RELIGIOUS FREEDOM AND INDIAN RIGHTS: THE CASE OF OREGON V. SMITH by Carolyn Long. Lawrence, Kansas: The University of Kansas Press, 2000. 264p. Cloth $35.00. ISBN 0-7006-1063-4. Paper $14.95. ISBN 0-7006-1064-2.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College.

RELIGIOUS FREEDOM AND INDIAN RIGHTS is an extraordinarily accessible account of the tangled social, political, and legal processes that gave rise to EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH (1990), as well as its immediate political and legal aftereffects (the Religious Freedom of Restoration Act of 1994 and CITY OF BOERNE v. FLORES, 1997).

OREGON v. SMITH is the case of Alfred Smith and Galen Black, drug counselors who were fired from their jobs and denied unemployment benefits because they admitted using minute amounts of peyote as part of the rituals of the Native American Church. In their case, the Supreme Court held that the First Amendment Free Exercise Clause did not entitle claimants an exception to a facially neutral drug statute. Justice Scalia, writing for a bare plurality in a 6-3 decision, astonished the legal community by using the speech-act distinction to break with the then controlling "SHERBERT-YODER" balancing test, and its compelling governmental interest standard, to evaluate conflicts over free exercise and state regulations. Scalia rejected "SHERBERT-YODER" on the grounds that it related only to instances where free exercise concerns were correlated to freedom of speech or press interests. Absent those interests, Scalia (controversially) held that religious practices per se were not exempt from reasonable State regulations that were not designed to interfere with those practices.

Scalia's SMITH triggered something of a firestorm of criticism in the legal academy, among religious and ideological groups across the spectrum of American religion, and from civil liberties groups. In response, Congress passed the Religious Freedom of Restoration Act of 1994 (RFRA) that would have restored "SHERBERT-YODER'S" compelling governmental interest standard of review for laws that interfered with religious exercises. However the Supreme Court, in CITY OF BOERNE rejected Congress's restoration efforts as a rank violation of separation of powers.

Since 1990, law review articles aplenty (over one hundred according to Carolyn N. Long's count) have given themselves over to analysis of the supposed doctrinal strengths and weaknesses of Scalia's OREGON v. SMITH. Long's contribution to understanding SMITH, which is based solidly on interviews with parties to the struggle, should be juxtaposed to this analysis. RELIGIOUS FREEDOM AND INDIAN RIGHTS provides a compelling narrative of how sometimes reinforcing and at other times cross-cutting institutional, cultural, historical,

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professional, ideological, religious, partisan, and personal forces come together to constitute a legal conflict and its results. In effect then, this book provides an undergraduate and graduate audience a good opportunity to mine material needed to understand a case from the perspective of the "new institutionalism" (Gillman and Clayton 1999). Moreover, or to put the previous point in different way, there is perhaps hardly a better book than this one to impress upon students the prudence of the effort to integrate political, legal, and attitudinal models for understanding Supreme Court opinions.

Chapter One of RELIGIOUS FREEDOM AND INDIAN RIGHTS places peyote in historical, religious, and legal context. Chapter Two characterizes the early life struggles of Native-American Al Smith, in particular his bouts of alcohol abuse and the spiritual and cultural impact of the North American Church in his efforts to shape a more productive life for himself as a counselor at an Oregon county Alcohol and Drug Prevention and Treatment facility.

This chapter also introduces Galen Black, Smith's non-Indian co-worker and fellow alcohol and drug addict, whom Smith introduced to the North American Church and its peyote ritual. Once acquainted with Smith and Black, we are provided with the material facts behind Smith and Black's claims for unemployment insurance and Smith's Supreme Court litigation.

Chapter Three is a condensed and elemental overview of First Amendment free exercise clause jurisprudence that sets up "SHERBERT-YODER" as the controlling judicial standard for challenging State regulations. It also provides the level of review for Establishment clause jurisprudence to show its potential implications for the review of the claimants' litigation. Chapter Four covers the role of legal aid lawyers in Black and Smith's appeal for unemployment compensation. Chapter Five follows the appeal through the Oregon legal system, first a victory at the State Court of Appeals and then defeat at the Oregon Supreme Court. Along the way the chapter provides some good material for considering the extent to which legal craft--or the lack of it, legal personalities, and amicus participation shape, and in turn are shaped, by legal conflict.

Chapter Six provides a quick overview of the Supreme Court's certiorari process, and some of the legal and personal ins and outs of the process of constructing briefs for Black and Smith's appeals. Chapter Seven tells a short story of the transition from the Burger to the Rehnquist Courts, and it focuses, in effect, on why both attitudinal and jurisprudential factors of the Justices (related to free exercise clause interpretation) were taken into account by Smith's lawyers as they prepared for oral argument. The chapter then "reports" the Justices' comments in conference after oral argument in EMPLOYMENT DIVISION v. SMITH I and on the drafting process of opinions, using the journalistic device of a first-hand account. It also recounts how another case, LYNG v. NORTHWEST INDIAN CEMETARY PROTECTIVE ASSOCIATION (1988), announced before SMITH I, signaled to Smith's lawyers that a Rehnquist Court might not necessarily hold that the compelling governmental interest standard was required by the Free Exercise Clause.

Chapter Eight chronicles how, after LYNG, differences of opinion arose between Smith's legal aid attorney and legal representatives of the Native American Church about how to proceed with

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the Supreme Court's remand order of SMITH I to the Oregon Supreme Court for further First Amendment adjudication. Long also provides a nice characterization of the decision-making considerations of a politically ambitious state attorney general about whether to appeal the State's defeat in the case to the U. S. Supreme Court as a straight-up issue of the use of illegal drugs. She provides as well a consummate description of the complexities of planned litigation as representatives of the Native American Church, Smith's attorney, and Smith and his family debate whether to negotiate a settlement rather than proceed with the litigation process. Long is particularly effective in making the flesh-and-blood costs for Smith of these complexities a central component of her narrative.

Long's version of the oral argument and conference for SMITH and the legal facets of its drafting process come in Chapter Nine. On my reading, Long uses the excited negative reactions of religious and civil liberties groups to SMITH to generate and sustain the central conceptual question of the account, which is whether Supreme Court opinions ought to be understood as the "final word" for constitutional principles (more of this question in relation to Chapter Twelve).

Chapter Ten describes the failed effort of that broad spectrum of opposing groups to win a rehearing of SMITH. It also characterizes the consequent Congressional process of formulating a potential RFRA, concerns that even a RFRA would be insufficient to protect the use of peyote and Indian Religious rights, and efforts at the State level to draft legislation to that end. Chapter Eleven takes the reader through the Congressional process that culminated in RFRA. The primary focus here is on the intersection between the RFRA and abortion politics, and with concerns that the RFRA would give rise to burdensome legal challenges (e.g., inmate challenges to prison regulations.) This chapter is a rather sanguine representation of the possibilities of reform politics in the polity. It also draws attention to the American Indian Religious Freedom Act of 1978 that was amended to exempt Indian religious use of peyote, subject to "reasonable" Federal and State job safety regulations and compelling state interests in traffic regulations. This Act is still in effect and vulnerable to a CITY OF BOURNE-inspired challenge.

Chapter Twelve deals with some of the legal and political aftereffects of RFRA. Long indicates that religious liberty claimants were more successful under RFRA's statutory provisions than under "SHERBERT-YODER" case-by-case standards of adjudication. She also indicates a number of the political impacts of CITY OF BOURNE. These include subsequent State efforts to restore greater protections for religious freedom than SMITH provides, and the stillborn effort to draft Federal legislation to protect free exercise rights that would pass constitutional muster in the face of various potential constitutional obstacles, especially the Rehnquist Court's federalism jurisprudence. Long stipulates something of a preference for State remedies, although she is ambivalent about sole reliance on them to the extent that they do not provide uniform protections of religious liberty.

Chapter Twelve also provides two answers to the question about the Supreme Court having "the final word" about constitutional principles. At a non-case-specific level, Long endorses the general principle of multiple rather than Court-centered constitutional interpretation as best for the polity (pp. 275-76). However, at the

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case-specific level in regard to free exercise rights, Long would, in Mark Tushnet's phrase (1999), "take the Constitution away from the Court" (p. 274). The latter move is not unexpected. It is justified (at least for this pragmatist) by Long's palpable political sympathies with Smith and Black, her policy preferences for (at least) "SHERBERT-YODER," her preferences for state (and federal) action that provides the greatest degree of protection for religious liberty, and against Rehnquist Court jurisprudence.

With respect to the last, Long delivers what seem intended as a definitive knockout punch against a Court--or is it the Rehnquist Court?. She reminds readers that SMITH "is only a decision, and it is not the final word on the meaning of the free exercise clause" (p. 274). Accordingly she rejects SMITH as the "final word" most particularly because it is about such a serious issue and "the overwhelming disapproval of SMITH and widespread support" (p. 274) for alternatives to it. However, this rejection is rendered tacitly problematic by the statement, framed by scare quotation marks, that, "The Court as well as Congress, has been 'wrong' about constitutional issues in the past, and each will be wrong in the future" (p. 275).

If scare marks indicate Long's appreciation of the indeterminacy about criteria for framing rightly decided constitutional questions, then it follows that answers to the question about the Court's "final word" over any constitutional question are ceaselessly contentious, despite "overwhelming disapproval" for any specific Court doctrine. As Long points out at various points in the book, SMITH, as it was litigated and adjudicated, can be understood to be about more than, or other than, free exercise. It can profitably be read as a Federalism case, or a case about drug policies, or a case about civic obligations to abide by criminal laws. Apart from Long's treatment of it, SMITH might also be read more abstractly as a case about the various ways of understanding the indeterminate scope and generality of the First Amendment (Brisbin 1997: 183-87). Or, it might be read as posing the vexatious question whether religion, as a "precious fundament of human personality," can be served by either law or politics (Carter 1993: 270). Or, even more skeptically, SMITH might be read as a case about the indeterminacy and incoherence of First Amendment doctrine that is "always flexible enough to accommodate your agenda if you are skillful enough to take advantage of its flexibility" (Fish 1999: 197). What all of these alternative readings amount to is that it is altogether disputable whether SMITH ought to be "fixed," and which, if any, locus of power would be any "better" or "worse" at doing what is required to "fix it."

I draw attention to this problematic latent in the author's treatment of the central conceptual component of her narrative not to criticize RELIGIOUS FREEDOM AND INDIAN RIGHTS. Rather it is to recommend that readers could augment this book's significant contributions--one of which is poignantly expressed in the epilogue which comes back to the personal dimensions of the case--by considering materials that sustain the dispute about untroubled answers to the rightly decided question. That said, I want to stress that this is a highly commendable case study for reflecting upon how the law emerges out of conflicts over cultural frameworks, political strategies, personal and professional interests, and institutional power.

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REFERENCES:

Brisbin, Richard A., Jr. 1997. JUSTICE ANTONIN SCALIA AND THE CONSERVATIVE REVIVAL. Baltimore: The Johns Hopkins University Press.

Carter, Stephen L. 1993. THE CULTURE OF DISBELIEF. New York: Basic Books.

Fish, Stanley. 1999. THE TROUBLE WITH PRINCIPLE. Cambridge, MA: Harvard University Press.

Gatliff, John. 1998/1999. "City of Boerne v. Flores Wrecks RFRA: Searching for Nuggets Among the Rubble." AMERICAN INDIAN LAW REVIEW. 23: 285.

Gillman, Howard and Cornell Clayton. 1999. THE SUPREME COURT IN AMERICAN POLITICS, New Institutionalist Perspectives. Lawrence, Kansas: University of Kansas Press.

Tushnet, Mark. 1999. TAKING THE CONSTITUTION AWAY FROM THE COURT. Princeton, New Jersey: Princeton University Press.

CASE REFERENCES:

CITY OF BOERNE v. FLORES, 521 U. S. 507 (1997).

EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH, 494 U. S. 872 (1990).

LYNG v. NORTHWEST INDIAN CEMETARY PROTECTIVE ASSOCIATION, 485 U. S. 439 (1988).