The Hallucinogenic Origins of the Religious Freedom Restoration Act

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Religious Freedom: What’s All the Fuss About?

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by Ryan Snow
Peyote. © Copyright by Frank Vincentz. Used with permission of Creative Commons Public License.

“How could they tell me I was attending a drug party when the ceremony was one of the most sacred Native American ceremonies that has survived for thousands of years?”

Al Smith[1]

What if the government disapproved of your religious beliefs, and that disapproval caused you hardship with your bottom line?  Such was the story of Al Smith in 1990, a Native American whose pursuit of unemployment benefits resulted in two trips to the U.S. Supreme Court.  The decision resulting from this case has had widespread implications for religious freedom issues today. Not only did this case become the catalyst for federal legislation focused on shoring up protections for religious freedom, but it brought to the foreground a core question: Do religious people deserve exemptions from generally applicable laws that do not appear to target or inhibit religious practice?


Al Smith was a Native American man who struggled with alcoholism after graduating from high school. Finally, after a twenty year struggle with alcohol addiction, Al Smith attended Alcoholics Anonymous and became religious, turning to the Native American Religion.[2]  He stopped drinking and after 15 years began counseling recovering alcoholics. Within a few years “he had made a national reputation—and a good living—helping other Indian people deal with alcohol—and drug—abuse problems.”[3]

As a counselor for recovering alcoholics, Al Smith began working for Douglas County Council on Alcohol and Drug Abuse Prevention and Treatment (“ADAPT”) in Oregon. The supervisor, John Gardin, had a policy against any drug counselor using illegal drugs or alcohol.  Nearly two years after begin hired, Smith’s supervisor learned about Smith’s use of peyote. When Gardin confronted Al Smith about his peyote use, Smith told him that he planned to continue to use peyote as part of his religious worship. Gardin warned Smith that if he did, Smith ran the risk of termination. Smith again responded that he planned to use peyote, which he did during a religious ceremony two days later. The following Monday, March 5, 1984

Gardin called Al in and asked if he had gone to the meeting.  Yes, Al said.  Did you take peyote?  Gardin asked.  “I said, ‘Well, I took the sacred sacrament and prayed for you and the rest of you sick mothers,’” Al recalled.  “Well, I got fired.  He said, ‘Have your desk cleaned out and let your clients know you’ll be leaving at the end of the day.’”[4]

Al Smith applied for unemployment benefits, which would lead to years of litigation and two trips to the United States Supreme Court.  The State of Oregon did not want to provide unemployment benefits to Al Smith because peyote was an illegal drug, and Al Smith’s use of peyote was the reason he was fired from his job.  The second time the U.S. Supreme Court heard the case, the Court agreed that Oregon could deny unemployment benefits to Al Smith because his “dismissal result[ed] from the use of a drug.” [5]

Although peyote is a hallucinogenic drug, one prominent legal scholar explained that “peyote use does not, according to the weight of expert opinion, cause any of the problems associated with drug abuse.  Moreover, the drug is unpleasant to use and not part of drug trafficking.”[6]  Furthermore, “[i]t is a sacrilege to use peyote for a non-religious purpose.”[7] In fact, “believers who worship at the Native American Church cannot freely exercise their religious beliefs without the use of peyote.”[8]

In its’ decision, the Court weakened protections to First Amendment religious freedom claims, and concluded that any rational reason could generally override a religious objection if the law was neutral and of general applicability. 

In writing the Supreme Court opinion, conservative Justice Scalia changed how all courts should review religious freedom claims: instead of the government having to prove it had a “compelling reason” to infringe on religious freedom that did the least possible damage, the government only had to prove it had a rational reason to override a religious practice.[9]  Religious freedom claims now gave way to “neutral laws of general applicability.” 

Congress responded by acting swiftly to enact The Federal Religious Freedom Restoration Act (RFRA). Liberal Senator Joe Biden introduced RFRA later that year. Representatives from both parties almost unanimously supported RFRA and Bill Clinton signed RFRA into law, effectively overturning the result of Smith .[10] Many contend without RFRA, people in the United States would have experienced a “near total loss of any substantive constitutional right to practice religion.”[11]

SUMMARY: Employment Division v. Smith


  • Native Americans use Peyote for religious purposes
  • Al Smith, a Native American, is fired from his job as a drug counselor for using Peyote
  • Al Smith’s request for unemployment benefits turns into litigation that ends up before the U.S. Supreme Court

ISSUE: Does the First Amendment’s guarantee of religious freedom require Oregon to pay unemployment benefits to a man who was fired for practicing his faith?

OUTCOME: The Supreme Court says “no” and decides religious liberty no longer deserves the same special protection. Rather than the government needing a “compelling” reason to infringe on religious freedom, only a “rational reason” is generally needed. Religious freedom now gives way to “neutral laws of general applicability.”

IMPACT: Joe Biden introduces RFRA later that year to reinstate religious freedom protections taken away by the Supreme Court’s decision.

Ryan Snow is a graduate of Brigham Young University – Idaho and SMU Dedman School of
Law. He currently practices law in Texas and enjoys spending time with his family.

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[1] Oregon Peyote Law Leaves 1983 Defendant Unvindicated, New York Times (July 9, 1991),
[2] Garrett Epps, Peyote vs. the State: Religious Freedom on Trial,16 – 17 (University of Oklahoma Press eds. 2012).
[3] Garrett Epps, Peyote vs. the State: Religious Freedom on Trial, 37 (University of Oklahoma Press eds. 2012).
[4] Garrett Epps, Peyote vs. the State: Religious Freedom on Trial, 100 (University of Oklahoma Press eds. 2012).
[5] Employment Div. v. Smith, 494 U.S. 872, 890 (1990).
[6] Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1113 (1990).
[7] Douglas Laycock, Religious Liberty, Volume 2: The Free Exercise Clause 27 (2011).
[8] State v. Whittingham, 19 Ariz.App.27, 30 (1973).
[9] See Douglas Laycock, Free Exercise and the Religious Freedom Restoration Act, 62 Fordham L. Rev. 883, 887 – 888 (1994) available at (“As I read the opinion, it says that if the law itself is rational—if it’s rational to ban peyote in Oregon—then Oregon need have no reason whatever for refusing to carve out a religious exemption.” ); Protecting Religious Freedom after Boerne v. Flores (Part III): Hearings Before the Subcommittee of the Constitution of the House Committee on the Judiciary (March 26, 1998), at 58  available at (courts review classifications affecting religion “to determine if they are ‘rational’ or ‘irrational…’”).[10] 103 Cong. Rec. 17330-31 (1990).
[11]103 Cong. Rec. 17330-31 (1990).

The information contained in this post is for informational purposes only and should not be taken as legal advice for any individual case or situation. This information is not intended to create, and the receipt or viewing does not constitute an attorney-client relationship