The Court, speaking through Justice Scalia,Employment Div., Oregon Dept. of Human Resources v. Smith, 494 U.S. 872 (1990), acknowledged that "a State would be [guilty of] prohibiting the free exercise [of religion] in violation of the [First Amendment as applied to the States through the Due Process Clause of the 14th Amendment] if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation...." But, he continued, "the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons."

Of course Smith does not prevent states from exempting peyote from proscription. For example, Justice Tobriner, speaking for the California Supreme Court in People v. Woody, 394 P.2d 813, 821 (1964) said that

the right to free religious expression embodies a precious heritage of our history. In a mass society, which presses at every point toward conformity, the protection of self-expression, however unique, of the individual and the group becomes ever more important. The varying currents of subcultures that flow into the mainstream of our national life give it depth and beauty. We preserve a greater value than an ancient tradition when we protect the rights in using peyote at a meeting in a desert hogan near Needles, California."

Of course, Woody did not set a precedent that was undone by Smith. In Woody California's constitution was interpreted to protect the use of peyote in a bona fide religious ritual. That rule continues in California. While Smith concluded that it was not against the U.S. Constitution for Oregon to proscribe the use of peyote if it chose to do so.

In 1990 the national government by regulation exempted Indian ceremonial use of peyote from the list of proscribed drugs: "The listing of peyote as a controlled substance in Schedule I does not apply to the use of peyote in the bona fide ceremonies of the Native American Church" (21 C.F.R. 1307.31). Further, the exemption was upheld by the Court of Appeals against charges that it infringed upon the First Amendment's Establishment Clause and the 14th Amendment's Equal Protection Clause (Peyote Way Church of God v. Thornburgh, 922 F 2nd. 1210, Fifth Circuit, 1991).

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