(8 of 9)
But one of the most important religion cases in years, Employment Division, Department of Human Resources of Oregon v. Smith, confounded partisans on all sides and for once has united the forces that usually disagree on most church- state issues. Unlike the most controversial recent cases, Smith did not involve "establishment" issues, of the government getting too involved in some religious activity. Instead it focused on the free-exercise clause, which protects the right of individuals to adhere to their private religious beliefs. The case involved Alfred Smith and Galen Black, two members of the Native American Church who chewed peyote as part of their church's religious ceremonies. They were fired from their jobs as drug counselors and were refused unemployment benefits.
The challenge to the court in Smith was to decide when the government's interest in law enforcement should take priority over someone's private religious practices. The first major ruling on that issue came in 1879, when $ Mormons were forbidden to practice polygamy. One of the leading precedents was fixed in 1963 in Sherbert v. Verner, when the Supreme Court ruled that a worker who refused to work on Saturdays because it was a day of worship was still entitled to unemployment compensation. In that opinion, the court stated that government had to demonstrate a "compelling interest" in order to justify an infringement of religious liberty.
In their Smith ruling last year, the Justices could have used many rationales against accepting the use of peyote for religious reasons -- for instance, that the government has a compelling interest in keeping the workplace free of illegal drugs. But instead, by a 5-to-4 vote, they discarded precedent and decided against Smith and Black on entirely different grounds. Writing for the majority, Justice Scalia declared that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability.' " There was no need to use the compelling-interest test in such a situation, he said, because that would permit every person "to become a law unto himself."
For all the rifts among religious and civil-libertarian groups, this decision brought a choir of outrage singing full-voice. A whole clause of the Bill of Rights had been abolished, critics charged, and the whole concept of religious freedom was now imperiled. "On the really small and odd religious groups," said the University of Texas' Laycock, "it's just open season." The court itself was deeply split. In a spirited dissent, Justice Sandra Day O'Connor said the majority's stance "is incompatible with our nation's fundamental commitment to individual religious liberty." As a result of the uproar, Congress is considering a law to restore the compelling-interest test.
THE CHALLENGE
There is no predicting which way this court will go in a case like Lee v. Weisman. The basic split is not only between those who want to accommodate religion and government and those who want to keep the two separate. There is also a split on the court between those who defer to the government and those who continue to emphasize individual liberty.