The Supreme Court v. Peyote

May 11, 2023·58 min·5 clips

Al Smith tells his wife he refuses to settle because he will not let his children grow up saying their father 'sold out.'

1. More Perfect examines Employment Division v. Smith, the 1990 Supreme Court decision that fundamentally reshaped First Amendment free exercise doctrine. 2. Host Julia Longoria speaks with Garrett Epps, constitutional law professor at the University of Oregon, who conducted archival audio interviews with Al Smith over the course of a quarter century. 3. The episode's core question is why the Supreme Court, in a case about one man's unemployment benefits, chose to make a sweeping statement that eliminated the Sherbert test for religious exemptions. 4. Al Smith was born November 6, 1919, a member of the Klamath people in southern Oregon, who were among 109 tribes terminated by the U.S. government in 1954 — stripped of federal recognition and tribal lands. 5. At around age seven, Smith was taken from his tribal home and sent to a series of Catholic boarding schools, where he experienced physical abuse and was cut off from Klamath language and ceremonies. 6. Smith struggled with alcoholism for decades — drinking through high school, World War II, and life on the streets of Sacramento — before hitting rock bottom in 1957 and having a vision of a small man warning him he would die if he did not stop. 7. Through Alcoholics Anonymous and its Step 3, Smith reconnected with his grandmother's religion, eventually encountering the Native American church and its peyote sacrament while working as a sobriety counselor for tribal communities. 8. His white colleague Galen Black attended a Native American church ceremony as professional development, found it spiritually transformative, and was fired when word spread at their shared workplace — prompting both men to seek unemployment benefits. 9. The Oregon Employment Division denied both claims on the grounds that they had been fired for work-related misconduct involving an illegal Schedule I substance. 10. The Native American Rights Fund, represented by attorney Stephen Moore, was so concerned about a potentially catastrophic Supreme Court ruling that it developed the Supreme Court Project — a strategy of brokering settlements to keep high-risk cases off the court's docket. 11. NARF negotiated a settlement with Oregon's attorney general that would have resolved the case, but only if Smith agreed to surrender both his lower-court win and his unemployment benefits. 12. Smith ultimately rejected the settlement after imagining his children one day learning he had sold out, telling his wife, 'Even if we lose the case, they're going to say, yeah, my dad stood up for what he thought was right.' 13. At oral argument, Justice Antonin Scalia pressed both sides on where to draw the line — citing marijuana religions, LSD religions, and, memorably, a law against human sacrifice affecting 'only the Aztecs.' 14. Smith's attorney Craig Dorsey argued that peyote was not proven harmful and that Oregon had failed the Sherbert test's compelling-interest requirement, noting that if Native Americans ran the U.S., alcohol would be the Schedule I substance. 15. Scalia's 6-3 majority ruled that Smith lost; more importantly, it abolished the Sherbert test, holding that neutral, generally applicable laws need no compelling justification even when they burden religious practice. 16. Garrett Epps notes that Scalia went far beyond what any party had asked for, and that scholars and advocates reacted in shock: 'This isn't even our case.' 17. Justice Harry Blackmun's dissent drafts included the word 'respectfully' before 'dissent,' then crossed it out — what Epps calls as close to a middle finger as the court has ever produced. 18. The ruling prompted immediate bipartisan interfaith backlash — from the ACLU, Democrats, Republicans, and Christians — all arguing that if it could happen to the Native American church, it could happen to any minority faith. 19. Listeners interested in Native American history, First Amendment religion doctrine, or the personal stories behind landmark Supreme Court decisions will find the episode compelling. 20. Those seeking a concise legal brief or policy analysis without narrative storytelling will find the episode long and character-driven.

As heard by us

A clear Supreme Court story about peyote, religious liberty, and who gets protection when faith meets law.

More Perfect's "The Supreme Court v. Peyote" traces a religious liberty fight from the Supreme Court's marble ritual to Oregon's refusal to treat peyote use as protected worship.

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You want the backstory behind the Court's religion fights.

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