721 P.2d 445 (Or. 1986), SC S32481, Smith v. Employment Div., SC S32481, Dept. of Human Resources

Docket NºEAB 84-AB-1217; CA A33421; SC S32481.
Citation721 P.2d 445, 301 Or. 209
Opinion JudgeJONES, J.
Party NameAlfred L. SMITH, Respondent on review, v. EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES, Ray Thorne, Administrator, Petitioners on review. and ADAPT, Respondent (below).
AttorneyJames E. Mountain, Jr., Solicitor General, Salem, argued the cause for petitioner on review. With him on the petition for review were Dave Frohnmayer, Attorney General, and Michael D. Reynolds and Jeff Bennett, Assistant Attorneys General, Salem., David Morrison, of Heiling & Morrison, P.C., Rose...
Case DateJune 24, 1986
CourtSupreme Court of Oregon

Page 445

721 P.2d 445 (Or. 1986)

301 Or. 209

Alfred L. SMITH, Respondent on review,

v.

EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES, Ray

Thorne, Administrator, Petitioners on review.

and

ADAPT, Respondent (below).

EAB 84-AB-1217; CA A33421; SC S32481.

Supreme Court of Oregon.

June 24, 1986

Argued and Submitted April 1, 1986.

Reconsideration Denied Sept. 3, 1986.

James E. Mountain, Jr., Sol. Gen., Salem, argued the cause for petitioner on review. With him on the petition for review were Dave Frohnmayer, Atty. Gen., and Michael D. Reynolds and Jeff Bennett, Asst. Attys. Gen., Salem.

[301 Or. 210] David Morrison, of Heiling & Morrison, P.C., Roseburg, argued the cause for respondent on review.

David M. Gordon, of Thorp, Dennett, Purdy, Golden & Jewett, P.C., Springfield, filed a brief amicus curiae on behalf of American Civil Liberties Union.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.

[301 Or. 211] JONES, Justice.

The issue in this case is whether the state Employment Division may deny unemployment benefits to claimant, Alfred L. Smith. Smith's employer, Douglas County Council on Alcohol and Drug Abuse Prevention and Treatment (ADAPT), discharged Smith because he ingested peyote while off duty during a ceremony of the Native American Church. The Employment

Page 446

Appeals Board concluded that Smith should not receive benefits because he had been discharged for misconduct connected with his employment. The Court of Appeals reversed, 75 Or.App. 764, 709 P.2d 246, citing its decision in Black v. Employment Division, 75 Or.App. 735, 707 P.2d 1274 (1985), and remanded to the Board for determination "whether this claimant's ingestion of peyote was a religious act." Id. at 743, 707 P.2d 1274. We agree with the Court of Appeals, but we hold that remand to the Board for determination of the nature of claimant's ingestion of peyote is unnecessary.

Smith is a 66-year-old Klamath Indian and a member of the Native American Church. He had a drinking problem as a young man but has not used alcohol since 1957. Smith has counseled alcoholics since 1971, and worked for ADAPT from August 25, 1982, until his discharge March 5, 1984.

ADAPT views its counselors as role models for the persons they treat and therefore enforces a policy of abstinence from alcohol and mind-altering drugs. ADAPT's written personnel policy, in effect when Smith was hired, provides that "[m]isuse of alcohol and/or other mind-altering substances by a staff member" is grounds for termination. On September 19, 1983, ADAPT's executive director, John Gardin, warned Smith that he could be discharged for using peyote, even if the use was part of a religious ceremony. On October 3, 1983, ADAPT discharged Galen A. Black, another counselor and Native American Church member, because Black used peyote during a church ceremony. On December 5, 1983, ADAPT issued a memorandum concerning employe use of alcohol and other drugs, stating:

"In keeping with our drug-free philosophy of treatment, and our belief in the disease concept of alcoholism, and the associated complex issues involved in both alcoholism and drug addiction, we require the following of our employees:

1. Use of an illegal drug or use of prescription drugs in a [301 Or. 212] non-prescribed manner is grounds for immediate termination from employment. * * * "

On Friday, March 2, 1984, Gardin talked to Smith about Smith's planned attendance at a Native American Church service the upcoming weekend. Smith said that he intended to ingest peyote during the ceremony. Gardin replied that although he did not object to attendance, consumption of peyote would cause Smith's dismissal. Smith insisted that he would ingest peyote.

On Saturday, Smith participated in the ceremony and ingested a small quantity of peyote. On Monday, March 5, 1984, Smith told Gardin that he had indeed ingested peyote, and Gardin discharged Smith that day. Smith refused Gardin's offer to enter ADAPT's employe assistance program, saying that there was nothing wrong with him.

On March 22, the Employment Division denied unemployment benefits to Smith because he had been discharged for misconduct. 1 At Smith's requested hearing, the referee found that although Smith had committed misconduct, he was not disqualified from receiving benefits. The referee concluded that because "there is no evidence in the hearing record to indicate that granting benefits to claimants whose unemployment is caused by adherence to religious beliefs would have any significant impact on the trust fund, it cannot be held that the alleged State interest warrants interference with the claimant's freedom of religion." The Employment Appeals Board (Board) reversed. The Board stated that "[t]he compelling state interest is in the proscription of illegal drugs, not merely in the burden upon the Unemployment Compensation Trust Fund."

  1. OREGON CONSTITUTIONAL ANALYSIS

    In this case, claimant contends that the denial of unemployment benefits placed a burden on his freedom to worship according to the dictates of his conscience under

    Page 447

    the Oregon Constitution, Article I, sections 2 and 3. Those sections provide:

    "Section 2. Freedom of worship. All men shall be secure [301 Or. 213] in the Natural right, to worship Almighty God according to the dictates of their own consciences.

    Section 3. Freedom of religious opinion. No law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience."

    Claimant also relies upon the First Amendment to the federal constitution, but we address the Oregon constitutional issues first. In a recent decision concerning a religious school's right to be exempt from paying unemployment taxes, we stated that "the judicial responsibility [is] to determine the state's own law before deciding whether the state falls short of federal constitutional standards." Salem College & Academy, Inc. v. Emp. Div., 298 Or. 471, 484, 695 P.2d 25 (1985). We follow this practice consistently. See, e.g., State v. Atkinson, 298 Or. 1, 688 P.2d 832 (1984); State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983). We now examine the Oregon constitutional issues.

    The states were the original guarantors of religious freedom for their citizens. In Permoli v. First Municipality of New Orleans, 44 U.S. (3 How) 589, 610, 11 L.Ed. 739 (1845), the United States Supreme Court held that the federal constitution did not protect the religious liberties of state citizens from encroachment by state legislatures. See Cooley, Constitutional Limitations 587 (4th ed. 1878). Not until 1940 did the Court apply the free exercise clause of the First Amendment to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (statute regulating religious solicitation that allowed officials discretion to determine whether solicitation was religious held invalid).

    In a line of decisions starting with City of Portland v. Thornton, 174 Or. 508, 512-13, 149 P.2d 972 (1944), cert. den. 323 U.S. 770, 65 S.Ct. 123, 89 L.Ed. 616 (1944), this court interpreted the Oregon guarantees of religious freedom as "identical in meaning" to the federal constitution. See Baer v. City of Bend, 206 Or. 221, 223, 292 P.2d 134 (1956); Jehovah's Witnesses v. Mullen, 214 Or. 281, 291, 330 P.2d 5 (1958), appeal dismissed 359 U.S. 436, 79 S.Ct. 940, 3 L.Ed.2d 932 (1959). However, in Salem College & Academy, which also arose under the unemployment compensation law, we interpreted the [301 Or. 214] Oregon Constitution, Article I, sections 2 and 3, independently of the federal constitution. That analysis is relevant to our disposition of this case.

    In Salem College & Academy, a religious school contended that the state could not compel it to pay unemployment taxes because to do so would infringe upon the school's free exercise rights under the Oregon Constitution. We rejected that contention, holding that the state had not infringed upon the school's right to religious freedom when all similarly situated employers in the state were subject to the same tax. We stated:

    "The exaction [of unemployment tax] here is in no way based on activities or resources that are more characteristic of schools than of other kinds of employers or institutions, let alone on a school's religious character or the content of its programs. The obligation to provide unemployment coverage focuses solely on the economic and social aspect of the employment relation and the cost that unemployment imposes on the discharged employee and on society. * * * These payments are financial burdens only in the same sense that the costs of employing paid workers at all are financial burdens; a religious association engaged in the free exercise of worship or other religious activity without employing paid personnel pays no unemployment tax.

    "As to the alleged administrative and clerical burdens, such as posting notices, filing reports and keeping payroll records subject to inspection by the Employment Division, these requirements, too, are tailored to the economic aspect

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    of the employment relation and not to any activities peculiarly characteristic either of schools or of religious programs. They are not different in principle from a host of other secular regulatory requirements such as health inspections of cafeteria workers or kitchens, safety inspection of school busses, and licensing of drivers." 298 Or. at 486-87, 695 P.2d 25.

    The unemployment compensation law disqualifies claimants who have been discharged for what an employer validly considers misconduct connected with the...

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21 practice notes
  • State v Ciancanelli, 042402 ORCA, A108122
    • United States
    • August 29, 2001
    ...of ordinance regulating nude dancing). (FN23). The law, in fact, is to the contrary. In Smith v. Employment Div., 301 Or 209, 721 P.2d 445 (1986), for example, the Oregon Supreme Court determined that the state free exercise clause is less protective than its federal constitutional counterp......
  • 577 A.2d 254 (Vt. 1990), 86-128, State v. DeLaBruere
    • United States
    • Vermont Supreme Court of Vermont
    • April 27, 1990
    ...constitutional provisions afforded greater protections for religious exercise than the First Amendment. In Smith v. Employment Division, 301 Or. 209, 216-17, 721 Page 272 P.2d 445, 448 (1986), the court held that denial of unemployment compensation benefits to a drug counselor who was disch......
  • 45 P.3d 451 (Or.App. 2002), A108122, State v. Ciancanelli
    • United States
    • Oregon Court of Appeals of Oregon
    • April 24, 2002
    ...constitutionality of ordinance regulating nude dancing). [23] The law, in fact, is to the contrary. In Smith v. Employment Div., 301 Or. 209, 721 P.2d 445 (1986), for example, the Oregon Supreme Court determined that the state free exercise clause is less protective than its federal constit......
  • 852 P.2d 859 (Or.App. 1993), CA A68770, Meltebeke v. Bureau of Labor and Industries
    • United States
    • Oregon Court of Appeals of Oregon
    • May 19, 1993
    ...religious freedom is not subject to constitutional scrutiny on free exercise grounds. It relies primarily on Smith v. Employment Div., 301 Or. 209, 216, 721 P.2d 445 (1986), vacated on other grounds 485 U.S. 660, 108 S.Ct. 1444, 99 L.Ed.2d 753 (1988). In that case, the claimant was fired by......
  • Request a trial to view additional results
21 cases
  • State v Ciancanelli, 042402 ORCA, A108122
    • United States
    • August 29, 2001
    ...of ordinance regulating nude dancing). (FN23). The law, in fact, is to the contrary. In Smith v. Employment Div., 301 Or 209, 721 P.2d 445 (1986), for example, the Oregon Supreme Court determined that the state free exercise clause is less protective than its federal constitutional counterp......
  • 577 A.2d 254 (Vt. 1990), 86-128, State v. DeLaBruere
    • United States
    • Vermont Supreme Court of Vermont
    • April 27, 1990
    ...constitutional provisions afforded greater protections for religious exercise than the First Amendment. In Smith v. Employment Division, 301 Or. 209, 216-17, 721 Page 272 P.2d 445, 448 (1986), the court held that denial of unemployment compensation benefits to a drug counselor who was disch......
  • 45 P.3d 451 (Or.App. 2002), A108122, State v. Ciancanelli
    • United States
    • Oregon Court of Appeals of Oregon
    • April 24, 2002
    ...constitutionality of ordinance regulating nude dancing). [23] The law, in fact, is to the contrary. In Smith v. Employment Div., 301 Or. 209, 721 P.2d 445 (1986), for example, the Oregon Supreme Court determined that the state free exercise clause is less protective than its federal constit......
  • 852 P.2d 859 (Or.App. 1993), CA A68770, Meltebeke v. Bureau of Labor and Industries
    • United States
    • Oregon Court of Appeals of Oregon
    • May 19, 1993
    ...religious freedom is not subject to constitutional scrutiny on free exercise grounds. It relies primarily on Smith v. Employment Div., 301 Or. 209, 216, 721 P.2d 445 (1986), vacated on other grounds 485 U.S. 660, 108 S.Ct. 1444, 99 L.Ed.2d 753 (1988). In that case, the claimant was fired by......
  • Request a trial to view additional results