Employment Division v. Smith
494 U.S. 872 (1990)
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. The law defines “controlled substance” . . . [to include] the drug peyote, a hallucinogen derived from the plant Lophophorawilliamsii Lemaire.
Respondents Alfred Smith and Galen Black 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 both are members. When respondents applied to petitioner Employment Division for unemployment compensation, they were determined to be ineligible for benefits because they had been discharged for work-related “misconduct.” . . .
II
A
. . . The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into the Fourteenth Amendment, see Cantwell v. Connecticut, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” 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.” The government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side in controversies over religious authority or dogma.
But the “exercise of religion” 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 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 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.
Our decisions reveal that the latter reading is the correct one. We 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. 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 Educ. v. Gobitis:
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 convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.
We first had occasion to assert that principle in Reynolds v. United States, 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.
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).”
In Prince v. Massachusetts, we held that a mother could be prosecuted under the child labor laws 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.” In Braunfeld v. Brown, 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, 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.
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. 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. . . .
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 (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 (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); Follett v. McCormick (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, to direct the education of their children, see Wisconsin v. Yoder, (invalidating compulsory school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school).
Some of our cases prohibiting compelled expression, decided exclusively upon free speech grounds, have also involved freedom of religion, cf. Wooley v. Maynard, (invalidating compelled display of a license plate slogan that offended individual religious beliefs); West Virginia Board of Education v. Barnette (invalidating 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 Clause concerns. Cf. Roberts v. United States Jaycees (“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.”).
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. . . .
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 religious exemption must be evaluated under the balancing test set forth in Sherbert v. Verner. Under the Sherbert test, governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. 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. 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. In recent years we have abstained from applying the Sherbert test (outside the unemployment compensation field) at all. In Bowen v. Roy, 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 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. In Lyng v. Northwest Indian Cemetery Protective Assn., 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 “could have devastating effects on traditional Indian religious practices.” In Goldman v. Weinberger, we rejected application of the Sherbert test to military dress regulations that forbade the wearing of yarmulkes. In O’Lone v. Estate of Shabazz, 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.
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.
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, 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 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.” 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”—contradicts both constitutional tradition and common sense.
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, or before the government may regulate the content of speech, 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.
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. It is no 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.” As we reaffirmed only last Term [in Hernandez v. Commissioner],
[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' interpretation of those creeds.
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.
If the “compelling interest” test is to be applied at all, then, it 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, 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 compulsory military service to the payment of taxes; to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment’s protection of religious liberty does not require this.
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. 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.
Justice O’CONNOR, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join as to Parts I and II, concurring in the judgment.
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. . . .
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.” Indeed, the Court holds that, where the law is a generally applicable criminal prohibition, our usual free exercise jurisprudence does not even apply. 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.
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, 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. As the Court recognizes, however, the “free exercise” of religion often, if not invariably, requires the performance of (or abstention from) certain acts. [We observed in Wisconsin v. Yoder that] “belief and action cannot be neatly confined in logic-tight compartments.” Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must therefore 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. 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 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. 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. . . .
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. 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. 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.”
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.” 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. Indeed, in Yoder we expressly rejected the interpretation the Court now adopts:
[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 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.
The Court endeavors to escape from our decisions in Cantwell and Yoder by labeling them “hybrid” decisions, but there is no denying that both cases expressly relied on the Free Exercise Clause, 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, we rejected the particular constitutional claims before us only after carefully weighing the competing interests. That we rejected the free exercise claims in those cases hardly 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 might therefore be regarded as merely harmless dictum. Rather, respondents invoke our traditional 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.
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.
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.” 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. 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.
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 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.” 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.” 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” or represents “the least restrictive means of achieving some compelling state interest.” 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. Given the range of conduct that a State might legitimately make 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. . . .
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. . . . The Court’s parade of horribles not only fails as a reason for discarding the compelling interest 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. 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 Board of Education v. Barnette (overruling Minersville School District v. Gobitis) are apt:
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 submitted to vote; they depend on the outcome of no elections.
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,” 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.
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 control the possession and use of controlled substances by its citizens. 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.” Indeed, under federal law, 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. In light of our recent decisions holding that the governmental interests in the collection of income tax, a comprehensive social security system, and military conscription, 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.” Although the question is close, I would conclude that uniform application of Oregon’s criminal prohibition is “essential to accomplish,” 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. 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.
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. Unlike in Yoder, where we noted that
[t]he record strongly indicates that accommodating the 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,
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. 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 that because “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith,” our determination of the constitutionality of Oregon’s general criminal prohibition cannot, and should not, turn on the centrality of the particular religious practice at issue. 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, and one that courts are capable of making. See Tony and Susan Alamo Foundation v. Secretary of Labor.
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.” Accordingly, I concur in the judgment of the Court.
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 be served by less restrictive means.
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.” As carefully detailed in Justice O’CONNOR’s concurring opinion, 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 and Wisconsin v. Yoder as “hybrid.” 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). 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. 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 cannot afford, and that the repression of minority religions is an “unavoidable consequence of democratic government.” 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 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. 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.” I do disagree, however, with her specific answer to that question.
I
In weighing respondents’ clear interest in the free exercise of their religion 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 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. Failure to reduce the competing interests to the same plane of generality tends to distort the weighing process in the State’s favor.
The State’s interest in enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, 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. 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,” 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. 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 has ever harmed anyone. The factual findings of other courts cast doubt on the State's assumption that religious use of peyote is harmful.
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. Moreover, other Schedule I drugs have lawful uses.
The carefully circumscribed ritual context in which respondents used peyote is far removed from the irresponsible and unrestricted recreational use of unlawful drugs. 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.
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. Not only does the Church’s doctrine forbid nonreligious use of peyote; it also generally advocates self-reliance, familial responsibility, and abstinence from alcohol. There is considerable evidence that the spiritual and social support provided by the Church has been effective in combatting 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. Far from promoting the lawless and irresponsible use of drugs, Native American Church members' spiritual 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. [The dissent quotes a DEA Order indicating that the total amount of peyote seized and analyzed by federal authorities between 1980 and 1987 was 19.4 pounds, while the total amount of marijuana seized during that period was over 15 million pounds.] . . . 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 argument, however, could be made in almost any free exercise case. This Court, however, consistently has rejected similar arguments in past free exercise cases, and it should do so here as well.
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. Allowing an exemption for religious peyote use 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. Some religious claims 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. That the State might grant an exemption for religious peyote use, but deny other religious claims arising in different circumstances, would 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”; this does not mean that an exemption limited to peyote use is tantamount to an establishment of religion. . . .
City of Boerne v. Flores
521 U.S. 507 (1997)
Justice KENNEDY delivered the opinion of the Court.
A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA or Act). The case calls into question the authority of Congress to enact RFRA. We conclude the statute exceeds Congress’ power.
I
Situated on a hill in the city of Boerne, Texas, some 28 miles northwest of San Antonio, is St. Peter Catholic Church. Built in 1923, the church’s structure replicates the mission style of the region’s earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday masses. In order to meet the needs of the congregation the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building.
The Boerne City Council passed an ordinance authorizing the city’s Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the commission must preapprove construction affecting historic landmarks or buildings in a historic district.
Soon afterwards, the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district (which, they argued, included the church), denied the application.
II
Congress enacted RFRA in direct response to the Court’s decision in Employment Div., Dept. of Human Resources of Oregon v. Smith. There we considered a Free Exercise Clause claim brought by members of the Native American Church who were denied unemployment benefits when they lost their jobs because they had used peyote. [Justice Kennedy then recounted the facts surrounding Smith and the Court’s reasoning in refusing to apply to Sherbert test to that particular case.]
Many Members of Congress criticized the Court’s reasoning in Smith, and this disagreement resulted in the passage of RFRA. Congress announced:
(1) [T]he framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
(2) laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without compelling justification;
(4) in Employment Division v. Smith, the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.
The Act’s stated purposes are:
(1) to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.
RFRA prohibits “[g]overnment” from “substantially burden[ing]” a person’s exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” The Act’s mandate applies to any “branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States,” as well as to any “State, or ... subdivision of a State.” The Act’s universal coverage is confirmed in Section 2000bb–3(a), under which RFRA “applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA’s enactment].” In accordance with RFRA’s usage of the term, we shall use “state law” to include local and municipal ordinances.
III
A
Under our Constitution, the Federal Government is one of enumerated powers. M’Culloch v. Maryland. The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the “powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison.
Congress relied on its Fourteenth Amendment enforcement power in enacting the most far-reaching and substantial of RFRA’s provisions, those which impose its requirements on the States. . . .The parties disagree over whether RFRA is a proper exercise of Congress’s § 5 power “to enforce” by “appropriate legislation” the constitutional guarantee that no State shall deprive any person of “life, liberty, or property, without due process of law” nor deny any person “equal protection of the laws.”
[The Court then concluded that RFRA exceeded Congress’s power under § 5 of the Fourteenth Amendment.]
It is for Congress in the first instance to “determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,” and its conclusions are entitled to much deference. Congress’ discretion is not unlimited, however, and the courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution. Broad as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance. The judgment of the Court of Appeals sustaining the Act’s constitutionality is reversed.
Justice SCALIA, with whom Justice STEVENS joins, concurring in part.
I write to respond briefly to the claim of Justice O’CONNOR’s dissent (hereinafter “the dissent”) that historical materials support a result contrary to the one reached in Employment Div., Dept. of Human Resources of Oregon v. Smith. We held in Smith that the Constitution’s Free Exercise Clause “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).’” The material that the dissent claims is at odds with Smith either has little to say about the issue or is in fact more consistent with Smith than with the dissent’s interpretation of the Free Exercise Clause. The dissent’s extravagant claim that the historical record shows Smith to have been wrong should be compared with the assessment of the most prominent scholarly critic of Smith, who, after an extensive review of the historical record, was willing to venture no more than that “constitutionally compelled exemptions [from generally applicable laws regulating conduct] were within the contemplation of the framers and ratifiers as a possible interpretation of the free exercise clause.” McConnell, The Origins and Historical Understanding of Free Exercise of Religion.
The dissent first claims that Smith’s interpretation of the Free Exercise Clause departs from the understanding reflected in various statutory and constitutional protections of religion enacted by Colonies, States, and Territories in the period leading up to the ratification of the Bill of Rights. But the protections afforded by those enactments are in fact more consistent with Smith’s interpretation of free exercise than with the dissent’s understanding of it. The Free Exercise Clause, the dissent claims, “is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law”; thus, even neutral laws of general application may be invalid if they burden religiously motivated conduct. However, the early “free exercise” enactments cited by the dissent protect only against action that is taken “for” or “in respect of” religion (Maryland Act Concerning Religion of 1649, Rhode Island Charter of 1663, and New Hampshire Constitution); or action taken “on account of” religion (Maryland Declaration of Rights of 1776 and Northwest Ordinance of 1787); or “discriminat[ory]” action; or, finally (and unhelpfully for purposes of interpreting “free exercise” in the Federal Constitution), action that interferes with the “free exercise” of religion (Maryland Act Concerning Religion of 1649 and Georgia Constitution).
Assuming, however, that the affirmative protection of religion accorded by the early “free exercise” enactments sweeps as broadly as the dissent’s theory would require, those enactments do not support the dissent’s view, since they contain “provisos” that significantly qualify the affirmative protection they grant. According to the dissent, the “provisos” support its view because they would have been “superfluous” if “the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience.” I disagree. In fact, the most plausible reading of the “free exercise” enactments (if their affirmative provisions are read broadly, as the dissent’s view requires) is a virtual restatement of Smith: Religious exercise shall be permitted so long as it does not violate general laws governing conduct. The “provisos” in the enactments negate a license to act in a manner “unfaithfull to the Lord Proprietary” (Maryland Act Concerning Religion of 1649), or “behav[e]” in other than a “peaceabl[e] and quie[t]” manner (Rhode Island Charter of 1663), or “disturb the public peace” (New Hampshire Constitution), or interfere with the “peace [and] safety of th [e] State” (New York, Maryland, and Georgia Constitutions), or “demea[n]” oneself in other than a “peaceable and orderly manner” (Northwest Ordinance of 1787). At the time these provisos were enacted, keeping “peace” and “order” seems to have meant, precisely, obeying the laws. “[E]very breach of a law is against the peace.” Queen v. Lane. Even as late as 1828, when Noah Webster published his American Dictionary of the English Language, he gave as one of the meanings of “peace”: “8. Public tranquility; that quiet, order and security which is guaranteed by the laws; as, to keep the peace; to break the peace.” This limitation upon the scope of religious exercise would have been in accord with the background political philosophy of the age (associated most prominently with John Locke), which regarded freedom as the right “to do only what was not lawfully prohibited,” West, The Case Against a Right to Religion–Based Exemptions. “Thus, the disturb-the-peace caveats apparently permitted government to deny religious freedom, not merely in the event of violence or force, but, more generally, upon the occurrence of illegal actions.” And while, under this interpretation, these early “free exercise” enactments support the Court’s judgment in Smith, I see no sensible interpretation that could cause them to support what I understand to be the position of Justice O’CONNOR, or any of Smith’s other critics. No one in that camp, to my knowledge, contends that their favored “compelling state interest” test conforms to any possible interpretation of “breach of peace and order”—i.e., that only violence or force, or any other category of action (more limited than “violation of law”) which can possibly be conveyed by the phrase “peace and order,” justifies state prohibition of religiously motivated conduct.
Apart from the early “free exercise” enactments of Colonies, States, and Territories, the dissent calls attention to those bodies’, and the Continental Congress’s, legislative accommodation of religious practices prior to ratification of the Bill of Rights. This accommodation—which took place both before and after enactment of the state constitutional protections of religious liberty—suggests (according to the dissent) that “the drafters and ratifiers of the First Amendment . . . assumed courts would apply the Free Exercise Clause similarly.” But that legislatures sometimes (though not always) found it “appropriate,” to accommodate religious practices does not establish that accommodation was understood to be constitutionally mandated by the Free Exercise Clause. As we explained in Smith, “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.” “Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process.”
The dissent’s final source of claimed historical support consists of statements of certain of the Framers in the context of debates about proposed legislative enactments or debates over general principles (not in connection with the drafting of State or Federal Constitutions). Those statements are subject to the same objection as was the evidence about legislative accommodation: There is no reason to think they were meant to describe what was constitutionally required (and judicially enforceable), as opposed to what was thought to be legislatively or even morally desirable. Thus, for example, the pamphlet written by James Madison opposing Virginia’s proposed general assessment for support of religion does not argue that the assessment would violate the “free exercise” provision in the Virginia Declaration of Rights, although that provision had been enacted into law only eight years earlier; rather the pamphlet argues that the assessment wrongly placed civil society ahead of personal religious belief and, thus, should not be approved by the legislators. Likewise, the letter from George Washington to the Quakers by its own terms refers to Washington’s “wish and desire” that religion be accommodated, not his belief that existing constitutional provisions required accommodation. These and other examples offered by the dissent reflect the speakers’ views of the “proper” relationship between government and religion, but not their views (at least insofar as the content or context of the material suggests) of the constitutionally required relationship. The one exception is the statement by Thomas Jefferson that he considered “the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises,” but it is quite clear that Jefferson did not in fact espouse the broad principle of affirmative accommodation advocated by the dissent.
It seems to me that the most telling point made by the dissent is to be found, not in what it says, but in what it fails to say. Had the understanding in the period surrounding the ratification of the Bill of Rights been that the various forms of accommodation discussed by the dissent were constitutionally required (either by State Constitutions or by the Federal Constitution), it would be surprising not to find a single state or federal case refusing to enforce a generally applicable statute because of its failure to make accommodation. Yet the dissent cites none—and to my knowledge, and to the knowledge of the academic defenders of the dissent’s position, none exists. The closest one can come in the period prior to 1850 is the decision of a New York City municipal court in 1813, holding that the New York Constitution of 1777 required acknowledgment of a priest-penitent privilege, to protect a Catholic priest from being compelled to testify as to the contents of a confession. Even this lone case is weak authority, not only because it comes from a minor court, but also because it did not involve a statute, and the same result might possibly have been achieved (without invoking constitutional entitlement) by the court’s simply modifying the common-law rules of evidence to recognize such a privilege. On the other side of the ledger, moreover, there are two cases, from the Supreme Court of Pennsylvania, flatly rejecting the dissent’s view.
I have limited this response to the new items of “historical evidence” brought forward by today’s dissent. (The dissent’s claim that “[b]efore Smith, our free exercise cases were generally in keeping” with the dissent’s view is adequately answered in Smith itself.) The historical evidence marshalled by the dissent cannot fairly be said to demonstrate the correctness of Smith; but it is more supportive of that conclusion than destructive of it. And, to return to a point I made earlier, that evidence is not compatible with any theory I am familiar with that has been proposed as an alternative to Smith. The dissent’s approach has, of course, great popular attraction. Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases. The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of those concrete cases. For example, shall it be the determination of this Court, or rather of the people, whether (as the dissent apparently believes) church construction will be exempt from zoning laws? The historical evidence put forward by the dissent does nothing to undermine the conclusion we reached in Smith: It shall be the people.
Justice O’CONNOR, with whom Justice BREYER joins except as to the first paragraph of Part I, dissenting.
I dissent from the Court’s disposition of this case. I agree with the Court that the issue before us is whether the Religious Freedom Restoration Act of 1993 (RFRA) is a proper exercise of Congress’ power to enforce § 5 of the Fourteenth Amendment. But as a yardstick for measuring the constitutionality of RFRA, the Court uses its holding in Employment Div., Dept. of Human Resources of Oregon v. Smith (1990), the decision that prompted Congress to enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain of the view that Smith was wrongly decided, and I would use this case to reexamine the Court’s holding there. Therefore, I would direct the parties to brief the question whether Smith represents the correct understanding of the Free Exercise Clause and set the case for reargument. If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty. We would then be in a position to review RFRA in light of a proper interpretation of the Free Exercise Clause.
I
The Court’s analysis of whether RFRA is a constitutional exercise of Congress’ § 5 power, set forth in Part III–B of its opinion, is premised on the assumption that Smith correctly interprets the Free Exercise Clause. This is an assumption that I do not accept. I continue to believe that Smith adopted an improper standard for deciding free exercise claims. In Smith, five Members of this Court—without briefing or argument on the issue—interpreted the Free Exercise Clause to permit the government to prohibit, without justification, conduct mandated by an individual’s religious beliefs, so long as the prohibition is generally applicable. Contrary to the Court’s holding in that case, however, the Free Exercise Clause is not simply an antidiscrimination principle that protects only against those laws that single out religious practice for unfavorable treatment. Rather, the Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law. Before Smith, our free exercise cases were generally in keeping with this idea: where a law substantially burdened religiously motivated conduct—regardless whether it was specifically targeted at religion or applied generally—we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest.
The Court’s rejection of this principle in Smith is supported neither by precedent nor, as discussed below, by history. The decision has harmed religious liberty. For example, a Federal District Court, in reliance on Smith, ruled that the Free Exercise Clause was not implicated where Hmong natives objected on religious grounds to their son’s autopsy, conducted pursuant to a generally applicable state law. Yang v. Sturner (D.R.I. 1990). The Court of Appeals for the Eighth Circuit held that application of a city’s zoning laws to prevent a church from conducting services in an area zoned for commercial uses raised no free exercise concerns, even though the city permitted secular not-for-profit organizations in that area. Cornerstone Bible Church v. Hastings (1991); see also Rector of St. Bartholomew’s Church v. City of New York (C.A.2 1990) (no free exercise claim where city’s application of facially neutral landmark designation law “drastically restricted the Church’s ability to raise revenue to carry out its various charitable and ministerial programs”); State v. Hershberger (Minn.1990) (Free Exercise Clause provided no basis for exempting an Amish farmer from displaying a bright orange triangle on his buggy, to which the farmer objected on religious grounds, even though the evidence showed that some other material would have served the State’s purpose equally well). These cases demonstrate that lower courts applying Smith no longer find necessary a searching judicial inquiry into the possibility of reasonably accommodating religious practice.
I believe that we should reexamine our holding in Smith, and do so in this very case. In its place, I would return to a rule that requires government to justify any substantial burden on religiously motivated conduct by a compelling state interest and to impose that burden only by means narrowly tailored to achieve that interest.
II
I shall not restate what has been said in other opinions, which have demonstrated that Smith is gravely at odds with our earlier free exercise precedents. Rather, I examine here the early American tradition of religious free exercise to gain insight into the original understanding of the Free Exercise Clause—an inquiry the Court in Smith did not undertake. We have previously recognized the importance of interpreting the Religion Clauses in light of their history. Lynch v. Donnelly (1984) (“The Court’s interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees”); School Dist. of Abington Township v. Schempp (1963).
The historical evidence casts doubt on the Court’s current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and ratifiers more likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion, a position consistent with our pre-Smith jurisprudence.
A
The original Constitution, drafted in 1787 and ratified by the States in 1788, had no provisions safeguarding individual liberties, such as freedom of speech or religion. Federalists, the chief supporters of the new Constitution, took the view that amending the Constitution to explicitly protect individual freedoms was superfluous, since the rights that the amendments would protect were already completely secure. See, e.g., 1 Annals of Congress 440 (remarks of James Madison, June 8, 1789). Moreover, they feared that guaranteeing certain civil liberties might backfire, since the express mention of some freedoms might imply that others were not protected. According to Alexander Hamilton, a Bill of Rights would even be dangerous, in that by specifying “various exceptions to powers” not granted, it “would afford a colorable pretext to claim more than were granted.” The Federalist No. 84. Anti–Federalists, however, insisted on more definite guarantees. Apprehensive that the newly established Federal Government would overwhelm the rights of States and individuals, they wanted explicit assurances that the Federal Government had no power in matters of personal liberty. T. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 194 (1986). Additionally, Baptists and other Protestant dissenters feared for their religious liberty under the new Federal Government and called for an amendment guaranteeing religious freedom.
In the end, legislators acceded to these demands. By December 1791, the Bill of Rights had been added to the Constitution. With respect to religious liberty, the First Amendment provided: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Neither the First Congress nor the ratifying state legislatures debated the question of religious freedom in much detail, nor did they directly consider the scope of the First Amendment’s free exercise protection. It would be disingenuous to say that the Framers neglected to define precisely the scope of the Free Exercise Clause because the words “free exercise” had a precise meaning. L. Levy, Essays on American Constitutional History 173 (1972). As is the case for a number of the terms used in the Bill of Rights, it is not exactly clear what the Framers thought the phrase signified. But a variety of sources supplement the legislative history and shed light on the original understanding of the Free Exercise Clause. These materials suggest that—contrary to Smith—the Framers did not intend simply to prevent the government from adopting laws that discriminated against religion. Although the Framers may not have asked precisely the questions about religious liberty that we do today, the historical record indicates that they believed that the Constitution affirmatively protects religious free exercise and that it limits the government’s ability to intrude on religious practice.
B
The principle of religious “free exercise” and the notion that religious liberty deserved legal protection were by no means new concepts in 1791, when the Bill of Rights was ratified. To the contrary, these principles were first articulated in this country in the Colonies of Maryland, Rhode Island, Pennsylvania, Delaware, and Carolina, in the mid–1600’s. These Colonies, though established as sanctuaries for particular groups of religious dissenters, extended freedom of religion to groups—although often limited to Christian groups—beyond their own. Thus, they encountered early on the conflicts that may arise in a society made up of a plurality of faiths.
The term “free exercise” appeared in an American legal document as early as 1648, when Lord Baltimore extracted from the new Protestant Governor of Maryland and his councilors a promise not to disturb Christians, particularly Roman Catholics, in the “free exercise” of their religion. McConnell, The Origins and Historical Understanding of Free Exercise of Religion (1990) (hereinafter Origins of Free Exercise). Soon after, in 1649, the Maryland Assembly enacted the first free exercise clause by passing the Act Concerning Religion: “[N]oe person . . . professing to beleive in Jesus Christ, shall from henceforth bee any waies troubled, Molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof ... nor any way [be] compelled to the beleife or exercise of any other Religion against his or her consent, soe as they be not unfaithfull to the Lord Proprietary, or molest or conspire against the civill Governemt.” Act Concerning Religion of 1649, reprinted in 5 The Founders’ Constitution 49, 50 (P. Kurland & R. Lerner eds.1987) (hereinafter Founders’ Constitution). Rhode Island’s Charter of 1663 used the analogous term “liberty of conscience.” It protected residents from being in any ways “molested, punished, disquieted, or called in question, for any differences in opinione, in matters of religion, and doe not actually disturb the civil peace of our sayd colony.” The Charter further provided that residents may “freely, and fully have and enjoy his and their own judgments, and conscience in matters of religious concernments...; they behaving themselves peaceably and quietly and not using this liberty to licentiousness and profaneness; nor to the civil injury, or outward disturbance of others.” Charter of Rhode Island and Providence Plantations, 1663, in 8 W. Swindler, Sources and Documents of United States Constitutions 363 (1979) (hereinafter Swindler). Various agreements between prospective settlers and the proprietors of Carolina, New York, and New Jersey similarly guaranteed religious freedom, using language that paralleled that of the Rhode Island Charter of 1663.
These documents suggest that, early in our country’s history, several Colonies acknowledged that freedom to pursue one’s chosen religious beliefs was an essential liberty. Moreover, these Colonies appeared to recognize that government should interfere in religious matters only when necessary to protect the civil peace or to prevent “licentiousness.” In other words, when religious beliefs conflicted with civil law, religion prevailed unless important state interests militated otherwise. Such notions parallel the ideas expressed in our pre-Smith cases—that government may not hinder believers from freely exercising their religion, unless necessary to further a significant state interest.
C
The principles expounded in these early charters re-emerged over a century later in state constitutions that were adopted in the flurry of constitution drafting that followed the American Revolution. By 1789, every State but Connecticut had incorporated some version of a free exercise clause into its constitution. Origins of Free Exercise 1455. These state provisions, which were typically longer and more detailed than the Federal Free Exercise Clause, are perhaps the best evidence of the original understanding of the Constitution’s protection of religious liberty. After all, it is reasonable to think that the States that ratified the First Amendment assumed that the meaning of the federal free exercise provision corresponded to that of their existing state clauses. The precise language of these state precursors to the Free Exercise Clause varied, but most guaranteed free exercise of religion or liberty of conscience, limited by particular, defined state interests. For example, the New York Constitution of 1777 provided:
[T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.
Similarly, the New Hampshire Constitution of 1784 declared:
Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, ... provided he doth not disturb the public peace, or disturb others, in their religious worship.
The Maryland Declaration of Rights of 1776 read:
[N]o person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights.
The religious liberty clause of the Georgia Constitution of 1777 stated:
All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State.
In addition to these state provisions, the Northwest Ordinance of 1787—which was enacted contemporaneously with the drafting of the Constitution and reenacted by the First Congress—established a bill of rights for a territory that included what is now Ohio, Indiana, Michigan, Wisconsin, and part of Minnesota. Article I of the Ordinance declared:
No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.
The language used in these state constitutional provisions and the Northwest Ordinance strongly suggests that, around the time of the drafting of the Bill of Rights, it was generally accepted that the right to “free exercise” required, where possible, accommodation of religious practice. If not—and if the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience—there would have been no need for these documents to specify, as the New York Constitution did, that rights of conscience should not be “construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of [the] State.” Such a proviso would have been superfluous. Instead, these documents make sense only if the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes.
The Virginia Legislature may have debated the issue most fully. In May 1776, the Virginia Constitutional Convention wrote a constitution containing a Declaration of Rights with a clause on religious liberty. The initial drafter of the clause, George Mason, proposed the following:
That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be (directed) only by reason and conviction, not by force or violence; and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under colour of religion, any man disturb the peace, the happiness, or safety of society. And that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.
Mason’s proposal did not go far enough for a 26–year–old James Madison, who had recently completed his studies at the Presbyterian College of Princeton. He objected first to Mason’s use of the term “toleration,” contending that the word implied that the right to practice one’s religion was a governmental favor, rather than an inalienable liberty. Second, Madison thought Mason’s proposal countenanced too much state interference in religious matters, since the “exercise of religion” would have yielded whenever it was deemed inimical to “the peace, happiness, or safety of society.” Madison suggested the provision read instead.
That religion, or the duty we owe our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it, according to the dictates of conscience; and therefore that no man or class of men ought on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities, unless under color of religion the preservation of equal liberty, and the existence of the State be manifestly endangered.
Thus, Madison wished to shift Mason’s language of “toleration” to the language of rights. See S. Cobb, The Rise of Religious Liberty in America 492 (1902) (reprint 1970) (noting that Madison objected to the word “toleration” as belonging to “a system where was an established Church, and where a certain liberty of worship was granted, not of right, but of grace”). Additionally, under Madison’s proposal, the State could interfere in a believer’s religious exercise only if the State would otherwise “be manifestly endangered.” In the end, neither Mason’s nor Madison’s language regarding the extent to which state interests could limit religious exercise made it into the Virginia Constitution’s religious liberty clause. Like the Federal Free Exercise Clause, the Virginia religious liberty clause was simply silent on the subject, providing only that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.” Virginia Declaration of Rights, Art. XVI (1776), in 10 Swindler 50. For our purposes, however, it is telling that both Mason’s and Madison’s formulations envisioned that, when there was a conflict, a person’s interest in freely practicing his religion was to be balanced against state interests. Although Madison endorsed a more limited state interest exception than did Mason, the debate would have been irrelevant if either had thought the right to free exercise did not include a right to be exempt from certain generally applicable laws. Presumably, the Virginia Legislature intended the scope of its free exercise provision to strike some middle ground between Mason’s narrower and Madison’s broader notions of the right to religious freedom.
D
The practice of the Colonies and early States bears out the conclusion that, at the time the Bill of Rights was ratified, it was accepted that government should, when possible, accommodate religious practice. Unsurprisingly, of course, even in the American Colonies inhabited by people of religious persuasions, religious conscience and civil law rarely conflicted. Most 17th and 18th century Americans belonged to denominations of Protestant Christianity whose religious practices were generally harmonious with colonial law. Curry, The First Freedoms, at 219 (“The vast majority of Americans assumed that theirs was a Christian, i.e. Protestant, country, and they automatically expected that government would uphold the commonly agreed on Protestant ethos and morality”). Moreover, governments then were far smaller and less intrusive than they are today, which made conflict between civil law and religion unusual.
Nevertheless, tension between religious conscience and generally applicable laws, though rare, was not unknown in pre-constitutional America. Most commonly, such conflicts arose from oath requirements, military conscription, and religious assessments. Origins of Free Exercise 1466. The ways in which these conflicts were resolved suggest that Americans in the Colonies and early States thought that, if an individual’s religious scruples prevented him from complying with a generally applicable law, the government should, if possible, excuse the person from the law’s coverage. For example, Quakers and certain other Protestant sects refused on Biblical grounds to subscribe to oaths or “swear” allegiance to civil authority. A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses 14 (1990) (hereinafter Adams & Emmerich). Without accommodation, their beliefs would have prevented them from participating in civic activities involving oaths, including testifying in court. Colonial governments created alternatives to the oath requirement for these individuals. In early decisions, for example, the Carolina proprietors applied the religious liberty provision of the Carolina Charter of 1665 to permit Quakers to enter pledges in a book. Curry, The First Freedoms, at 56. Similarly, in 1691, New York enacted a law allowing Quakers to testify by affirmation, and in 1734, it permitted Quakers to qualify to vote by affirmation. By 1789, virtually all of the States had enacted oath exemptions. See Adams & Emmerich 62.
Early conflicts between religious beliefs and generally applicable laws also occurred because of military conscription requirements. Quakers and Mennonites, as well as a few smaller denominations, refused on religious grounds to carry arms. Members of these denominations asserted that liberty of conscience should exempt them from military conscription. Obviously, excusing such objectors from military service had a high public cost, given the importance of the military to the defense of society. Nevertheless, Rhode Island, North Carolina, and Maryland exempted Quakers from military service in the late 1600’s. New York, Massachusetts, Virginia, and New Hampshire followed suit in the mid–1700’s. Origins of Free Exercise 1468. The Continental Congress likewise granted exemption from conscription:
As there are some people, who, from religious principles, cannot bear arms in any case, this Congress intend no violence to their consciences, but earnestly recommend it to them, to contribute liberally in this time of universal calamity, to the relief of their distressed brethren in the several colonies, and to do all other services to their oppressed Country, which they can consistently with their religious principles.
Again, this practice of excusing religious pacifists from military service demonstrates that, long before the First Amendment was ratified, legislative accommodations were a common response to conflicts between religious practice and civil obligation. Notably, the Continental Congress exempted objectors from conscription to avoid “violence to their consciences,” explicitly recognizing that civil laws must sometimes give way to freedom of conscience.
States and Colonies with established churches encountered a further religious accommodation problem. Typically, these governments required citizens to pay tithes to support either the government-established church or the church to which the tithepayer belonged. But Baptists and Quakers, as well as others, opposed all government-compelled tithes on religious grounds. Massachusetts, Connecticut, New Hampshire, and Virginia responded by exempting such objectors from religious assessments. There are additional examples of early conflicts between civil laws and religious practice that were similarly settled through accommodation of religious exercise. Both North Carolina and Maryland excused Quakers from the requirement of removing their hats in court; Rhode Island exempted Jews from the requirements of the state marriage laws; and Georgia allowed groups of European immigrants to organize whole towns according to their own faith.
To be sure, legislatures, not courts, granted these early accommodations. But these were the days before there was a Constitution to protect civil liberties—judicial review did not yet exist. These legislatures apparently believed that the appropriate response to conflicts between civil law and religious scruples was, where possible, accommodation of religious conduct. It is reasonable to presume that the drafters and ratifiers of the First Amendment—many of whom served in state legislatures—assumed courts would apply the Free Exercise Clause similarly, so that religious liberty was safeguarded.
E
The writings of the early leaders who helped to shape our Nation provide a final source of insight into the original understanding of the Free Exercise Clause. The thoughts of James Madison—one of the principal architects of the Bill of Rights—as revealed by the controversy surrounding Virginia’s General Assessment Bill of 1784, are particularly illuminating. Virginia’s debate over religious issues did not end with its adoption of a constitutional free exercise provision. Although Virginia had disestablished the Church of England in 1776, it left open the question whether religion might be supported on a nonpreferential basis by a so-called “general assessment.” Levy, Essays on American Constitutional History, at 200. In the years between 1776 and 1784, the issue how to support religion in Virginia—either by general assessment or voluntarily—was widely debated. Curry, The First Freedoms, at 136.
By 1784, supporters of a general assessment, led by Patrick Henry, had gained a slight majority in the Virginia Assembly. They introduced “A Bill Establishing a Provision for the Teachers of the Christian Religion,” which proposed that citizens be taxed in order to support the Christian denomination of their choice, with those taxes not designated for any specific denomination to go to a public fund to aid seminaries. Madison viewed religious assessment as a dangerous infringement of religious liberty and led the opposition to the bill. He took the case against religious assessment to the people of Virginia in his now-famous “Memorial and Remonstrance Against Religious Assessments.” This pamphlet led thousands of Virginians to oppose the bill and to submit petitions expressing their views to the legislature. The bill eventually died in committee, and Virginia instead enacted a Bill for Establishing Religious Freedom, which Thomas Jefferson had drafted in 1779.
The “Memorial and Remonstrance” begins with the recognition that “[t]he Religion ... of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” 2 Writings of James Madison 184 (G. Hunt ed.1901). By its very nature, Madison wrote, the right to free exercise is “unalienable,” both because a person’s opinion “cannot follow the dictates of other[s],” and because it entails “a duty towards the Creator.” Madison continued:
This duty [owed the Creator] is precedent both in order of time and degree of obligation, to the claims of Civil Society. . . . [E]very man who becomes a member of any particular Civil Society, [must] do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance.
To Madison, then, duties to God were superior to duties to civil authorities—the ultimate loyalty was owed to God above all. Madison did not say that duties to the Creator are precedent only to those laws specifically directed at religion, nor did he strive simply to prevent deliberate acts of persecution or discrimination. The idea that civil obligations are subordinate to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law.
Other early leaders expressed similar views regarding religious liberty. Thomas Jefferson, the drafter of Virginia’s Bill for Establishing Religious Freedom, wrote in that document that civil government could interfere in religious exercise only “when principles break out into overt acts against peace and good order.” In 1808, he indicated that he considered “‘the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.’” 11 The Writings of Thomas Jefferson 428–429 (A. Lipscomb ed.1904) (quoted in Office of Legal Policy, U.S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 7 (1986)). Moreover, Jefferson believed that “‘[e]very religious society has a right to determine for itself the time of these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it.’”
George Washington expressly stated that he believed that government should do its utmost to accommodate religious scruples, writing in a letter to a group of Quakers:
[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit.
Oliver Ellsworth, a Framer of the First Amendment and later Chief Justice of the United States, expressed the similar view that government could interfere in religious matters only when necessary “to prohibit and punish gross immoralities and impieties; because the open practice of these is of evil example and detriment.” Oliver Ellsworth, Landholder, No. 7 (Dec. 17, 1787), reprinted in 4 Founders’ Constitution 640. Isaac Backus, a Baptist minister who was a delegate to the Massachusetts ratifying convention of 1788, declared that “ ‘every person has an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby.’ ” Backus, A Declaration of Rights, of the Inhabitants of the State of Massachusetts–Bay, in Isaac Backus on Church, State, and Calvinism 487 (W. McLoughlin ed.1968).
These are but a few examples of various perspectives regarding the proper relationship between church and government that existed during the time the First Amendment was drafted and ratified. Obviously, since these thinkers approached the issue of religious freedom somewhat differently, see Adams & Emmerich 21–31, it is not possible to distill their thoughts into one tidy formula. Nevertheless, a few general principles may be discerned. Foremost, these early leaders accorded religious exercise a special constitutional status. The right to free exercise was a substantive guarantee of individual liberty, no less important than the right to free speech or the right to just compensation for the taking of property. See P. Kauper, Religion and the Constitution 17 (1964) (“[O]ur whole constitutional history ... supports the conclusion that religious liberty is an independent liberty, that its recognition may either require or permit preferential treatment on religious grounds in some instances...”). As Madison put it in the concluding argument of his “Memorial and Remonstrance”:
[T]he equal right of every citizen to the free exercise of his Religion according to the dictates of [his] conscience’ is held by the same tenure with all our other rights.... [I]t is equally the gift of nature; ... it cannot be less dear to us; ... it is enumerated with equal solemnity, or rather studied emphasis.
Second, all agreed that government interference in religious practice was not to be lightly countenanced. Adams & Emmerich 31. Finally, all shared the conviction that “ ‘true religion and good morals are the only solid foundation of public liberty and happiness.’” Curry, The First Freedoms, at 219 (quoting Continental Congress); see Adams & Emmerich 72 (“The Founders ... acknowledged that the republic rested largely on moral principles derived from religion”). To give meaning to these ideas—particularly in a society characterized by religious pluralism and pervasive regulation—there will be times when the Constitution requires government to accommodate the needs of those citizens whose religious practices conflict with generally applicable law.
III
The Religion Clauses of the Constitution represent a profound commitment to religious liberty. Our Nation’s Founders conceived of a Republic receptive to voluntary religious expression, not of a secular society in which religious expression is tolerated only when it does not conflict with a generally applicable law. As the historical sources discussed above show, the Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer’s conduct is in tension with a law of general application. Certainly, it is in no way anomalous to accord heightened protection to a right identified in the text of the First Amendment. For example, it has long been the Court’s position that freedom of speech—a right enumerated only a few words after the right to free exercise—has special constitutional status. Given the centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect.
Although it may provide a bright line, the rule the Court declared in Smith does not faithfully serve the purpose of the Constitution. Accordingly, I believe that it is essential for the Court to reconsider its holding in Smith—and to do so in this very case. I would therefore direct the parties to brief this issue and set the case for reargument.
I respectfully dissent from the Court’s disposition of this case.