Elegy for a Hero of Religious Freedom

If the American media had a better sense of history, you’d have read by now that Alfred Leo Smith died last month. His life powerfully shaped the American law of religious freedom.

Here’s an announcement from his family:

Smith was the lead plaintiff in a Supreme Court called Employment Division v. Smith, decided in 1990. The issue in Smith was whether the First Amendment’s Free Exercise Clause protected participants in peyote religious ceremonies from the disapproving arm of the state.

The Court held that it does not. The backlash caused by that opinion led to the enactment of the Religious Freedom Restoration Act, which was the subject of last term’s Hobby Lobby decision. The Smith opinion evoked widespread disgust, and led Congress to enact not one but two statutes to repudiate it. All told, it was a struggle that changed history. And the case came down as it did because Al Smith refused to accede to what he considered injustice.

He deserves to be celebrated and remembered.*

Al Smith was born into the Klamath Tribe on November 6, 1919, in Modoc Point, Oregon. When he was seven, he was taken from his grandparents’ home and sent to boarding school as part of a federal policy designed to eradicate the Native identity of a new generation. When he was 35, the federal government “terminated” his tribe, allowing private exploitation of what had been tribal forestland. (The tribe was reinstated three decades later.) In between, Smith endured the Army, jail, and two decades of alcoholism.

In 1957, Smith stopped drinking and became active, first in Alcoholics Anonymous and then as a professional counselor, consultant, and advocate for Native people with drug and alcohol addictions. His work with Native people, including those in prison, was groundbreaking. By 1982, he had worked at the local level as a counselor providing treatment for recovering addicts and nationally as a consultant to tribes planning recovery programs. Newly married, with a new baby, he took a job at a nonprofit alcohol and drug-addiction treatment program in Roseburg, Oregon.

Smith’s work had given him a deep exposure to diverse Native spiritual traditions including the Sweat Lodge, the Sun Dance, and the Native American Church, which uses peyote—the “divine cactus”—as a sacrament. These traditions often form the core of a Native person’s recovery. Religious use of peyote, in particular, is older than most American religions, including Christianity. Medical studies have shown that ceremonial use of peyote, in particular, is a powerful boost to the chances a Native patient will recover from addiction.

The Roseburg program hired Smith to help provide culturally relevant treatment, like the sweat lodge, to Native clients. He wasn’t looking for a landmark case; he had a wife and a new baby. He was swept into a constitutional controversy because a non-Native colleague, Galen Black, attended a peyote ceremony and told colleagues at the agency that he thought it would be a means of treating alcoholism and addiction. His bosses fired him on the spot. To the white people who ran the agency, peyote was not a religious exercise—it was an “illegal drug,” and Black was no longer fit to counsel recovering clients.

Then the bosses called Smith in and brusquely warned him that if he went to a ceremony and ingested peyote he would lose his job too. Not long after, Smith was invited to a ceremony. He had been warned, but the tone of disrespect to an Ancient Native faith rankled. He later recalled his immediate response: “You can’t tell me that I can’t go to church!”

Smith was not one to be intimidated. He attended the ceremony, took the sacrament, came back to work, and was promptly fired. Then he applied for unemployment.

The agency opposed his unemployment claim, saying the ceremonial use of peyote was “misconduct.” The state of Oregon, obsessed by the war on drugs, joined in the case (even though it wasn’t clear that Oregon law even prohibited what Smith and Black had done). State courts at every level found their conduct was protected by the First Amendment and ordered the state to pay them their benefits. The state refused to accept this, and took the case to the U.S. Supreme Court not once but twice.

At this point, attorneys for one of the many organized Native American Church groups began to pressure Smith to withdraw his claim. They feared the Court would rule against peyote use in native religious practices and set off a wave of persecution. The outside lawyers negotiated a settlement—but Oregon’s lawyers insisted that Smith and Black admit that they had engaged in “misconduct” and pay back the court-ordered unemployment they had already received.

“In the wee hours of the morning it came to me. Your kids are going to grow up and the case is going to come up one of these days and someone will say, ‘Your dad is Al Smith? Oh, he’s the guy that sold out,’” he remembered later. “I’m not going to lay that on my kids. I’m not going to have my kids feel ashamed. Even if we lose the case, they are going to say, ‘Yeah, my dad stood up for what he thought was right.’”

On April 17, 1990, Justice Antonin Scalia, writing for five justices, finally held in favor of the State of Oregon. Smith and Black were criminals, he wrote—even though there was no criminal prosecution, simply a claim for unemployment insurance. “They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice ....” The “free exercise of religion” did not protect minority religions from “neutral, generally applicable laws” enacted by an ignorant or indifferent majority, Scalia wrote. If peyotists wanted religious freedom, they should go to the legislature.

“It may 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,” he wrote. “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 all religious beliefs.” Court-ordered exemptions, he wrote, would be “courting anarchy.”

Until the day of the opinion, the Court had given no hint that it was considering rewriting the entire law of Free Exercise. Neither party, in fact, had asked it to. (Justice Sandra Day O’Connor wrote separately to argue that the Free Exercise jurisprudence was fine, but that peyote shouldn’t be protected.) The mainstream religious community went into shock. The ruling wasn’t limited to Indians, or to “drug use,” but extended to all religious-freedom claims. A flurry of lobbying took place, culminating in the passage of the Religious Freedom Restoration Act in 1993. That law was written very broadly—as we learned in in Burwell v. Hobby Lobby, it was interpreted to protect powerful corporate employers from observing the statutory rights of their employees. In a final irony, the drafters of RFRA excluded one key religious group—the Native American Church. Peyote, the sponsors thought, was “controversial.”

Indian groups then rallied to get their own statute, the 1994 Amendments to the American Indian Religious Freedom Act, which provide: “The use, possession, or transportation of peyote by an Indian who uses peyote in a traditional manner for bona fide ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or by any State.”

It should be called Al Smith’s Law.

I was lucky enough to meet Smith in the last years of his life. He was one of the most remarkable men I have ever known. Because he knew I was writing about his case, he arranged for me to attend a ceremony. Since that experience, it’s been clear to me that only the most determinedly ignorant would mention peyote religion and “drug use” in the same breath.