Recommended Garret Epps’ Paper on Employment Division v. Smith

Garrett Epps has posted his 1998 Arizona State Law Journal paper, “To an Unknown God: The Hidden History of Employment Division v. Smith.” He later expanded it into a powerful book, To an Unknown God: Religious Freedom on Trial. Both are highly recommended.

Here is the abstract:

The Supreme Court’s decision in Employment Division v. Smith, is once again the law of the land-and once again, “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.”

In City of Boerne v. Flores, the Court invalidated, at least as applied to State governments, the Religious Freedom Restoration Act (RFRA). RFRA was passed by Congress with the explicit aim of voiding Smith’s holding that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ”

The Smith doctrine was at least implicitly upheld by the six-Justice majority in Flores. The opinion not only restated the Smith rule, it further repeated the controversial “hybrid case” doctrine enunciated for the first time by Justice Scalia in Smith II: “The only instances where a neutral, generally applicable law had failed to pass constitutional muster, the Smith Court noted, were cases in which other constitutional protections were at stake.”

The Flores Court’s implied reaffirmation of Smith is remarkable because Smith was one of the most unpopular decisions in the Court’s recent history. Learned commentators have almost unanimously excoriated the Court’s result and rationale.” Journalistic commentators have been scathing. The United States Congress expressed its opinion of the decision in unmistakable terms by its passage of not one but two statutes purporting to void the result. Besides RFRA, which mentions Smith II by name, Congress in 1994 also passed amendments to the American Indian Religious Freedom Act that mandate an exemption from state and federal drug laws for religious use of peyote by Native Americans. Despite this repudiation, the Court has seemingly embraced Smith II once again. The time is more than ripe, therefore, for an examination of the case that has brought us to this point.

In 1994, I set out to find and document the actual people and decisions that created the case. The technique I used is familiar to historians – oral interviews designed to supplement and illuminate the written record.’ The use of “oral history” is designed to elicit the kind of information often omitted by those who prepare written documents.

Part II of this Article is a summary of Al Smith’s remarkable life, much of it in his own words; a brief profile of Galen Black, his Anglo co-claimant; and an account of the career of Smith’s tenacious adversary, Dave Frohnmayer. Part III provides an introduction to the legal and constitutional background in Oregon at the time the case arose, with emphasis on the violent encounter between the State and the religious commune in eastern Oregon known as Rajneeshpuram. Part IV details the dispute that led to the dismissal of Black and Smith. Parts V-VII consider the case in its first iteration through state courts and the U.S. Supreme Court. Part VIII details the extraordinary efforts at settlement of the case that took place shortly before oral argument in Smith II. Part IX describes oral argument from the point of view of the participants. Part X analyzes the response to Smith II, in Oregon and across the nation. In my Conclusion, I argue that the difficulties our legal system has had in dealing with Smith II are but a foretaste of coming religion cases, as our courts grapple with the Free Exercise Clause-our Constitution’s altar to an unknown god.