Episode Transcript
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1:59
This is a big legal
2:02
cause of conservatives in America,
2:04
which is telling religious institutions
2:07
and religious people that they don't
2:09
have to follow the laws that everyone else has to
2:11
follow. Just this term,
2:13
they accepted another case where
2:15
a Christian wedding website designer is
2:18
asking the court if she can duck an
2:20
anti-discrimination law and deny
2:23
her services to same-sex couples.
2:26
Over and over, the
2:28
court keeps taking on this same
2:30
kind of case and saying, yeah,
2:33
it's okay if you sidestep the law,
2:35
but just this one time.
2:38
They stopped short of making a sweeping statement
2:41
about our freedom to do that. The
2:44
last time they made a sweeping statement
2:46
about our right to freely exercise our religion,
2:50
it was not pretty. People
2:53
across the political spectrum criticized
2:55
the court for weakening our
2:58
First Amendment. It
3:00
was in 1990, and it involved
3:02
a man named Al Smith.
3:05
Thank you for poking with the Eugene New Port. Shut
3:08
up your face. This
3:10
man is not Al Smith. Just
3:13
so I have it on tape, can you say just who you are?
3:15
I'm Garrett Epps, and I teach
3:18
constitutional law at the University of Oregon.
3:20
When I was looking into Al Smith's very
3:22
controversial case, everybody told
3:24
me, you've got to talk to Garrett Epps.
3:26
I had the great good luck a
3:29
quarter century ago to meet and interview Smith.
3:32
Al Smith died in 2014,
3:35
but much of the drama of his case, where
3:37
he broke a state drug law for religious
3:39
purposes, took place in
3:42
Oregon, where Garrett Epps lives.
3:45
I can't thank you enough for
3:47
picking me up at the airport. I'm so excited. You've
3:50
been waiting. I have. For
3:53
a scholar of the law, Garrett had
3:55
an unusually intimate look
3:58
into the personal drama behind this case.
3:59
He still remembers the first
4:02
time he met Al Smith. It was quite
4:04
dramatic. My son was
4:06
at Roosevelt Middle School here in Eugene. They
4:09
had a thing called the Cultural Heritage
4:12
Fair. And every sixth grader
4:14
does a little poster about what
4:16
they consider to be their cultural heritage. It's fascinating to
4:18
see what they pick.
4:20
Garrett says he was walking around the fair. One
4:23
kid did a poster on the gold miners in
4:25
her family. There was his son's poster
4:28
about their family's five generations
4:30
of
4:30
lawyers. And there
4:32
was this booth with this distinguished
4:35
looking, very impressive old
4:37
man sitting in a chair. He is
4:40
the poster,
4:41
right? The living human being. This
4:43
young girl, she says, this is
4:45
my father, Al Smith.
4:48
Everybody brought posters and you brought your
4:50
dad. I
4:52
would do that. Yeah, I would definitely do that. I would be like, dad, come on,
4:54
there's a school thing. That
4:57
girl was Ka'ila Farrell Smith,
4:59
Al's daughter. She still lives in the area.
5:02
He was a very dark skinned man. Long
5:05
black hair. You know, he always had his cowboy
5:07
hat. He kind of got into the super Indian
5:09
look. People were proud to be Indians again.
5:11
And then he always had these red nikes,
5:14
like high tops. Al Smith used to joke
5:16
about how he didn't have an Indian name. Ka'ila
5:19
says when he'd go out to eat,
5:21
he'd reserve a table under a fake name. So
5:24
he would always write down red coyote. People
5:26
would be all red coyote and they'd look up
5:28
and this Indian guy would walk by. And that
5:30
was his thing. And it
5:33
was just like a way to like mess with people, I guess. It
5:35
was like giving the people what they wanted. What they
5:37
wanted, like a spectator thing. Al
5:40
spent his life searching for an authentic
5:42
way to practice his own native traditions.
5:45
And that was hard
5:47
because he'd been cut off from them as a kid.
5:48
He wasn't really raised
5:51
around native culture and ceremonies. And
5:53
that's kind of how he told his story. But
5:55
by the time I was born, it was 100% like
5:57
his life.
6:02
life. This
6:08
week on More Perfect, we tell the story
6:11
of Smith. Al Smith. He
6:13
had that humor that
6:16
could take you out of depression
6:19
in a heartbeat.
6:19
The remarkable and complicated man.
6:22
He was definitely combative, but in
6:24
his own way. And Smith.
6:27
The Supreme Court
6:28
decision that so many people
6:31
love to hate. And you know, I wanted,
6:33
I have wanted, I spent years wanting Smith to
6:35
be overturned.
6:38
Be
6:38
careful what you wish for.
6:56
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slash more perfect. Think
8:59
back to the last time you asked yourself, why
9:02
did I do that? Regret is actually
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9:11
I'm Shankar Vedantam, host of a podcast
9:14
called Hidden Brain. In every
9:16
episode, we uncover surprising
9:18
and useful insights that will help
9:20
you thrive. Join us as
9:22
we reveal what's in your Hidden
9:25
Brain.
9:31
Good to meet you. So nice
9:33
to meet you. Come on in. That
9:35
smells so nice in here. Aww. Do you want me
9:37
to take my shoes off? Yeah, that'd be great.
9:40
Sage had been burning at Al Smith's
9:42
house when I got there. Well, I'm
9:44
Jane Farrell, and I was
9:47
married to Al Smith for 35 years,
9:49
and we have two children together.
9:52
I picked up Al's widow Jane in my rental
9:54
car, and we met up with their daughter, Ka'ila.
9:57
So this is it. This is all my family's land.
9:59
for a tour of Al's
10:02
ancestral homelands. It's now
10:04
southern Oregon, and it no longer
10:07
belongs to the Klamath people. They
10:09
were one of 109 tribes that were terminated. The
10:14
U.S. government at one point wanted to assimilate
10:16
tribes that were, quote, ready for
10:18
that. So in 1954,
10:21
it stopped recognizing the Klamaths, sold
10:24
off their tribal lands, sent them
10:26
a check. Federal recognition
10:28
was eventually restored in the 80s, and
10:30
recently, Ka'ila bought property
10:32
nearby. There's
10:37
Mr. Smith. They took me
10:39
to Al Smith's grave, which was overgrown
10:41
with weeds. You can tell it's cowgrass.
10:43
It's not native. I
10:47
don't feel like the writing is really holding up
10:49
on this marble, you know? We
10:52
could barely make out the words on his tombstone. So,
10:54
gosh, it's not... it's
10:57
not... legible.
11:00
This is a man whose name is repeated over and
11:02
over in the mouths of lawyers
11:04
and Supreme Court
11:05
justices, but in court records,
11:08
Smith, the decision, is completely
11:10
divorced from Al Smith and
11:12
the life he lived. It's Alfred B. Smith, November
11:15
6th, 1919. November
11:19
14th.
11:19
November
11:22
14th.
11:26
Al Smith was born on a little patch of green along
11:29
a riverbed at his grandma's house.
11:34
The soundtrack to his childhood on tribal land was oars paddling
11:36
on the Williamson River, the
11:39
bark of his dog, and at
11:41
night, the sounds of his grandma
11:44
praying. I
11:54
know this because of Garrett Epps. The
11:57
Feast of Many Discs. He
11:59
had the four-sided. to record his conversations
12:01
with Al on now obsolete
12:04
mini-discs. Here we go, Al Smith, 6-21-95. I
12:09
get married, my grandma used to pray in India every
12:12
night, see? You didn't know what she was saying.
12:15
No. Al never learned
12:17
what her prayers meant in the Klamath language
12:20
because at about age seven, he
12:22
was taken from his tribal home and sent
12:24
to a series of Catholic
12:25
boarding schools.
12:28
This was part of a concerted effort by
12:30
the U.S. government to get Native children
12:32
ready for assimilation
12:34
by cutting them off from their Native traditions.
12:38
Many of these boarding schools were notorious
12:40
for sexual and physical abuse.
12:43
I mean, he was the little boy who got
12:45
his fingers scrubbed till they bled
12:48
and, you know, was beaten and sure, they
12:50
were very cruel. And that was the point
12:52
where he would describe and many of his stories
12:55
that you can hear where he would say, I learned about
12:57
high fences. High
12:58
fences, cement yards. And cement
13:01
yards. These huge buildings that I
13:04
had lived in. And he lost his freedom.
13:07
I mean, he recognized that, that there was that moment
13:09
where he lost his... It gets me a little teary.
13:12
But
13:12
you obviously didn't like it because
13:14
you ran away. You just told me three times? Or
13:17
more. I started running away,
13:19
I guess, in fourth grade, maybe.
13:22
I walked out of railroad tracks and
13:25
waited for training to come by so we'd catch him. By
13:28
the time he finally did escape boarding
13:30
school, he was already a teenager. High
13:33
school was like kind of the beginning
13:36
then of alcohol.
13:38
Alcohol. After
13:40
a childhood spent shut away from
13:42
his culture, he was back in a home
13:44
that now might have felt foreign
13:47
to him. He drank through high
13:49
school. One day he got into a
13:51
bar fight, ended up in jail
13:53
for 90 days, and caught a freight train
13:56
to Portland. How did you live? Did
13:58
you work day jobs? Oh, no, hand
14:00
work. Hand handling and... Hand
14:03
handling, robbing, stealing.
14:07
Tough life, huh? It
14:09
was kind of fun. He
14:12
kept drinking when he was drafted into World
14:14
War II. At boot camp
14:16
in the Jim Crow South, Jane
14:19
says
14:19
he was forced to drink from black-only
14:21
water fountains because of his dark
14:23
skin. He then drank while
14:26
on duty. And they said, you
14:28
know, Mr. Smith, I think you might be an alcoholic.
14:31
He said he'd never heard the word before.
14:33
By 1957,
14:36
Al was back on the West Coast drinking
14:39
again, living on the streets of Sacramento.
14:42
He was very sick, you know, and
14:44
dying. He
14:47
felt like that was his moment. Rock
14:49
bottom. And he said he literally
14:51
had a vision, and this little man had appeared
14:54
to him. It was almost like a divine
14:56
messenger. This little man said,
14:58
if you don't stop drinking,
14:59
you're going to die. So
15:02
I just flopped over and just
15:04
started to sweat it out. Al
15:11
made his way back to Oregon and
15:13
started going to Alcoholics Anonymous meetings.
15:15
I got around to taking a look at the 12
15:17
steps. And when he got to step three
15:20
of the 12 steps, make a decision
15:22
to turn our will and life over
15:24
to the care of God. His
15:27
mind went first to the Catholic boarding
15:29
school God. Screw that God. I'll
15:32
try to remember my grandmother's God. That'll
15:35
be my God. God that I didn't even understand.
15:38
So
15:40
that was
15:40
the beginning of the change in my life. I
15:43
had to learn to live all over again, how
15:46
to behave differently, how
15:49
to treat
15:51
people, how to treat myself, a
15:54
whole new ballgame. Rediscovering
16:01
his grandmother's God through AA
16:04
changed Al's life. His
16:06
story was so compelling. He
16:08
was asked to speak at AA meetings, and
16:11
he became Indian Al.
16:13
In the 1970s, Al began to make
16:15
a name for himself, helping other Native
16:18
people find sobriety. He traveled
16:20
the entire country. He took a
16:22
job with the Alcohol and Drug Commission,
16:24
traveled to different tribes, talking
16:27
with tribal counsel about
16:30
alcoholism. And in the process, he
16:32
was introduced to a wide array
16:35
of tribal ceremonies. So he would ask clients,
16:38
you know, well, you're not a Christian. What are your ways? What are
16:40
your ceremonies? How do you
16:42
relate to the God that you understand?
16:45
Ceremonies that U.S. policy had
16:47
tried to erase when they were placing
16:49
Native kids in boarding schools.
16:51
We go to Sundance, or we
16:53
do sweats, or they would say, I'm
16:56
a Native American church member.
16:58
And that was where he had first run into
17:00
the Native American church. The Native
17:02
American church is a decentralized indigenous
17:05
religion, practiced in different ways
17:07
across different tribes. But the
17:10
defining feature of the church is
17:12
its sacrament. When he
17:14
was invited to this ceremony, you know,
17:17
it was a dilemma for him because
17:19
of the peyote.
17:21
Peyote, the cactus
17:22
plant with hallucinogenic properties.
17:26
At ceremony, believers take a small
17:28
button or two of peyote.
17:29
You've got years and years and years of sobriety.
17:32
You're about to mess with that, man.
17:35
He took his sobriety very, very seriously
17:38
and never did not chippy A round. I
17:40
mean, Al was clean and sober.
17:43
I'm telling him no cannabis, no nothing, right? He
17:46
wouldn't even take a vitamin. I mean, he didn't
17:49
take pharmaceuticals like
17:51
Al was. He was clean.
17:55
saw
18:00
peyote as a drug. On
18:03
top of that, from what we can tell, the
18:05
Native American church wasn't part of Al's
18:07
family's traditions. He was
18:09
always merely a guest. I'm a guest,
18:12
I'm an honored guest in these ceremonies
18:15
that I don't have my own ceremonies. He
18:17
never felt authentic enough questioning
18:20
that this was something that was
18:23
rightfully his.
18:26
Al struggled with this decision.
18:29
He went through a lot of mental
18:32
gymnastics and having to think about
18:34
this and talk to a lot of people.
18:36
He talked to Native American elders, talked
18:39
to friends. They told him,
18:42
it's not that kind of a drug. It's
18:44
a medicine that could be a part
18:47
of his life's healing.
18:51
Peyote is believed to be the flesh of
18:53
God that allows you to talk
18:55
to creator directly.
18:57
And even if it wasn't his grandmother's
19:00
God exactly, it
19:02
felt more authentic to him than anything else
19:04
he'd come across. The ritual,
19:07
everything, the songs, everything else. Al's
19:10
friend, Jack Lawson, was there
19:12
the night he ate peyote. Staff and
19:14
rattles and people were singing and
19:17
it's an all-night ceremony. It's
19:20
beautiful. And
19:23
they made Al the cedar man, which was
19:25
a primary role within the meeting
19:27
itself. And it was just
19:29
like he belonged there.
19:39
This was around the first time Jane
19:42
and Al met, near Klamath Lands
19:44
in Oregon. They fell in love, got
19:46
married, eventually had a
19:49
kid. Yeah, go here, I'll show you a drawing. Ta'ila.
19:52
Oh, wow. It's like drawing
19:54
it in the... Oh my God, this is amazing. Ta'ila
19:57
is actually an artist and she got her start
19:59
very early. drawing portraits
20:01
of her dad. He has gray
20:03
pants. It's definitely a stick shift
20:06
car, because you can see all three of the pedals.
20:08
He's got his driving gloves on. He
20:11
would show up looking great, and then
20:14
he'd find guys hung
20:17
over on the street. He'd pick you up and buy you
20:19
lunch, you know? And that's where a lot of people
20:22
are like, to this day, like, oh, Al
20:24
saved my life. I mean, that's just people talk
20:26
about him like that.
20:28
Al was a relatively new dad to Kailah
20:30
when he took a new job at a recovery
20:33
center in southern Oregon. Unlike
20:35
his previous work with tribes around the country,
20:38
this time Jane says he'd be
20:40
the only Indian counselor. I'll never
20:42
forget, new job, set
20:44
your desk up. He puts all
20:46
his little pencils and pens, and
20:49
we took a big Pendleton blanket and put
20:51
it up on the wall. Beautiful royal
20:53
blue, and
20:55
he's going to smudge his new office. So
20:58
he burned some sage, and sort of like
21:00
you fresh the air and clean and bring
21:02
in, you know, good energy. So
21:05
he gets a little lighter there, gets
21:07
it going, smoking,
21:10
getting that smudge going, clean
21:12
in the room. And
21:13
all of a sudden, the entire
21:16
fire system alarms
21:18
go off in this building. And
21:22
they come rushing in, and
21:24
it was this, the first cultural,
21:28
what do you call this? A, a cultural
21:32
clash. And they were literally
21:34
like, what the heck? Like,
21:37
I think they actually thought he was up there smoking, or
21:39
maybe even smoking wheat. Yeah. And
21:42
so, okay, well, we have to, he had to explain,
21:45
you know, it's don't get upset.
21:47
It's just some sage. This is what we do.
21:51
Well, you can't do it in here because there's
21:53
fire alarms. Okay. Got
21:56
it.
21:57
Won't do that again. when
22:00
we met Galen Black. Galen
22:02
Black was one of Al's new colleagues
22:04
at his new job. Wait, are you Galen? Galen,
22:08
hi. Black is
22:10
a warm white guy in his 70s. Um,
22:13
can I shake your hand down?
22:14
Thanks. Also
22:17
a hugger. Amazing, so I got this
22:19
furry mic. Al and Black become friendly. Al
22:22
invites him over to the house, and Black
22:24
starts to learn more about Al's experiences
22:27
with the Native American church.
22:29
Galen was really interested, and
22:31
so we talked quite a bit about,
22:33
you know, Native American culture and spirituality.
22:36
There was a meeting coming up, and Black
22:38
asked if he could go. Al
22:40
got sick and ended up not being able to go
22:42
with him. He said, why don't you go? I
22:45
bet you'll learn something. So
22:49
Black went. He told me he
22:51
went as a guest. He thought of
22:53
it like professional development for his
22:55
job counseling Native people who struggled
22:57
with addiction.
22:59
So as the ceremony progressed, I
23:02
took that little bitty pencil size, the
23:04
eraser size, and
23:07
I prayed, you know, help teach me,
23:09
help me open my mind up so I can
23:11
help others in
23:13
this treatment.
23:16
And lo and
23:18
behold, that's exactly
23:20
what I got.
23:23
I felt an instant, solid
23:26
connection with everybody in that ceremony.
23:30
My heart was opening up. My heart
23:33
was learning new things. My
23:35
heart was becoming more happy. And
23:38
it was something I had never experienced before.
23:44
I had went back and talked to one of the other
23:47
employees about how great this was
23:49
of an experience.
23:52
And that became a problem. Word
23:55
was spreading around the office that this
23:57
drug and alcohol counselor was going out into
23:59
the office.
23:59
the woods and taking illegal
24:02
drugs. And my
24:04
bosses told me that I had two
24:06
options, you know, well,
24:09
three options, quit, be fired or
24:11
go to treatment.
24:12
I said, what am I going to go to treatment
24:14
for? You're out there chipping.
24:17
You're out there chipping away using drugs
24:19
and as a counselor, you shouldn't
24:21
be doing that.
24:22
And just like that, Black was
24:24
fired. A
24:27
little while later, as another peyote meeting
24:29
was in the works, Al's boss gives
24:32
him a warning. He advised
24:34
me not to take any peyote. He
24:39
said, well, who the hell are you? You told me I can't go. See,
24:41
then I had to dance balls to
24:44
stand up and say in a sober, sober
24:46
way, screw you.
24:49
So I went and ate
24:51
a lot of peyote. I remember it was
24:53
over in the coastal Hills here. You
24:56
know, they put up a teepee and it
24:58
was a, it was a beautiful ceremony. They were
25:00
there. Uh-huh. I was there and Kyla
25:02
was a baby. We, she slept
25:05
in the back.
25:06
When we brought young children in, we would kind
25:09
of bed them down behind us in their
25:11
woolies and sleeping bags. And then
25:14
the children just sleep all night, you know, while
25:16
the adults sit up, pray
25:18
and sing. So the ceremony
25:20
was over. That was a Saturday night. And then
25:22
of course, Sunday was rest day. And
25:25
then Monday, he went to work.
25:30
And his boss asks him, did you take any peyote? Well,
25:33
I took the sacred sacrament
25:35
and prayed for you. The
25:39
rest of you sick mothers. I
25:42
got fired.
25:45
And he literally came home Monday evening with
25:47
his little box. With that pedal blanket off
25:49
the wall. And
25:51
that was it. He's done. He's
25:54
fired. And here we are. We
25:55
got rent to pay. What
25:57
happened to
25:58
you? And next is
26:01
the crux of Employment Division v.
26:03
Smith, the case that went to the Supreme
26:05
Court. Al and Galen
26:08
Black wanted to collect unemployment benefits,
26:11
and Oregon's Employment Division is like,
26:13
no, you got fired for work-related
26:16
misconduct, taking illegal
26:18
drugs, request denied.
26:21
It's shocking, really.
26:23
We have this Constitution. We have these
26:25
protections. There's these First Amendments,
26:28
freedom of religion, freedom of speech, right?
26:31
It doesn't take a law degree to know in the
26:34
United States you just don't tell
26:36
people, we're going to fire
26:39
you for going to your church.
26:42
Fired for going to church? Then
26:44
the state of Oregon just says, sorry,
26:47
you're out of luck? Isn't
26:49
the First Amendment of the Constitution supposed
26:51
to protect your free exercise of religion?
26:55
The answer was a little unclear.
26:58
It turns out our government has a bit of a sordid
27:01
history with the First Amendment. We
27:03
have a lot of episodes of state governments
27:05
and local governments, you know, doing hideous
27:08
things to religious minorities, including driving
27:10
the Mormon people basically out of the border
27:13
of the United States.
27:14
That's Professor Garrett Epps again. For
27:17
the first 150 years or so of the
27:19
First Amendment's existence, it
27:21
didn't do much to protect religious people,
27:24
especially religious minorities. When
27:26
they sued, courts would most often
27:28
say,
27:29
you're out of luck. Until
27:32
the 1960s. That's
27:35
when the Supreme Court added some real
27:37
oomph
27:37
to the First Amendment's right to freely
27:39
exercise your religion. They turned
27:42
it into a shield to
27:44
protect religious people through a case
27:46
called Sherbert, named for Adele
27:49
Sherbert. Adele Sherbert had a job
27:51
in a textile factory in South Carolina.
27:54
The boss told her they were
27:57
going to have Saturday shifts, and she
27:59
said, well, I'm a...
27:59
Seventh-day Adventist, I can't work. For
28:02
Seventh-day Adventists, church is
28:04
on Saturday. And he said, well, then you're
28:06
fired. And just like Al, Adele
28:09
asked for unemployment benefits after
28:11
she got fired for choosing church. And
28:13
they went to the Supreme Court. And the court sided
28:16
with Adele Sherbert. Now,
28:19
if a government wanted to violate your First Amendment
28:22
right to freely exercise your religion, they
28:24
were going to have to have a very compelling
28:27
reason to break through the new
28:29
Sherbert shield, compelling,
28:31
like saving lives.
28:33
You know, like we have to move everybody
28:36
out of this area because the
28:38
wildfire's coming in. Well, my religion says
28:40
I have to stay here and burn. Tough, you're out, right?
28:43
It has to be that important. And this has
28:45
to be the only way, basically, the
28:47
only way to make that
28:49
happen, right? Otherwise,
28:52
you've got to find a way to accommodate everybody. And
28:54
that's called the Sherbert test.
28:56
The court went ahead and named it after Adele
28:58
Sherbert, whose life, I'm sure,
29:00
would fill a different episode of More Perfect.
29:09
Back to Al Smith. The
29:11
question here was, could Oregon
29:13
pass the Sherbert test? Did
29:16
Oregon have a compelling reason?
29:19
This compelling interest, so
29:21
great, so great
29:24
that we need to throw this man under the
29:26
bus.
29:27
So in order to force the state to pay him unemployment
29:30
benefits, Al decides to sue.
29:32
And his case keeps getting
29:34
appealed. He won in
29:36
the Oregon Supreme Court. And then
29:38
it was time to argue in front
29:41
of the U.S. Supreme Court. It
29:43
was just a few days before Al,
29:46
Jane, and their kids were set to get on a
29:48
plane to D.C. That
29:50
they started getting mysterious phone
29:52
calls in the middle of the night. If
29:55
you can imagine these little voices coming
29:57
through like, is Al Smith
29:59
there? Leaders from the Native American
30:01
Church were calling in from
30:03
around the country. They'd all kind
30:06
of say the same thing, you know, just don't hurt
30:08
our church, pleading with
30:10
him.
30:11
These church elders were asking Al over
30:13
the phone to drop his Supreme
30:15
Court case. And Al was just pacing.
30:18
I have never—he was not someone
30:21
who I would call anxious or
30:24
Freddie. You know, he wasn't a fretting
30:26
type.
30:27
Why would they want him to drop his case? Wouldn't
30:30
they want Al to fight for the sacred
30:32
medicine? The U.S. Supreme
30:35
Court had become a very dangerous
30:37
place for all rights
30:40
of Indigenous peoples. This
30:42
is Stephen Moore. Longtime senior
30:44
staff attorney at the Native American Rights Fund.
30:46
Narf represented church leaders
30:49
in 1989. Stephen
30:51
told me, of course, his clients wanted
30:53
to protect peyote. But they'd
30:55
seen the Supreme Court fail to protect
30:58
other Native rights in other recent cases. And
31:00
they thought the best way to protect
31:03
the sacred medicine
31:04
was to keep the Supreme Court's paws
31:07
off of it. We were concerned that Al
31:09
was really rolling the dice
31:12
on unimportant issues that affected
31:15
a quarter of a million Native Americans. And
31:18
they feared this one person could end
31:20
their entire religion. Because
31:26
peyote existed in a legal gray
31:29
area at the time. And if the Supreme
31:31
Court told Al that the First Amendment
31:34
didn't protect his religious right to peyote,
31:36
that could have ripple effects. Other
31:39
state and local governments around the country
31:42
would have a green light to crack down
31:44
on the
31:44
ceremonies of the Native American Church.
31:48
So Steve and Narf had come up with a creative
31:50
solution. Let's just
31:53
call the whole thing off. It
31:55
turns out, if both parties to a case on the Supreme Court's docket settle
31:58
on the Supreme Court's docket, they would have a white-
35:59
the safety interests of its
36:01
citizens. He said, peyote
36:03
is dangerous to the people of Oregon. The
36:06
feds had labeled it a schedule one
36:08
substance at the time for a reason.
36:10
Peyote is unquestionably a dangerous and powerful hallucinogen.
36:13
Plus, law enforcement can't play favorites
36:16
with one religion over another. Justice
36:19
Antonin Scalia chimed in on this. There
36:22
is a problem in just allowing all
36:24
religions to use peyote, but
36:27
not allowing all religions to use
36:29
marijuana. What about marijuana
36:31
religions? LSD religions?
36:34
The attorney general said, look, you
36:36
have to be able to create a general rule
36:39
with no exceptions that everyone
36:41
has to follow. This is
36:43
when Justice John Paul Stevens pipes up.
36:46
Your flat rule position would permit
36:49
a state to outlaw totally the use of alcohol,
36:52
including wine in religious
36:54
ceremonies.
36:55
What about wine at Catholic Mass?
36:57
That's a different question. Why is that different?
36:59
The issue of sacramental wine is different because at least
37:02
at the present it is not a schedule one substance. So
37:04
you mean it's just a better known religion? No.
37:07
The difference,
37:08
Oregon's lawyer says, is that
37:10
you don't drink wine at Mass to get
37:12
drunk, but you do ingest
37:15
peyote for its hallucinogenic
37:17
effect. Mr. Dorsey,
37:19
we'll hear from you. Then-Al Smith's
37:21
lawyer Craig Dorsey got up to speak. Mr. Chief
37:24
Justice, and may it please the court. When
37:27
you're arguing, it feels
37:30
like you're only about 10 or 15 feet from the DS.
37:34
He remembers this day pretty vividly. You
37:36
actually physically can't see the entire
37:38
court because they're kind of wrapped around you. Since
37:42
Scalia was new, he was on the end
37:44
on my left side and Kennedy was on the end
37:46
on the right side and they were asking most of the questions.
37:50
And you know, a
37:51
head is kicking around
37:53
to try and look directly
37:56
because you want to engage with them.
37:58
And he told the court, for starters, this
38:00
comparison to wine at church, you're
38:03
thinking about it all wrong. I think
38:06
if Indian people were in charge of the
38:08
United States right now, and you
38:10
look at the devastating impact that
38:12
alcohol has had on Indian people
38:15
and Indian tribes through the history of
38:17
the United States,
38:18
you might find that alcohol was
38:20
a Schedule I substance, and peyote
38:23
was not listed at all.
38:25
And we're getting here to the heart
38:27
of an ethnocentric view, I think,
38:30
of what constitutes religion in the United States.
38:34
In other words, Christianity is
38:36
getting a pass while Native
38:38
Americans are being persecuted.
38:41
Plus, he says, a small amount
38:43
of peyote isn't proven to be harmful.
38:47
It's actually been helpful for recovering
38:49
alcoholics in the Native American church.
38:53
So Oregon has not met that sherbert
38:55
test we talked about. They've not proven
38:57
their supposedly compelling state interest
39:00
of protecting people's safety.
39:01
The state has failed to meet its burden
39:04
under the First Amendment to
39:06
justify what we believe would be the
39:08
total destruction of this religion. But
39:11
the justices push him on other points.
39:14
Here's Sandra Day O'Connor. How about
39:16
marijuana used by
39:19
a church that
39:21
uses that as part of its religious...
39:25
Well, see, I think we can get into
39:27
a lot of examples, and I don't want to go down
39:29
that road too far because we
39:31
don't have the facts here. But
39:34
the fact is... She said something
39:36
like, I bet you don't want to go down that road. And
39:39
there was laughter, you know, in
39:41
the courtroom, and that's where we
39:43
knew we had kind of lost her. Subsequent.
39:47
Why can't the state consider it itself?
39:48
And then Scalia pushes back, saying,
39:51
shouldn't governments be able to make general
39:53
rules like this? That everyone
39:55
has to follow regardless of their beliefs,
39:58
with no exceptions.
39:59
so long as it does it doesn't take
40:02
on a particular religion the problem is is this
40:04
law and the neutral
40:06
quote-unquote prescription does
40:09
affect a particular real religion
40:11
only and scalia one
40:14
point said while you would agree i suppose
40:16
you could say a law against human sacrifice would
40:18
uh... you know would affect only the aspects you
40:21
know i was kind of a loss
40:23
for her to respond
40:25
i don't know that that that you have to make exceptions
40:28
if it's a generally out
40:31
to me was like short time for them who
40:35
else is that the they
40:38
could care less of who i am
40:41
how many of the gets up high and
40:44
might we the
40:46
common people you know this they
40:49
were you were you were the year and but
40:51
it
40:52
cases
40:54
submitted
40:59
and that was that the last chance
41:01
to please his case in front of the
41:04
highest court in the land
41:07
where it went from there seemed like it would
41:09
be pretty simple either
41:12
al smith would get his unemployment benefits
41:14
or he wouldn't
41:19
everyone would just have to wait
41:42
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42:33
slash more perfect.
42:36
I'm Julia Longoria. This is More Perfect.
42:40
And we've been waiting on a decision. In
42:43
the most simple form, the question of the
42:45
case is, are Al Smith
42:47
and Galen Black going to get their unemployment
42:49
benefits? Or
42:52
did Oregon have a compelling enough reason
42:55
to deny them? The issue currently
42:57
before us is whether Oregon's criminal law
42:59
against the use of certain mind-altering
43:01
drugs... Justice Antonin Scalia,
43:04
who authored the opinion, announced the result
43:06
in court. The headline?
43:08
We reverse that judgment. Al Smith
43:11
lost. The First Amendment
43:13
does not give him the right to break
43:15
drug laws. Permitting him by virtue
43:17
of his beliefs to become a law unto himself
43:20
contradicts both constitutional tradition and
43:22
common sense. Letting Al break
43:25
those drug laws
43:26
just because of his beliefs? That
43:29
would make him a law unto himself.
43:32
I'm just curious what your reaction is to
43:34
seeing what the judge,
43:36
the justice wrote. Oh,
43:39
I don't know what they wrote. But you know, my reaction to that
43:41
is, what else
43:43
do you expect? I'm an
43:45
Indian. You know, I've received this kind of treatment
43:48
all my life. My
43:50
people ask, so what else is new? So
43:52
you lost the case at the Supreme Court? Well,
43:55
sure. Of course I did.
43:57
Al didn't pursue this case because he thought
43:59
he would. would win. He pursued
44:01
it because he wanted his kids to know he
44:04
was willing to fight. Stephen
44:06
Moore from NARF had warned him this
44:08
would happen. When Scalia and the
44:10
majority rendered their decision,
44:13
that was just another insult that
44:15
was leveled on Indian country. Like, you
44:18
know, you're now telling us that we do not.
44:20
Our religion, one of the oldest, most
44:22
venerable religions in the Western
44:25
Hemisphere, has no protection
44:27
under the U.S. Constitution.
44:29
This was a six to three decision.
44:32
Stephen tried to make sense of what had happened.
44:35
He even went to the Library of Congress and
44:37
read Justice Harry Blackmun's dissent,
44:40
including drafts
44:40
of it. In the first draft of his
44:43
dissent that was written by his law clerks,
44:46
it was typed, I respectfully
44:49
dissent. And
44:52
it was a big X
44:55
through the word respectfully. So
44:59
Harry Blackmun's argument struck the
45:01
word respectfully. A sort
45:03
of middle finger. That's close
45:05
to a middle finger that I've
45:07
ever seen on the court.
45:09
And it wasn't just Al, Steve, and
45:11
Justice Blackmun who were upset by this opinion.
45:14
Of course, there was like your dad's case.
45:17
And then the court kind of came out with this
45:20
decision that became like kind of a landmark decision.
45:23
Right. Yeah, I didn't, I don't think I really grasped that when I
45:25
was younger. Scalia, right, that's
45:27
the justice that I think ended up being like a real,
45:31
what
45:31
do they say in reservation dogs? Shit ass. First
45:35
amendment prevents the government from, quote, prohibiting
45:37
the free exercise of religion, close
45:39
quote. Scalia went well beyond
45:42
deciding Al's case. He made
45:45
a big sweeping statement
45:47
about what free exercise of religion means
45:49
in America. The Sherbert
45:52
test, that whole you have
45:54
to have a compelling interest to
45:56
deny someone's religion rights. We reject
45:58
that interpretation. Yeah, that's.
46:00
Everybody is sitting around saying, this
46:04
is not even our case. This
46:06
must be a mistake. They're faxing the wrong thing.
46:09
There are pages missing. You know, nobody
46:11
has asked the court, none of these issues were opposed
46:13
in the briefs. None of these issues were opposed in the argument.
46:16
What's going on? Professor
46:18
Garrett Epps again. I don't have insight
46:21
into Scalia's mind, God knows. But
46:24
he was on a mission that
46:27
had nothing to do with peyote religion. He
46:30
was trying to do something about
46:32
the general religious picture
46:35
in the United States. Justice
46:38
Scalia felt uncomfortable
46:41
with the idea that judges would
46:43
be the ones deciding what's a
46:45
compelling enough reason to throw which
46:48
religion
46:48
under the bus. And
46:50
in this, he had a point. Take
46:53
one uncomfortable case from the
46:55
70s. The Supreme Court sided
46:58
with Amish families, saying they
47:00
could break truancy laws that require
47:02
kids to go to school. One judge
47:04
wrote, Yes, these are the sturdy
47:07
yeoman that Thomas
47:09
Jefferson believed would be the salvation of the American. Of course
47:11
you can't make them send their kids to school.
47:14
But we want to make clear that this doesn't
47:16
extend to, it doesn't use these words, but
47:18
it doesn't extend to like hippie sects, you
47:21
know, or strange groups of
47:23
people from other countries. It's these
47:25
good American people. It's like you read it
47:27
and you want to hide your face.
47:29
Scalia's stated philosophy
47:31
was, let's just not have
47:34
judges make these kinds of calls. In
47:36
this job, it's garbage in, garbage out.
47:39
If it's a foolish law, you are bound by oath
47:41
to produce a foolish result. Because
47:44
it's not your job to decide what is foolish
47:46
and what isn't. It's the job of the people across
47:49
the street.
47:50
In practice, it was a philosophy
47:53
he applied pretty inconsistently.
47:56
But in Smith, with the rights of Native American
47:58
religious practice on the line,
47:59
In the meantime, Scalia decided to
48:02
stay in his lane and left lawmakers
48:04
to make laws. There was a new test
48:07
in town much easier for lawmakers
48:09
to pass. As long as the law
48:11
was general and didn't target
48:13
a particular religion, it
48:15
was fine. You don't need to have
48:17
a compelling reason for it to violate someone's
48:20
religious beliefs. Scalia
48:22
wrote if we had done what Al
48:24
wanted us to do, the government would
48:26
have to give people all kinds
48:28
of exemptions from laws. It
48:30
would let people get out of everything from compulsory
48:33
military service, to the payment of
48:35
taxes, to health and safety regulations,
48:38
to compulsory vaccination
48:40
laws. Scalia's like,
48:43
you simply cannot have 300 million
48:47
people all deciding which laws
48:49
they're not going to follow based on their beliefs.
48:52
That would be chaos. Which
48:55
does beg the question,
48:58
then why do we have a First Amendment
49:00
right to freedom of religion at all? What
49:03
does it get us? The ACLU
49:06
thought the decision was wrongly decided.
49:09
We still do. This is Dan Mack,
49:11
director of the ACLU program on freedom
49:14
of religion and belief. Why
49:16
was it wrong? It
49:20
leaves minority faiths out
49:23
in the cold. Justice Scalia said,
49:25
sure, that will disadvantage minority faiths because
49:28
the political process is not going to respect
49:30
them. But he called it an unavoidable
49:33
consequence of democratic government.
49:37
Immediately after the decision came down,
49:40
there was a huge bipartisan
49:42
interfaith backlash. Scalia's
49:45
decision.
49:46
Democrats, Republicans, the
49:48
ACLU, Christians, all
49:51
wanted this court decision gone.
49:54
The thinking was, if this could happen to the Native
49:56
American church, it could happen to
49:58
any
49:58
of us. The First Amendment
50:01
needs to mean something. So
50:03
almost as soon as Scalia put it out
50:06
into the world, people have tried
50:08
from all angles to undo
50:11
this ruling. They tried in the courts.
50:13
They even tried passing a law in Congress.
50:16
But ultimately, the Supreme Court has
50:19
stood
50:19
by the Smith decision. It
50:21
stayed on the books for the last 30 years. And
50:25
what that meant, if you were a religious person
50:27
looking for an exemption from a law, at
50:29
least for the first few decades after the Smith
50:31
decision, is that you
50:34
had an uphill battle. The exemptions
50:36
were only going to be if the majorities deemed
50:39
it OK. And
50:41
I thought that was a problem. The
50:43
key for me, though, in these cases,
50:47
is what's
50:49
the harm of granting the exemption?
50:51
Like, is anyone harmed
50:54
when you let Al Smith eat peyote?
50:56
Or is anyone harmed when you let Adele Sherbert
50:59
take Saturday off from work?
51:01
Sometimes the
51:03
harm is nothing. Sometimes,
51:06
however, there can be a great
51:08
harm. And that's where
51:11
I think we're moving these
51:13
days.
51:16
Lately, the Supreme Court has
51:19
been handing out exemptions pretty
51:21
readily to certain religious groups. And
51:23
in fact, this term, we've seen the Supreme
51:26
Court repeatedly side with religious institutions
51:29
when it comes to COVID restrictions, where the
51:31
court has said, no, the
51:33
state cannot burden religious institutions.
51:35
So it's a victory for Catholic
51:37
social services. It's a defeat for the city.
51:40
But the Supreme Court seems to have gone out of its
51:42
way here to make this a very narrow
51:44
ruling that is not a green light
51:47
for other organizations to feel that
51:49
they can now cite religious freedom and
51:51
violating anti-discrimination laws. And
51:53
surprisingly...
51:54
Today, you might say some of Scalia's
51:57
worst nightmares about everyone
51:59
becoming a... law unto themselves, the
52:02
whole reason behind his decision are
52:05
coming true anyway, even with
52:07
his Smith decision on the books.
52:11
But the politics around religious freedom
52:14
have shifted. For one thing, same-sex
52:17
marriage has been protected in the courts
52:20
and by Congress. And the people
52:23
in front of the Supreme Court now aren't
52:25
from minority religions, like the Native
52:27
American church or Seventh-Day Adventists.
52:31
They're people from majority religions.
52:34
A Christian cake baker who objected
52:36
to serving same-sex couples. A Christian
52:39
wedding website designer who objected
52:41
to serving same-sex couples. A
52:43
Catholic foster care agency who objected
52:46
to serving same-sex couples. They
52:49
all now see a court friendly
52:51
to their interests and have asked
52:54
if they can break a general
52:56
law, an anti-discrimination
52:58
law that doesn't target their religion.
53:02
So far, the court has
53:04
sided with religious people and
53:06
has allowed them to sidestep these anti-discrimination
53:09
laws. In effect, allowing
53:12
discrimination against queer people.
53:15
But these lawsuits have also asked the
53:17
court to overturn the Smith decision,
53:19
something the court
53:22
to this point has refused
53:24
to do. Justice
53:26
Samuel Alito wrote, it's
53:28
time to overturn Smith.
53:33
Others fear that going back to
53:35
how it was before the Smith decision isn't
53:38
right either. Religious
53:41
exercise is incredibly
53:43
important. It's a crucial fundamental right.
53:45
Dan Mack from the ACLU again. But
53:48
it's not just a free pass
53:51
to harm other people. It
53:53
was meant to be a shield to
53:56
protect religious adherence, not
53:59
a sword.
53:59
to be used to discriminate
54:02
and harm others. And
54:05
you know, I wanted, I have wanted, I spent years
54:07
wanting Smith to be overturned.
54:11
Be careful what you wish for.
54:14
Professor Garrett Epps again. He
54:17
says courts, like the Supreme
54:19
Court, aren't exactly set
54:21
up to parse nuance. And
54:25
even though they might have gotten a reputation over
54:27
the years for being the protectors
54:29
of minorities,
54:30
Garrett says they don't have a great
54:33
track record of that either. Congress
54:36
has done much better at protecting
54:38
minority rights than
54:40
the court. And you know, we're seeing episodes
54:43
now where the court's gonna step in and say, you
54:45
know, to the state of Colorado, you can't
54:47
protect gay people
54:49
against discrimination. You know,
54:51
you can't protect same-sex couples. The
54:54
court's record is not particularly good.
54:57
And if you
54:58
ask yourself why that is, it's clear.
55:02
So like, these are nine well-fed,
55:06
well-educated lawyers. And
55:08
if I wanted some deep social
55:11
pronouncement about how to make America
55:13
better, I wouldn't ask
55:15
nine well-fed lawyers. I, you know,
55:18
protectors look ahead.
55:20
They see the danger that's coming. They try
55:23
to defuse it. That's
55:25
not what judges do. I love them, bless
55:27
their hearts. But
55:30
it's not what they do.
55:33
It's now a great honor and a
55:36
pleasure for
55:55
me to introduce Mr. Al Smith. Back
56:00
when the decision first came down in 1990, Al
56:03
Smith was asked to give a talk at Berkeley. Good
56:06
afternoon. Well, I'm really
56:08
surprised and
56:10
pleased to be here. Glad
56:12
to show it up. Before
56:15
I get into expressing
56:19
what I need to say at this time,
56:22
I want to speak
56:25
to my brothers and
56:27
my sisters that are in this office.
56:30
And perhaps others that may be
56:32
listening to a tape that
56:35
I want to apologize
56:37
to you, my brothers
56:39
and my sisters who
56:41
are natives of this land. If
56:45
any way this
56:48
case has
56:50
harmed you, I
56:53
apologize for that. In
56:56
the Smith opinion, Justice Scalia
56:58
basically told Native Americans, take
57:01
it up with Congress. And
57:03
a few years later, they did. Native
57:07
Americans convinced Congress
57:09
to pass an amendment to the American Indian
57:12
Religious Freedom Act, which
57:14
read, quote, the use,
57:16
possession, or transportation of peyote
57:19
by an Indian for bona fide traditional
57:22
ceremonial purposes
57:23
in connection with the practice of a traditional
57:26
Indian religion is lawful
57:29
and shall not be prohibited
57:31
by the United States. Today,
57:35
the fear from Native Americans
57:38
of taking their case to a court that's
57:40
hostile to their interests is
57:42
very much alive.
57:45
This term, the Supreme Court could strike
57:47
down a decades-old law, the
57:50
Indian Child Welfare Act.
57:52
Tribal experts fear that would
57:54
threaten all of tribal sovereignty.
57:57
We're still waiting on a decision.
58:00
Stay tuned for that. But
58:02
for Al's purposes, all
58:04
he wanted was for his kids to know that
58:07
their dad was somebody who would stand up for what
58:09
was right, even if the odds
58:11
were stacked against him. When
58:13
I travel and people in Indian country,
58:15
oh my God, they're like, yeah, because of your
58:17
dad that we can do all of this.
58:20
Ceremonies, like, practicing
58:22
their art. I understand how important it is from,
58:24
like, what other people tell me. Ever
58:34
since Kailah moved back to where Al was born,
58:37
on Klamath lands, people
58:39
tell her they got protection for
58:41
the sacred medicine because
58:44
of Al's fight. I've had intense
58:46
dreams where he, like, shows up. Like, I'm like, oh
58:48
my God, my dad's here. You know, like, that has
58:50
definitely happened since I've been home. And
58:53
I don't know, you know, and it's good,
58:55
you know, like, sometimes I wake up, like, I woke up
58:58
in a dream. And it was like he was
58:59
real, like, he was right there. I
59:02
remember just, like, hugging him. And it was like,
59:04
and I woke up, like, crying.
59:06
I was like, oh my God, it was like I got
59:08
to see him again. Like right now I'm
59:10
getting emotional, like, thinking about it. So
59:12
I told, you know, I kind of made a pact with my dad. I was like, okay,
59:14
well, when I'm making art or doing art, like,
59:17
that's when we can hang out. And
59:19
I was like, or in the water. So that's why I spend a lot
59:21
of time kayaking. And that's, like, my
59:23
way
59:23
of, like, being with him.
59:26
I've taken my mom down, you know, the Williamson River
59:28
kayaking. And there would just
59:30
be huge bald eagles that just, like, fly
59:33
right over you and land in the trees. And,
59:35
you know, she's like, that's Al. I'm like, sure.
59:41
The water, this land, this place,
59:43
Al is taken at the age of seven
59:46
years old. There's hard stuff.
59:48
I'm just like,
59:50
everything doesn't have to be such a hard memory,
59:52
you know, like, let's make new memories.
1:00:23
This episode was produced by Julia Longoria
1:00:26
with help from me, Alyssa Eads. It
1:00:28
was edited by Whitney Jones and fact-checked
1:00:31
by Tasha AF Lemley. Special
1:00:34
thanks this week to Samuel Moyn, Andy Landset,
1:00:36
Tasha Sandoval, Micah Schwartzman, Shlomo
1:00:39
Pill, Raphael Friedman, Connie
1:00:41
Walker, Mary Houdets, Samantha
1:00:43
Maxx, and the University of Oregon Libraries.
1:00:49
The more perfect team also includes Emily
1:00:51
Seiner, Emily Botin, Gabrielle
1:00:53
Burbet, Salman Ahad Khan, and
1:00:55
Jenny Lawton. The show is sound
1:00:58
designed by David Herman and mixed by
1:01:00
Joe Plourde. Our theme is by Alex
1:01:02
Overington and the episode art is by
1:01:04
Candice Evers. If you want more
1:01:06
stories about the Supreme Court, we've got
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lots. Go to your podcast app,
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