Employment Division v. Smith — Neutral Laws of General Applicability and Free Exercise

Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), is one of the most consequential — and contested — First Amendment decisions of the twentieth century. In a 6-3 ruling written by Justice Antonin Scalia, the Supreme Court held that the Free Exercise Clause does not require religious exemptions from neutral laws of general applicability, even if those laws incidentally but substantially burden sincere religious practice. The case arose from the firing of two Native American substance-abuse counselors — Alfred Smith and Galen Black — who were dismissed after testing positive for peyote, which they had ingested in a sacramental ceremony of the Native American Church. Oregon denied them unemployment benefits on the ground that they had been discharged for job-related misconduct (peyote use, illegal under Oregon law). The Supreme Court upheld the denial, discarding the prior Sherbert v. Verner (1963) "compelling governmental interest" standard as inapplicable to facially neutral criminal laws. The decision triggered an immediate political backlash that crossed ideological lines: Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to restore the compelling-interest test by statute, and subsequent decades of litigation have defined the contours of both the constitutional floor established by Smith and the statutory protections layered on top of it. Employment Division v. Smith remains the governing constitutional standard for Free Exercise today, though the Supreme Court has progressively narrowed what counts as a "neutral and generally applicable" law — making the Smith floor harder to reach.

Current Law (2026)

Legal Authority

• U.S. Const. amend. I — "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" — the Free Exercise Clause; Smith interpreted "prohibiting" to exclude incidental burdens from neutral laws
• 42 U.S.C. § 2000bb — Religious Freedom Restoration Act (RFRA, 1993): "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" unless there is a compelling governmental interest pursued through the least restrictive means; applies to federal law
• 42 U.S.C. § 2000bb-3 — RFRA explicitly states that it "restores the compelling interest test as set forth in Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972)" — a direct congressional repudiation of Smith
• 42 U.S.C. § 2000cc — Religious Land Use and Institutionalized Persons Act (RLUIPA, 2000): applies RFRA-like protections to land-use regulations and institutionalized persons (prisons, jails)
• Sherbert v. Verner, 374 U.S. 398 (1963) — Pre-Smith standard: state cannot deny unemployment benefits to Seventh-day Adventist fired for refusing Saturday work without satisfying compelling-interest test; Smith limited Sherbert to unemployment compensation cases
• Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) — First post-Smith application: city ordinances targeting Santería animal sacrifice were not "neutral and generally applicable" and failed strict scrutiny; unanimously struck down
• Boerne v. Flores, 521 U.S. 507 (1997) — RFRA is unconstitutional as applied to state laws; Congress lacked authority under the Fourteenth Amendment's § 5 to restore Sherbert scrutiny for state actions; RFRA remains valid for federal laws
• Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418 (2006) — First unanimous RFRA ruling: federal government could not prohibit sacramental use of hoasca (a hallucinogenic tea) under the Controlled Substances Act without showing compelling interest
• Fulton v. City of Philadelphia, 593 U.S. 522 (2021) — Catholic Social Services' religious exemption claim: Philadelphia's foster care contract with an individualized waiver provision was not "generally applicable," triggering strict scrutiny; city failed strict scrutiny; Court declined (on 9-0 merits, with concurrences calling for Smith reconsideration) to overrule Smith

Key Mechanics

Employment Division v. Smith, 494 U.S. 872 (1990), established the current Free Exercise Clause standard: a law is constitutional under the Free Exercise Clause as long as it is (1) neutral (not motivated by religious animus) and (2) generally applicable (applying to everyone, not targeting religious practice specifically). Under this standard, the government does not need to justify neutral and generally applicable laws that incidentally burden religious exercise — no compelling interest is required. The rule was a dramatic departure from Sherbert v. Verner (1963)'s compelling interest test. Congress responded by enacting the Religious Freedom Restoration Act of 1993 (RFRA), which applied the pre-Smith compelling interest standard to federal laws; the Supreme Court struck down RFRA as applied to states in City of Boerne v. Flores (1997), but RFRA continues to apply to the federal government. Many states have enacted state RFRAs to reinstate the compelling interest standard for state laws.

How It Works

The facts: two counselors, one ceremony, a constitutional revolution. Alfred Smith and Galen Black worked as drug and alcohol abuse rehabilitation counselors for a private nonprofit in Oregon. Both were members of the Native American Church, in which the sacramental ingestion of peyote — a hallucinogenic cactus — is a central religious practice with roots going back centuries among indigenous peoples of North America. In 1984, they ingested peyote during a Native American Church ceremony. Their employer discovered this and fired them. When they applied for unemployment benefits, Oregon denied them on the ground that they had been dismissed for "misconduct" — specifically, violating Oregon's criminal law prohibiting peyote use, which at the time contained no exemption for religious sacramental use.

The Oregon courts had ruled in Smith's favor, applying Sherbert v. Verner's compelling-interest test and finding that Oregon had no compelling interest in denying benefits. The Supreme Court took the case and, in a ruling that surprised many court watchers, used the opportunity to fundamentally rewrite Free Exercise doctrine.

Justice Scalia's majority: neutral laws need no religious exemptions. Scalia's opinion for five Justices held that the Sherbert compelling-interest test had never been meant to apply to criminal laws of general applicability — only to cases involving individualized determinations by the government (like unemployment eligibility decisions). More broadly, the majority announced the central rule that would define Free Exercise law: a law is constitutional under the Free Exercise Clause as long as it is (1) neutral — not motivated by religious animus — and (2) generally applicable — applying to all, not targeting religious conduct specifically. Oregon's peyote prohibition satisfied both criteria. It was not enacted to suppress Native American Church practices; it applied to peyote possession by everyone regardless of religious motivation. Therefore, the incidental burden on Smith's religious practice required no justification beyond a rational basis.

The majority grounded its holding in a structural argument: if every person could exempt themselves from generally applicable laws by invoking religious belief, the law's ability to regulate collective conduct would collapse. "We cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order." The Court expressly recognized that this rule would sometimes produce "unfortunate consequences" for minority religious practices that lack the political power to obtain legislative exemptions — but placed the remedy in the democratic process, not the courts.

The dissenters: a devastating departure from precedent. Justice O'Connor concurred in the judgment but wrote separately to argue that the Sherbert compelling-interest test should have been applied — and that Oregon's asserted interest in preventing drug use would have been compelling enough to sustain the denial of benefits even under strict scrutiny. She accused the majority of abandoning "a settled and inviolate principle of this Court's First Amendment jurisprudence." Justices Blackmun, Brennan, and Marshall dissented, arguing that the majority's rule would render meaningless the Free Exercise Clause's special protection for religious minorities — the very people who need constitutional protection most, precisely because they cannot rely on legislative majorities to carve out exemptions for them.

Congress responds: the Religious Freedom Restoration Act. The Smith decision was met with near-universal condemnation across the political spectrum. Religious communities from evangelical Christians to Native American tribes to Jewish groups to civil liberties organizations united in opposition. Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 with nearly unanimous bipartisan support — 97-3 in the Senate, voice vote in the House — and President Clinton signed it. RFRA declared that government "shall not substantially burden a person's exercise of religion" without satisfying the compelling-interest/least-restrictive-means test, explicitly stating that the statute was designed to "restore the Sherbert and Yoder compelling interest test."

RFRA was initially understood to apply to both federal and state governments. But in Boerne v. Flores (1997), the Supreme Court held that Congress lacked authority under the Fourteenth Amendment's Section 5 to impose the compelling-interest test on state governments — because Section 5 only authorizes legislation that is "congruent and proportional" to constitutional violations, and Smith's rule meant that most neutral state laws don't violate the Constitution in the first place. RFRA remains valid as applied to federal laws and has been the basis for numerous challenges to federal regulations, from the contraceptive mandate (Hobby Lobby, 2014) to federal drug enforcement (O Centro Espírita, 2006) to prison regulations. Congress responded to Boerne by enacting RLUIPA in 2000, using Congress's Spending Clause and Commerce Clause authority (rather than § 5) to apply strict scrutiny specifically to land-use regulations and prison religious-exercise restrictions.

Post-Smith doctrine: narrowing what counts as "neutral and generally applicable." The decades since Smith have produced a significant body of doctrine narrowing the rule's scope. Two developments are most important:

Church of Lukumi Babalu Aye v. City of Hialeah (1993) established that laws that target religious practice — even if facially neutral — receive strict scrutiny. The city of Hialeah had enacted animal cruelty ordinances in direct response to the establishment of a Santería church, with the evident purpose of suppressing Santería ritual slaughter. The Court unanimously struck the ordinances: they were not genuinely neutral because they were motivated by religious animus, and they were not generally applicable because they were riddled with exemptions for secular animal slaughter while targeting specifically religious killing.

Fulton v. City of Philadelphia (2021) established that laws with systems of individualized exemptions are not "generally applicable" and thus trigger strict scrutiny when religious exemptions are denied. Philadelphia's anti-discrimination requirements for foster care contractors contained a provision allowing the city to grant individual exemptions at its discretion — but the city refused to grant Catholic Social Services an exemption from the requirement to certify same-sex couples as foster parents. The Court unanimously ruled that once the government creates an individualized exemption system, it must treat religious and secular exemption requests equally. Because Philadelphia granted exemptions to secular organizations but refused one to a religious organization, it violated Free Exercise. The Court's 9-0 ruling was technically narrow — it applied only to systems with individualized exemptions — and five concurring Justices (Thomas, Alito, Gorsuch, Barrett, and Kavanaugh in various combinations) urged the Court to go further and overrule Smith entirely, but no majority formed for that step.

The ongoing debate over Smith's future. Employment Division v. Smith is under sustained intellectual attack from multiple directions. Conservative Justices Thomas, Alito, and Gorsuch have written at length criticizing the ruling as historically unfounded and inconsistent with the Free Exercise Clause's text. Smith's critics argue that the Founding-era understanding of religious liberty included exemptions for sincere religious objectors from laws that would require them to violate their conscience. Liberal critics of Smith have a different concern: RFRA, enacted to restore the compelling-interest test, has been applied in ways that allow religious objectors to opt out of anti-discrimination requirements (like coverage of same-sex spouses' benefits) in ways that harm third parties. The result is a political coalition that is cross-ideological in its criticism of Smith but fractured over what should replace it. As of 2026, Smith remains good law — but it is the most precarious major constitutional precedent the Court has not yet revisited.

How It Affects You

If you practice a minority religion with rituals that conflict with generally applicable laws: Employment Division v. Smith means that the Constitution alone does not protect your religious practice from prosecution or civil sanction under neutral criminal laws. If your religion involves sacramental use of a controlled substance, unusual animal practices, unusual dress or grooming, or other conduct regulated by law, you need to look beyond the bare Free Exercise Clause for protection:

• RFRA (42 U.S.C. § 2000bb) applies to federal laws and agencies. If you're facing a federal regulatory burden on your religious practice, RFRA requires the government to show a compelling interest pursued through the least restrictive means. Courts have taken RFRA seriously — the Native American Church has obtained federal DEA accommodation for peyote use partly through RFRA; the O Centro Espírita Church won a unanimous RFRA case permitting sacramental use of hoasca despite the Controlled Substances Act.
• State RFRAs — about 22 states have enacted their own religious freedom restoration acts providing strict scrutiny protection against state-law burdens. The strength of these protections varies by state; some have been interpreted narrowly by state courts.
• Native American Church / peyote: Federal law now contains a specific exemption for Native American Church members who are enrolled tribal members (21 C.F.R. § 1307.31); many states have similar exemptions. If you are not an enrolled tribal member, the exemption does not apply to you even if you practice within the Native American Church tradition.
• The political route: if no statutory exemption exists, lobby your state legislature. Smith itself pointed to democratic exemptions as the appropriate remedy for burdened minority religious practices. A number of states have enacted religious exemptions from otherwise generally applicable laws following Smith.

If you are an employer managing requests for religious accommodation: Your obligations under Smith and Title VII are distinct. Smith sets the constitutional floor — neutral laws need no religious exemptions. But Title VII (42 U.S.C. § 2000e) requires you as a private employer to provide reasonable accommodation for employees' religious practices unless doing so would impose an undue hardship on your business. The Supreme Court's 2023 ruling in Groff v. DeJoy significantly raised what counts as "undue hardship" — a vague assertion of inconvenience is insufficient; you must show the accommodation would impose a substantial burden in the context of your overall operations. Required religious accommodations include schedule modifications for Sabbath observance, grooming or dress exceptions for religious requirements (hijab, kippah, turban, beard), and exemptions from policies that conflict with sincerely held religious beliefs. You cannot require employees to abandon or modify their religious beliefs as a condition of employment; you can require that accommodations not impose substantial operational burdens. Document your accommodation decisions carefully — the EEOC actively investigates religious discrimination and accommodation failures.

If you are a government official or agency subject to RFRA: Any federal government action that "substantially burdens" a person's religious exercise requires a compelling governmental interest achieved through the least restrictive means available. Since Fulton v. Philadelphia (2021) and Tanzin v. Tanvir (2020), government officials in their individual capacities can face monetary damages under RFRA if they substantially burden a person's religious exercise without adequate justification. Before denying a religious accommodation request or enforcing a regulation against a religious practice, your agency should document (1) what compelling interest is served by the enforcement, (2) whether a less restrictive alternative exists that serves that interest, and (3) whether similarly situated secular conduct receives more favorable treatment (which would indicate the law fails the neutral-and-generally-applicable test even under Smith).

If you are a lawyer or policy advocate working on religious liberty issues: Employment Division v. Smith creates a two-track system: the constitutional floor (Smith — neutral laws need no exemptions) and the statutory layer (RFRA/RLUIPA — compelling interest required for federal laws and land use/prisons). Strategy in religious liberty cases requires navigating both tracks:

On the constitutional track, the most productive post-Smith arguments are (1) the law is not genuinely neutral — it was enacted with animus toward a religious group (Lukumi); (2) the law is not generally applicable — it contains an individualized exemption system (Fulton) or exempts comparable secular conduct while targeting religious conduct; (3) this is a "hybrid rights" case that implicates free exercise plus another constitutional right (free speech, parental rights), which Scalia's opinion suggested might warrant heightened scrutiny (courts have split on this). On the statutory track, RFRA has proven to be a powerful tool when properly invoked — the compelling-interest test is meaningful, and the "least restrictive means" requirement has led courts to require the government to consider exemption mechanisms before denying religious accommodation requests outright. The five justices who explicitly called for revisiting Smith in Fulton (2021) have not assembled a majority, but the case for a post-Smith reconfiguration of Free Exercise doctrine remains actively litigated.

State Variations

Employment Division v. Smith sets the constitutional floor nationally — states cannot provide less First Amendment protection than Smith allows for neutral, generally applicable laws. But states can provide more protection, and many do:

• ~22 states with state RFRAs: Alabama, Arizona, Arkansas, Connecticut, Florida, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and others have enacted state RFRAs providing strict scrutiny for substantially burdensome state laws. The strength and interpretation of these statutes varies significantly; some states have judicial precedents interpreting their RFRA narrowly.
• States with broader constitutional free exercise protection: Several state supreme courts have interpreted their state constitutions' religious liberty clauses more broadly than Smith, independently of RFRA — including Massachusetts, Minnesota, and others. These states may require some form of heightened justification even for neutral, generally applicable laws.
• Peyote exemptions: Most states have adopted exemptions for sacramental peyote use by enrolled members of Native American tribes, following the federal exemption. The precise scope (enrollment requirements, extent of the exemption, enforcement) varies.
• RLUIPA and local governments: RLUIPA (42 U.S.C. § 2000cc), which applies to land-use decisions, binds state and local governments through Congress's Spending Clause authority (as a condition of receiving federal funding). Zoning boards and planning commissions must apply strict scrutiny before imposing substantial burdens on religious assembly, and cannot treat religious uses on worse terms than comparable secular uses.

Pending Legislation

No federal legislation specifically targeting Smith's constitutional rule is pending — that would require either Supreme Court overruling or a constitutional amendment. But statutory overlay legislation is active:

• RFRA Modernization proposals: Periodic proposals to clarify or limit RFRA's application — particularly regarding its use in third-party harm cases (allowing religious objectors to discriminate against LGBTQ+ individuals or deny employees healthcare coverage) — have not been enacted. The scope of RFRA's "third-party harm" exception remains contested in courts following Burwell v. Hobby Lobby (2014).
• The broader question of Smith's constitutional validity is not resolvable through ordinary legislation — it requires either a future Supreme Court ruling or (theoretically) a constitutional amendment.

Recent Developments

• 2024 — Smith reconsideration continues: The five Fulton concurrences calling for Smith's overruling have not yet produced a case where the Court grants certiorari specifically to reconsider the precedent; several pending petitions in the circuit courts involve neutral-applicability questions that could provide that vehicle.
• 2023 — Groff v. DeJoy: Supreme Court substantially raised the Title VII "undue hardship" standard for employer refusals to accommodate religious practices, moving from TWA v. Hardison's "de minimis" to "substantial in the context of the employer's overall business." The ruling does not directly modify Smith's constitutional rule, but significantly strengthens statutory religious accommodation protections for employees.
• 2021 — Fulton v. City of Philadelphia (9-0): Catholic Social Services' foster care contracts survived strict scrutiny under the "individualized exemptions" exception to Smith's neutral-applicability rule. Five Justices wrote separately calling Smith wrongly decided. Court declined to overrule Smith but significantly narrowed what counts as "generally applicable." See Religious Freedom Restoration Act.
• 2014 — Burwell v. Hobby Lobby (5-4): Closely held for-profit corporations can invoke RFRA to avoid the ACA contraceptive mandate. The ruling applied RFRA (not Smith's constitutional rule) but demonstrated the expansive scope of statutory RFRA protection for religious objectors — including for-profit businesses.
• 1993 — Religious Freedom Restoration Act enacted (near-unanimous, signed by President Clinton): Direct congressional response to Smith, restoring the compelling-interest test for federal laws. See Religious Freedom Restoration Act.