Thirty years ago, the Supreme Court issued a decision that held that the First Amendment does not protect people from skirting laws because of their religious beliefs. That case was brought by an Oregon man, Al Smith, who had been denied unemployment benefits when he was fired for ingesting peyote at a religious ceremony. But in recent years, the court has been chipping away at the precedent set in that case. Julia Longoria, the host of the podcast “More Perfect,” joins us to discuss Smith’s life, his case, and the implications it has for lawsuits in front of the court today.
Note: The following transcript was created by a computer and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. 30 years ago, the Supreme Court issued a decision that held that the First Amendment does not protect people from skirting laws because of their religious beliefs. The case was brought by an Oregonian named Al Smith. He was fired from his job after he took peyote at a religious ceremony. He then sued the state of Oregon when he was denied unemployment benefits. The justices found for the state, but in recent years, the court has been chipping away at the precedent it set in that case. The podcast “More Perfect” just did a deep dive into the Smith case. Julia Longoria is a host of “More Perfect”. She joins us now to talk about Al Smith’s life, his case and the implications it has for lawsuits in front of the court now. Julia, welcome.
Julia Longoria: It’s so nice to be here.
Miller: Why did you want to focus on Al Smith’s case? I mean, why revisit this case out of many, right now?
Longoria: I read about this case actually in high school, it was in my government textbook. I went to an all girls Catholic school. And I remember thinking, why can Catholics have wine, but Native Americans are denied their sacrament?
Miller: We’ll get to that; that was a question that justices asked?
Longoria: Absolutely, yeah. And so I read about it in high school and didn’t really look very much more into it, but it was something that stayed in my mind and then it turns out that there’s this big movement now to revisit that case, and the questions at the center of it. There’s actually mostly Christians suing now. Before it was Native Americans and minority religions. Now it’s majority religion folks suing to say that they should be allowed to sidestep anti-discrimination laws. So, Al Smith wasn’t allowed to sidestep a drug law. They say, well, he should have been, and we want to sidestep anti-discrimination laws and deny services to same-sex couples.
Miller: So that is the movement just in recent years, which we’ll get to as we go. But let’s go back almost 100 years and hear about Al Smith’s early years. He was born on Klamath land, a little more than 100 years ago and like so many Native Americans in this country, he was sent to, in this case, a Catholic boarding school when he was only seven years old. What did he experience there?
Longoria: I spoke to his wife, Jane Farrell, because Al Smith has passed away and she told me that he was beaten, that he had his fingers scrubbed till they bled, and really he was cut off from his family’s traditions, from his Klamath traditions for years and that experience had a big effect on him.
Miller: What was his early adulthood like?
Longoria: His early adulthood was, from what I could tell from the conversations I had, [it] was really defined by alcohol. He began to drink and drink in high school. He was drafted into World War II and he drank while on duty. He really struggled with alcoholism for much of his early adulthood.
Miller: When did he start to reconnect with his tribal heritage that he had been forcibly cut off from?
Longoria: Yeah, it’s interesting. He actually rediscovered his traditions when he entered Alcoholics Anonymous. And he actually had a vision, when he was sort of out on skid row, of God or some kind of spiritual messenger, that he actually took to mean his grandmother’s God. He used to listen to his grandmother pray in the Klamath language. And so that was kind of the beginning of him rediscovering his native traditions and then he actually became involved in Alcoholics Anonymous and traveled the country with a job for the federal government trying to bring Alcoholics Anonymous to Native people. And he met Native folks around the country who introduced him to their traditions. And it was sort of through that process that he kind of reconnected with Native America in a broad sense.
Miller: And then he eventually became involved with what’s known as the Native American Church. What is it?
Longoria: The Native American Church is a decentralized Indigenous religion. It’s practiced in different ways across different tribes, but really the defining feature of the religion is its sacrament, peyote. It’s ingested in ceremony by believers who believe it provides a way to talk directly to God. It is considered to be sort of like the flesh of God.
Al was introduced to the Native American Church sort of through these travels, asking people, what are your ways, how do you worship the God that you understand? And he was very hesitant to take part in the ceremony because peyote was classified as a Schedule 1 drug at the time and he was trying to stay clean. He had gone through great lengths to get sober. But ultimately, he decided that this was as close as he had come in his life to worshiping his grandmother’s God. And so he kind of got over a bit of, sort of a feeling that this wasn’t rightfully his, and decided that he wanted to worship in this way and he ingested peyote as part of the ceremony.
Miller: What were the circumstances, the employment circumstances that eventually led to his Supreme court case?
Longoria: Al Smith was an alcohol and drug counselor and he had a job as a counselor. And word got around at his job that he had been ingesting peyote, [and] in his boss’s mind, taking illegal drugs, and so he was given a warning, and he ingested it anyway and he was fired. And so he sued, when he was not given unemployment benefits, and that case made it all the way to the Supreme Court.
Miller: What was the specific legal question that the court had in front of it?
Longoria: The question was, can Al Smith, can Native Americans sidestep a drug law, under the First Amendment? So the First Amendment gives us the right to free exercise of religion, and he was claiming that he had a First Amendment right to take his sacrament and that Oregon was denying him that and violating the Constitution, as a result.
Miller: One of many things I learned in the episode is a delightful thing, that there was something known as a Sherbert test; from a Sherbert ruling, from early, I think the 1960s. What did the Sherbert case entail? And what was the precedent and the test that was based on it?
Longoria: The Sherbert case was in the sixties. It was kind of like the last time that the court had made a big statement about free exercise of religion. It was based on a case by Adell Sherbert, who was a Seventh-Day Adventist and she was fired, much like Al, for her Sabbath [which] was on Saturday and her job wanted her to work on the Sabbath and she refused, and she was fired and denied unemployment benefits. So the case, the court, in that case ruled for Adell Sherbert and Sherbert came to be sort of like this shield for religious people. If the government wanted to limit your religious freedom or prevent you from practicing your religion, they had to have a really good reason, a compelling reason, they say in the law, to do that. And so that Sherbert ruling in the sixties should have protected Al.
Miller: One of the more surprising aspects of your story, the podcast here, is that Al Smith was pressured by other Indigenous people to drop his case before the Supreme Court could hear it. It worked itself all the way up there and they called him and said, “Please don’t do this. We’ll make a deal with the State of Oregon. Just stop this case.” What were they afraid of?
Longoria: They were watching the Supreme Court at the time and there were other cases that other Native Americans had brought to the court and had lost. And so the Native American Rights Fund had determined that basically this Supreme Court is not friendly to our interests and they were pretty much convinced that the odds were stacked against Al, that he was going to lose. And so, if he lost, then the Supreme Court would make a statement that would endanger their sacred medicine across the country, because at that point peyote kind of lived in a legal gray area and an answer from the Supreme Court could be devastating, they thought, to their entire religion.
Miller: Can you tell us about the conversation you had with one of the senior attorneys from this Native American Rights Fund who had talked with Al? What did he tell you about that time?
Longoria: I was pretty moved by him, he really went back in time to that moment. He told me that he, in anticipation of our interview, had been up all night thinking about it, because he really struggled with whether he was doing the right thing. And he said that he was representing Native American Church members who just felt like Al, in being righteous and defending himself, was really just rolling the dice on Native American rights around the country. And they felt that that was the wrong thing to do. Of course
for Al, it was really hard to hear that and confusing, because he thought in his mind he was standing up for the religion and taking his fight all the way to the highest court.
Miller: Well, how did he deal with that pressure?
Longoria: I would love to let Al speak for himself, actually. Even though he’s passed away, one of the amazing parts of my reporting was that I was able to talk to Professor Garrett Epps from the University of Oregon. He has been watching this case for a very long time, and he actually sat down and did many hours of interviews with Al Smith, and he stored them actually on MiniDiscs. I don’t know if anyone remembers the technology, that lasted about 10 minutes.
Miller: I do, because I was a public radio nerd 20 years ago and it seemed like the height of technology at the time.
Longoria: Yeah. So unfortunately, it didn’t last very long, but fortunately, we were able to digitize it. And so Garrett Epps helped Al Smith come to life in 2023. So, let’s play that clip.
Al Smith [recording]: “So I came on home and talked to Jane and some people about what they do and of course they just said, ‘Well, it’s your decision. You decide what you have to do.’
“In the wee hours in the morning here, it was like it came to me. It’s like, your kids, the kids are gonna grow up and the case is gonna come up one of these days and they’ll say, ‘Your dad, Al Smith, well, he’s the guy that sold out.’ And I said, no, I’m not going to lay that on my kids, I’m not gonna have my kids feel ashamed. Even if we lose the case, they’re gonna say, ‘Yeah, my dad stood up for what he thought was right.’
“So I got a couple of hours sleep, phoned the attorney and told him, I said, ‘Well, let’s go to court.’ We went to Washington DC.”
Miller: So let’s turn to the arguments that the court heard. What did Oregon Attorney General, Dave Frohnmayer, focus on when he made his case to the justices?
Longoria: His whole argument, based on that Sherbert case, was like, Oregon has a compelling reason to deny Al Smith his benefits. And the core of that argument was that this idea that peyote is dangerous, and that the government should be able to protect its citizens from dangerous drugs. That was his point of view. And the justices pushed him on this, asking him well, what about, why not Catholic mass? Alcohol has been known to be dangerous. Why is that different? And Dave Frohnmayer’s position was, alcohol is not a Schedule 1 drug. There’s got to be a reason why peyote is a Schedule 1 drug at the time.
Miller: I was taken aback by one of Justice Scalia’s - and this was early on in his tenure at the court - one of his hypotheticals, that it involved human sacrifice. Can you explain how that came up?
Longoria: So Scalia was trying to make this point. And pushing Al Smith’s lawyer to say that governments should be allowed to make general rules, like a drug law. It’s a general rule, it’s not targeting a religion. And Al Smith’s lawyer said, “Well, yeah, it’s not targeting the religion in the words it’s using, but it is targeting the religion” in that like, this is the religion, this is the peyote religion. And so Justice Scalia responded, saying that, “You could argue that a law against human sacrifice would only target the Aztecs,” which was a pretty off color way to put that, but that was the point he was trying to make.
Miller: What did the court end up ruling?
Longoria: The court ended up ruling against Al Smith and Justice Antonin Scalia wrote the opinion, and he kind of jumped off of some of the things he said in oral argument, saying that like, governments should be able to make general rules. He essentially got rid of the Sherbert Shield, and made it a lot easier for governments to limit religious freedom. As long as the law was general and didn’t target a specific religion on its face, or that you couldn’t prove they were targeting a religion, then the law was fine.
Miller: The First Amendment, as you noted earlier, I mean, it says that Congress will make no law prohibiting the free exercise of religion. How does the Smith Decision square with that?
Longoria: Yeah, I mean, it’s a good question. The test that Scalia came up with, the idea is that if you do prove that the government is targeting a religion, then that violates the First Amendment. But it’s hard to see, this case really did limit First Amendment freedom in the U.S. And we are grappling, the Supreme Court today is grappling with this case, and whether it should stay the landmark decision that it’s been for 30 years.
Miller: I want to play another clip from your episode. This is from an exchange that you had with Steven Moore, from the Native American Rights Fund.
Steven Moore [recording]: “When Scalia and the majority rendered their decision, that was just another insult that was leveled on Indian country. Like you’re now telling us that we do not…our religion, one of the oldest, most venerable religions in the western hemisphere, has no protection under the U.S. Constitution.”
Longoria [recording-narration]: This was a 6 to 3 decision. Steven tried to make sense of what had happened. He even went to the Library of Congress and read Justice Harry Blackmun’s dissent, including drafts of it.
Moore [recording]: “In the first draft of his dissent, that was written by his law clerks, it was typed, ‘I respectfully dissent,’ and there was a big X through the word ‘respectfully.’ So Harry Blackmun struck the word respectfully.”
Longoria [recording]: “A sort of middle finger.”
Moore [recording]: “As close to a middle finger that I’ve ever seen on the court.”
Miller: Julia, you mentioned that one of the reasons you want to look into this is because this issue has come back to the court multiple times in recent years. How has the new court handled similar questions in recent years?
Longoria: So it’s important to note that the politics of religion have changed. When Al Smith was suing, when Adell Sherbert was suing, we saw minority religions coming to the court and saying they were being discriminated against. A lot of the cases before the court today are majority religion. So, Christians, in the last few terms have sued to say that they want to sidestep anti-discrimination laws, and they say Al Smith should have been allowed to sidestep a drug law. And they’ve actually asked the court to overturn Al Smith’s case, it’s interesting what the court is doing. They’ve ruled quite narrowly. And they’ve ruled for the Christians, saying that it’s OK for them to sidestep an anti-discrimination law, but just in this case and they haven’t gone as far as to overturn Al Smith’s case.
So it’s an interesting moment, in that it feels like the court is getting ready to maybe overturn Al Smith’s case but isn’t doing it. It’s interesting to watch.
Miller: As we heard earlier, Al Smith said that he decided to go forward with this case despite pressure from some Native groups because he wanted his children to know that he was a fighter. What did you hear from his daughter, Ka’ila Farrell-Smith, about what this case has meant to her?
Longoria: This really was one of the most moving parts of the reporting for me and I’d love to play what she said to me. Let’s play that clip.
Ka’ila Farrell-Smith [recording]: “I’ve had intense dreams where he shows up [and] I’m like, oh my God, my dad’s here, that has definitely happened since I’ve been home. And I don’t know, it’s good. Sometimes I wake up, like I woke up in a dream and it was like he was real, like he was right there. I remember just hugging him and I woke up crying. I was like, oh my God, I got to see him again. Like right now I’m getting emotional thinking about it.
“So I kind of made a pact with my dad. I was like, ok, well, when I’m making art or doing art, that’s when we can hang out, and I was like, or in the water. That’s why I spend a lot of time kayaking, that’s my way of being with him. I’ve taken my mom down the Williamson River kayaking, and there’d just be huge bald eagles that just fly right over you and land in the trees and she’s like, ‘That’s Al!,’ and I’m like, sure.
“The water, this land, this place, Al was taken at the age of seven years old. It is hard stuff. I’m just like, everything doesn’t have to be such a hard memory. I’m like, let’s make new memories.”
Miller: Julia, what cases about religious freedom are before the court right now or soon to be before the court? We have about a minute left.
Longoria: Well, before the court right now is a case called 303 Creative where a Christian wedding website designer is telling the court that she wants to sidestep anti-discrimination laws and deny her services to same-sex couples. The court is actually not ruling that on religious grounds. It seems they’re ruling it on different grounds, which is a wonky way of saying that they probably won’t have an answer about Al Smith’s case in that decision. But we’re waiting on a decision in that case this term.
Miller: Julia, thanks very much.
Longoria: Thank you for having me.
Miller: Julia Longoria is the host of the “More Perfect” podcast. One of the recent episodes is about Al Smith’s case. He sued the State of Oregon. He had been denied unemployment benefits after he was fired for ingesting peyote at a religious ceremony. The justices found that the First Amendment does not protect people from skirting laws because of their religious beliefs. But in recent years they have been slowly chipping away at their own precedent.
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