R.I.P Smith and Frohnmayer (Oregon v. Smith)

As noted here, two people on the opposite sides of the Oregon v. Smith case died recently.  There were at least two major books (link provides good summary of this case*) on the case and the background provides a lot of drama, both for the Native American who wished to use peyote and Dave Frohnmayer, the attorney general of Oregon who argued the case when it returned to the Supreme Court.  Frohnmayer was a moderate Republican, one who did not ask for the broad ruling provided here.  He also had a tragic situation involving the health of his daughters, including in the last case a misdiagnosis that gave the parents a false hope. 

The path of Oregon v. Smith is fascinating reading but the ultimate judgment to me is tragic. The state supreme court provided a limited ruling: the denial of unemployment benefits has to requiring a compelling state interest tied to the unemployment law itself. Oregon law does not make mere violation of the law a reason for denial of benefits. The mostly forgotten first argument in this case touched upon this particularly Smith's attorney, who seems to have an employment law background.  It would seem that a drug counselor would have a particular responsibility not to use drugs here and that to me shows how a narrow ruling was possible. But, she noted that only a "willful" violation was enough under state law. A violation motivated by religion was not "willful" in that fashion.  A much narrower debate can be had here.

I really wish that was pressed instead of the broad approach used by the Court.  As Justice Blackmun noted in passing in his dissent (Smith II), the Supreme Court ultimately reached out to decide an issue not originally involved. Listening to both oral arguments, you get the sense that a criminal law was at stake. That is, someone was criminally arrested for using peyote. Oregon did years back hold that the criminal peyote law was constitutional under the state constitution, but overall showed no actual desire to enforce it.  So, especially if the special nature of drug counselors using drugs resulted in a narrow loss here, a practical religious freedom balance is quite possible here. The same allowed some freedom of religious activity to be protected nation-wide without the parade of horribles some suggest occurring.  The balance is not totally clean, but few things are.

The case to me seems a rank attempt to deal with sensitive issues (the Native American Church aspect only more so) that are best avoided if necessary. Reading about the case, you get the idea that Frohnmayer himself was in for larger game himself, including concerns about a dangerous sect that relied on religious grounds and another claimant that argued marijuana use was protected as well. And, Oregon itself has a stricter separation of church and state regime, resulting in more problems in his view respecting religious exemptions.  The result however in the real world, however, is somewhat similar -- the state actually never enforced the peyote ban, while marijuana use was targeted. If political branches can balance equities here, why not the courts? 

Justice Scalia in Oregon v. Smith set forth a basic rule that a general criminal law that is not targeted against a particular religion or involves some other right ("hybrid rights" dealt with cases like Wisconsin v. Yoder that did provide a religious exemption to general criminal laws) is allowed. And, criminal law could not target mere belief, which (like in the famous flag salute case) probably can be made into a free expression problem anyhow.  A later opinion underlined an important caveat -- only "outward physical acts" was involved here, so this doesn't give the government power to invade internal church decisions such as employment issues. 

It doesn't take too much creativity to fit the peyote usage here. And, F13 in the first opinion provides an extended citation of the meaning of free exercise under past case law.  The use of caveats does not erase that there was a clear understanding that religiously motivated conduct was protected, even if violations of criminal law was involved. RFRA underlines the broad acceptance of the resulting balance, imperfect as it might be. Unfortunately, as seen in the Hobby Lobby case, firmly putting such a rule in legislation itself leads to problems. Scalia in passing noted in oral argument that he would not have supported RFRA, but apparently the concerns he wrote about the limitations of the judicial process to equitably settle religious questions here only went so far. 

The concerns about providing a religious exemption to general laws is reasonable to some extent, but from the origins of this country, there have been exemptions.  Also, the First Amendment shows that there is -- forgive me -- an "establishment" of the recognition that religion itself is of particular importance here.  The term can be given a broad meaning and related conscience related concerns can and should be honored.  In practice, the weighing of effects of "outward" behavior here does require legislative action. It still is the case that court decisions provide checks and signposts about what is appropriate. And, when possible, we should avoid burdening religious exercise and that was quite possible here.

The requirement to deal with state laws here somehow was largely avoided by the federal courts and could have been here, if it was just treated as an unemployment case or a special situation (as was the case with the military or prisons generally). State laws generally still will cause some problems, especially if we look at how they truly are being applied. As to the feds, RFRA makes the federal courts' job harder.  And, Oregon? They passed an exemption for peyote eventually anyhow.  Seems like it didn't violate state constitutional rules.  Years of burden on certain religious minorities could have been avoided.

Finally, two things.  First, putting this all aside, I can see some possibility of a form of the Oregon v. Smith rule. Educating and raising children ala religious schooling choices is of particular importance. The "hybrid" approach can address various religious activities along with the other rules. I think the Native American Church issue -- given the special constitutional role in that area (e.g., the Indian Rights Act that provides various constitutional rights to tribal members but still allows tribal religious establishments) -- made this case itself avoidable.  

Second and related a clear look at governmental practice can point to selective treatment even of allegedly general applicable rules.  This shows how the lines in place cannot be applied mechanically.  If so, the religious burdens of the Hyde Amendment would be recognized and such a law that honors the conscientious beliefs of some over others would be struck down. And, what of the specter of marijuana use? The lawyer for the Native American peyote user argued history would suggest alcohol was a lot more dangerous to them than peyote; a doctor recently said the same thing regarding marijuana in respect to the health of young people. 

The narrow use of peyote that is exempted here is different from marijuana use and the attorney general was wrong to argue that the lines drawn in past cases were mere ad hoc result orientated.  But, net, we allow various practices and exemptions that bluntly speaking is more troubling than religious usage of marijuana. Marijuana usage is in part a matter of changing one's consciousness and the religious connection here is not really just plain silly. This aside from specific faiths that use it. General legalization here is a good idea, but I think we can defend bigamy laws and the like a lot more easily at the end of the day.

Anyway, rest in peace Al Smith and Dave Frohnmayer, you both live long and in various ways prospered. The fate of things are now for us to handle.

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* Frohnmayer was involved in multiple cases that reached the Supreme Court, and both individuals had lives beyond this case.  Nonetheless, as noted there, it was quite important for both.