THE STORY OF AND THE RHETORIC ABOUT THE SUPREME COURT'S "PEYOTE CASE": A Review of Two Books on a Leading Free Exercise Decision

Garrett Epps, To an Unknown God: Religious Freedom on Trial (St. Martin's Press 2001);

Carolyn N. Long, Religious Freedom and Indian Rights: The Case of Oregon v. Smith (Kansas 2000)

In 1990, the Supreme Court decided the landmark religious freedom case of Employment Division v. Smith. It ruled that, consistent with the Constitution's Free Exercise Clause, Oregon could refuse unemployment compensation benefits to drug counselors who broke state narcotics laws by ingesting peyote at a Native American Church service.

A hue and cry went up when the decision was announced. The Court purportedly had stripped the Free Exercise Clause of any meaning; prominent academics and religious leaders banded together in response to it. It was one of the most fascinating, if misbegotten, moments in the history of the Court's free exercise jurisprudence.

Professors Garrett Epps and Carolyn Long each set themselves the task of writing the story of the Smith case, but they produced two very different books. Both books contain interesting information — for example, that the ingestion of peyote in the rituals of the Native American Church may assist recovering alcoholics. Yet the scope and style of each is distinct.

Epps on Smith: Novelistic and Engaging

In his book on Smith, To an Unknown God, Epps has aimed to present the case in an understandable, readable manner. He succeeds tremendously. I found myself looking forward to returning to the book as eagerly as I would a well-written novel (Perhaps not surprisingly: Epps was a novelist before he became a law professor).

Epps limited his focus to the primary characters involved, giving equal time to Alfred Smith and Galen Black, the plaintiffs in Smith, and Oregon Attorney General David Frohnmayer, the defendant. The parallel stories are compelling and bring to the case an engaging human dimension.

But putting these minor flaws aside, the value of Epps' book (and it is tremendous) is that it is a book about the humans involved in a case no one knew would be a landmark.

Long on Smith: Informative but Turgid

Long's Religious Freedom and Indian Rights: The Case of Oregon v. Smith is the longer, and the more turgid of the two works. She admirably includes scads of information that Epps did not cover, both in terms of the background of peyote practices and the characters. Having read Epps first, however, I wished for his sparer style as I waded through her text. For those interested in more information about the case, though, hers is the book to mine.

With that said, a caveat is in order: one need be careful before swallowing the latter half of Long's book, which deals with the fallout of Smith. Both Epps and Long make the cardinal mistake of uncritically buying into the prevailing mythology about the place of Smith in the Court's free exercise jurisprudence.

The Smith Court surveyed the precedents, and concluded that it had not required strict scrutiny of laws that — like the peyote prohibition at issue in Smith — are generally applicable, but also happen to incidentally burden religious conduct. To bolster this conclusion, the Court cited many earlier cases where strict scrutiny was not applied — some of which were decided as early as the Nineteenth Century, and some of which were decided mere years before Smith. In the context of this precedent, viewing Smith as a dramatic change in the law is a stretch.

How Smith's Critics Overstated Their Case

Law professors like Michael McConnell and Douglas Laycock and religious leaders like Marc Stern and Oliver Thomas, who voiced heated disagreement with Smith, overstated their case.

The Court had not employed strict scrutiny in every free exercise case before Smith, as these critics of the decision insisted. On the contrary, only in the couple of decades before Smith, and only in literally a handful of cases involving unemployment compensation and mandatory education laws, had strict scrutiny been applied.

Epps and Long uncritically buy into this perspective without carefully examining its foundation — to the detriment of their works. They also both unfairly vilify Justice Antonin Scalia, who wrote the opinion for the Court in Smith.

A One-Sided View of the Religious Freedom Restoration Act

Epps stops there, thankfully, without further marring a highly enjoyable book. Long, though, only continues the biased perspective she has adopted in her description of Smith when she "describes" the legislative efforts and the players that followed Smith. The same zeitgeist that leads Long to turn Justice Scalia into the devil also leads her to give a very one-sided–this time, favorable–account of the legislation that followed Smith, the Religious Freedom Restoration Act.

Long makes clear she thinks the legislation is necessary and good, a position reasonable people have taken. I happen to disagree, but that is well beyond the scope of this review. Her focus, though, is solely on the proponents of the legislation, and in depicting them she abandons objectivity to bathe them in a rosy light.

Long clearly has interviewed at length the major players in the coalition that supported RFRA, but appears to have made no attempt to investigate the views of the other side. Moreover, she does not hold to searching scrutiny the agendas of those pushing for RFRA. There is no doubt that she is swimming in the waters of prevailing orthodoxy in the academy and the political arena, but more is expected of a book by a professor that presents itself as a recounting of the facts.

Both Epps' and Long's books provide enriching and engaging descriptions of the individual people who were caught up in the Smith case. But the book that deals more evenhandedly with the doctrine and the politics of Smith and RFRA has yet to be written.