EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF THE STATE OF OREGON, ET AL. v. SMITH
No. 86-946
Supreme Court of the United States
Argued December 8, 1987—Decided April 27, 1988
485 U.S. 660
*Tоgether with No. 86-947, Employment Division, Department of Human Resources of the State of Oregon, et al. v. Black, also on certiorari to the same court.
William F. Gary, Deputy Attorney General of Oregon, argued the cause for petitioners. With him on the briefs were Dave Frohnmayer, Attorney General of Oregon, Virginia L. Linder, Solicitor General, Michael D. Reynolds, Assistant Solicitor General, and Christine Chute, Assistant Attorney General.
Suanne Lovendahl argued the cause and filed a brief for respondents.†
JUSTICE STEVENS delivered the opinion of the Court.
Respondents are drug and alcohol abuse rehabilitation counselors who were discharged after they ingested peyote, a hallucinogenic drug, during a religious ceremony of the Native American Church. Both applied for and were denied unemployment compensation by petitioner Employment Division. The Oregon Supreme Court held that this denial, al-
I
Respondents Alfred Smith and Galen Black were employed by the Douglas County Council on Alcohol and Drug Abuse Prevention and Treatment (ADAPT), a nonprofit corporation that provides treatment for alcohol and drug abusers. Both were qualified to be counselors, in part, because they had former drug and alcohol dependencies. As a matter of policy, ADAPT required its recovering counselors to abstain from the use of alcohol and illegal drugs.3 ADAPT ter-
Both respondents applied for unemployment compensation. Petitioner Employment Division considered the applications in a series of administrative hearings and appeals,4 at the conclusion of which it determined that the applications should be denied.5 Petitioner considered and rejected respondents’ constitutional claim and concluded that they were
The Oregon Court of Appeals, considering thе constitutional issue en banc, reversed the Board’s decisions.7 The Oregon Supreme Court granted the State’s petitions for review in both cases to consider whether the denial of benefits violated the Oregon Constitution8 or the First Amendment to the Federal Constitution. The cases were argued together, but the court issued separate opinions, fully analyzing the constitutional issues only in Smith.
“Under the Oregon Constitution’s freedom of religion provisions, claimant has not shown that his right to worship according to the dictates of his conscience has been infringed upon by the denial of unemployment benefits. We do not imply that a governmental rule or policy disqualifying a person from emplоyment or from public services or benefits by reason of conduct that rests on a religious belief or a religious practice could not impinge on the religious freedom guaranteed by Article I, sections 2 and 3. Nor do we revive a distinction between constitutional ‘rights’ and ‘privileges.’ But here it was not the government that disqualified claimant from his job for ingesting peyote. And the rule denying unemployment benefits to one who loses his job for what an employer permissibly considers misconduct, conduct incompatible with doing the job, is itself a neutral rule, as we have said. As long as disqualification by reason of the religiously based conduct is peculiar to the particular employment and most other jobs remain open to the worker, we do not believe that the state is denying the worker a vital necessity in applying the ‘misconduct’ exception of the unemployment compensation law.” 301 Ore. 209, 216, 721 P. 2d 445, 448-449 (1986).
Turning to the federal issue, the court reasoned that our decisions in Sherbert v. Verner, 374 U. S. 398 (1963), and
“Nor is the state’s interest in this case a more ‘overriding’ or ‘compelling’ interest than in Sherbert and Thomas. The Board found that the state’s interest in proscribing the use of dangerous drugs was the compelling interest that justified denying the claimant unemployment benefits. However, the legality of ingesting peyote does not affect our analysis of the state’s interest. The state’s interest in denying unemployment benefits to a claimant discharged for religiously motivated misconduct must be found in the unemployment compensation statutes, not in the criminal statutes proscribing the use of peyote. The Employment Division concedes that ‘the commission of an illegal act is not, in and of itself, grounds for disqualification from unemployment benefits. ORS 657.176(3) permits disqualification only if a claimant commits a felony in connection with work . . . . [T]he legality of [claimant’s] ingestion of peyote has little direct bearing on this case.” 301 Ore., at 218-219, 721 P. 2d, at 450.
In its opinion in Black, the court rejected the Court of Appeals’ conclusion that the case should be remanded for factual findings on the religious character of respondent’s peyote use. Although the referee’s findings concerning the use of peyote were somewhat sparse, the court fоund them sufficient to support the conclusions that the Native American Church is a recognized religion, that peyote is a sacrament of that church, and that respondent’s beliefs were sincerely held. The court noted that other courts had acknowledged the role of peyote in the Native American Church and quoted at length from a decision of the California Supreme Court.11
certain Christian teachings with the belief that peyote embodies the Holy Spirit and that those who partake of peyote enter into direct contact with God.
“Peyotism disсloses a long history. A reference to the religious use of peyote in Mexico appears in Spanish historical sources as early as 1560. Peyotism spread from Mexico to the United States and Canada; American anthropologists describe it as well established in this country during the latter part of the nineteenth century. Today, Indians of many tribes practice Peyotism. Despite the absence of recorded dogma, the several tribes follow surprisingly similar ritual and theology; the practices of Navajo members in Arizona practically parallel those of adherents in California, Montana, Oklahoma, Wisconsin, and Saskatchewan.
“The ‘meeting,’ a ceremony marked by the sacramental use of peyote, composes thе cornerstone of the peyote religion. The meeting convenes in an enclosure and continues from sundown Saturday to sunrise Sunday. To give thanks for the past good fortune or find guidance for future conduct, a member will ‘sponsor’ a meeting and supply to those who attend both the peyote and the next morning’s breakfast. The ‘sponsor,’ usually but not always the ‘leader,’ takes charge of the meeting; he decides the order of events and the amount of peyote to be consumed. Although the individual leader exercises an absolute control of the meeting, anthropologists report a striking uniformity of its ritual.
“A meeting connotes a solemn and special occasion. Whole families attend together, although children and young women participate only by their presence. Adherents don their finest clothing, usually suits for men and fancy dresses for the women, but sometimes ceremonial Indian costumes. At the meeting the members pray, sing, and make ritual use of drum, fan, eagle bone, whistle, rattle and prayer cigarette, the symbolic emblems of their faith. The central event, of course, consists of the use of peyote in quantities sufficient to produce an hallucinatory state.
“At an early but fixed stage in the ritual the members pass around a ceremonial bag of peyote buttons. Each adult may take four, the customary number, or take none. The participants chew the buttons, usually with some difficulty because of extreme bitterness; later, at a set time in the ceremony any member may ask for more peyote; occasionally a member may take as many as four more buttons. At sunrise on Sunday the ritual ends; after a brief outdoor prayer, the host and his family serve
Respondents contend that the sacramental use of small quantities of peyote in the Native American Church is comparable to the sacramental use of small quantities of alcohol in Christian religious ceremonies. Even though the State may generally prohibit the use of hallucinogenic drugs and alcohol for recreational purposes and strictly regulate their use for medicinal purposes, respondents assert that the Constitution requires some measure of accommodation for religious use. Alternatively, they argue that Oregon’s general prohibition against thе possession of peyote is not applicable to its use in a genuine religious ceremony. Even if peyote use is a crime in Oregon, since the State does not administer its unemployment compensation program for law enforcement purposes, they conclude that our decisions in Sherbert and Thomas require that they be awarded benefits.
The Oregon Supreme Court agreed with respondents’ conclusion, but it did not endorse all of their reasoning. The state court appears to have assumed, without specifically deciding, that respondents’ conduct was unlawful. That assumption did not influence the court’s disposition of the cases because, as a matter of state law, the commission of an illegal act is not itself a ground for disqualifying a discharged employee from benefits. It does not necessarily follow, how-
breakfast. Then the members depart. By morning the effects of the peyote disappear; the users suffer no after-effects.
“Although peyote serves as a sacramental symbol similar to bread and wine in certain Christian churches, it is more than a sacrament. Peyote constitutes in itself an object of worship; prayers are directed to it much as prayers are devoted to the Holy Ghost. On the other hand, to use peyote for nonreligious purposes is sacrilegious. Members of the church regard peyote also as a ‘teacher’ because it induces a feeling of brotherhood with other members; indeed it enables the participant to experience the Deity. Finally, devotees treat peyote as a ‘protector.’ Much as a Catholic carries his medallion, an Indian G. I. often wears around his neck a beautifully beaded pouch containing one large peyote button” (footnote omitted).
There is no absolute “constitutional right to unemployment benefits on the part of all persons whose religious convictions are the cause of their unemployment.” Sherbert v. Verner, 374 U. S., at 409-410. On three separate occasions, however, we have held that an employee who is required to choose between fidelity to religious belief and cessation of work may not be denied unemployment compensation because he or she is faithful to the tenets of his or her church. As we explained in Sherbert:
“Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.” Id., at 404.
In Sherbert, as in Thomas and Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136 (1987), the conduct that gave rise to the termination of employment was perfectly legal;12 indeed, the Court assumed that it was immune from state regulation.13
Relying on the fact that Oregon statutes prohibit the possession of peyote, see
Because we are uncertain about the legality of the religious use of peyote in Oregon, it is not now appropriate for us to decide whether the practice is protected by the Federal Constitution. See Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring). The possibility that respondents’ conduct would be unprotected if it violated the State’s criminal code is, however, sufficient to counsel against affirming the state court’s holding that the Federal Constitution requires the award of benefits to these respondents. If the Oregon Supreme Court’s holding rests on the
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of these cases.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.
Respondents Smith and Black were fired for practicing their religion. The Employment Division of the Oregon Department of Human Resources deemed respondents’ worship “misconduct connected with work,”
A generation ago, we established that a State may not deny unemploymеnt benefits to an employee discharged for her adherence to religious practices unless the “incidental burden on the free exercise of [her] religion [is] justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate . . . .‘” Sherbert, supra, at 403 (citation omitted). In Thomas, supra, and again as recently as last Term, see Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 142 (1987), we reaffirmed Sherbert’s holding that, where the “state . . . denies . . . a benefit because of conduct mandated by religious belief,” the resultant burden on the free exercise of religion “must be subjected to strict scrutiny and could be justified only by proof by the State of a compelling interest.” 480 U. S., at 141 (quoting Thomas, supra, at 717-718) (emphasis omitted). Where the burden on religion is imposed pursuant to a statute, we have an independent obligation to ascertain that the legislature in fact intеnded to advance the asserted interest through the statutory scheme. Cf. Sherbert, supra, at 407. We may not, particularly when engaging in strict scrutiny, blindly accept the interest that the State asserts in court. See, e. g., Mississippi University for Women v. Hogan, 458 U. S. 718, 730 (1982) (all-women state university fails intermediate scrutiny because, “although the State recited a ‘benign, compensatory purpose,’ it failed to establish that the alleged objective is the actual purpose underlying the discriminatory [statutory] classification“) (footnote omitted); Hampton v. Mow Sun Wong, 426 U. S. 88, 103-104 (1976) (“When the Federal Government asserts an overriding national interest as justification for a discriminatory rule . . . , due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve that
Smith and Black—like Sherbert, Thomas, and Hobbie—were discharged from their employment because their religious practices conflicted with their employer’s interests. The only difference between the cases before us and the situations we faced in Sherbert, Thomas, and Hobbie is that here the Employment Division has asserted in court a ““compelling state interest . . . in the proscription of illegal drugs,“” not merely the interest in avoiding the financial “burden upon the Unemployment Compensation Trust Fund” that we found not compelling in Sherbert. Smith, supra, at 212, 721 P. 2d, at 446 (quoting opinion of Employment Appeals Board). Suсh an interest in criminal law enforcement would present a novel issue if it were in fact an interest that Oregon had sought to advance in its unemployment compensation statute.
Far from validating any such state interest, however, the State’s highest court has disavowed it. In the paragraph that this Court quotes at length, ante, at 666, the Oregon Supreme Court could scarcely have been clearer. The state court understood that the Employment Division may not overcome the burden on religion by invoking a theoretically plausible interest that in fact the state legislature had no intention of furthering when it enacted the unemployment compensation statute: “The state’s interest in denying unemployment benefits to a claimant discharged for religiously motivated miscоnduct must be found in the unemployment compensation statutes, not in the criminal statutes proscribing the use of peyote.” Smith, supra, at 219, 721 P. 2d at 450 (footnote omitted); see also Black, supra, (relying on Smith’s analysis). The state court could find no legislative
The Court avoids this straightforward analysis, proclaiming instead that it has difficulty discerning “[w]hether the state court believed that it was constrained by Sherbert and Thomas to disregard the State’s law enforcement interest, or did so because it believed petitioner to have conceded that the legality of respondent’s conduct was not in issue,” ante, at 666. The difficulty, however, is entirely of this Court’s own making, for it poses two entirely implausible interpretations of the opinions below and overlooks the only natural one.
The Oregon Supreme Court both introduced and concluded the relevant passage by stressing the similarity between the state interests asserted here and those asserted in Sherbert and Thomas. See Smith, 301 Ore., at 218, 721 P. 2d, at 450 (the “state’s intеrest in this case [is no] more ‘overriding’ or ‘compelling’ . . . than in Sherbert and Thomas“); id., at 219-220, 721 P. 2d, at 450-451 (“The state’s interest is simply the financial interest in the payment of benefits from the unemployment insurance fund to this claimant and other claimants similarly situated,” which ”Sherbert and Thomas did not find . . . ‘compelling’ when weighed against the free exercise rights of the claimant“). At no point in the comparison did
Nor is it accurate to read the passage, as this Court’s second alternative interpretation does, as merely binding the Employment Division to a concession “that the legality of respondent’s conduct was not in issue.” The Employment Division conceded only the patently obvious point that the asserted interest in criminal law enforcement is nowhere to “be found in the unemployment compensation statutes,” 301 Ore., at 219, 721 P. 2d, at 450, and that the legality of peyote use was therefore irrelevant to the determination whether the statute purported to deny benefits. The Employment Division hotly disputed the proposition that it could not answer respondents’ free exercise challenge by asserting an interest that appears nowherе in its unemployment compensation scheme. The very passage that the Court quotes demonstrates as much: “The Board found that the state’s interest in proscribing the use of dangerous drugs was the compelling interest that justified denying the claimant unemployment benefits.” Id., at 218-219, 721 P. 2d, at 450. The remand in these cases thus rests on a purported ambiguity that has no basis in the opinions below.
Perhaps more puzzling than the imagined ambiguity is the Court’s silence as to its relevance. The Court merely remands these cases to the Oregon Supreme Court for further proceedings after concluding that a “necessary predicate” to its analysis is a pronouncement by the state court on whether respondents’ conduct was criminal. Ante, at 672. It seems
A slot on this Court’s calendar is both precious and costly. Inevitably, each Term this Court discovers only after painstaking briefing and oral argument that some cases do not squarely present the issues that the Court sought to resolve. There is always the temptation to trivialize thе defect and decide the novel case that we thought we had undertaken rather than the virtual clone of precedent that we actually undertook. Here, however, the Court’s belated effort to recoup sunk costs is not worth the price. Today’s foray into the realm of the hypothetical will surely cost us the respect of the State Supreme Court whose words we misconstrue. That price is particularly exorbitant where, as here, the state court is most likely to respond to our efforts by merely reiterating what it has already stated with unmistakable clarity.
I dissent.
Notes
“POLICY STATEMENT
ALCOHOL AND OTHER DRUG USE BY EMPLOYEES“In keeping with our drug-free philosophy of treatment, and our belief in the disease concept of alcoholism, and аssociated complex issues involved in both alcoholism and drug addiction, we require the following of our employees:
“1. Use of an illegal drug or use of prescription drugs in a nonprescribed manner is grounds for immediate termination from employment.
“3. Any use of alcohol by recovering staff will not be allowed, and is grounds for immediate disciplinary action, up to and including termination. Use shall be defined as any ingestion of an alcoholic beverage, in any situation.” App. 11.
Oregon Admin. Rule 471-30-038(3) (1987) provides:
“Under the provisions of ORS 657.176(2)(a) and (b), misconduct is a wilful violation of the standards of behavior which an employer has the right to expect of an employe. An act that amounts to a wilful disregard of an employer’s interest, or recurring negligence which demonstrates wrongful intent is misconduct. Isolated instances of poor judgment, good faith errors, unavoidable accidents, absences due to illness or other physical or mental disabilities, or mere inefficiency resulting from lack of job skills or experience are not misconduct for purposes of denying benefits under ORS 657.176.”
“Section 2. Freedom of worship. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.
“Section 3. Freedom of religious opinion. No law shall in any case whatever control the free exerсise, and enjoyment of religious opinions, or interfere with the rights of conscience.”
See also Linde, E Pluribus—Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 178-179 (1984).“The proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law.”
“Peyote, as we shall see, plays a central role in the ceremony and practice of the Native American Church, a religious organization of Indians. Although the church claims no official prerequisites to membership, no written membership rolls and no recorded theology, estimates of its membership range from 30,000 to 250,000, the wide variance deriving from differing definitions of a “membеr.” As the anthropologists have ascertained through conversations with members, the theology of the church combines
“The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U. S. 296, 303. Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U. S. 488; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 U. S. 67; nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania, 319 U. S. 105; Follett v. McCormick, 321 U. S. 573; cf. Grosjean v. American Press Co., 297 U. S. 233. On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or princiрles, for ‘even when the action is in accord with one’s religious convictions, [it] is not totally free from legislative restrictions.’ Braunfeld v. Brown, 366 U. S. 599, 603. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e. g., Reynolds v. United States, 98 U. S. 145; Jacobson v. Massachusetts, 197 U. S. 11; Prince v. Massachusetts, 321 U. S. 158; Cleveland v. United States, 329 U. S. 14.
“Plainly enough, appellant’s conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind within the reach of state legislation.” 374 U. S., at 402-403.