EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF
OREGON, et al. v. SMITH et al.
No. 88-1213
SUPREME COURT OF THE UNITED STATES
494 U.S. 872; 110 S. Ct. 1595; 108 L. Ed. 2d 876; 1990
U.S. LEXIS 2021; 58 U.S.L.W. 4433; 52 Fair Empl. Prac. Cas.
(BNA) 855; 53 Empl. Prac. Dec. (CCH) P39,826; Unemployment
Ins. Rep. (CCH) P21,933
November 6, 1989, Argued
April 17, 1990, Decided
SUBSEQUENT HISTORY: Rehearing denied by Employment Div., Dep't of Human
Resources v. Smith, 496 U.S. 913, 110 L. Ed. 2d 285, 110 S. Ct. 2605, 1990 U.S.
LEXIS 2979, 58 U.S.L.W. 3770 (1990)
On remand at Smith v. Employment Div., 310 Ore. 376, 799 P.2d 148, 1990 Ore.
LEXIS 326 (1990)
PRIOR HISTORY:
CERTIORARI TO THE SUPREME COURT OF OREGON. Smith v. Employment Div., 307
Ore. 68, 763 P.2d 146, 1988 Ore. LEXIS 564 (1988)
DISPOSITION:
307 Ore. 68, 763 P. 2d 146, reversed.
DECISION:
Oregon's prohibition of use of peyote in religious ceremony held not to
violate free exercise of religion clause of Federal Constitution's First
Amendment.
SUMMARY:
Two drug rehabilitation counselors, both of whom were members of the Native
American Church, were fired from their jobs with a private corporation in Oregon
because they had ingested peyote, a hallucinogenic drug, for sacramental
purposes at a ceremony of the Church. The counselors applied to the Employment
Division of Oregon's Department of Human Resources for unemployment
compensation, but the department's Employment Appeals Board ultimately denied
their applications on the ground that the counselors had been discharged for
misconduct connected with work. The Oregon Court of Appeals, reversing the board
's decisions, (1) held that the denial of benefits to persons who were
discharged for engaging in a religious act constituted an unjustified burden on
the right of free exercise of religion, and (2) remanded the cases to the board
for further findings as to the religious nature of the counselors' acts (75 Or
App 764, 707 P2d 1274, 709 P2d 246). The Supreme Court of Oregon, holding that
such further findings were unnecessary and that the counselors were entitled to
payment of unemployment benefits, affirmed both judgments as modified (301 Or
209, 221, 721 P2d 445, 451). On certiorari, the United States Supreme Court (1)
noted that the Oregon Supreme Court had not decided whether the counselors'
sacramental use of peyote was in fact proscribed by Oregon's controlled
substance law, and that this issue was a matter of dispute between the parties,
(2) determined that it would not be appropriate, given this uncertainty, for the
United States Supreme Court to decide whether the practice was protected by the
Federal Constitution, and accordingly (3) vacated the Oregon Supreme Court's
judgment and remanded the case for further proceedings (485 US 660, 99 L Ed 2d
753, 108 S Ct 1444). On remand, the Oregon Supreme Court held that (1) the
Oregon statute made no exception for the sacramental use of peyote, (2) the
counselors' use of peyote thus fell within the prohibition of the statute, (3)
the prohibition of the practice at issue was not valid under the free exercise
clause of the Federal Constitution's First Amendment, and (4) the counselors
could not be denied unemployment benefits for having engaged in that practice
(307 Or 68, 763 P2d 146).
On certiorari, the United States Supreme Court reversed. In an opinion by
Scalia, J., joined by Rehnquist, Ch. J., and White, Stevens, and Kennedy, JJ.,
it was held that (1) the free exercise of religion clause permits a state to
include religiously inspired use of peyote within the reach of the state's
general criminal prohibition on use of that drug, where there is no contention
that the state's drug law represents an attempt to regulate religious beliefs,
the communication of religious beliefs, or the raising of one's children in
those beliefs; (2) the free exercise of religion clause thus permitted Oregon to
deny unemployment benefits to persons dismissed from their jobs because of such
religiously inspired use; and (3) generally applicable, religion-neutral
criminal laws that have the effect of burdening a particular religious practice
need not be justified, under the free exercise of religion clause, by a
compelling governmental interest.
O'Connor, J., concurred in the judgment and, in an opinion joined in part (as
to points 1-3 below) by Brennan, Marshall, and Blackmun, JJ., expressed the view
that (1) the question under the free exercise of religion clause was properly
presented in the United States Supreme Court, (2) an individual's free exercise
of religion is burdened by neutral laws of general applicability that make
criminal the individual's religiously motivated conduct, (3) the First Amendment
requires at least a case-by-case determination whether such a burden on specific
individuals is constitutionally significant and whether the particular criminal
interest asserted by the government is compelling, and (4) under such a test,
(a) Oregon had a compelling interest in regulating peyote use by its citizens,
(b) a selective exemption from the prohibition would unduly interfere with this
interest, and therefore (c) the free exercise of religion clause did not require
Oregon to accommodate the counselors' conduct.
Blackmun, J., joined by Brennan and Marshall, JJ., dissenting, expressed the
view that (1) a state statute that burdens the free exercise of religion may
stand only if the law in general, and the state's refusal to allow a religious
exemption in particular, are justified by a compelling interest that cannot be
served by less restrictive means, (2) Oregon's interest in refusing to make an
exception for the religious use of peyote was not sufficiently compelling to
outweigh the counselors' right to the free exercise of their religion, and
therefore (3) Oregon could not, consistent with the free exercise of religion
clause, deny the counselors unemployment benefits.
LAWYERS' EDITION HEADNOTES:
[***LEdHN1]
CONSTITUTIONAL LAW §974
free exercise of religion -- ban on peyote use --
Headnote:[1A][1B][1C]
The free exercise of religion clause of the Federal Constitution's First
Amendment permits a state to include religiously inspired use of peyote, a
hallucinogenic drug, within the reach of the state's general criminal
prohibition on use of that drug, where there is no contention that the state's
drug law represents an attempt to regulate religious beliefs, the communication
of religious beliefs, or the raising of one's children in those beliefs.
(Blackmun, Brennan, and Marshall, JJ., dissented from this holding.)
[***LEdHN2]
CONSTITUTIONAL LAW §967
free exercise of religion -- denial of unemployment benefits -- peyote use --
Headnote:[2A][2B]
A state may, consistent with the free exercise of religion clause of the Federal
Constitution's First Amendment, deny unemployment compensation to persons who
have been dismissed from their jobs because of their religiously inspired use of
peyote, a hallucinogenic drug, where (1) such use of peyote is within the reach
of the state's general criminal prohibition on the use of that drug, and (2) the
state's prohibition of religiously inspired peyote use is consistent with the
Federal Constitution. (Blackmun, Brennan, and Marshall, JJ., dissented from this
holding.)
[***LEdHN3]
CONSTITUTIONAL LAW §36.3
religion clause -- applicability to states --
Headnote:[3]
The free exercise of religion clause of the Federal Constitution's First
Amendment is made applicable to the states by incorporation into the Fourteenth
Amendment.
[***LEdHN4]
CONSTITUTIONAL LAW §961
free exercise of religion -- freedom of belief --
Headnote:[4]
Under the free exercise of religion clause of the Federal Constitution's First
Amendment, the free exercise of religion means the right to believe and profess
whatever religious doctrine one desires; the First Amendment excludes all
governmental regulation of religious beliefs as such, and thus the government
may not (1) compel affirmation of religious belief, (2) punish the expression of
religious doctrines it believes to be false, (3) impose special disabilities on
the basis of religious views or religious status, or (4) lend its power to one
or the other side in controversies over religious authority or dogma.
[***LEdHN5]
CONSTITUTIONAL LAW §961
free exercise of religion -- physical acts or abstentions --
Headnote:[5]
A state would be prohibiting the free exercise of religion, in violation of the
Federal Constitution's First Amendment, if it sought to ban the performance of,
or abstention from, certain physical acts only when such acts or abstentions are
engaged in for religious reasons, or only because of the religious belief that
they display; thus, it would be unconstitutional to ban the casting of statues
that are to be used for worship purposes, or to prohibit bowing down before a
golden calf.
[***LEdHN6]
CONSTITUTIONAL LAW §961
prohibiting free exercise of religion --
Headnote:[6]
For purposes of construing the clause of the Federal Constitution's First
Amendment which provides that Congress shall make no law prohibiting the free
exercise of religion, the words "prohibiting the free exercise" need not be
given a meaning that would include requiring any individual to observe a
generally applicable law that (1) requires the performance of an act that the
individual's religious belief forbids, or (2) forbids the performance of an act
that the individual's religious belief requires.
[***LEdHN7]
CONSTITUTIONAL LAW §955
First Amendment -- taxation --
Headnote:[7A][7B]
If prohibiting the exercise of religion--or burdening the activity of
printing--is not the object of a tax but merely the incidental effect of a
generally applicable and otherwise valid governmental provision, the Federal
Constitution's First Amendment is not offended.
[***LEdHN8]
CONSTITUTIONAL LAW §961
free exercise of religion -- conflict with political responsibilities --
Headnote:[8A][8B][8C]
The mere possession of religious convictions which contradict the relevant
concerns of a political society does not relieve the citizen, under the Federal
Constitution's First Amendment, from the discharge of political
responsibilities; the United States Supreme Court's First Amendment cases do not
support the proposition that a stance of conscientious objection relieves an
objector from any colliding duty fixed by a democratic government; the
government's ability to enforce generally applicable prohibitions of socially
harmful conduct, like its ability to carry out other aspects of public policy,
cannot depend on measuring the effects of a governmental action on a religious
objector's spiritual development.
[***LEdHN9]
CONSTITUTIONAL LAW §961
free exercise of religion -- compelling state interest test --
Headnote:[9A][9B][9C][9D][9E][9F][9G][9H]
Generally applicable, religion-neutral criminal laws that have the effect of
burdening a particular religious practice need not be justified, under the free
exercise of religion clause of the Federal Constitution's First Amendment, by a
compelling governmental interest, because (1) if general laws were to be
subjected to a "religious practice" exemption, both the importance of the law at
issue and the centrality of the practice at issue would reasonably have to be
considered, (2) it is inappropriate for judges to determine the "centrality" of
a belief to an individual's religion, (3) thus, if the "compelling interest"
test were to be applied at all, it would have to be applied across the board, to
all actions thought to be religiously commanded, (4) such a rule would open the
prospect of constitutionally required religious exemptions from civic
obligations of almost every conceivable kind, a result that is not required by
the First Amendment's protection of religious liberty, and (5) the nation cannot
afford the luxury of deeming presumptively invalid, as applied to the religious
objector, every regulation of conduct that does not protect an interest of the
highest order; although it may be that leaving accommodation of religious
practices to the political process will place at a relative disadvantage those
religious practices that are not widely engaged in, such an unavoidable
consequence of democratic government must be preferred to a system in which each
conscience is a law unto itself or in which judges weigh the social importance
of all laws against the centrality of all religious beliefs. (O'Connor, Brennan,
Marshall, and Blackmun, JJ., dissented from this holding.)
[***LEdHN10]
CONSTITUTIONAL LAW §961
COURTS §95.5
free exercise of religion -- scope and extent of inquiry -- centrality of
religious practice --
Headnote:[10]
Judging the centrality of different religious practices to a believer's personal
faith, in determining whether a burden on such practices violates the free
exercise of religion clause of the Federal Constitution's First Amendment, is
akin to the unacceptable business of evaluating the relative merits of differing
religious claims; it is not within the judicial ken to question the centrality
of particular beliefs or practices to a faith, or the validity of particular
litigants' interpretation of those creeds.
[***LEdHN11]
CONSTITUTIONAL LAW §961
religious-practice exemption --
Headnote:[11]
To say that a nondiscriminatory religious-practice exemption from generally
applicable laws is permitted under the Federal Constitution, or even that such
an exemption is desirable, is not to say that such an exemption is
constitutionally required, or that the appropriate occasions for its creation
can be discerned by the courts.
SYLLABUS:
Respondents Smith and Black were fired by a private drug rehabilitation
organization because they ingested peyote, a hallucinogenic drug, for
sacramental purposes at a ceremony of their Native American Church. Their
applications for unemployment compensation were denied by the State of Oregon
under a state law disqualifying employees discharged for work-related
"misconduct." Holding that the denials violated respondents' First Amendment
free exercise rights, the State Court of Appeals reversed. The State Supreme
Court affirmed, but this Court vacated the judgment and remanded for a
determination whether sacramental peyote use is proscribed by the State's
controlled substance law, which makes it a felony to knowingly or intentionally
possess the drug. Pending that determination, the Court refused to decide
whether such use is protected by the Constitution. On remand, the State Supreme
Court held that sacramental peyote use violated, and was not excepted from, the
state-law prohibition, but concluded that that prohibition was invalid under the
Free Exercise Clause.
Held: The Free Exercise Clause permits the State to prohibit sacramental peyote
use and thus to deny unemployment benefits to persons discharged for such use.
Pp. 876-890.
(a) Although a State would be "prohibiting the free exercise [of religion]"
in violation of the Clause if it sought to ban the performance of (or abstention
from) physical acts solely because of their religious motivation, 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. See, e. g., Reynolds v.
United States, 98 U.S. 145, 166-167. The only decisions in which this Court has
held that the First Amendment bars application of a neutral, generally
applicable law to religiously motivated action are distinguished on the ground
that they involved not the Free Exercise Clause alone, but that Clause in
conjunction with other constitutional protections. See, e. g., Cantwell v.
Connecticut, 310 U.S. 296, 304-307; Wisconsin v. Yoder, 406 U.S. 205. Pp.
876-882.
(b) Respondents' claim for a religious exemption from the Oregon law cannot
be evaluated under the balancing test set forth in the line of cases following
Sherbert v. Verner, 374 U.S. 398, 402-403, whereby governmental actions that
substantially burden a religious practice must be justified by a "compelling
governmental interest." That test was developed in a context -- unemployment
compensation eligibility rules -- that lent itself to individualized
governmental assessment of the reasons for the relevant conduct. The test is
inapplicable to an across-the-board criminal prohibition on a particular form of
conduct. A holding to the contrary would create an extraordinary right to
ignore generally applicable laws that are not supported by "compelling
governmental interest" on the basis of religious belief. Nor could such a right
be limited to situations in which the conduct prohibited is "central" to the
individual's religion, since that would enmesh judges in an impermissible
inquiry into the centrality of particular beliefs or practices to a faith. Cf.
Hernandez v. Commissioner, 490 U.S. 680, 699. Thus, although it is
constitutionally permissible to exempt sacramental peyote use from the operation
of drug laws, it is not constitutionally required. Pp. 882-890.
COUNSEL:
Dave Frohnmayer, Attorney General of Oregon, argued the cause for
petitioners. With him on the briefs were James E. Mountain, Jr., Deputy
Attorney General, Virginia L. Linder, Solicitor General, and Michael D.
Reynolds, Assistant Solicitor General.
Craig J. Dorsay argued the cause and filed briefs for respondents. *
* Briefs of amici curiae urging affirmance were filed for the American Civil
Liberties Union et al. by Steven R. Shapiro and John A. Powell; for the American
Jewish Congress by Amy Adelson, Lois C. Waldman, and Marc D. Stern; for the
Association on American Indian Affairs et al. by Steven C. Moore and Jack Trope;
and for the Council on Religious Freedom by Lee Boothby and Robert W. Nixon.
JUDGES:
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J.,
and White, Stevens, and Kennedy, JJ., joined. O'Connor, J., filed an opinion
concurring in the judgment, in Parts I and II of which Brennan, Marshall, and
Blackmun, JJ., joined without concurring in the judgment, post, p. 891.
Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ.,
joined, post, p. 907.
OPINIONBY:
SCALIA
OPINION:
[*874] [***882] [**1597] JUSTICE SCALIA delivered the opinion of the
Court.
[***LEdHR1A] [1A] [***LEdHR2A] [2A]This case requires us to decide whether
the Free Exercise Clause of the First Amendment permits the State of Oregon to
include religiously inspired peyote use within the reach of its general criminal
prohibition on use of that drug, and thus permits the State to deny unemployment
benefits to persons dismissed from their jobs because of such religiously
inspired use.
I
Oregon law prohibits the knowing or intentional possession of a "controlled
substance" unless the substance has been prescribed by a medical practitioner.
Ore. Rev. Stat. § 475.992(4) (1987). The law defines "controlled substance" as
a drug classified in Schedules I through V of the Federal Controlled Substances
Act, 21 U. S. C. §§ 811-812, as modified by the State Board of Pharmacy. Ore.
Rev. Stat. § 475.005(6) (1987). Persons who violate this provision by
possessing a controlled substance listed on Schedule I are "guilty of a Class B
felony." § 475.992(4)(a). As compiled by the State Board of Pharmacy under its
statutory authority, see § 475.035, Schedule I contains the drug peyote, a
hallucinogen derived from the plant Lophophora williamsii Lemaire. Ore. Admin.
Rule 855-80-021(3)(s) (1988).
Respondents Alfred Smith and [***883] Galen Black (hereinafter respondents)
were fired from their jobs with a private drug rehabilitation organization
because they ingested peyote for sacramental purposes at a ceremony of the
Native American Church, of which [**1598] both are members. When respondents
applied to petitioner Employment Division (hereinafter petitioner) for
unemployment compensation, they were determined to be ineligible for benefits
because they had been discharged for work-related "misconduct." The Oregon Court
of Appeals reversed that determination, holding that the denial of benefits
violated respondents' free exercise rights under the First Amendment.
[*875] On appeal to the Oregon Supreme Court, petitioner argued that the
denial of benefits was permissible because respondents' consumption of peyote
was a crime under Oregon law. The Oregon Supreme Court reasoned, however, that
the criminality of respondents' peyote use was irrelevant to resolution of their
constitutional claim -- since the purpose of the "misconduct" provision under
which respondents had been disqualified was not to enforce the State's criminal
laws but to preserve the financial integrity of the compensation fund, and since
that purpose was inadequate to justify the burden that disqualification imposed
on respondents' religious practice. Citing our decisions in Sherbert v. Verner,
374 U.S. 398 (1963), and Thomas v. Review Bd. of Indiana Employment Security
Div., 450 U.S. 707 (1981), the court concluded that respondents were entitled to
payment of unemployment benefits. Smith v. Employment Div., Dept. of Human
Resources, 301 Ore. 209, 217-219, 721 P. 2d 445, 449-450 (1986). We granted
certiorari. 480 U.S. 916 (1987).
Before this Court in 1987, petitioner continued to maintain that the
illegality of respondents' peyote consumption was relevant to their
constitutional claim. We agreed, concluding that "if a State has prohibited
through its criminal laws certain kinds of religiously motivated conduct without
violating the First Amendment, it certainly follows that it may impose the
lesser burden of denying unemployment compensation benefits to persons who
engage in that conduct." Employment Div., Dept. of Human Resources of Oregon v.
Smith, 485 U.S. 660, 670 (1988) (Smith I). We noted, however, that the Oregon
Supreme Court had not decided whether respondents' sacramental use of peyote was
in fact proscribed by Oregon's controlled substance law, and that this issue was
a matter of dispute between the parties. Being "uncertain about the legality of
the religious use of peyote in Oregon," we determined that it would not be
"appropriate for us to decide whether the practice is protected by the Federal
Constitution." Id., at 673. Accordingly, we [*876] vacated the judgment of the
Oregon Supreme Court and remanded for further proceedings. Id., at 674.
On remand, the Oregon Supreme Court held that respondents' religiously
inspired use of peyote fell within the prohibition of the Oregon statute, which
"makes no exception for the sacramental use" of the drug. 307 Ore. 68, 72-73,
763 P. 2d 146, 148 (1988). It then considered whether that prohibition was valid
under the [***884] Free Exercise Clause, and concluded that it was not. The
court therefore reaffirmed its previous ruling that the State could not deny
unemployment benefits to respondents for having engaged in that practice.
We again granted certiorari. 489 U.S. 1077 (1989).
II
Respondents' claim for relief rests on our decisions in Sherbert v. Verner,
supra, Thomas v. Review Bd. of Indiana Employment Security Div., supra, and
Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136 (1987), in which
we held that a State could not condition the availability of unemployment
insurance on an individual's willingness to forgo conduct required by his
religion. As we observed in Smith I, however, the conduct at issue in those
cases was not prohibited by law. We held that distinction to be critical, for
"if Oregon does prohibit the religious [**1599] use of peyote, and if that
prohibition is consistent with the Federal Constitution, there is no federal
right to engage in that conduct in Oregon," and "the State is free to withhold
unemployment compensation from respondents for engaging in work-related
misconduct, despite its religious motivation." 485 U.S., at 672. Now that the
Oregon Supreme Court has confirmed that Oregon does prohibit the religious use
of peyote, we proceed to consider whether that prohibition is permissible under
the Free Exercise Clause.
A
[***LEdHR3] [3] [***LEdHR4] [4]The Free Exercise Clause of the First
Amendment, which has been made applicable to the States by incorporation into
[*877] the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303
(1940), provides that "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof . . . ." U. S. Const., Amdt.
1 (emphasis added). The free exercise of religion means, first and foremost,
the right to believe and profess whatever religious doctrine one desires. Thus,
the First Amendment obviously excludes all "governmental regulation of religious
beliefs as such." Sherbert v. Verner, supra, at 402. The government may not
compel affirmation of religious belief, see Torcaso v. Watkins, 367 U.S. 488
(1961), punish the expression of religious doctrines it believes to be false,
United States v. Ballard, 322 U.S. 78, 86-88 (1944), impose special disabilities
on the basis of religious views or religious status, see McDaniel v. Paty, 435
U.S. 618 (1978); Fowler v. Rhode Island, 345 U.S. 67, 69 (1953); cf. Larson v.
Valente, 456 U.S. 228, 245 (1982), or lend its power to one or the other side in
controversies over religious authority or dogma, see Presbyterian Church in U.
S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440,
445-452 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 95-119 (1952);
Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-725 (1976).
[***LEdHR5] [5]But the "exercise of religion" [***885] often involves not
only belief and profession but the performance of (or abstention from) physical
acts: assembling with others for a worship service, participating in sacramental
use of bread and wine, proselytizing, abstaining from certain foods or certain
modes of transportation. It would be true, we think (though no case of ours has
involved the point), that a State would be "prohibiting the free exercise [of
religion]" if it sought to ban such acts or abstentions only when they are
engaged in for religious reasons, or only because of the religious belief that
they display. It would doubtless be unconstitutional, for example, to ban the
casting of "statues that are to be used [*878] for worship purposes," or to
prohibit bowing down before a golden calf.
[***LEdHR6] [6] [***LEdHR7A] [7A]Respondents in the present case, however,
seek to carry the meaning of "prohibiting the free exercise [of religion]" one
large step further. They contend that their religious motivation for using
peyote places them beyond the reach of a criminal law that is not specifically
directed at their religious practice, and that is concededly constitutional as
applied to those who use the drug for other reasons. They assert, in other
words, that "prohibiting the free exercise [of religion]" includes requiring any
individual to observe a generally applicable law that requires (or forbids) the
performance of an act that his religious belief forbids (or requires). As a
textual matter, we do not think the words must be given that meaning. It is no
more necessary to regard the collection of a general tax, for example, as
"prohibiting the free exercise [of religion]" by those citizens who believe
support of organized government to be sinful, than it is to regard the same tax
as "abridging the freedom . . . of the press" of [**1600] those publishing
companies that must pay the tax as a condition of staying in business. It is a
permissible reading of the text, in the one case as in the other, to say that if
prohibiting the exercise of religion (or burdening the activity of printing) is
not the object of the tax but merely the incidental effect of a generally
applicable and otherwise valid provision, the First Amendment has not been
offended. Compare Citizen Publishing Co. v. United States, 394 U.S. 131, 139
(1969) (upholding application of antitrust laws to press), with Grosjean v.
American Press Co., 297 U.S. 233, 250-251 (1936) (striking down license tax
applied only to newspapers with weekly circulation above a specified level); see
generally Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460
U.S. 575, 581 (1983).
[***LEdHR7B] [7B] [***LEdHR8A] [8A]Our decisions reveal that the latter
reading is the correct one. We have never held that an individual's religious
beliefs [*879] excuse him from compliance with an otherwise valid law
prohibiting conduct that the State is free to regulate. On the contrary, the
record of more than a century of our free exercise jurisprudence contradicts
that proposition. As described succinctly by Justice Frankfurter in Minersville
School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594-595 (1940): "Conscientious
scruples have not, in the course of the long struggle for religious toleration,
relieved the individual from obedience to a general law not aimed at the
promotion or restriction of religious beliefs. The mere possession of religious
[***886] convictions which contradict the relevant concerns of a political
society does not relieve the citizen from the discharge of political
responsibilities (footnote omitted)." We first had occasion to assert that
principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected
the claim that criminal laws against polygamy could not be constitutionally
applied to those whose religion commanded the practice. "Laws," we said, "are
made for the government of actions, and while they cannot interfere with mere
religious belief and opinions, they may with practices. . . . Can a man excuse
his practices to the contrary because of his religious belief? To permit this
would be to make the professed doctrines of religious belief superior to the law
of the land, and in effect to permit every citizen to become a law unto himself.
" Id., at 166-167.
Subsequent decisions have consistently held that the right of free exercise
does not relieve an individual of the obligation to comply with a "valid and
neutral law of general applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes)." United States
v. Lee, 455 U.S. 252, 263, n. 3 (1982) (Stevens, J., concurring in judgment);
see Minersville School Dist. Bd. of Ed. v. Gobitis, supra, at 595 (collecting
cases). In Prince v. Massachusetts, 321 U.S. 158 (1944), we held that a mother
could be prosecuted under the child labor laws [*880] for using her children
to dispense literature in the streets, her religious motivation notwithstanding.
We found no constitutional infirmity in "excluding [these children] from doing
there what no other children may do." Id., at 171. In Braunfeld v. Brown, 366
U.S. 599 (1961) (plurality opinion), we upheld Sunday-closing laws against the
claim that they burdened the religious practices of persons whose religions
compelled them to refrain from work on other days. In Gillette v. United States
, 401 U.S. 437, 461 (1971), we sustained the military Selective Service System
against the claim that it violated free exercise by conscripting persons who
opposed a particular war on religious grounds.
[**1601] Our most recent decision involving a neutral, generally applicable
regulatory law that compelled activity forbidden by an individual's religion was
United States v. Lee, 455 U.S., at 258-261. There, an Amish employer, on behalf
of himself and his employees, sought exemption from collection and payment of
Social Security taxes on the ground that the Amish faith prohibited
participation in governmental support programs. We rejected the claim that an
exemption was constitutionally required. There would be no way, we observed, to
distinguish the Amish believer's objection to Social Security taxes from the
religious objections that others might have to the collection or use of other
taxes. "If, for example, a religious adherent believes war is a sin, and if a
certain percentage of the federal budget can be identified as devoted to
war-related activities, such individuals would have a similarly valid claim to
be exempt from paying that percentage of the income tax. The tax system could
not function if denominations were allowed [***887] to challenge the tax
system because tax payments were spent in a manner that violates their religious
belief." Id., at 260. Cf. Hernandez v. Commissioner, 490 U.S. 680 (1989)
(rejecting free exercise challenge to payment of income taxes alleged to make
religious activities more difficult).
[*881] The only decisions in which we have held that the First Amendment
bars application of a neutral, generally applicable law to religiously motivated
action have involved not the Free Exercise Clause alone, but the Free Exercise
Clause in conjunction with other constitutional protections, such as freedom of
speech and of the press, see Cantwell v. Connecticut, 310 U.S., at 304-307
(invalidating a licensing system for religious and charitable solicitations
under which the administrator had discretion to deny a license to any cause he
deemed nonreligious); Murdock v. Pennsylvania, 319 U.S. 105 (1943) (invalidating
a flat tax on solicitation as applied to the dissemination of religious ideas);
Follett v. McCormick, 321 U.S. 573 (1944) (same), or the right of parents,
acknowledged in Pierce v. Society of Sisters, 268 U.S. 510 (1925), to direct the
education of their children, see Wisconsin v. Yoder, 406 U.S. 205 (1972)
(invalidating compulsory school-attendance laws as applied to Amish parents who
refused on religious grounds to send their children to school). n1 [*882] Some
of our cases prohibiting compelled expression, decided exclusively upon free
speech grounds, have also involved freedom of religion, cf. Wooley v. Maynard,
430 U.S. 705 (1977) (invalidating compelled display of a license plate slogan
that offended individual religious beliefs); West Virginia Bd. of Education v.
Barnette, 319 U.S. 624 (1943) (invalidating [**1602] compulsory flag salute
statute challenged by religious objectors). And it is easy to envision a case
in which a challenge on freedom of association grounds would likewise be
reinforced by Free Exercise [***888] Clause concerns. Cf. Roberts v. United
States Jaycees, 468 U.S. 609, 622 (1984) ("An individual's freedom to speak, to
worship, and to petition the government for the redress of grievances could not
be vigorously protected from interference by the State [if] a correlative
freedom to engage in group effort toward those ends were not also guaranteed").
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Both lines of cases have specifically adverted to the non-free-exercise
principle involved. Cantwell, for example, observed that "[t]he fundamental law
declares the interest of the United States that the free exercise of religion be
not prohibited and that freedom to communicate information and opinion be not
abridged." 310 U.S., at 307. Murdock said:
"We do not mean to say that religious groups and the press are free from all
financial burdens of government. . . . We have here something quite different,
for example, from a tax on the income of one who engages in religious activities
or a tax on property used or employed in connection with those activities. It
is one thing to impose a tax on the income or property of a preacher. It is
quite another thing to exact a tax from him for the privilege of delivering a
sermon. . . . Those who can deprive religious groups of their colporteurs can
take from them a part of the vital power of the press which has survived from
the Reformation." 319 U.S., at 112.
Yoder said that "the Court's holding in Pierce stands as a charter of the
rights of parents to direct the religious upbringing of their children. And,
when the interests of parenthood are combined with a free exercise claim of the
nature revealed by this record, more than merely a 'reasonable relation to some
purpose within the competency of the State' is required to sustain the validity
of the State's requirement under the First Amendment." 406 U.S., at 233.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[***LEdHR1B] [1B] [***LEdHR8B] [8B]The present case does not present such
a hybrid situation, but a free exercise claim unconnected with any communicative
activity or parental right. Respondents urge us to hold, quite simply, that
when otherwise prohibitable conduct is accompanied by religious convictions, not
only the convictions but the conduct itself must be free from governmental
regulation. We have never held that, and decline to do so now. There being no
contention that Oregon's drug law represents an attempt to regulate religious
beliefs, the communication of religious beliefs, or the raising of one's
children in those beliefs, the rule to which we have adhered ever since Reynolds
plainly controls. "Our cases do not at their farthest reach support the
proposition that a stance of conscientious opposition relieves an objector from
any colliding duty fixed by a democratic government." Gillette v. United States,
supra, at 461.
B
[***LEdHR9A] [9A]Respondents argue that even though exemption from generally
applicable criminal laws need not automatically be extended to religiously
motivated actors, at least the claim for a [*883] religious exemption must be
evaluated under the balancing test set forth in Sherbert v. Verner, 374 U.S. 398
(1963). Under the Sherbert test, governmental actions that substantially burden
a religious practice must be justified by a compelling governmental interest.
See id., at 402-403; see also Hernandez v. Commissioner, 490 U.S., at 699.
Applying that test we have, on three occasions, invalidated state unemployment
compensation rules that conditioned the availability of benefits upon an
applicant's willingness to work under conditions forbidden by his religion. See
Sherbert v. Verner, supra; Thomas v. Review Bd. of Indiana Employment Security
Div., 450 U.S. 707 (1981); Hobbie v. Unemployment Appeals Comm'n of Florida, 480
U.S. 136 (1987). We have never invalidated any governmental action on the basis
of the Sherbert test except the denial of unemployment compensation. Although we
have sometimes purported to apply the Sherbert test in contexts other than that,
we have always found the test satisfied, see United States v. Lee, 455 U.S. 252
(1982); Gillette v. United States, 401 U.S. 437 (1971). In recent years we have
abstained from applying the Sherbert test (outside the unemployment compensation
field) at all. In Bowen v. Roy, 476 U.S. 693 (1986), we declined to apply
Sherbert analysis to a federal statutory scheme that required benefit applicants
and recipients to provide their Social Security numbers. The plaintiffs in that
case asserted that it would violate their religious beliefs to obtain and
provide [***889] a Social Security number for their daughter. We held the
statute's application to the plaintiffs valid regardless of whether it was
necessary to effectuate a compelling interest. See 476 U.S., at 699-701. In Lyng
v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988), we declined
to apply Sherbert analysis to the Government's logging and road construction
activities on lands used for religious purposes by several Native American
Tribes, even though it was undisputed that the activities [**1603] "could have
devastating effects on traditional Indian religious practices," 485 U.S., at
451. [*884] In Goldman v. Weinberger, 475 U.S. 503 (1986), we rejected
application of the Sherbert test to military dress regulations that forbade the
wearing of yarmulkes. In O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), we
sustained, without mentioning the Sherbert test, a prison's refusal to excuse
inmates from work requirements to attend worship services.
Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require exemptions
from a generally applicable criminal law. The Sherbert test, it must be
recalled, was developed in a context that lent itself to individualized
governmental assessment of the reasons for the relevant conduct. As a plurality
of the Court noted in Roy, a distinctive feature of unemployment compensation
programs is that their eligibility criteria invite consideration of the
particular circumstances behind an applicant's unemployment: "The statutory
conditions [in Sherbert and Thomas] provided that a person was not eligible for
unemployment compensation benefits if, 'without good cause,' he had quit work or
refused available work. The 'good cause' standard created a mechanism for
individualized exemptions." Bowen v. Roy, supra, at 708 (opinion of Burger, C.
J., joined by Powell and Rehnquist, JJ.). See also Sherbert, supra, at 401, n.
4 (reading state unemployment compensation law as allowing benefits for
unemployment caused by at least some "personal reasons"). As the plurality
pointed out in Roy, our decisions in the unemployment cases stand for the
proposition that where the State has in place a system of individual exemptions,
it may not refuse to extend that system to cases of "religious hardship" without
compelling reason. Bowen v. Roy, supra, at 708.
[***LEdHR8C] [8C] [***LEdHR9B] [9B]Whether or not the decisions are that
limited, they at least have nothing to do with an across-the-board criminal
prohibition on a particular form of conduct. Although, as noted earlier, we
have sometimes used the Sherbert test to analyze free exercise challenges to
such laws, see United States v. [*885] Lee, supra, at 257-260; Gillette v.
United States, supra, at 462, we have never applied the test to invalidate one.
We conclude today that the sounder approach, and the approach in accord with the
vast majority of our precedents, is to hold the test inapplicable to such
challenges. The government's ability to enforce generally applicable
prohibitions of socially [***890] harmful conduct, like its ability to carry
out other aspects of public policy, "cannot depend on measuring the effects of a
governmental action on a religious objector's spiritual development." Lyng,
supra, at 451. To make an individual's obligation to obey such a law contingent
upon the law's coincidence with his religious beliefs, except where the State's
interest is "compelling" -- permitting him, by virtue of his beliefs, "to become
a law unto himself," Reynolds v. United States, 98 U.S., at 167 -- contradicts
both constitutional tradition and common sense. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Justice O'Connor seeks to distinguish Lyng v. Northwest Indian Cemetery
Protective Assn., 485 U.S. 439 (1988), and Bowen v. Roy, 476 U.S. 693 (1986), on
the ground that those cases involved the government's conduct of "its own
internal affairs," which is different because, as Justice Douglas said in
Sherbert, "'the Free Exercise Clause is written in terms of what the government
cannot do to the individual, not in terms of what the individual can exact from
the government.'" Post, at 900 (O'Connor, J., concurring in judgment), quoting
Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J., concurring). But
since Justice Douglas voted with the majority in Sherbert, that quote obviously
envisioned that what "the government cannot do to the individual" includes not
just the prohibition of an individual's freedom of action through criminal laws
but also the running of its programs (in Sherbert, state unemployment
compensation) in such fashion as to harm the individual's religious interests.
Moreover, it is hard to see any reason in principle or practicality why the
government should have to tailor its health and safety laws to conform to the
diversity of religious belief, but should not have to tailor its management of
public lands, Lyng, supra, or its administration of welfare programs, Roy, supra
.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**1604]
[***LEdHR9C] [9C]The "compelling government interest" requirement seems
benign, because it is familiar from other fields. But using it as the standard
that must be met before the government may accord different treatment on the
basis of race, see, e. g., [*886] Palmore v. Sidoti, 466 U.S. 429, 432 (1984),
or before the government may regulate the content of speech, see, e. g., Sable
Communications of California v. FCC, 492 U.S. 115, 126 (1989), is not remotely
comparable to using it for the purpose asserted here. What it produces in those
other fields -- equality of treatment and an unrestricted flow of contending
speech -- are constitutional norms; what it would produce here -- a private
right to ignore generally applicable laws -- is a constitutional anomaly. n3
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
[***LEdHR9D] [9D]
n3 Justice O'Connor suggests that "[t]here is nothing talismanic about
neutral laws of general applicability," and that all laws burdening religious
practices should be subject to compelling-interest scrutiny because "the First
Amendment unequivocally makes freedom of religion, like freedom from race
discrimination and freedom of speech, a 'constitutional nor[m],' not an
'anomaly.'" Post, at 901 (opinion concurring in judgment). But this comparison
with other fields supports, rather than undermines, the conclusion we draw
today. Just as we subject to the most exacting scrutiny laws that make
classifications based on race, see Palmore v. Sidoti, 466 U.S. 429 (1984), or on
the content of speech, see Sable Communications of California v. FCC, 492 U.S.
115 (1989), so too we strictly scrutinize governmental classifications based on
religion, see McDaniel v. Paty, 435 U.S. 618 (1978); see also Torcaso v. Watkins
, 367 U.S. 488 (1961). But we have held that race-neutral laws that have the
effect of disproportionately disadvantaging a particular racial group do not
thereby become subject to compelling-interest analysis under the Equal
Protection Clause, see Washington v. Davis, 426 U.S. 229 (1976) (police
employment examination); and we have held that generally applicable laws
unconcerned with regulating speech that have the effect of interfering with
speech do not thereby become subject to compelling-interest analysis under the
First Amendment, see Citizen Publishing Co. v. United States, 394 U.S. 131, 139
(1969) (antitrust laws). Our conclusion that generally applicable,
religion-neutral laws that have the effect of burdening a particular religious
practice need not be justified by a compelling governmental interest is the only
approach compatible with these precedents.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[***891]
[***LEdHR9E] [9E] [***LEdHR10] [10]Nor is it possible to limit the impact of
respondents' proposal by requiring a "compelling state interest" only when the
conduct prohibited is "central" to the individual's religion. Cf. Lyng v.
Northwest Indian Cemetery Protective Assn., 485 U.S., at 474-476 (Brennan, J.,
dissenting). It is no [*887] more appropriate for judges to determine the
"centrality" of religious beliefs before applying a "compelling interest" test
in the free exercise field, than it would be for them to determine the
"importance" of ideas before applying the "compelling interest" test in the free
speech field. What principle of law or logic can be brought to bear to
contradict a believer's assertion that a particular act is "central" to his
personal faith? Judging the centrality of different religious practices is akin
to the unacceptable "business of evaluating the relative merits of differing
religious claims." United States v. Lee, 455 U.S., at 263 n. 2 (Stevens, J.,
concurring). As we reaffirmed only last Term, "[i]t is not within the judicial
ken to question the centrality of particular beliefs or practices to a faith,
or the validity of particular litigants' interpretations of those creeds."
Hernandez v. Commissioner, 490 U.S., at 699. Repeatedly and in many different
contexts, we have warned that courts must not presume to determine the place of
a particular belief in a religion or the plausibility of a religious claim.
See, e. g., Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S.,
at 716; Presbyterian Church in U. S. v. Mary Elizabeth [**1605] Blue Hull
Memorial Presbyterian Church, 393 U.S., at 450; Jones v. Wolf, 443 U.S. 595,
602-606 (1979); United States v. Ballard, 322 U.S. 78, 85-87 (1944). n4
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
[***LEdHR9F] [9F]
n4 While arguing that we should apply the compelling interest test in this
case, Justice O'Connor nonetheless agrees that "our determination of the
constitutionality of Oregon's general criminal prohibition cannot, and should
not, turn on the centrality of the particular religious practice at issue," post
, at 906-907 (opinion concurring in judgment). This means, presumably, that
compelling-interest scrutiny must be applied to generally applicable laws that
regulate or prohibit any religiously motivated activity, no matter how
unimportant to the claimant's religion. Earlier in her opinion, however, Justice
O'Connor appears to contradict this, saying that the proper approach is "to
determine whether the burden on the specific plaintiffs before us is
constitutionally significant and whether the particular criminal interest
asserted by the State before us is compelling." Post, at 899. "Constitutionally
significant burden" would seem to be "centrality" under another name. In any
case, dispensing with a "centrality" inquiry is utterly unworkable. It would
require, for example, the same degree of "compelling state interest" to impede
the practice of throwing rice at church weddings as to impede the practice of
getting married in church. There is no way out of the difficulty that, if
general laws are to be subjected to a "religious practice" exception, both the
importance of the law at issue and the centrality of the practice at issue must
reasonably be considered.
Nor is this difficulty avoided by Justice Blackmun's assertion that "although
. . . courts should refrain from delving into questions whether, as a matter of
religious doctrine, a particular practice is 'central' to the religion, . . . I
do not think this means that the courts must turn a blind eye to the severe
impact of a State's restrictions on the adherents of a minority religion." Post,
at 919 (dissenting opinion). As Justice Blackmun's opinion proceeds to make
clear, inquiry into "severe impact" is no different from inquiry into
centrality. He has merely substituted for the question "How important is X to
the religious adherent?" the question "How great will be the harm to the
religious adherent if X is taken away?" There is no material difference.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*888]
[***LEdHR9G] [9G]If the "compelling interest" test is to be applied at all,
then, it [***892] must be applied across the board, to all actions thought to
be religiously commanded. Moreover, if "compelling interest" really means what
it says (and watering it down here would subvert its rigor in the other fields
where it is applied), many laws will not meet the test. Any society adopting
such a system would be courting anarchy, but that danger increases in direct
proportion to the society's diversity of religious beliefs, and its
determination to coerce or suppress none of them. Precisely because "we are a
cosmopolitan nation made up of people of almost every conceivable religious
preference," Braunfeld v. Brown, 366 U.S., at 606, and precisely because we
value and protect that religious divergence, we cannot afford the luxury of
deeming presumptively invalid, as applied to the religious objector, every
regulation of conduct that does not protect an interest of the highest order.
The rule respondents favor would open the prospect of constitutionally required
religious exemptions from civic obligations of almost every conceivable kind --
ranging from [*889] compulsory military service, see, e. g., Gillette v.
United States, 401 U.S. 437 (1971), to the payment of taxes, see, e. g., United
States v. Lee, supra; to health and safety regulation such as manslaughter and
child neglect laws, see, e. g., Funkhouser v. State, 763 P. 2d 695 (Okla. Crim.
App. 1988), compulsory vaccination laws, see, e. g., Cude v. State, 237 Ark.
927, 377 S. W. 2d 816 (1964), drug laws, see, e. g., Olsen v. Drug Enforcement
Administration, 279 U. S. App. D. C. 1, 878 F. 2d 1458 (1989), and traffic laws,
see Cox v. New Hampshire, 312 U.S. 569 (1941); to social welfare legislation
such as minimum wage laws, see Tony and Susan Alamo Foundation v. Secretary of
Labor, 471 U.S. 290 (1985), child labor laws, see Prince v. Massachusetts, 321
U.S. 158 (1944), animal cruelty laws, see, e. g., Church of the Lukumi Babalu
Aye Inc. v. City of Hialeah, 723 F. Supp. 1467 (SD Fla. 1989), cf. State v.
Massey, 229 N. C. 734, 51 S. E. 2d 179, appeal dism'd, 336 U.S. 942 (1949),
environmental protection laws, [**1606] see United States v. Little, 638 F.
Supp. 337 (Mont. 1986), and laws providing for equality of opportunity for the
races, see, e. g., Bob Jones University v. United States, 461 U.S. 574, 603-604
(1983). The First Amendment's protection of religious liberty does not require
this. n5
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 Justice O'Connor contends that the "parade of horribles" in the text only
"demonstrates . . . that courts have been quite capable of . . . strik[ing]
sensible balances between religious liberty and competing state interests." Post
, at 902 (opinion concurring in judgment). But the cases we cite have struck
"sensible balances" only because they have all applied the general laws, despite
the claims for religious exemption. In any event, Justice O'Connor mistakes the
purpose of our parade: it is not to suggest that courts would necessarily permit
harmful exemptions from these laws (though they might), but to suggest that
courts would constantly be in the business of determining whether the "severe
impact" of various laws on religious practice (to use Justice Blackmun's
terminology, post, at 919) or the "constitutiona[l] significan[ce]" of the
"burden on the specific plaintiffs" (to use Justice O'Connor's terminology, post
, at 899) suffices to permit us to confer an exemption. It is a parade of
horribles because it is horrible to contemplate that federal judges will
regularly balance against the importance of general laws the significance of
religious practice.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*890] [***893]
[***LEdHR9H] [9H] [***LEdHR11] [11]Values that are protected against
government interference through enshrinement in the Bill of Rights are not
thereby banished from the political process. Just as a society that believes in
the negative protection accorded to the press by the First Amendment is likely
to enact laws that affirmatively foster the dissemination of the printed word,
so also a society that believes in the negative protection accorded to religious
belief can be expected to be solicitous of that value in its legislation as
well. It is therefore not surprising that a number of States have made an
exception to their drug laws for sacramental peyote use. See, e. g., Ariz. Rev.
Stat. Ann. §§ 13-3402(B)(1)-(3) (1989); Colo. Rev. Stat. § 12-22-317(3) (1985);
N. M. Stat. Ann. § 30-31-6(D) (Supp. 1989). But to say that a nondiscriminatory
religious-practice exemption is permitted, or even that it is desirable, is not
to say that it is constitutionally required, and that the appropriate occasions
for its creation can be discerned by the courts. It may fairly be said that
leaving accommodation to the political process will place at a relative
disadvantage those religious practices that are not widely engaged in; but that
unavoidable consequence of democratic government must be preferred to a system
in which each conscience is a law unto itself or in which judges weigh the
social importance of all laws against the centrality of all religious beliefs.
* * *
[***LEdHR1C] [1C] [***LEdHR2B] [2B]Because respondents' ingestion of peyote
was prohibited under Oregon law, and because that prohibition is constitutional,
Oregon may, consistent with the Free Exercise Clause, deny respondents
unemployment compensation when their dismissal results from use of the drug.
The decision of the Oregon Supreme Court is accordingly reversed.
It is so ordered.
CONCURBY:
O'CONNOR
CONCUR:
[*891] JUSTICE O'CONNOR, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and
JUSTICE BLACKMUN join as to Parts I and II, concurring in the judgment. *
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
* Although Justice Brennan, Justice Marshall, and Justice Blackmun join Parts
I and II of this opinion, they do not concur in the judgment.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Although I agree with the result the Court reaches in this case, I cannot
join its opinion. In my view, today's holding dramatically departs from
well-settled First Amendment jurisprudence, appears unnecessary to resolve the
question presented, and is incompatible with our Nation's fundamental commitment
to individual religious liberty.
I
At the outset, I note that I agree with the Court's implicit determination
[***894] that the constitutional [**1607] question upon which we granted
review -- whether the Free Exercise Clause protects a person's religiously
motivated use of peyote from the reach of a State's general criminal law
prohibition -- is properly presented in this case. As the Court recounts,
respondents Alfred Smith and Galen Black (hereinafter respondents) were denied
unemployment compensation benefits because their sacramental use of peyote
constituted work-related "misconduct," not because they violated Oregon's
general criminal prohibition against possession of peyote. We held, however, in
Employment Div., Dept. of Human Resources of Oregon v. Smith, 485 U.S. 660
(1988) (Smith I), that whether a State may, consistent with federal law, deny
unemployment compensation benefits to persons for their religious use of peyote
depends on whether the State, as a matter of state law, has criminalized the
underlying conduct. See id., at 670-672. The Oregon Supreme Court, on remand
from this Court, concluded that "the Oregon statute against possession of
controlled substances, which include peyote, makes no exception for the
sacramental use of peyote." 307 Ore. 68, 72-73, 763 P. 2d 146, 148 (1988)
(footnote omitted).
[*892] Respondents contend that, because the Oregon Supreme Court declined
to decide whether the Oregon Constitution prohibits criminal prosecution for the
religious use of peyote, see id., at 73, n. 3, 763 P. 2d, at 148, n. 3, any
ruling on the federal constitutional question would be premature. Respondents
are of course correct that the Oregon Supreme Court may eventually decide that
the Oregon Constitution requires the State to provide an exemption from its
general criminal prohibition for the religious use of peyote. Such a decision
would then reopen the question whether a State may nevertheless deny
unemployment compensation benefits to claimants who are discharged for engaging
in such conduct. As the case comes to us today, however, the Oregon Supreme
Court has plainly ruled that Oregon's prohibition against possession of
controlled substances does not contain an exemption for the religious use of
peyote. In light of our decision in Smith I, which makes this finding a
"necessary predicate to a correct evaluation of respondents' federal claim," 485
U.S., at 672, the question presented and addressed is properly before the Court.
II
The Court today extracts from our long history of free exercise precedents
the single categorical rule that "if prohibiting the exercise of religion . . .
is . . . merely the incidental effect of a generally applicable and otherwise
valid provision, the First Amendment has not been offended." Ante, at 878
(citations omitted). Indeed, the Court holds that where the law is a generally
applicable criminal prohibition, our usual free exercise jurisprudence does not
even apply. Ante, at 884. To reach this sweeping result, however, the Court
must not only give a strained reading of the First Amendment but must also
disregard our consistent application of free exercise doctrine to cases
involving generally applicable regulations that burden religious conduct.
[*893] [***895] A
The Free Exercise Clause of the First Amendment commands that "Congress shall
make no law . . . prohibiting the free exercise [of religion]." In Cantwell v.
Connecticut, 310 U.S. 296 (1940), we held that this prohibition applies to the
States by incorporation into the Fourteenth Amendment and that it categorically
forbids government regulation of religious beliefs. Id., at 303. As the Court
recognizes, however, the "free exercise" of religion often, if not invariably,
requires the performance of (or abstention from) certain acts. Ante, at 877;
cf. 3 A New English Dictionary on Historical Principles 401-402 (J. Murray ed.
1897) (defining "exercise" to include "[t]he practice and performance of rites
and ceremonies, worship, [**1608] etc.; the right or permission to celebrate
the observances (of a religion)" and religious observances such as acts of
public and private worship, preaching, and prophesying). "[B]elief and action
cannot be neatly confined in logic-tight compartments." Wisconsin v. Yoder, 406
U.S. 205, 220 (1972). Because the First Amendment does not distinguish between
religious belief and religious conduct, conduct motivated by sincere religious
belief, like the belief itself, must be at least presumptively protected by the
Free Exercise Clause.
The Court today, however, interprets the Clause to permit the government to
prohibit, without justification, conduct mandated by an individual's religious
beliefs, so long as that prohibition is generally applicable. Ante, at 878.
But a law that prohibits certain conduct -- conduct that happens to be an act of
worship for someone -- manifestly does prohibit that person's free exercise of
his religion. A person who is barred from engaging in religiously motivated
conduct is barred from freely exercising his religion. Moreover, that person is
barred from freely exercising his religion regardless of whether the law
prohibits the conduct only when engaged in for religious reasons, only by
members of that religion, or by all persons. It is difficult to deny that a law
that prohibits [*894] religiously motivated conduct, even if the law is
generally applicable, does not at least implicate First Amendment concerns.
The Court responds that generally applicable laws are "one large step"
removed from laws aimed at specific religious practices. Ibid. The First
Amendment, however, does not distinguish between laws that are generally
applicable and laws that target particular religious practices. Indeed, few
States would be so naive as to enact a law directly prohibiting or burdening a
religious practice as such. Our free exercise cases have all concerned
generally applicable laws that had the effect of significantly burdening a
religious practice. If the First Amendment is to have any vitality, it ought not
be construed to cover only the extreme and hypothetical situation in which a
State directly targets a religious practice. As we have noted in a slightly
different context, "'[s]uch a test has no basis in precedent and relegates a
serious First Amendment value to the barest level of minimum scrutiny that the
Equal Protection Clause already [***896] provides.'" Hobbie v. Unemployment
Appeals Comm'n of Florida, 480 U.S. 136, 141-142 (1987) (quoting Bowen v. Roy,
476 U.S. 693, 727 (1986) (O'Connor, J., concurring in part and dissenting in
part)).
To say that a person's right to free exercise has been burdened, of course,
does not mean that he has an absolute right to engage in the conduct. Under our
established First Amendment jurisprudence, we have recognized that the freedom
to act, unlike the freedom to believe, cannot be absolute. See, e. g.,
Cantwell, supra, at 304; Reynolds v. United States, 98 U.S. 145, 161-167 (1879).
Instead, we have respected both the First Amendment's express textual mandate
and the governmental interest in regulation of conduct by requiring the
government to justify any substantial burden on religiously motivated conduct by
a compelling state interest and by means narrowly tailored to achieve that
interest. See Hernandez v. Commissioner, 490 U.S. 680, 699 [*895] (1989);
Hobbie, supra, at 141; United States v. Lee, 455 U.S. 252, 257-258 (1982);
Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 718
(1981); McDaniel v. Paty, 435 U.S. 618, 626-629 (1978) (plurality opinion);
Yoder, supra, at 215; Gillette v. United States, 401 U.S. 437, 462 (1971);
Sherbert v. Verner, 374 U.S. 398, 403 (1963); see also [**1609] Bowen v. Roy,
supra, at 732 (opinion concurring in part and dissenting in part); West Virginia
State Bd. of Ed. v. Barnette, 319 U.S. 624, 639 (1943). The compelling interest
test effectuates the First Amendment's command that religious liberty is an
independent liberty, that it occupies a preferred position, and that the Court
will not permit encroachments upon this liberty, whether direct or indirect,
unless required by clear and compelling governmental interests "of the highest
order," Yoder, supra, at 215. "Only an especially important governmental
interest pursued by narrowly tailored means can justify exacting a sacrifice of
First Amendment freedoms as the price for an equal share of the rights,
benefits, and privileges enjoyed by other citizens." Roy, supra, at 728 (opinion
concurring in part and dissenting in part).
The Court attempts to support its narrow reading of the Clause by claiming
that "[w]e have never held that an individual's religious beliefs excuse him
from compliance with an otherwise valid law prohibiting conduct that the State
is free to regulate." Ante, at 878-879. But as the Court later notes, as it
must, in cases such as Cantwell and Yoder we have in fact interpreted the Free
Exercise Clause to forbid application of a generally applicable prohibition to
religiously motivated conduct. See Cantwell, supra, at 304-307; Yoder, 406
U.S., at 214-234. Indeed, in Yoder we expressely rejected the interpretation the
Court now adopts:
[***897] "[O]ur decisions have rejected the idea that religiously
grounded conduct is always outside the protection of the Free Exercise
Clause. It is true that activities of individuals, even when
religiously based, are often subject [*896] to regulation by the
States in the exercise of their undoubted power to promote the health,
safety, and general welfare, or the Federal Government in the exercise
of its delegated powers. But to agree that religiously grounded
conduct must often be subject to the broad police power of the State
is not to deny that there are areas of conduct protected by the Free
Exercise Clause of the First Amendment and thus beyond the power of
the State to control, even under regulations of general applicability.
. . .
". . . A regulation neutral on its face may, in its application,
nonetheless offend the constitutional requirement for government
neutrality if it unduly burdens the free exercise of religion." Id.,
at 219-220 (emphasis added; citations omitted).
The Court endeavors to escape from our decisions in Cantwell and Yoder by
labeling them "hybrid" decisions, ante, at 892, but there is no denying that
both cases expressly relied on the Free Exercise Clause, see Cantwell, 310 U.S.,
at 303-307; Yoder, supra, at 219-229, and that we have consistently regarded
those cases as part of the mainstream of our free exercise jurisprudence.
Moreover, in each of the other cases cited by the Court to support its
categorical rule, ante, at 879-880, we rejected the particular constitutional
claims before us only after carefully weighing the competing interests. See
Prince v. Massachusetts, 321 U.S. 158, 168-170 (1944) (state interest in
regulating children's activities justifies denial of religious exemption from
child labor laws); Braunfeld v. Brown, 366 U.S. 599, 608-609 (1961) (plurality
opinion) (state interest in uniform day of rest justifies denial of religious
exemption from Sunday closing law); Gillette, supra, at 462 (state interest in
military affairs justifies denial of religious exemption from conscription
laws); Lee, supra, at 258-259 (state interest in comprehensive Social Security
system justifies denial of religious exemption from mandatory participation
requirement). That we rejected the free exercise [*897] claims in those cases
hardly [**1610] calls into question the applicability of First Amendment
doctrine in the first place. Indeed, it is surely unusual to judge the vitality
of a constitutional doctrine by looking to the win-loss record of the plaintiffs
who happen to come before us.
B
Respondents, of course, do not contend that their conduct is automatically
immune from all governmental regulation simply because it is motivated by their
sincere religious beliefs. The Court's rejection of that argument, ante, at
882, might therefore be regarded as merely harmless dictum. Rather, respondents
invoke our traditional [***898] compelling interest test to argue that the
Free Exercise Clause requires the State to grant them a limited exemption from
its general criminal prohibition against the possession of peyote. The Court
today, however, denies them even the opportunity to make that argument,
concluding that "the sounder approach, and the approach in accord with the vast
majority of our precedents, is to hold the [compelling interest] test
inapplicable to" challenges to general criminal prohibitions. Ante, at 885.
In my view, however, the essence of a free exercise claim is relief from a
burden imposed by government on religious practices or beliefs, whether the
burden is imposed directly through laws that prohibit or compel specific
religious practices, or indirectly through laws that, in effect, make
abandonment of one's own religion or conformity to the religious beliefs of
others the price of an equal place in the civil community. As we explained in
Thomas:
"Where the state conditions receipt of an important benefit upon
conduct proscribed by a religious faith, or where it denies such a
benefit because of conduct mandated by religious belief, thereby
putting substantial pressure on an adherent to modify his behavior and
to violate his beliefs, a burden upon religion exists." 450 U.S., at
717-718.
[*898] See also Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829,
832 (1989); Hobbie, 480 U.S., at 141. A State that makes criminal an individual
's religiously motivated conduct burdens that individual's free exercise of
religion in the severest manner possible, for it "results in the choice to the
individual of either abandoning his religious principle or facing criminal
prosecution." Braunfeld, supra, at 605. I would have thought it beyond argument
that such laws implicate free exercise concerns.
Indeed, we have never distinguished between cases in which a State conditions
receipt of a benefit on conduct prohibited by religious beliefs and cases in
which a State affirmatively prohibits such conduct. The Sherbert compelling
interest test applies in both kinds of cases. See, e. g., Lee, 455 U.S., at
257-260 (applying Sherbert to uphold Social Security tax liability); Gillette,
401 U.S., at 462 (applying Sherbert to uphold military conscription
requirement); Yoder, 406 U.S., at 215-234 (applying Sherbert to strike down
criminal convictions for violation of compulsory school attendance law). As I
noted in Bowen v. Roy:
"The fact that the underlying dispute involves an award of benefits
rather than an exaction of penalties does not grant the Government
license to apply a different version of the Constitution. . . .
". . . The fact that appellees seek exemption from a precondition
that the Government attaches to an award of benefits does not,
therefore, generate a meaningful distinction between this case and one
where appellees seek an exemption from the Government's imposition of
penalties upon them." [***899] 476 U.S., at 731-732 (opinion
concurring in part and dissenting in part).
[**1611] See also Hobbie, supra, at 141-142; Sherbert, 374 U.S., at 404. I
would reaffirm that principle today: A neutral criminal law prohibiting conduct
that a State may legitimately regulate is, if anything, more burdensome than a
neutral civil [*899] statute placing legitimate conditions on the award of a
state benefit.
Legislatures, of course, have always been "left free to reach actions which
were in violation of social duties or subversive of good order." Reynolds, 98
U.S., at 164; see also Yoder, supra, at 219-220; Braunfeld, 366 U.S., at
603-604. Yet because of the close relationship between conduct and religious
belief, "[i]n every case the power to regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected freedom." Cantwell
, 310 U.S., at 304. Once it has been shown that a government regulation or
criminal prohibition burdens the free exercise of religion, we have consistently
asked the government to demonstrate that unbending application of its regulation
to the religious objector "is essential to accomplish an overriding governmental
interest," Lee, supra, at 257-258, or represents "the least restrictive means of
achieving some compelling state interest," Thomas, supra, at 718. See, e. g.,
Braunfeld, supra, at 607; Sherbert, supra, at 406; Yoder, supra, at 214-215; Roy
, 476 U.S., at 728-732 (opinion concurring in part and dissenting in part). To
me, the sounder approach -- the approach more consistent with our role as judges
to decide each case on its individual merits -- is to apply this test in each
case to determine whether the burden on the specific plaintiffs before us is
constitutionally significant and whether the particular criminal interest
asserted by the State before us is compelling. Even if, as an empirical matter,
a government's criminal laws might usually serve a compelling interest in
health, safety, or public order, the First Amendment at least requires a
case-by-case determination of the question, sensitive to the facts of each
particular claim. Cf. McDaniel, 435 U.S., at 628, n. 8 (plurality opinion)
(noting application of Sherbert to general criminal prohibitions and the
"delicate balancing required by our decisions in" Sherbert and Yoder). Given
the range of conduct that a State might legitimately make [*900] criminal, we
cannot assume, merely because a law carries criminal sanctions and is generally
applicable, that the First Amendment never requires the State to grant a limited
exemption for religiously motivated conduct.
Moreover, we have not "rejected" or "declined to apply" the compelling
interest test in our recent cases. Ante, at 883-884. Recent cases have instead
affirmed that test as a fundamental part of our First Amendment doctrine. See,
e. g., Hernandez, 490 U.S., at 699; [***900] Hobbie, supra, at 141-142
(rejecting Chief Justice Burger's suggestion in Roy, supra, at 707-708, that
free exercise claims be assessed under a less rigorous "reasonable means"
standard). The cases cited by the Court signal no retreat from our consistent
adherence to the compelling interest test. In both Bowen v. Roy, supra, and Lyng
v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988), for example,
we expressly distinguished Sherbert on the ground that the First Amendment does
not "require the Government itself to behave in ways that the individual
believes will further his or her spiritual development . . . . The Free
Exercise Clause simply cannot be understood to require the Government to conduct
its own internal affairs in ways that comport with the religious beliefs of
particular citizens." Roy, supra, at 699; see Lyng, supra, at 449. This
distinction makes sense because "the Free Exercise Clause is written in
[**1612] terms of what the government cannot do to the individual, not in terms
of what the individual can exact from the government." Sherbert, supra, at 412
(Douglas, J., concurring). Because the case sub judice, like the other cases in
which we have applied Sherbert, plainly falls into the former category, I would
apply those established precedents to the facts of this case.
Similarly, the other cases cited by the Court for the proposition that we
have rejected application of the Sherbert test outside the unemployment
compensation field, ante, at 884, are distinguishable because they arose in the
narrow, specialized contexts in which we have not traditionally required [*901]
the government to justify a burden on religious conduct by articulating a
compelling interest. See Goldman v. Weinberger, 475 U.S. 503, 507 (1986) ("Our
review of military regulations challenged on First Amendment grounds is far more
deferential than constitutional review of similar laws or regulations designed
for civilian society"); O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (
"[P]rison regulations alleged to infringe constitutional rights are judged under
a 'reasonableness' test less restrictive than that ordinarily applied to alleged
infringements of fundamental constitutional rights") (citation omitted). That
we did not apply the compelling interest test in these cases says nothing about
whether the test should continue to apply in paradigm free exercise cases such
as the one presented here.
The Court today gives no convincing reason to depart from settled First
Amendment jurisprudence. There is nothing talismanic about neutral laws of
general applicability or general criminal prohibitions, for laws neutral toward
religion can coerce a person to violate his religious conscience or intrude upon
his religious duties just as effectively as laws aimed at religion. Although the
Court suggests that the compelling interest test, as applied to generally
applicable laws, would result in a "constitutional anomaly," ante, at 886, the
First Amendment unequivocally makes freedom of religion, like freedom [***901]
from race discrimination and freedom of speech, a "constitutional nor[m]," not
an "anomaly." Ibid. Nor would application of our established free exercise
doctrine to this case necessarily be incompatible with our equal protection
cases. Cf. Rogers v. Lodge, 458 U.S. 613, 618 (1982) (race-neutral law that "
'bears more heavily on one race than another'" may violate equal protection)
(citation omitted); Castaneda v. Partida, 430 U.S. 482, 492-495 (1977) (grand
jury selection). We have in any event recognized that the Free Exercise Clause
protects values distinct from those protected by the Equal Protection Clause.
See Hobbie, 480 U.S., at 141-142. As the language of the [*902] Clause itself
makes clear, an individual's free exercise of religion is a preferred
constitutional activity. See, e. g., McConnell, Accommodation of Religion, 1985
S. Ct. Rev. 1, 9 ("[T]he text of the First Amendment itself 'singles out'
religion for special protections"); P. Kauper, Religion and the Constitution 17
(1964). A law that makes criminal such an activity therefore triggers
constitutional concern -- and heightened judicial scrutiny -- even if it does
not target the particular religious conduct at issue. Our free speech cases
similarly recognize that neutral regulations that affect free speech values are
subject to a balancing, rather than categorical, approach. See, e. g., United
States v. O'Brien, 391 U.S. 367, 377 (1968); Renton v. Playtime Theatres, Inc.,
475 U.S. 41, 46-47 (1986); cf. Anderson v. Celebrezze, 460 U.S. 780, 792-794
(1983) (generally applicable laws may impinge on free association concerns).
The Court's parade of horribles, ante, at 888-889, not only fails as a reason
for discarding the compelling interest [**1613] test, it instead demonstrates
just the opposite: that courts have been quite capable of applying our free
exercise jurisprudence to strike sensible balances between religious liberty and
competing state interests.
Finally, the Court today suggests that the disfavoring of minority religions
is an "unavoidable consequence" under our system of government and that
accommodation of such religions must be left to the political process. Ante, at
890. In my view, however, the First Amendment was enacted precisely to protect
the rights of those whose religious practices are not shared by the majority and
may be viewed with hostility. The history of our free exercise doctrine amply
demonstrates the harsh impact majoritarian rule has had on unpopular or emerging
religious groups such as the Jehovah's Witnesses and the Amish. Indeed, the
words of Justice Jackson in West Virginia State Bd. of Ed. v. Barnette
(overruling Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940)) are apt:
[*903] "The very purpose of a Bill of Rights was to withdraw
certain subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the courts. One's
right to life, liberty, and property, to free speech, a free press,
freedom of worship and assembly, and other fundamental rights may not
be [***902] submitted to vote; they depend on the outcome of no
elections." 319 U.S., at 638.
See also United States v. Ballard, 322 U.S. 78, 87 (1944) ("The Fathers of the
Constitution were not unaware of the varied and extreme views of religious
sects, of the violence of disagreement among them, and of the lack of any one
religious creed on which all men would agree. They fashioned a charter of
government which envisaged the widest possible toleration of conflicting views
"). The compelling interest test reflects the First Amendment's mandate of
preserving religious liberty to the fullest extent possible in a pluralistic
society. For the Court to deem this command a "luxury," ante, at 888, is to
denigrate "[t]he very purpose of a Bill of Rights."
III
The Court's holding today not only misreads settled First Amendment
precedent; it appears to be unnecessary to this case. I would reach the same
result applying our established free exercise jurisprudence.
A
There is no dispute that Oregon's criminal prohibition of peyote places a
severe burden on the ability of respondents to freely exercise their religion.
Peyote is a sacrament of the Native American Church and is regarded as vital to
respondents' ability to practice their religion. See O. Stewart, Peyote
Religion: A History 327-336 (1987) (describing modern status of peyotism); E.
Anderson, Peyote: The Divine Cactus 41-65 (1980) (describing peyote ceremonies);
Teachings from [*904] the American Earth: Indian Religion and Philosophy
96-104 (D. Tedlock & B. Tedlock eds. 1975) (same); see also People v. Woody, 61
Cal. 2d 716, 721-722, 394 P. 2d 813, 817-818 (1964). As we noted in Smith I, the
Oregon Supreme Court concluded that "the Native American Church is a recognized
religion, that peyote is a sacrament of that church, and that respondent's
beliefs were sincerely held." 485 U.S., at 667. Under Oregon law, as construed
by that State's highest court, members of the Native American Church must choose
between carrying out the ritual embodying their religious beliefs and avoidance
of criminal prosecution. That choice is, in my view, more than sufficient to
trigger First Amendment scrutiny.
There is also no dispute that Oregon has a significant interest in enforcing
laws that [**1614] control the possession and use of controlled substances by
its citizens. See, e. g., Sherbert, 374 U.S., at 403 (religiously motivated
conduct may be regulated where such conduct "pose[s] some substantial threat to
public safety, peace or order"); Yoder, 406 U.S., at 220 ("[A]ctivities of
individuals, even when religiously based, are often subject to regulation by the
States in the exercise of their undoubted power to promote the health, safety,
and general welfare"). As we recently noted, drug abuse is "one of the greatest
problems affecting the health and welfare of our population" and thus "one of
the most serious problems confronting our society today." Treasury Employees v.
Von Raab, 489 U.S. 656, 668, 674 (1989). [***903] Indeed, under federal law
(incorporated by Oregon law in relevant part, see Ore. Rev. Stat. § 475.005(6)
(1987)), peyote is specifically regulated as a Schedule I controlled substance,
which means that Congress has found that it has a high potential for abuse, that
there is no currently accepted medical use, and that there is a lack of accepted
safety for use of the drug under medical supervision. See 21 U. S. C. § 812
(b)(1). See generally R. Julien, A Primer of Drug Action 149 (3d ed. 1981). In
light of our recent decisions holding that the governmental [*905] interests
in the collection of income tax, Hernandez, 490 U.S., at 699-700, a
comprehensive Social Security system, see Lee, 455 U.S., at 258-259, and
military conscription, see Gillette, 401 U.S., at 460, are compelling,
respondents do not seriously dispute that Oregon has a compelling interest in
prohibiting the possession of peyote by its citizens.
B
Thus, the critical question in this case is whether exempting respondents
from the State's general criminal prohibition "will unduly interfere with
fulfillment of the governmental interest." Lee, supra, at 259; see also Roy, 476
U.S., at 727 ("[T]he Government must accommodate a legitimate free exercise
claim unless pursuing an especially important interest by narrowly tailored
means"); Yoder, supra, at 221; Braunfeld, 366 U.S., at 605-607. Although the
question is close, I would conclude that uniform application of Oregon's
criminal prohibition is "essential to accomplish," Lee, supra, at 257, its
overriding interest in preventing the physical harm caused by the use of a
Schedule I controlled substance. Oregon's criminal prohibition represents that
State's judgment that the possession and use of controlled substances, even by
only one person, is inherently harmful and dangerous. Because the health
effects caused by the use of controlled substances exist regardless of the
motivation of the user, the use of such substances, even for religious purposes,
violates the very purpose of the laws that prohibit them. Cf. State v. Massey,
229 N. C. 734, 51 S. E. 2d 179 (denying religious exemption to municipal
ordinance prohibiting handling of poisonous reptiles), appeal dism'd sub nom.
Bunn v. North Carolina, 336 U.S. 942 (1949). Moreover, in view of the societal
interest in preventing trafficking in controlled substances, uniform application
of the criminal prohibition at issue is essential to the effectiveness of Oregon
's stated interest in preventing any possession of peyote. Cf. Jacobson v.
[*906] Massachusetts, 197 U.S. 11 (1905) (denying exemption from small pox
vaccination requirement).
For these reasons, I believe that granting a selective exemption in this case
would seriously impair Oregon's compelling interest in prohibiting possession of
peyote by its citizens. Under such circumstances, the Free Exercise Clause does
not require the State to accommodate respondents' religiously motivated conduct.
See, e. g., Thomas, 450 U.S., at 719. Unlike [***904] in Yoder, where we noted
that "[t]he record strongly indicates that accommodating the [**1615]
religious objections of the Amish by forgoing one, or at most two, additional
years of compulsory education will not impair the physical or mental health of
the child, or result in an inability to be self-supporting or to discharge the
duties and responsibilities of citizenship, or in any other way materially
detract from the welfare of society," 406 U.S., at 234; see also id., at 238-240
(White, J., concurring), a religious exemption in this case would be
incompatible with the State's interest in controlling use and possession of
illegal drugs.
Respondents contend that any incompatibility is belied by the fact that the
Federal Government and several States provide exemptions for the religious use
of peyote, see 21 CFR § 1307.31 (1989); 307 Ore., at 73, n. 2, 763 P. 2d, at
148, n. 2 (citing 11 state statutes that expressly exempt sacramental peyote use
from criminal proscription). But other governments may surely choose to grant
an exemption without Oregon, with its specific asserted interest in uniform
application of its drug laws, being required to do so by the First Amendment.
Respondents also note that the sacramental use of peyote is central to the
tenets of the Native American Church, but I agree with the Court, ante, at
886-887, that because "'[i]t is not within the judicial ken to question the
centrality of particular beliefs or practices to a faith,'" quoting Hernandez,
supra, at 699, our determination of the constitutionality of Oregon's general
criminal prohibition cannot, and should not, turn on the centrality of the
particular [*907] religious practice at issue. This does not mean, of course,
that courts may not make factual findings as to whether a claimant holds a
sincerely held religious belief that conflicts with, and thus is burdened by,
the challenged law. The distinction between questions of centrality and
questions of sincerity and burden is admittedly fine, but it is one that is an
established part of our free exercise doctrine, see Ballard, 322 U.S., at 85-88,
and one that courts are capable of making. See Tony and Susan Alamo Foundation
v. Secretary of Labor, 471 U.S. 290, 303-305 (1985).
I would therefore adhere to our established free exercise jurisprudence and
hold that the State in this case has a compelling interest in regulating peyote
use by its citizens and that accommodating respondents' religiously motivated
conduct "will unduly interfere with fulfillment of the governmental interest."
Lee, supra, at 259. Accordingly, I concur in the judgment of the Court.
DISSENTBY:
BLACKMUN
DISSENT:
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join,
dissenting.
This Court over the years painstakingly has developed a consistent and
exacting standard to test the constitutionality of a state statute that burdens
the free exercise of religion. Such a statute may stand only if the law in
general, and the State's refusal to allow a religious exemption in particular,
are justified by a compelling interest that cannot [***905] be served by less
restrictive means. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 See Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) ("The free
exercise inquiry asks whether government has placed a substantial burden on the
observation of a central religious belief or practice and, if so, whether a
compelling governmental interest justifies the burden"); Hobbie v. Unemployment
Appeals Comm'n of Fla., 480 U.S. 136, 141 (1987) (state laws burdening religions
"must be subjected to strict scrutiny and could be justified only by proof by
the State of a compelling interest"); Bowen v. Roy, 476 U.S. 693, 732 (1986) (O
'Connor, J., concurring in part and dissenting in part) ("Our precedents have
long required the Government to show that a compelling state