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This is “My Constitution,” a podcast from the Center for C-SPAN Scholarship & Engagement at Purdue University. In this episode, we’ll discuss freedom of religion.

November 6, 1989, Klamath Indian Al Smith stood in front of the Supreme Court of the United States on his 70th birthday and spoke to reporters.

My experience with the use of peyote is very sacred. I respect it, I respect the church, and I would wish, though, that the continuance of the use of the sacred sacrament in these sacred ceremonies would be allowed, and just let our people be.

Born in Oregon, Smith was an alcoholic. In 1957, he stopped drinking and began helping others who suffered from alcohol and drug abuse. He also rediscovered his Native American roots. Most importantly, for our story, he began attending ceremonies of the Native American Church where he ingested peyote, which was prohibited by Oregon law. Peyote is a bitter tasting cactus, grown originally in northern Mexico and southern Texas. It has long been used by native peoples in North America, including during religious ceremonies and for medicinal use. Ingesting peyote has a number of effects. Most importantly, it can lead to a euphoric state and result in hallucinations. Al Smith and Galen Black ingested peyote during religious ceremonies. As a result, they were fired from their jobs as counselors at a drug and alcohol treatment facility, and they were denied unemployment benefits on the grounds that they had engaged in misconduct. Very few cases make it all the way to the U.S. Supreme Court, but this one did . . . twice. The case was called Employment Division v. Smith. The decision the Court issued the second time it was heard, re-shaped the landscape of the First Amendment. It led Congress to pass legislation protecting religious freedom. It also led to another case that tested the constitutionality of that law.

As we heard in the ninth podcast, the First Amendment contains two religious clauses. They are called the Establishment Clause and the Free Exercise Clause. The constitutional language describing both clauses goes like this: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These clauses deliberately handicap government’s ability to support religion or to burden religion in a significant way. Thomas Jefferson acknowledged this restraint in an 1802 letter to the Danbury Baptists, where he described the religion clauses as “building a wall of separation between Church & State.” George Washington University Law Professor, Robert Tuttle discusses how the Founding Fathers approached the idea of freedom of religion:

They all coalesced around one simple thing: Congress, that is, the federal legislature, was not going to make a national church. Some of them simply wanted to protect their state establishments, their state establishments of religion that last until the 1830s. And, so, what they really wanted to do is to keep the national government out of the state's hands. Federalism, we call that now. Some of them, like Thomas Jefferson, James Madison, had a more substantive idea about what they wanted non-establishment to mean. They really wanted to be part of a freedom of religion. The government wasn't gonna be in charge of religion. Government wasn’t gonna spend money on churches. Government wasn’t gonna spend money for religious education.

But why was this so important to Jefferson? And why do so many Americans feel this issue is important today? Author Thomas Buckley sums it up like this:

Because questions of church and state, of religion and politics, they embrace our deepest human concerns. How are we to live together as a people, and what place, if any, will God hold in our, in our society?

The only institution of government that is mentioned in the First Amendment is Congress. However, both religion clauses now apply to the states as well as the federal government. As you learned in the fifth podcast, the Due Process Clause of the Fourteenth Amendment has been used to apply most of the Bill of Rights to the states, thus restricting state as well as federal action.

The Court applied the freedom of religion clause to the states in a 1940 case called Cantwell v. Connecticut. In ruling against the state in Cantwell, a case involving the Jehovah’s Witnesses, Justice Owen Roberts made an important distinction that is helpful for students of the Free Exercise Clause. According to Roberts, “the [First] Amendment embraces two concepts – freedom to believe and freedom to act.”

This distinction between belief and action, or as Thomas Jefferson called them, “the operations of the mind” and “the acts of the body,” is an important one in discussions of freedom of religion. In brief, the Free Exercise Clause protects an individual’s right to believe. It does not, however, necessarily protect conduct, even if that conduct is religiously motivated. In most cases, the burden government action places on religiously motivated conduct is unintended. However, in a case involving religious rights, the City of Hialeah directly targeted religious practice. Here’s American University professor, Stephen Wermiel:

Well, the church has an interesting name. It's the church of the Lukumi Babalu Aye, and it involves the religion, religious practice known as Santeria, which, as I understand it is a, something practiced now very much in, among Caribbean countries. But it has very old, ancient African origins. And part of the ritual, part of the religion, is the ritual sacrifice of animals, particularly chickens. The city of Hialeah, Florida, concerned that the group was planning to build a church in Hialeah, passed an ordinance that prohibited sacrifice of animals for ritual purposes.

The practice of Santeria was described as “black magic” and “witchcraft.” Animal sacrifice was labeled “indefensible and repugnant.” It was called “satanic.” One member of the Hialeah City Council stated that the Church was “in violation of everything this country stands for.” A member of a religious board said, “This is not a question of freedom of religion. It’s a question of civilized behavior.”

The City outlined three reasons or interests to justify their regulation of religiously motivated conduct. The first interest was public health and welfare. The city’s concern, in this instance, focused on the disposal of animal carcasses. The second interest was animal cruelty. The third interest was the effects of animal sacrifice on the psychological welfare of children. The Court took the position that the City of Hialeah had violated the First Amendment’s Free Exercise Clause.

Earlier in this podcast, we noted that the burden government action places on religiously motivated conduct is usually unintended. Prior to the peyote case, one of the most important cases involving government policy that unintentionally burdened freedom of religion came from South Carolina. The case is Sherbert v. Verner from 1963. Adell Sherbert lost her job because she refused to work on a Saturday. A Seventh-day Adventist, Saturday was her Sabbath Day. Unable to find work, she applied for unemployment benefits. The State of South Carolina denied her benefits on the grounds that she did not have a good reason for refusing work.

Justice William J. Brennan, Jr. wrote the Court’s opinion in the South Carolina case. He was appointed by a Republican president, yet known for his liberal views on the Court, Brennan concluded that the State was wrong to deny Sherbert unemployment benefits. He argued that when they denied her benefits, the State placed the same kind of burden upon the free exercise of religion as would a fine imposed against Sherbert for her Saturday worship. Brennan’s opinion focused on the government’s interest in developing the policy, and whether exempting Sherbert from the effect of the policy would undermine that interest. Known as the Sherbert Test, reviewing courts would ask two questions. First, did the government have a compelling interest in pursuing the policy, and second, could that interest be served in a way that placed less of a burden on religious liberty.

Let’s return to the Court and to Al Smith’s case against the State of Oregon. As we noted at the beginning of this podcast, Smith’s case came before the Supreme Court twice. In 1988, the first time Smith’s case came before them, the Court did not address the question whether the religious use of peyote was protected by the First Amendment. When it came to the nation’s highest court for a second time, the Court dismissed Smith’s First Amendment claim. Rejecting the application of the Sherbert Test to the facts of the case, Justice Antonin Scalia wrote the decision. Here’s how Southern Methodist University law professor Linda Eads explained it:

And Scalia said, that when, the Free Exercise Clause cannot—that means we all have the right to exercise our religious beliefs—cannot be used to challenge a law of general applicability. So if a law is passed without regard to anybody's religion, but it happens to affect a religion which we didn't anticipate, it's not unconstitutional.

Justice Scalia himself explained it in announcing his decision from the bench in April, 1990.

A long line of our decisions has held that an individual's religious beliefs do not exclude him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate, for example, laws prohibiting polygamy, laws regulating the use of child labor, laws requiring individuals to perform military service, and laws compelling individuals to pay taxes.

The Court’s decision was a defeat for Al Smith. It was also seen by many as a defeat for religious freedom. Here’s Senator Orrin Hatch, a Republican from Utah, talking about the Court’s decision in a speech on the Senate floor:

I might add, under the Court's new Smith Standard, however, government can make religious practice not only difficult but even impossible. Provided government does not specifically target religion for disfavor, it can pass all sorts of laws that interfere with worship, practice, or belief. It would be hard to overstate the impact of Smith.

Were there any avenues open to individuals like Al Smith whose religious practices were burdened by generally applicable state laws? For Justice Scalia, the relief was to be found in the legislative process, not in the courts. And that’s exactly what happened. Again, here’s Senator Hatch:

Congress responded to Smith by enacting the Religious Freedom Restoration Act, or RFRA. I had a lot to do with that. RFRA’s standard mirrored what the Supreme Court had only a few years earlier said the First Amendment required, namely, that government may impose a substantial burden on the exercise of religion only if it is the least restrictive means of achieving a compelling government purpose.

The purpose of the legislation was “to restore” the Sherbert test. It applied to federal, state, and local government. In 1997, in a case called City of Boerne v. Flores, the Supreme Court weighed in on the constitutionality of RFRA. The decision was written by Justice Anthony Kennedy. He contended that Congress had reached too far.

RFRA’s coverage is sweeping and applies to every level of government and to all laws, regardless of subject matter. It's least restrictive means compelling governmental interest test is the most demanding known to the constitutional law. This is a considerable congressional intrusion into the states’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.

In addition to Congress, State legislatures have also attempted to protect religious practitioners. One year after the Court’s decision, Oregon enacted legislation which allowed practitioners to invoke their religious beliefs as a defense against state law. In 1994, Congress amended the American Indian Religious Freedom Act of 1978 to protect the use of peyote in religious ceremonies. Al Smith lived to see the passage of both laws. He died in 2014 at age 95.

Further information on some of the issues discussed in this program, including questions to ponder, our sources, and additional clips from the C-SPAN Archives, can be found on the website of the Center for C-SPAN Scholarship & Engagement. The address is cla.purdue.edu/cspan. The Center is affiliated with the Brian Lamb School of Communication at Purdue University.


To acquaint the student with the freedom of religion.


    1. In his opinion for the Court in Smith, Justice Antonin Scalia wrote, “It might fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of religious beliefs. . . .” What do you think about Justice Scalia’s sweeping statement about minority religions and the democratic process? Additional information on this topic can be found in the “Supreme Court Cases" section of this document.
    1. As we noted in this podcast, in brief, the free exercise clause protects an individual’s right to believe. It does not, however, necessarily protect conduct, even if that conduct is religiously motivated. Apart from the example in Smith, can you imagine examples of religious conduct that might not be protected?
    1. As we noted in this podcast, the First Amendment contains two religion clauses. They are called the establishment clause and the free exercise clause. These clauses deliberately handicap government’s ability to support religion or to burden religion in a significant way. Interestingly, “Sometimes the Establishment Clause and the Free Exercise Clause come into conflict.” See https://www.uscourts.gov/educational-resources/educationalactivities/first-amendment-and-religion. Can you think of examples where this might occur?
    1. In his letter to the Danbury Baptists, Jefferson described the religion clauses as “building a wall of separation between Church & State.” How high should that wall be?


Bomboy, S. (2014, June 20). What is RFRA and why do we care? National Constitution Center.


Cantwell v. Connecticut. (n.d.). Oyez.  https://www.oyez.org/cases/1940-1955/310us296  

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah. (n.d.). Oyez.


City of Boerne v. Flores. (n.d.). Oyez. https://www.oyez.org/cases/1996/95-2074  

The City of Hialeah and Locke Decisions (October 24, 2007). Pew Research Center.


Davis, D. H. (2016, August). Law, the U.S. Supreme Court, and religion. Oxford Research Encyclopedias.


Denniston, L. (2019, April 25). A bold new plea on religious rights. National Constitution Center.


Emanuel, S. (2006). Emanuel law outlines: Constitutional law. (34th ed., pp. 683-684, 717-726).New York: Wolters Kluwer.

Emanuel, S. (2019). Emanuel law outlines: Constitutional law. (36th ed., pp. 718-721). New York:Wolters Kluwer.

Employment Division, Department of Human Resources of Oregon v. Smith. (n.d.). Oyez.


Epps, G. (2014, December 09). Al Smith: Elegy for a hero of religious freedom. The Atlantic.


Fiorina, M. P., Peterson P. E., Johnson, B., & Mayer, W. G. (2011). The new American democracy (7th ed., pp. 316, 475-478). New York City, NY: Pearson.

Gjelten, T. (2019, May 23). How the fight for religious freedom has fallen victim to the culture wars. NPR. https://www.npr.org/2019/05/23/724135760/how-the-fight-for-religiousfreedom-has-fallen-victim-to-the-culture-wars   

Green, W. C. (n.d.). Church of the Lukumi Babalu Aye v. City of Hialeah. The Free Speech Center.


Griffin, J. (2015, May). Religious Freedom Restoration acts. National Conference of State Legislatures.


Griffin, J. (2017, April 05). State Religious Freedom Restoration acts. National Conference of State Legislatures.


Hermann, J. R. (n.d.). Sherbert v. Verner. The Free Speech Center.


Jefferson's Letter to the Danbury Baptists the final letter, as sent. (n.d.). Library of Congress.


Long, C. N. (2000). Religious freedom and Indian rights: The case of Oregon v. Smith. Lawrence, KS: University Press of Kansas.

Lupu, I. C., Masci, D., & Tuttle, R. W. (2017, October 24). The City of Hialeah and Locke decisions. Pew Research Center.


O'Brien, D. M. (2004). Animal sacrifice and religious freedom: Church of the Lukumi Babalu Aye v. City of Hialeah. Lawrence, KS: University Press of Kansas.

O'Brien, D. M. (2017). Constitutional law and politics: Civil rights and civil liberties (10th ed., pp. 688-697, 787-831), Vol. 2. New York City, NY: Norton & Company.

Rehberg, M. L. (2014, July 09). Cantwell v. Connecticut. Encyclopaedia Britannica.


Sherbert v. Verner. (n.d.). Oyez. https://www.oyez.org/cases/1962/526  

The Smith Decision: The Court Returns to the Belief-Action Distinction. (2007, October 24).


Vile, J. R. (n.d.). Cantwell v. Connecticut. The Free Speech Center.


Volokh, E. (n.d.). Related rights. Encyclopaedia Britannica.


Ward, A. (n.d.). Animal sacrifice. The Free Speech Center. Retrieved from



Cantwell v. Connecticut (1940) -- https://www.oyez.org/cases/1940-1955/310us296. This case involved an appeal by Jehovah’s Witnesses against the constitutionality of a Connecticut antisolicitation statute. The case is important because it is the vehicle used by the Court to first apply the freedom of religion clause to the States. This link will take you a description of the case and to Justice Owen Roberts’ opinion for the Court.

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1992) -- https://www.oyez.org/cases/1992/91-948. In this case, involving the ritual sacrifice of animals, the Court took the position that the City of Hialeah had violated the First Amendment’s free exercise clause. Clicking on the link will allow you to listen to oral argument, read a description of the case, and also take you to Justice Anthony Kennedy’s opinion.

City of Boerne v. Flores (1997) -- https://www.oyez.org/cases/1996/95-2074. In this case, the Supreme Court weighed in on the constitutionality of the Religious Freedom Restoration Act (RFRA) of 1993. The Court argued that Congress had exceeded its power when it passed RFRA. The link will take you to a description of the case, oral argument, and to bench announcements by Justice Anthony Kennedy and Justice Sandra Day O’Connor. You will also gain access to the Court’s opinions.

Employment Division, Department of Human Resources of Oregon v. Smith (1990) -- https://www.oyez.org/cases/1989/88-1213. The link to this free exercise case will take you inside the Supreme Court to hear oral argument. Justice Antonin Scalia’s bench announcement can also be accessed at this site. In addition to a discussion of the case, the site will also take you to the various opinions written by members of the Court.

Goldman v. Weinberger (1986) -- https://www.oyez.org/cases/1985/84-1097. A case involving military dress code and religious freedom, Goldman provides an example of the Court refusing to grant a religious exemption. The link will take you to oral argument, a discussion of the case, and to the Court’s various opinions.

Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012) -- https://www.oyez.org/cases/2011/10-553. Decided over two decades after Employment Division v. Smith (1990), the Court’s decision in Hosanna-Tabor has been described as a “limitation on Smith” (Emanuel, 2019, p. 721). In addition to audio recordings of the bench announcement and oral argument, the link will take you to the Court’s written opinions.

Sherbert v. Verner (1963) -- https://www.oyez.org/cases/1962/526. This case focuses on a free exercise claim by Adel Sherbert, a Seventh-Day Adventist, who lost her job because she refused to work on a Saturday. She was later denied benefits by the State of South Carolina on the grounds that she did not have a good reason for refusing work. The case is important because of the development of the so-called Sherbert Test. Interestingly, it has been argued that the Court’s approach to free-exercise exemptions in this case is somewhat unusual (Emanuel, 2019, p. 719). According to Steven Emanuel, “most…who sought mandatory exemptions on free-exercise grounds lost” (Emanuel, 2019, p. 719, emphasis in original).


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