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Employment Division v. Smith (docket #: 86-946) (1988)  [Findlaw]

Argument Date 12/08/1987
Decided 04/17/1988
Supreme Court Vote 6-3
Supreme Court Ruling Free Exercise Claim denied
IssueWhether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to the persons dismissed from their jobs because of religiously inspired use.
Majority Opinion Scalia, J. (joined by Rehnquist, C.J., White, Stevens, and Kennedy, J.J.)
Concurring Opinion O’Connor, J. (concurring in Parts I and II, joined by Brennan, Marshall and Blackmun, J.J. without concurring in the judgment)
Dissenting Opinion Blackmun, J. (joined by Brennan and Marshall, J.J.)
Lower Court Oregon Supreme Court
Lower Court Ruling Free Exercise Claim denied.
Oral Arguments audio record  [Oyez]
For Petitioner
Attorney General of Oregon Dave Frohnmayer

Greenhouse, Linda, "Church Remains a Landmark," New York Times, Mar. 5, 1991, sect. B, pg. 11
For Amicus
American Civil Liberties Union, American Jewish Congress, Association on American Indian Affairs, Council on Religious Freedom (for Respondents)

For Respondent
Craig J. Dorsay

"Oregon Court Finds Peyote Use Is Legal In Indian Ceremony," New York Times, Oct. 19, 1988, sect. A, pg 25
"Oregon Peyote Law Leaves 1983 Defendant Unvindicated," New York Times, Jul. 9, 1991, sect. A, pg. 14
Greenhouse, Linda, "Justices to Hear Case on Drugs in Religions," New York Times, Mar. 12, 1989, sect. A, pg. 19
Greenhouse, Linda, "Use of Drugs in Religious Rituals Can Be Prosecuted, Justices Rule," New York Times, Apr. 18, 1990, sect. A, pg. 22
Hentoff, Nat, "Is Religious Liberty a Luxury," The Washington Post, Sep. 15, 1990, sect. A, pg. 23
Hentoff, Nat, "Justice Scalia vs. the Free Exercise of Religion," The Washington Post, Mat. 19, 1990, sect. A, pg. 25
Kamen, Al, "Court Hears Argument on Peyote Use; Exempting Religious Consumption of Drug From Prosecution Debated," The Washington Post, Nov. 7, 1989, sect. A, pg. 16
Marcus, Ruth, "Court: States Cab Ban Peyote in Rites; Religious Freedom Does Not Justify Breaking Valid Law, Scalia Says," The Washington Post, Apr. 18, 1990, sect. A, pg. 5
Marcus, Ruth, "Supreme Court Liberals Savor Wins Amid Conservative Majority," The Washington Post, Jul. 2, 1990, sect. A, pg. 5
Rothers, Larry, "Court to Weigh law Forbidding Ritual Sacrifices; Santeria Devotees Fight Ban by Miami Suburb," New York Times, Nov. 3, 1992, sect. A, pg. 10
Steinfels, Peter, "Beliefs; Showdown looms over where to draw the line between state laws and free exercise of religion," New York Times, Feb. 29, 1992, pg. 10
Will, George F., "Conduct, Coercion, Belief," The Washington Post, Apr. 22, 1990, sect. B, pg. 7
Chemerinsky, Erwin, CONSTITUTIONAL LAW: PRINCIPLES & POLICIES (2nd ed., 2002), sects. 12.3.1,,
Eisgruber, Christopher & Sager, Lawrence, "The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct," 61 University of Chicago Law Review 1245 (1994)
Gedicks, Frederick, "The Normalized Free Exercise Clause," 75 Indiana Law Journal 77 (2000)
Greene, Abner S., "The Political Balance of the Religion Clauses," 102 Yale Law Journal 1611 (1993)
Lupu, Ira, "Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion," 102 Harvard Law Review 933 (1989)
McConnell, Michael, "Free Exercise Revisionism and the Smith Decision," 57 University of Chicago Law Review 1109 (1990)
McConnell, Michael, "Religious Freedom at a Crossroads," 59 University of Chicago Law Review 115 (1992)
Nowak, John E. & Rotunda, Ronald D., PRINCIPLES OF CONSTITUTIONAL LAW (2ND ED., 2005), sect. 17.8
Smith, Steven, "Free Exercise Doctrine and the Discourse of Disrespect," 65 University of Colorado Law Review 519 (1994)
Smolla, Rodney A., "The Free Exercise of Religion After the Fall: The Case for Intermediate Scrutiny," 39 William and Mary Law Review 925 (1998
Sullivan, Kathleen, "Religion and Liberal Democracy," 59 University of Chicago Law Review 195 (1992)
Williams, David & Susan, "Volitionalism and Religious Liberty," 76 Cornell Law Review 769 (1991)
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