Episode 7: Employment Division v. Smith

In the late 1980s, Alfred Smith and Galen Black were fired from their jobs as drug counselors for using peyote as part of Native American religious services. They applied for unemployment benefits but were denied by the state of Oregon. Smith and Black appealed, arguing that the denial of benefits violated their First Amendment right to the free exercise of religion.

The Supreme Court heard their case in 1989, and in early 1990, ruled against the two men. Writing for the majority, conservative Catholic Justice Antonin Scalia said that carving an exception from uniformly enforced laws (such as drug bans) for religious objectors would make people laws unto themselves and would court societal "anarchy." The First Amendment required no such thing, he wrote.

Not long after the Smith decision, Congress took matters into its own hands, and passed the Religious Freedom Restoration Act in 1993. Since then, the landscape of religious freedom in the United States has been profoundly changed.

Question: Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?

Answer: Yes.


  • Antonin Scalia (majority opinion)
  • William Rehnquist 
  • Byron White
  • John Paul Stevens
  • Anthony Kennedy
  • Sandra Day O'Connor (w/ concurrence only in the judgment)


  • Harry Blackmun (w/ opinion)
  • William Brennan
  • Thurgood Marshall