To an Unknown God

Supreme Court Justice William Brennan's 1963 Sherbert decision declared that unemployment insurance couldn't be denied to a Seventh-Day Adventist for refusing to work on Saturdays. In 1990 the Sherbert precedent was abruptly and unexpectedly overturned in Justice Antonin Scalia's Employment Division v. Smith decision, denying unemployment insurance for a Native American alcoholism counselor fired for religious use of peyote. Epps, an Oregon law professor and former Washington Post reporter, tells the story of the high court's decision as a human drama involving Al Smith, a Klamath tribe member in his 60s with 27 years of sobriety when he was fired, and Oregon Attorney General Dave Frohnmayer, who designed and argued the case against Smith (without, as it happens, challenging Sherbert). Oregon was the only state that did not allow religious use of peyote, and its constitution guaranteed religious freedom in a peculiar way that could have invited a flood of challenges if Smith's claim prevailed. Smith's personal story is compelling: he had previously battled not only against alcoholism but against cultural annihilation, and he knew the importance of defending the use of peyote in Native American religion. On the other hand, Frohnmayer had fought against a religious cult, that of Bhagwan Shree Rajneesh, though that case involved the use of germ warfare. Epps provides a lively, powerful narrative to develop his drama (including a Frohnmayer family disease subplot that stirs sympathy but illuminates nothing central). In doing so, however, he leaves important issues unexplored, including the history, law and judicial philosophies involved. Readers with sophisticated knowledge of the subject may find this account wanting, but it touches on important issues that will appeal to a wide range of readers. Two b&w photos not seen by PW. (Mar.)