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

the United States of America.

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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

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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

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