by Garrett Epps. Norman: University of Oklahoma Press, 2009. 296pp. Paper. $19.95. ISBN: 9780806140261. (Originally published as TO AN UNKNOWN GOD: RELIGIOUS FREEDOM ON TRIAL. New York: St. Martin’s Press, 2001. Epilogue added.)

Reviewed by Susan E. Grogan, Department of Political Science, St. Mary’s College of Maryland. Email: segrogan [at]


For some three decades following the U.S. Supreme Court decision in SHERBERT v. VERNER, the prevailing legal standard for determining violations of the First Amendment’s Free Exercise Clause was whether the challenged state action had been required by a “compelling interest.” But in 1990, the Court decided the case of EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON v. SMITH, holding that the Constitution did not prevent a state from denying unemployment benefits to an individual who had lost his job because he had used peyote in a ceremony of the Native American Church. In a majority opinion by Justice Antonin Scalia, the Supreme Court abandoned the SHERBERT compelling interest test and ruled that religious beliefs do not put an individual’s conduct beyond the reach of generally applicable state laws. The 6-3 SMITH decision led to efforts by churches and religious groups across the nation to restore the SHERBERT standard. Congress acted to mute the implications of SMITH by legislating the use of a compelling interest standard in the Religious Freedom Restoration Act (RFRA) of 1993. Coming before a Supreme Court increasingly unwilling to accord broad powers to Congress, RFRA was held unconstitutional in CITY OF BOERNE v. FLORES. Congress, noted the Court, lacks “the power to determine what constitutes a constitutional violation” by the states. The SMITH ruling, the immediate target of RFRA, was again the final word on the level of scrutiny that would be given to state action that affects the free exercise of religion. PEYOTE VS. THE STATE provides the cultural, political, legal, and – most clearly – the personal influences that led to SMITH. Originally published in hardcover under the title, TO AN UNKNOWN GOD, this paperbound edition adds an epilogue that examines freedom of religion and establishment of religion cases after SMITH.

It is most typical for studies of Supreme Court decisions or sets of decisions (as, for example, on the Commerce Clause or criminal due process) to focus on the development of judicial doctrine, on interbranch and/or popular politics, or – as we seem to see increasingly – on the politics and personalities within the Court itself. Some approaches, however, address the Supreme Court case or decisions with a particular emphasis on the litigant or litigants behind the cases. PEYOTE VS. THE STATE is clearly in [*579] this latter tradition, one that has long been dominated by Anthony Lewis’ GIDEON’S TRUMPET. Garrett Epps, now a professor at the University of Baltimore School of Law, is a former journalist and clearly demonstrates in this book the modern journalist’s skill in uncovering the human dimension of an event. Identifying Epps’ approach as heavily journalistic is not a criticism; rather, his technique is a strength and one of the most enlightening and distinguishing aspects of PEYOTE VS. THE STATE.

The respondent in the SMITH case, Al Smith, was an American Indian counselor in a drug and alcohol abuse program. Smith, himself, was a recovering alcoholic who had apparently only once used peyote, and that use occurred in a religious ceremony of the Native American Church. When he admitted his peyote use to his supervisor, Smith was fired. Smith’s claim for unemployment benefits was denied on the basis that he had been dismissed from his job for cause. Al Smith’s story is a compelling one and, in fact, had been covered in significant detail in a book length history of the case by Carolyn Long that was published around the time of the hard-cover version of Epps’ study. Long’s account surely gives considerable attention to Smith, whose picture adorns the book’s front cover. To what extent, one might ask, do Long’s and Epps’ books overlap one another? Can one who has read Long still benefit from reading Epps? Clearly, one can . . . as I did. These authors cover much of the same ground, but their perspectives and emphases differ. Long and Epps complement one another. Long’s work is, I believe, more specifically attuned to the legal arguments that surround SMITH, while Epps takes a broader approach.

One significant aspect of Epps’ study is that Oregon’s Attorney General, Dave Frohnmayer, receives as much attention as an individual as does Al Smith. The two men are quite different, Frohnmayer being a privileged member of Oregon’s political elite. His life is not without its own problems, however, as we learn from Epps’ sensitive account of Frohnmayer’s three daughters who suffer from a rare, often fatal, genetic disease.

Epps is also successful in describing the details of the historical, political, and legal landscapes of Oregon that provide the setting for SMITH. One chapter is devoted to the struggle of the Klamath Indian Nation, of which Al Smith is a member, to have its federal recognition restored. Another situates religious freedom in the context of the attempts of the followers of the Bhagwan Shree Rajneesh to gain political power in Oregon during the 1980s. Frohnmayer’s determination to resist settling the SMITH case in a way that permitted the Native American Church to use peyote ceremonially is illuminated by Epps’ discussion of the religion clauses of Oregon’s constitution that – as written and as interpreted by Oregon’s high court – do not allow the state to “make exemptions for some religions and not others” (p.116).

Above all, what is particularly significant in Epps’ telling of the SMITH decision is its reminder that the law is a human institution. Law is built or constructed by human beings acting individually and collectively to meet society’s needs. The law so constructed then determines the course of others’ lives in the future. PEYOTE VS. THE STATE is a very satisfactory book. It would be useful as a supplementary text in a variety of law and politics or [*580] religion and politics classes or in a course on American Indian politics.

Lewis, Anthony. 1964. GIDEON’S TRUMPET. New York: Random House.

Long, Carolyn N. 2000. RELIGIOUS FREEDOM AND INDIAN RIGHTS: THE CASE OF OREGON v. SMITH. Norman: University Press of Kansas.


CITY OF BOERNE v. FLORES, 521U.S. 507 (1997).
SHERBERT v. VERNER, 374 U.S. 398 (1963).

© Copyright 2009 by the author, Susan E. Grogan.