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)
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)
On remand at Smith v. Employment Div., 310 Ore. 376, 799 P.2d 148 (Ore.
1990)
PRIOR HISTORY: CERTIORARI TO THE SUPREME COURT OF OREGON.
Smith v. Employment Div., 307 Ore. 68, 763 P.2d 146 (Ore. 1988)
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. [Footnote *]
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.
OPINION BY: SCALIA
OPINION
[*874] [***882] [**1597] JUSTICE
SCALIA delivered the opinion of the Court.
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
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).
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.
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).
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). [Footnote 1]
[*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").
"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.
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
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.
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. [Footnote 2]
[**1604] 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. [Footnote 3]
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). [Footnote 4]
[*888] 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.
[Footnote 5]
[*890] [***893] 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.
* * *
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.
CONCUR BY: 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. [Footnote
*]
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.
DISSENT BY: 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. [Footnote 1]
[*908] [**1616] Until today, I thought this was
a settled and inviolate principle of this Court's First Amendment jurisprudence.
The majority, however, perfunctorily dismisses it as a "constitutional anomaly."
Ante, at 886. As carefully detailed in Justice O'Connor's concurring opinion, ante,
p. 891, the majority is able to arrive at this view only by mischaracterizing this
Court's precedents. The Court discards leading free exercise cases such as Cantwell
v. Connecticut, 310 U.S. 296 (1940), and Wisconsin v. Yoder, 406
U.S. 205 (1972), as "hybrid." Ante, at 882. The Court views traditional
free exercise analysis as somehow inapplicable to criminal prohibitions (as opposed
to conditions on the receipt of benefits), and to state laws of general applicability
(as opposed, presumably, to laws that expressly single out religious practices).
Ante, at 884-885. The Court cites cases in which, due to various exceptional circumstances,
we found strict scrutiny inapposite, to hint that the Court has repudiated that
standard altogether. Ante, at 882-884. In short, it effectuates a wholesale overturning
of settled law concerning the Religion Clauses of our Constitution. One hopes that
the Court is aware of the consequences, and that its result is not a product of
overreaction to the serious problems the country's drug crisis has generated.
This distorted view of our precedents leads the majority to conclude that strict
scrutiny of a state law burdening the free exercise of religion is a "luxury"
that a well-ordered society [*909] cannot afford, ante, at 888,
and that the repression of minority religions is an "unavoidable consequence
of democratic government." Ante, at 890. I do not believe the Founders thought
their dearly bought freedom from religious persecution a "luxury," but
an essential element of liberty -- and they could not have thought religious intolerance
"unavoidable," for they drafted [***906] the Religion
Clauses precisely in order to avoid that intolerance.
For these reasons, I agree with Justice O'Connor's analysis of the applicable free
exercise doctrine, and I join parts I and II of her opinion. [Footnote 2] As she
points out, "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.'" Ante, at 905, quoting United States v. Lee,
455 U.S. 252, 259 (1982). I do disagree, however, with her specific answer to that
question.
It is surprising, to say the least, that this Court which so often prides itself
about principles of judicial restraint and reduction of federal control over matters
of state law would stretch its jurisdiction to the limit in order to reach, in this
abstract setting, the constitutionality of Oregon's criminal prohibition of peyote
use.
I
In weighing the clear interest of respondents Smith and Black (hereinafter respondents)
in the free exercise of their religion [**1617] against Oregon's
asserted interest in enforcing its drug laws, it is important to articulate in precise
terms the state interest involved. It is not the State's broad interest [*910]
in fighting the critical "war on drugs" that must be weighed against respondents'
claim, but the State's narrow interest in refusing to make an exception for the
religious, ceremonial use of peyote. See Bowen v. Roy, 476 U.S. 693, 728
(1986) (O'Connor, J., concurring in part and dissenting in part) ("This Court
has consistently asked the Government to demonstrate that unbending application
of its regulation to the religious objector 'is essential to accomplish an overriding
governmental interest,'" quoting Lee, 455 U.S., at 257-258); Thomas
v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 719 (1981)
("focus of the inquiry" concerning State's asserted interest must be "properly
narrowed"); Yoder, 406 U.S., at 221 ("Where fundamental claims
of religious freedom are at stake," the Court will not accept a State's "sweeping
claim" that its interest in compulsory education is compelling; despite the
validity of this interest "in the generality of cases, we must searchingly
examine the interests that the State seeks to promote . . . and the impediment to
those objectives that would flow from recognizing the claimed Amish exemption").
Failure to reduce the competing interests to the same plane of generality tends
to distort the weighing process in the State's favor. See Clark, Guidelines for
the Free Exercise Clause, 83 Harv. L. Rev. 327, 330-331 (1969) ("The purpose
of almost any law can be traced back to one or another of the fundamental concerns
of government: public health and safety, public peace and order, defense, revenue.
To measure an [***907] individual interest directly against one
of these rarified values inevitably makes the individual interest appear the less
significant"); Pound, A Survey of Social Interests, 57 Harv. L. Rev. 1, 2 (1943)
("When it comes to weighing or valuing claims or demands with respect to other
claims or demands, we must be careful to compare them on the same plane . . . [or
else] we may decide the question in advance in our very way of putting it").
The State's interest in enforcing its prohibition, in order to be sufficiently compelling
to outweigh a free exercise claim, [*911] cannot be merely abstract
or symbolic. The State cannot plausibly assert that unbending application of a criminal
prohibition is essential to fulfill any compelling interest, if it does not, in
fact, attempt to enforce that prohibition. In this case, the State actually has
not evinced any concrete interest in enforcing its drug laws against religious users
of peyote. Oregon has never sought to prosecute respondents, and does not claim
that it has made significant enforcement efforts against other religious users of
peyote. [Footnote 3] The State's asserted interest thus amounts only to the symbolic
preservation of an unenforced prohibition. But a government interest in "symbolism,
even symbolism for so worthy a cause as the abolition of unlawful drugs," Treasury
Employees v. Von Raab, 489 U.S. 656, 687 (1989) (Scalia, J., dissenting),
cannot suffice to abrogate the constitutional rights of individuals.
Similarly, this Court's prior decisions have not allowed a government to rely on
mere speculation about potential harms, but have demanded evidentiary support for
a refusal to allow a religious exception. See Thomas, 450 U.S., at 719
(rejecting State's reasons for refusing religious exemption, for lack of "evidence
in the record"); Yoder, 406 U.S., at 224-229 (rejecting State's argument
concerning the dangers of a religious exemption as speculative, and unsupported
by the record); Sherbert v. Verner, 374 U.S. 398, 407 (1963) [**1618]
("[T]here is no proof whatever to warrant such fears . . . as those which the
[State] now advance[s]"). In this case, the State's justification for refusing
to recognize an exception to its criminal laws for religious peyote use is entirely
speculative.
The State proclaims an interest in protecting the health and safety of its citizens
from the dangers of unlawful drugs. It offers, however, no evidence that the religious
use of peyote [*912] has ever harmed anyone. [Footnote 4] The factual
findings of other courts cast doubt on the State's assumption that religious use
of peyote is harmful. See State v. Whittingham, 19 Ariz. App. 27, 30, 504
P. 2d 950, 953 (1973) ("[T]he State failed to prove that the quantities
[***908] of peyote used in the sacraments of the Native American Church
are sufficiently harmful to the health and welfare of the participants so as to
permit a legitimate intrusion under the State's police power"); People v. Woody,
61 Cal. 2d 716, 722-723, 394 P. 2d 813, 818 (1964) ("[A]s the Attorney General
. . . admits, . . . the opinion of scientists and other experts is 'that peyote
. . . works no permanent deleterious injury to the Indian'").
The fact that peyote is classified as a Schedule I controlled substance does not,
by itself, show that any and all uses of peyote, in any circumstance, are inherently
harmful and dangerous. The Federal Government, which created the classifications
of unlawful drugs from which Oregon's drug laws are derived, apparently does not
find peyote so dangerous as to preclude an exemption for religious use. [Footnote
5] Moreover, [*913] other Schedule I drugs have lawful uses. See
Olsen v. Drug
Enforcement Admin., 279 U. S. App. D. C. 1, 6, n. 4, 878 F. 2d 1458,
1463, n. 4 (medical and research uses of marijuana).
Moreover, 23 States, including many that have significant Native American populations,
have statutory or judicially crafted exemptions in their drug laws for religious
use of peyote. See 307 Ore. 68, 73, n. 2, 763 P. 2d 146, 148, n. 2 (1988) (case
below). Although this does not prove that Oregon must have such an exception too,
it is significant that these States, and the Federal Government, all find their
(presumably compelling) interests in controlling the use of dangerous drugs compatible
with an exemption for religious use of peyote. Cf. Boos v. Barry, 485 U.S.
312, 329 (1988) (finding that an ordinance restricting picketing near a foreign
embassy was not the least restrictive means of serving the asserted government interest;
existence of an analogous, but more narrowly drawn, federal statute showed that
"a less restrictive alternative is readily available").
The carefully circumscribed ritual context in which respondents used peyote is far
removed from the irresponsible and unrestricted recreational use of unlawful drugs.
[Footnote 6] The Native American Church's internal restrictions on, and supervision
of, its members' use of peyote substantially obviate the State's health and safety
concerns. See id., at 10, 878 F. 2d, at 1467 ("'The Administrator
[of the Drug Enforcement Administration [**1619] (DEA)] finds that
. . . the Native American Church's use of peyote is isolated to specific ceremonial
occasions,'" and so "'an accommodation can be made for a religious organization
which uses peyote in circumscribed ceremonies'" (quoting DEA Final Order));
id., at 7, 878 F. 2d, at 1464 ("[F]or members of the Native American
Church, use of peyote outside the ritual is sacrilegious"); Woody,
61 Cal. 2d, at 721, 394 P. 2d, at 817 ("[T]o use peyote [***909]
for nonreligious purposes is sacrilegious"); R. Julien, A Primer of Drug Action
148 (3d ed. 1981) ("[P]eyote is seldom abused by members of the Native American
[*914] Church"); Slotkin, The Peyote Way, in Teachings from
the American Earth 96, 104 (D. Tedlock & B. Tedlock eds. 1975) ("[T]he
Native American Church . . . refuses to permit the presence of curiosity seekers
at its rites, and vigorously opposes the sale or use of Peyote for non-sacramental
purposes"); Bergman, Navajo Peyote Use: Its Apparent Safety, 128 Am. J. Psychiatry
695 (1971) (Bergman). [Footnote 7]
Moreover, just as in Yoder, the values and interests of those seeking a
religious exemption in this case are congruent, to a great degree, with those the
State seeks to promote through its drug laws. See Yoder, 406 U.S., at 224,
228-229 (since the Amish accept formal schooling up to 8th grade, and then provide
"ideal" vocational education, State's interest in enforcing its law against
the Amish is "less substantial than . . . for children generally"); id.,
at 238 (White, J., concurring). Not only does the church's doctrine forbid nonreligious
use of peyote; it also generally advocates self-reliance, familial responsibility,
and abstinence from alcohol. See Brief for Association on American Indian Affairs
et al. as Amici Curiae 33-34 (the church's "ethical code" has four parts:
brotherly love, care of family, self-reliance, and avoidance of alcohol (quoting
from the church membership card));
Olsen, 279 U. S. App. D. C., at 7, 878 F. 2d, at 1464 (the Native American
Church, "for all purposes other than the special, stylized ceremony, reinforced
the state's prohibition"); [*915] Woody, 61 Cal.
2d, at 721-722, n. 3, 394 P. 2d, at 818, n. 3 ("[M]ost anthropological authorities
hold Peyotism to be a positive, rather than negative, force in the lives of its
adherents . . . the church forbids the use of alcohol . . ."). There is considerable
evidence that the spiritual and social support provided by the church has been effective
in combating the tragic effects of alcoholism on the Native American population.
Two noted experts on peyotism, Dr. Omer C. Stewart and Dr. Robert Bergman, testified
by affidavit to this effect on behalf of respondent Smith before the Employment
Appeal Board. Smith Tr., Exh. 7; see also E. Anderson, Peyote: The Divine
Cactus 165-166 (1980) (research by Dr. Bergman suggests "that the religious
use of peyote seemed to be directed in an ego-strengthening direction with an emphasis
on interpersonal relationships where each individual is assured of his own significance
as well as the support of the group"; many people have "'come through
difficult crises with the help of this religion . . . . It provides real help in
seeing themselves [***910] not as people whose place and way in
the world is gone, but as people whose way can be strong enough to change and meet
new challenges'" (quoting Bergman 698)); Pascarosa & Futterman, Ethnopsychedelic
Therapy for Alcoholics: Observations in the Peyote Ritual of the Native American
Church, 8 J. of Psychedelic Drugs, No. 3, p. 215 (1976) (religious peyote use has
been helpful in overcoming alcoholism); Albaugh & Anderson, Peyote in the Treatment
of Alcoholism among American Indians, 131 Am. J. Psychiatry 1247, 1249 (1974) ("[T]he
[**1620] philosophy, teachings, and format of the [Native American
Church] can be of great benefit to the Indian alcoholic"); see generally O.
Stewart, Peyote Religion 75 et seq. (1987) (noting frequent observations, across
many tribes and periods in history, of correlation between peyotist religion and
abstinence from alcohol). Far from promoting the lawless and irresponsible use of
drugs, Native American Church members' spiritual [*916] code exemplifies
values that Oregon's drug laws are presumably intended to foster.
The State also seeks to support its refusal to make an exception for religious use
of peyote by invoking its interest in abolishing drug trafficking. There is, however,
practically no illegal traffic in peyote. See
Olsen, 279 U. S. App. D. C., at 6, 7, 878 F. 2d, at 1463, 1467 (quoting
DEA Final Order to the effect that total amount of peyote seized and analyzed by
federal authorities between 1980 and 1987 was 19.4 pounds; in contrast, total amount
of marijuana seized during that period was over 15 million pounds). Also, the availability
of peyote for religious use, even if Oregon were to allow an exemption from its
criminal laws, would still be strictly controlled by federal regulations, see 21
U. S. C. §§ 821-823 (registration requirements for distribution of controlled substances);
21 CFR § 1307.31 (1989) (distribution of peyote to Native American Church subject
to registration requirements), and by the State of Texas, the only State in which
peyote grows in significant quantities. See Texas Health & Safety Code Ann.
§ 481.111 (1990 pamphlet); Texas Admin. Code, Tit. 37, pt. 1, ch. 13, Controlled
Substances Regulations, §§ 13.35-13.41 (1989); Woody, 61 Cal. 2d, at 720,
394 P. 2d, at 816 (peyote is "found in the Rio Grande Valley of Texas and northern
Mexico"). Peyote simply is not a popular drug; its distribution for use in
religious rituals has nothing to do with the vast and violent traffic in illegal
narcotics that plagues this country.
Finally, the State argues that granting an exception for religious peyote use would
erode its interest in the uniform, fair, and certain enforcement of its drug laws.
The State fears that, if it grants an exemption for religious peyote use, a flood
of other claims to religious exemptions will follow. It would then be placed in
a dilemma, it says, between allowing a patchwork of exemptions that would hinder
its law enforcement efforts, and risking a violation of the Establishment Clause
by arbitrarily limiting its religious exemptions. This [*917] argument,
however, could be made in almost any free exercise case. See Lupu, Where Rights
Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev.
933, 947 (1989) ("Behind every free exercise claim is a spectral march;
[***911] grant this one, a voice whispers to each judge, and you will
be confronted with an endless chain of exemption demands from religious deviants
of every stripe"). This Court, however, consistently has rejected similar arguments
in past free exercise cases, and it should do so here as well. See Frazee v. Illinois
Dept. of Employment Security, 489 U.S. 829, 835 (1989) (rejecting State's
speculation concerning cumulative effect of many similar claims); Thomas,
450 U.S., at 719 (same); Sherbert, 374 U.S., at 407.
The State's apprehension of a flood of other religious claims is purely speculative.
Almost half the States, and the Federal Government, have maintained an exemption
for religious peyote use for many years, and apparently have not found themselves
overwhelmed by claims to other religious exemptions. [Footnote 8] Allowing an exemption
for religious [**1621] peyote use [*918] would
not necessarily oblige the State to grant a similar exemption to other religious
groups. The unusual circumstances that make the religious use of peyote compatible
with the State's interests in health and safety and in preventing drug trafficking
would not apply to other religious claims. Some religions, for example, might not
restrict drug use to a limited ceremonial context, as does the Native American Church.
See, e. g.,
Olsen, 279 U. S. App. D. C., at 7, 878 F. 2d, at 1464 ("[T]he
Ethiopian Zion Coptic Church . . . teaches that marijuana is properly smoked 'continually
all day'"). Some religious claims, see n. 8, supra, involve drugs such as marijuana
and heroin, in which there is significant illegal traffic, with its attendant greed
and violence, so that it would be difficult to grant a religious exemption without
seriously compromising law enforcement efforts. [Footnote 9] That the State might
grant an exemption for religious peyote use, but deny other religious claims arising
in different circumstances, would [***912] not violate the Establishment
Clause. Though the State must treat all religions equally, and not favor one over
another, this obligation is fulfilled by the uniform application of the "compelling
interest" test to all free exercise claims, not by reaching uniform results
as to all claims. A showing that religious peyote use does not unduly interfere
with the State's interests is "one that probably few other religious groups
or sects could make," Yoder, 406 U.S., at 236; this does not mean
that an exemption limited to peyote use is tantamount to an establishment of religion.
See Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 144-145
(1987) ("[T]he government may (and [*919] sometimes must)
accommodate religious practices and . . . may do so without violating the Establishment
Clause"); Yoder, 406 U.S., at 220-221 ("Court must not ignore
the danger that an exception from a general [law] . . . may run afoul of the Establishment
Clause, but that danger cannot be allowed to prevent any exception no matter how
vital it may be to the protection of values promoted by the right of free exercise");
id., at 234, n. 22.
II
Finally, although I agree with Justice O'Connor that courts should refrain from
delving into questions whether, as a matter of religious doctrine, a particular
practice is "central" to the religion, ante, at 906-907, 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. Cf. Yoder, 406 U.S.,
at 219 (since "education is inseparable from and a part of the basic tenets
of their religion . . . [, just as] baptism, [**1622] the confessional,
or a sabbath may be for others," enforcement of State's compulsory education
law would "gravely endanger if not destroy the free exercise of respondents'
religious beliefs").
Respondents believe, and their sincerity has never been at issue, that the peyote
plant embodies their deity, and eating it is an act of worship and communion. Without
peyote, they could not enact the essential ritual of their religion. See Brief for
Association on American Indian Affairs et al. as Amici Curiae 5-6 ("To the
members, peyote is consecrated with powers to heal body, mind and spirit. It is
a teacher; it teaches the way to spiritual life through living in harmony and balance
with the forces of the Creation. The rituals are an integral part of the life process.
They embody a form of worship in which the sacrament Peyote is the means for communicating
with the Great Spirit"). See also O. Stewart, Peyote Religion 327-330 (1987)
(description of peyote ritual); [*920] T. Hillerman, People of
Darkness 153 (1980) (description of Navajo peyote ritual).
If Oregon can constitutionally prosecute them for this act of worship, they, like
the Amish, may be "forced to migrate to some other and more tolerant region."
Yoder, 406 U.S., at 218. This potentially devastating impact must be viewed
in light of the federal policy -- reached in reaction to many years of religious
persecution and intolerance -- of protecting the religious freedom of Native Americans.
[***913] See American Indian Religious Freedom Act, 92 Stat. 469,
42 U. S. C. § 1996 (1982 ed.) ("[I]t shall be the policy of the United States
to protect and preserve for American Indians their inherent right of freedom to
believe, express, and exercise the traditional religions . . ., including but not
limited to access to sites, use and possession of sacred objects, and the freedom
to worship through ceremonials and traditional rites"). [Footnote 10] Congress
recognized that certain substances, such as peyote, "have religious significance
because they are sacred, they have power, they heal, they are necessary to the exercise
of [*921] the rites of the religion, they are necessary to the
cultural integrity of the tribe, and, therefore, religious survival." H. R.
Rep. No. 95-1308, p. 2 (1978).
Indeed, Oregon's attitude toward respondents' religious peyote use harkens back
to the repressive federal policies pursued a century ago:
"In the government's view, traditional practices were not only morally degrading,
but unhealthy. 'Indians are fond of gatherings of every description,' a 1913 public
health study complained, advocating the restriction of dances and 'sings' to stem
contagious diseases. In 1921, Commissioner of Indian Affairs Charles Burke reminded
his staff to punish any Indian engaged in 'any dance which involves . . . the reckless
giving away of property . . . frequent or prolonged periods of celebration . . .
in fact, any disorderly or plainly excessive performance that promotes superstitious
cruelty, licentiousness, idleness, danger to health, and shiftless indifference
to family welfare.' Two years later, he forbid Indians under the age of 50 from
participating in any dances of any kind, and directed federal employees 'to educate
public opinion' against them." Id., at 370-371 (footnotes omitted).
The American Indian Religious Freedom Act, in itself, may not create rights enforceable
against government action restricting religious freedom, but this Court must scrupulously
apply its free exercise analysis to the religious claims of Native Americans, however
unorthodox they may be. Otherwise, both the First Amendment and the stated policy
of Congress will offer to Native Americans merely an unfulfilled and hollow promise.
III
For these reasons, I conclude that Oregon's interest in enforcing its drug laws
against religious use of peyote is not sufficiently compelling to outweigh respondents'
right to the free exercise of their religion. Since the State could not constitutionally
enforce its criminal prohibition against respondents, [**1623]
the interests underlying the State's drug laws cannot justify its denial of unemployment
benefits. Absent such justification, the State's regulatory interest in denying
benefits for religiously motivated "misconduct," see ante, at 874, is
indistinguishable from the state interests this Court has rejected in Frazee,
Hobbie, Thomas, and Sherbert. The State of Oregon cannot,
consistently with the Free Exercise Clause, deny respondents unemployment benefits.
I dissent.