The Supreme Court ruling that states need not exempt religious peyote use from drug laws — and the decision that directly triggered Congress to pass RFRA and the 1994 AIRFA amendment.
Alfred Leo Smith and Galen Black were counselors at ADAPT — the Association for Drug and Alcohol Problems and Treatment — a private drug-rehabilitation program in Oregon. Both men were enrolled members of the Native American Church (NAC).
In 1983, Smith and Black participated in a NAC peyote ceremony. The ceremony is a night-long religious ritual involving the sacramental ingestion of peyote, a cactus that contains the hallucinogen mescaline. ADAPT fired them when it learned of the ceremony. The employer's position was that staff at a drug rehab program could not use any controlled substance, regardless of the reason.
Oregon classified peyote as a Schedule I controlled substance at the time. The state denied Smith and Black unemployment benefits on the grounds that their dismissal was for misconduct. That denial set off an eight-year legal fight that ended at the U.S. Supreme Court in 1990.
Employment Division v. Smith came before the Supreme Court twice — an unusual procedural history that shaped the final ruling.
After Oregon denied benefits, Smith and Black won at the Oregon Court of Appeals, which held the denial violated their free-exercise rights. The Oregon Supreme Court affirmed. Oregon appealed. In 1988, the U.S. Supreme Court vacated and remanded — sending the case back to Oregon to decide whether peyote use was actually illegal under state law (since the religious-exemption analysis might differ if the conduct was legal).
The Oregon Supreme Court confirmed that peyote was criminally prohibited in Oregon with no religious exemption, then held again that denying benefits still violated the First Amendment. Oregon appealed a second time. The Supreme Court granted certiorari, heard oral argument on November 6, 1989, and issued its final decision on April 17, 1990.
The Supreme Court ruled 6-3 that Oregon could deny unemployment benefits to Smith and Black without violating the Free Exercise Clause.
Justice Antonin Scalia wrote the majority opinion, joined by Chief Justice William Rehnquist and Justices Byron White, John Paul Stevens, and Anthony Kennedy. The core holding: a neutral, generally applicable law does not violate the Free Exercise Clause, even if it incidentally burdens a sincere religious practice.
Oregon's peyote ban targeted no religion. It applied equally to everyone. That, Scalia argued, was enough — the Free Exercise Clause never required the government to carve out religious exceptions to neutral criminal laws.
Since Sherbert v. Verner (1963), courts had applied a "compelling interest" test to free-exercise claims. Under Sherbert, the government had to show a compelling state interest before it could substantially burden a religious practice.
Scalia called applying that test to every religion-vs.-law conflict a formula for "courting anarchy." He argued it would open the door to constitutionally required exemptions from almost every civic obligation — tax laws, health regulations, traffic codes, drug prohibitions. The majority limited Sherbert to the unemployment-benefit context and refused to extend it to generally applicable criminal laws.
The practical effect: religious believers lost constitutional protection against neutral drug laws. Their only path to an exemption was the political process — persuading legislatures to write one in. That is precisely what happened within three years.
Justice Sandra Day O'Connor concurred in the judgment but rejected Scalia's entire doctrinal framework. She agreed Oregon could deny benefits, but only because the state's drug-enforcement interest was compelling enough to pass the Sherbert test — not because Sherbert should be abandoned.
O'Connor's concurrence was joined by Justices William Brennan, Thurgood Marshall, and Harry Blackmun as to its first two parts. All three then split from O'Connor and dissented outright. Blackmun wrote the dissent, joined by Brennan and Marshall.
Blackmun argued Oregon had no compelling interest in criminalizing peyote used in NAC ceremonies. The state itself had never prosecuted anyone for NAC peyote use. At least 23 other states and the federal government already had religious exemptions for peyote at the time — yet Blackmun noted no evidence those exemptions caused drug-abuse problems. In his view, Oregon's interest in uniform enforcement was not compelling enough to override sincere religious exercise.
The Smith ruling provoked an unusual coalition of critics. Civil liberties groups, conservative religious organizations, mainline Protestant churches, and Native American tribes all objected — seeing the decision as a threat to minority religious practice.
Law professors criticized Scalia's majority for rewriting free-exercise doctrine without fully briefing the issue. The Court had granted certiorari on a narrower question. By discarding the Sherbert test, critics argued the majority went far beyond what the case required.
For Native Americans in particular, the ruling was devastating in symbolic terms. The NAC peyote ceremony had been practiced for over a century and was already protected in many states. The decision put that protection in danger everywhere there was no statutory shield.
Congress responded to Employment Division v. Smith by passing two laws that together rebuilt much of the protection the Court had removed.
Congress passed RFRA in 1993 with nearly unanimous support: 97-3 in the Senate, unanimous in the House. President Clinton signed it on November 16, 1993. RFRA's purpose was explicit: restore the Sherbert compelling- interest test as a statutory requirement for all government actions that substantially burden sincere religious exercise.
Under RFRA, any government — federal, state, or local — that substantially burdens a sincere religious practice must show (1) a compelling governmental interest and (2) that the burden is the least-restrictive means of advancing that interest. RFRA operates as a federal statute, not a constitutional amendment, so it can be amended by Congress.
In 1997, the Supreme Court held in City of Boerne v. Flores that RFRA exceeded Congress's power as applied to state and local governments. The federal RFRA now applies only to the federal government. Most states have enacted their own state-level RFRAs. See our RFRA explainer for how it functions in religious-psychedelic exemption cases today.
Congress added a specific peyote protection to the American Indian Religious Freedom Act through P.L. 103-344, signed on October 6, 1994. The amendment is codified at 42 U.S.C. § 1996a.
It creates a categorical rule: the use, possession, or transportation of peyote in a bona fide traditional ceremony of a federally recognized Indian tribe is lawful, and no Indian may be penalized for it. States and the federal government may not prohibit it. Employers may not discriminate in hiring or firing on account of it. The protection extends to drug testing — a non-Indian employee who tests positive for peyote solely because of NAC ceremony participation has some protection under the 1994 amendment.
The AIRFA amendment did exactly what Smith said was the proper remedy: it used the political process to win a legislative exemption that the Constitution would not guarantee. See our AIRFA peyote guide for full details on who qualifies and how it interacts with state drug laws.
The Smith ruling and RFRA set up two different legal tests that govern religious-freedom claims depending on who the defendant is. The table below shows the key differences.
| Feature | Smith standard (Constitution) | RFRA standard (federal statute) |
|---|---|---|
| Source of law | First Amendment (Free Exercise Clause) | 42 U.S.C. § 2000bb (federal statute) |
| Who it applies to | All governments (federal, state, local) | Federal government only (post-Boerne, 1997) |
| Test for neutral laws | Rational basis — law survives if neutral and generally applicable | Compelling interest + least restrictive means |
| Can Congress change it? | No — constitutional standard | Yes — statutory, can be amended or repealed |
| Key SCOTUS case | Employment Division v. Smith (1990) | Gonzales v. O Centro (2006) |
| Peyote protection | None from Constitution alone | AIRFA amendment covers Native ceremony peyote directly |
When Smith matters most: if you are challenging a state law (no federal RFRA protection post-Boerne) and the state has no RFRA. When RFRA matters most: if a federal agency — like the DEA — is the party denying an exemption for ayahuasca, peyote, or another controlled substance used in a religious ceremony. See Gonzales v. O Centro (2006) for how RFRA was used to protect a Brazilian religious group's ayahuasca imports.
Employment Division v. Smith remains controlling constitutional law as of 2026. It has not been overruled.
In Fulton v. City of Philadelphia (2021), a Catholic foster-care agency asked the Court to overrule Smith. The Court ruled for the agency on narrow grounds — the city's non-discrimination policy was not "generally applicable" because it gave the city discretion to grant exemptions. The majority explicitly said it had "no occasion to reconsider" Smith. The Smith standard survived intact.
For psychedelic law, Smith's continued force means that any state drug law that is neutral and generally applicable — covering everyone, not just religious users — passes constitutional muster. Religious groups that want exemptions must either (1) rely on federal RFRA against federal enforcement, (2) win a state-RFRA claim where the state has one, or (3) persuade a legislature to write a statutory exemption. The constitutional path Smith closed in 1990 remains closed. Check the psychedelic legalization tracker for the latest state-by-state legislative moves.
Smith's "neutral, generally applicable law" test shapes every state-level criminal prosecution of a religious psychedelic user who is not covered by a specific statutory exemption. Ayahuasca churches that rely on state free-exercise arguments — rather than federal RFRA — face the Smith standard in states without their own RFRA.
It also explains why the Colorado and Oregon psilocybin laws were drafted as generally applicable ballot measures rather than religious exemptions. A general decriminalization avoids the Smith problem entirely by making the conduct legal for everyone, not just believers. See what psychedelics are legal in the US for the current legal landscape across substances.
Employment Division v. Smith (1990) held that the Free Exercise Clause of the First Amendment does not require states to grant religious exemptions from neutral, generally applicable criminal laws. Oregon could ban peyote and deny unemployment benefits to workers fired for using it in a Native American Church ceremony.
Alfred Smith and Galen Black were counselors at ADAPT, a private drug rehabilitation program in Oregon. Both were members of the Native American Church. Their employer fired them after they ingested peyote during a religious ceremony, and Oregon then denied their unemployment-benefits claim as misconduct-related.
The Supreme Court ruled 6-3 against Smith and Black. Justice Scalia wrote the majority opinion, joined by Chief Justice Rehnquist and Justices White, Stevens, and Kennedy. Justice O'Connor concurred in the judgment but disagreed with Scalia's reasoning. Justices Blackmun, Brennan, and Marshall dissented.
The Smith ruling outraged religious groups across the political spectrum. Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 with nearly unanimous votes to restore the strict-scrutiny test the Court had abandoned. RFRA forces the government to show a compelling interest before it can substantially burden any sincere religious practice.
No. In Fulton v. City of Philadelphia (2021), the Supreme Court ruled for the religious plaintiff on narrow grounds but explicitly declined to overrule Smith. A majority of justices said there was no need to revisit Smith in that case. Smith remains controlling law as of 2026.
Yes. Congress responded to Smith by amending the American Indian Religious Freedom Act in 1994 (P.L. 103-344). The amendment gives enrolled members of federally recognized tribes an explicit statutory right to use peyote in traditional ceremonies. That protection comes from federal statute, not the Constitution.
Smith changed how every state drug law interacts with religious freedom. Our tracker follows active legislative moves — state RFRAs, peyote exemptions, and psychedelic decriminalization bills — in real time.
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