainstream religions rarely run into generally applicable laws because legislatures accommodate majority faiths almost reflexively; minority practices like ceremonial peyote use enjoy no such automatic protection. He called this an “unavoidable consequence of democratic government” and directed religious minorities to seek exemptions from elected representatives, not judges. Along the way, he argued that Sherbert had been applied so inconsistently outside the unemployment context that it functioned more as symbolism than a real constraint.
The Disagreement Inside the Court
Justice O’Connor agreed that Oregon could deny the benefits but rejected the majority’s reasoning. She would have kept the compelling interest test and simply held that controlling dangerous drugs satisfied it. Her core objection was that the majority reduced the Free Exercise Clause to a ban on intentional religious targeting, ignoring that neutral laws can devastate religious practice just as thoroughly as discriminatory ones.
Justice Blackmun’s dissent went further, arguing that Oregon could not meet the compelling interest test at all. He pointed out that the state had never actually prosecuted Smith or Black for peyote possession, that the federal government already permitted ceremonial peyote use by Native Americans, and that evidence of harm from sacramental use was thin. A truly compelling interest, in his view, would have produced actual enforcement rather than a downstream benefits denial.
The Smith Test
The framework that emerged asks two questions about any law challenged under the Free Exercise Clause.
First, is the law neutral? A law is neutral if its purpose is not to single out or suppress conduct because it is religiously motivated. Legislative hostility toward a specific faith, targeting language, or a pattern of exemptions that excludes religion while permitting comparable secular conduct can all defeat neutrality.
Second, is the law generally applicable? A law fails this prong if it selectively burdens religious conduct while leaving equivalent secular conduct alone, or if it is “gerrymandered” to reach religious behavior specifically.
A law that passes both prongs faces only rational basis review, a bar most laws clear without difficulty. A law that fails either prong triggers strict scrutiny, and the government must then show a compelling interest pursued through the least restrictive means.
The Hybrid Rights Caveat
Scalia’s opinion noted that earlier decisions striking down neutral laws often involved “hybrid rights,” meaning a free exercise claim paired with another constitutional protection like free speech or parental rights. The majority suggested stricter review might still apply in that combination. Lower courts have split on whether this is a real doctrine or empty dictum, and the Supreme Court has never resolved the question.
When Laws Fail the Smith Test
Three later cases show how a law can flunk neutrality or general applicability and trigger strict scrutiny even under Smith’s framework.
In Church of the Lukumi Babalu Aye v. City of Hialeah (1993), a Florida city passed ordinances banning animal “sacrifice” and “ritual” killing shortly after a Santería church announced plans to open. The ordinances exempted hunting, pest control, and kosher slaughter while reaching only the religious practice, and the legislative history showed they were designed to stop Santería worship. The Court struck them down as neither neutral nor generally applicable.
In Fulton v. City of Philadelphia (2021), the city cut off contracts with a Catholic foster care agency that would not certify same-sex couples as foster parents. The Court ruled unanimously for the agency without overturning Smith. The city’s contract let a commissioner grant exemptions at her sole discretion, and that discretionary mechanism defeated general applicability. Strict scrutiny followed, and the city could not meet it.
In Tandon v. Newsom (2021), a per curiam opinion held that government regulations trigger strict scrutiny “whenever they treat any comparable secular activity more favorably than religious exercise.” A single more-favorable secular comparator is enough, regardless of how many other secular activities are treated the same as or worse than the religious conduct. Scholars call this the “most favored nation” principle.
How Congress and the States Responded
The decision provoked an unusually broad political backlash. An alliance running from the ACLU to conservative religious groups pushed Congress to restore the compelling interest test by statute. Congress passed the Religious Freedom Restoration Act in 1993 with near-unanimous support, and President Clinton signed it.
RFRA prohibits the federal government from substantially burdening a person’s religious exercise, even through a rule of general applicability, unless the government shows the burden furthers a compelling interest through the least restrictive means. It reinstated the Sherbert test as a matter of federal statutory law.
Congress originally applied RFRA to state and local governments too. The Supreme Court struck down that application in City of Boerne v. Flores (1997), holding that Congress had exceeded its Fourteenth Amendment enforcement powers by trying to redefine a constitutional right rather than remedy documented discrimination. RFRA still governs federal action, and the Court confirmed its reach in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006), where a unanimous decision blocked the federal government from banning a small religious group’s sacramental use of a Schedule I hallucinogenic tea without a case-specific compelling-interest showing.
In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act to fill part of the gap left by Boerne. RLUIPA applies the compelling interest test to two specific contexts: land use regulations affecting religious assemblies, and rules burdening religious exercise for people in prisons and similar institutions. Congress tied it carefully to its spending and commerce powers, and courts have consistently upheld it.
Roughly two dozen states have enacted their own religious freedom restoration acts to restore the compelling interest test for state and local action within their borders. The wording and scope vary by state.
Congress also responded to the specific facts of Smith. In 1994, it amended the American Indian Religious Freedom Act to protect ceremonial peyote use by Indians for bona fide traditional purposes, declaring that use “lawful” and barring any penalty or discrimination, “including, but not limited to, denial of otherwise applicable benefits under public assistance programs.” A separate federal regulation, 21 CFR 1307.31, exempts nondrug ceremonial peyote use by the Native American Church from peyote’s Schedule I classification. The exact denial that started the case is now prohibited by federal statute, even though the constitutional rule from the decision still stands.
Does Smith Still Control?
Several current justices have openly questioned whether Smith should be overruled. In Fulton, Justice Alito wrote a 77-page concurrence, joined by Justices Thomas and Gorsuch, arguing that the decision “can’t be squared with the ordinary meaning of the text of the Free Exercise Clause” and “swept aside decades of established precedent.” He urged the Court to “reconsider Smith without further delay.” Justice Gorsuch, in the same case, noted that “no fewer than ten Justices — including six sitting Justices — have questioned its fidelity to the Constitution.”
The Fulton majority declined to revisit the framework, resolving the case on narrower grounds. At the same time, decisions like Tandon have tightened what counts as “generally applicable” to the point that many laws with secular exemptions cannot survive a free exercise challenge. Some scholars describe this as a gradual dismantling of Smith in practice even as the formal rule remains on the books. Whether the Court eventually overrules the decision outright or continues narrowing it case by case is one of the most watched questions in constitutional law.