Under the U.S. Constitution, the right to freedom of religion is protected by two separate

guarantees embedded in the First Amendment, a prohibition on religious establishment, and an

individual right to the free exercise of religion.

Our laws protect the rights of religious people to practice their faith as their conscience dictates,

and also the right to live out the obligations and acts commanded by their religious devotion.

Welcome to the Tikva podcast. I'm your host, Jonathan Silver.

Since 1990, the legal contours of the second of those two guarantees,

the free exercise of religion, have been defined by a landmark Supreme Court case,

Employment Division v. Smith, which significantly narrowed the protections afforded to people of faith.

The issue in that case had to do with two Native Americans who were terminated from their work

for smoking the hallucinogenic drug, peyote. The two men applied for unemployment compensation,

which was denied by the state of Oregon on account of

the fact that the reason they were terminated in the first place was because they had violated

the law prohibiting the possession and use of the drug. The two men claimed that the law itself

violated their free exercise of religion, and the case worked its way up to the Supreme Court.

Justice Antonin Scalia, writing for the majority, ruled that an individual's religious beliefs

do not excuse him from obeying a law prohibiting drug use that was neutral and generally applicable.

That is, the law did not specifically target a religious

group. Scholars of religious freedom have noted that the standard of a neutral and generally

applicable law is not the same as the traditional interpretation of the Free Exercise Clause,

according to which government may not burden religious people,

without a compelling interest, and even when it must do so, it must use the least restrictive

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