I was clerking for Justice Sandra Day O'Connor in 1990 when the Supreme Court decided Employment Division v. Smith—a case that has had an outsize effect on all subsequent debate over religious liberty in the U.S. Two drug counselors in Oregon had been fired after they used peyote, an illegal drug. They argued that because they used the peyote during a Native American Church service, the First Amendment's guarantee of the "free exercise" of religion protected them from being penalized. The Supreme Court disagreed.
This was the first time that a believer had asked for immunity from a penalty flowing from a violation of criminal law. The decision was 6-3, and in his opinion for the majority, Justice Antonin Scalia surveyed the prior free exercise cases and concluded that the history of religious liberty required believers to obey neutral, generally applicable laws, like the Oregon law punishing illegal drug users.
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