763 P.2d 146 (Or. 1988), S32482, Smith v. Employment Div.

Docket Nº:S32482, SC S32481, USSC 86-947, USSC 86-946.
Citation:763 P.2d 146, 307 Or. 68
Opinion Judge:PER CURIAM
Party Name:Alfred L. SMITH, Respondent on Review, v. EMPLOYMENT DIVISION, W.E. Hunter, Assistant Director, DHR, Petitioner on Review, and Adapt, Respondent. Galen W. BLACK, Respondent on Review, v. EMPLOYMENT DIVISION, W.E. Hunter, Assistant Director, DHR, Petitioner on Review, and Adapt, Respondent. Nos. 84-AB-161, 84-AB-1217; CA A31186, CA A33421, SC
Attorney:William F. Gary, Deputy Attorney General, Salem, argued the cause for petitioner on review. On the petitions for review were Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Michael D. Reynolds and Jeff Bennett, Assistant Attorneys General, Salem. On the petitions...
Case Date:October 18, 1988
Court:Supreme Court of Oregon
 
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Page 146

763 P.2d 146 (Or. 1988)

307 Or. 68

Alfred L. SMITH, Respondent on Review,

v.

EMPLOYMENT DIVISION, W.E. Hunter, Assistant Director, DHR,

Petitioner on Review,

and

Adapt, Respondent.

Galen W. BLACK, Respondent on Review,

v.

EMPLOYMENT DIVISION, W.E. Hunter, Assistant Director, DHR,

Petitioner on Review,

and

Adapt, Respondent.

Nos. 84-AB-161, 84-AB-1217; CA A31186, CA A33421, SC

S32482, SC S32481, USSC 86-947, USSC 86-946.

Supreme Court of Oregon.

October 18, 1988

Argued and Submitted Sept. 6, 1988.

[307 Or. 69] William F. Gary, Deputy Atty. Gen., Salem, argued the cause for petitioner on review. On the petitions for review were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Michael D. Reynolds and Jeff Bennett, Asst. Attys. Gen., Salem. On the petitions for reconsideration were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Michael D. Reynolds, Asst. Atty. Gen. On petitioner's supplemental briefs were Dave Frohnmayer, Atty. Gen., William Gary, Deputy Atty. Gen., and Virginia L. Linder, Sol. Gen.

Suanne Livendahl, Oregon Legal Services Corp., Roseburg, argued the cause and filed briefs for respondents on review.

David M. Gordon, Thorp, Dennett, Purdy, Golden & Jewett, P.C., Springfield, and Allen L. Johnson, Johnson & Kloos, Eugene, filed briefs amicus curiae on behalf of American Civil Liberties Union.

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

[307 Or. 71] PER CURIAM.

These cases are before us on remand from the Supreme Court of the United

Page 147

States. Employment Div. v. Smith, 485 U.S. 660, 108 S.Ct. 1444, 99 L.Ed.2d 753 (1988). We had decided that the state could not, consistent with the First Amendment, deny unemployment compensation to petitioners, who had been discharged from employment for ingesting peyote in ceremonies of the Native American Church, of which they were members. Smith v. Employment Div., 301 Or. 209, 721 P.2d 445 (1986); Black v. Employment Div., 301 Or. 221, 721 P.2d 451 (1986).

In our earlier opinions, we observed that the record in each case established that peyote use was a sacrament in the Native American Church, that the respondents were members of the church and sincere adherents to this faith, and that their use was in the course of a church ceremony. We also stated that it was immaterial to Oregon's unemployment compensation law whether the use of peyote violated some other law.

"The Board found that the state's interest in proscribing the use of dangerous drugs was the compelling interest that justified denying the claimant unemployment benefits. However, the legality of ingesting peyote does not affect our analysis of the state's interest. The state's interest in denying unemployment benefits to a claimant discharged for religiously motivated misconduct must be found in the unemployment compensation statutes, not in the criminal statutes proscribing the use of peyote. The Employment Division concedes that 'the commission of an illegal act is not, in and of itself, grounds for disqualification from unemployment benefits. ORS 657.176(3) permits disqualification only if a claimant commits a felony in connection with work. * * * [T]he legality of [claimant's] ingestion of peyote has little direct bearing on this case.'

"The state's interest is simply the financial interest in the payment of benefits from the unemployment insurance fund to this claimant and other claimants similarly situated." (Footnote omitted.)

Smith v. Employment Div., supra, 301 Or. at 218-19, 721 P.2d 445. The decisions of the United States Supreme Court on which we relied held that this financial interest did not suffice to override interests of unemployment compensation claimants in the [307 Or. 72] free exercise of their religion. Thomas v. Review Board, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).

On certiorari, the United States Supreme Court remanded the decisions to this court for clarification of the legality of petitioners' use of peyote. Employment...

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