From Pierce to Smith: The Oregon Connection and Supreme Court Religion Jurisprudence

22 p.As an Oregonian, as well as a Ninth Circuit judge privileged to have chambers in the Pioneer Courthouse in the heart of downtown Portland, Oregon, I thought it fitting to reflect on the role of two landmark decisions on religion by the Supreme Court of the United States arising out of this state: Pierce v. Society of Sisters,1 decided over eighty years ago, and Employment Division v. Smith,2 decided within the last eighteen. While both cases were brought by religiously observant plaintiffs seeking relief from restrictive state measures, each carries its own significance for religious freedom. Having become fascinated by the increasingly extensive scholarship on these very important cases, I thought it might be useful to explore curious connections between these two decisions, which lead me to some counterintuitive conclusions about their impact on religious freedom