Constitutional Law Cases: Rehnquist Court
1990 - 1999
U.S. Supreme Court
EMPLOYMENT DIV., ORE. DEPT. OF HUMAN RES. v. SMITH, 494 U.S. 872 (1990)
494 U.S. 872
EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON, ET AL. v. SMITH ET
AL.
CERTIORARI TO THE SUPREME COURT OF OREGON
No. 88-1213.
Argued November 6, 1989
Decided April 17, 1990
Respondents Smith and Black were fired by a private drug rehabilitation organization
because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a
ceremony of their Native American Church. Their applications for unemployment compensation
were denied by the State of Oregon under a state law disqualifying employees discharged
for work-related "misconduct." Holding that the denials violated respondents' First
Amendment free exercise rights, the State Court of Appeals reversed. The State Supreme
Court affirmed, but this Court vacated the judgment and remanded for a determination
whether sacramental peyote use is proscribed by the State's controlled substance law,
which makes it a felony to knowingly or intentionally possess the drug. Pending that
determination, the Court refused to decide whether such use is protected by the Constitution.
On remand, the State Supreme Court held that sacramental peyote use violated, and
was not excepted from, the state-law prohibition, but concluded that that prohibition
was invalid under the Free Exercise Clause.
Held:
The Free Exercise Clause permits the State to prohibit sacramental peyote use and
thus to deny unemployment benefits to persons discharged for such use. Pp. 876-890.
(a) Although a State would be "prohibiting the free exercise [of religion]" in violation
of the Clause if it sought to ban the performance of (or abstention from) physical
acts solely because of their religious motivation, the Clause does not relieve an
individual of the obligation to comply with a law that incidentally forbids (or requires)
the performance of an act that his religious belief requires (or forbids) if the law
is not specifically directed to religious practice and is otherwise constitutional
as applied to those who engage in the specified act for nonreligious reasons. See,
e. g., Reynolds v. United States, 98 U.S. 145, 166 -167. The only decisions in which
this Court has held that the First Amendment bars application of a neutral, generally
applicable law to religiously motivated action are distinguished on the ground that
they involved not the Free Exercise Clause alone, but that [494 U.S. 872, 873] Clause
in conjunction with other constitutional protections. See, e. g., Cantwell v. Connecticut,
310 U.S. 296, 304 -307; Wisconsin v. Yoder, 406 U.S. 205 . Pp. 876-882.
(b) Respondents' claim for a religious exemption from the Oregon law cannot be evaluated
under the balancing test set forth in the line of cases following Sherbert v. Verner,
374 U.S. 398, 402 -403, whereby governmental actions that substantially burden a religious
practice must be justified by a "compelling governmental interest." That test was
developed in a context - unemployment compensation eligibility rules - that lent itself
to individualized governmental assessment of the reasons for the relevant conduct.
The test is inapplicable to an across-the-board criminal prohibition on a particular
form of conduct. A holding to the contrary would create an extraordinary right to
ignore generally applicable laws that are not supported by "compelling governmental
interest" on the basis of religious belief. Nor could such a right be limited to situations
in which the conduct prohibited is "central" to the individual's religion, since that
would enmesh judges in an impermissible inquiry into the centrality of particular
beliefs or practices to a faith. Cf. Hernandez v. Commissioner, 490 U.S. 680, 699
. Thus, although it is constitutionally permissible to exempt sacramental peyote use
from the operation of drug laws, it is not constitutionally required. Pp. 882-890.
307 Ore. 68, 763 P.2d 146, reversed.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE,
STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in the
judgment, in Parts I and II of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined
without concurring in the judgment, post, p. 891. BLACKMUN, J., filed a dissenting
opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 907.
Dave Frohnmayer, Attorney General of Oregon, argued the cause for petitioners. With
him on the briefs were James E. Mountain, Jr., Deputy Attorney General, Virginia L.
Linder, Solicitor General, and Michael D. Reynolds, Assistant Solicitor General.
Craig J. Dorsay argued the cause and filed briefs for respondents. *
[ Footnote * ] Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by Steven R. Shapiro and John A. Powell; for the American
Jewish Congress by Amy Adelson, Lois C. Waldman, and Marc D. Stern; for the Association
on American Indian Affairs et al. by Steven C. Moore and Jack Trope; and for the Council
on Religious Freedom by Lee Boothby and Robert W. Nixon. [494 U.S. 872, 874]
JUSTICE SCALIA delivered the opinion of the Court.
This case requires us to decide whether the Free Exercise Clause of the First Amendment
permits the State of Oregon to include religiously inspired peyote use within the
reach of its general criminal prohibition on use of that drug, and thus permits the
State to deny unemployment benefits to persons dismissed from their jobs because of
such religiously inspired use.
I
Oregon law prohibits the knowing or intentional possession of a "controlled substance"
unless the substance has been prescribed by a medical practitioner. Ore. Rev. Stat.
475.992(4) (1987). The law defines "controlled substance" as a drug classified in
Schedules I through V of the Federal Controlled Substances Act, 21 U.S.C. 811-812,
as modified by the State Board of Pharmacy. Ore. Rev. Stat. 475.005(6) (1987). Persons
who violate this provision by possessing a controlled substance listed on Schedule
I are "guilty of a Class B felony." 475.992(4)(a). As compiled by the State Board
of Pharmacy under its statutory authority, see 475.035, Schedule I contains the drug
peyote, a hallucinogen derived from the plant Lophophora williamsii Lemaire. Ore.
Admin. Rule 855-80-021(3)(s) (1988).
Respondents Alfred Smith and Galen Black (hereinafter respondents) were fired from
their jobs with a private drug rehabilitation organization because they ingested peyote
for sacramental purposes at a ceremony of the Native American Church, of which both
are members. When respondents applied to petitioner Employment Division (hereinafter
petitioner) for unemployment compensation, they were determined to be ineligible for
benefits because they had been discharged for work-related "misconduct." The Oregon
Court of Appeals reversed that determination, holding that the denial of benefits
violated respondents' free exercise rights under the First Amendment. [494 U.S. 872,
875]
On appeal to the Oregon Supreme Court, petitioner argued that the denial of benefits
was permissible because respondents' consumption of peyote was a crime under Oregon
law. The Oregon Supreme Court reasoned, however, that the criminality of respondents'
peyote use was irrelevant to resolution of their constitutional claim - since the
purpose of the "misconduct" provision under which respondents had been disqualified
was not to enforce the State's criminal laws but to preserve the financial integrity
of the compensation fund, and since that purpose was inadequate to justify the burden
that disqualification imposed on respondents' religious practice. Citing our decisions
in Sherbert v. Verner, 374 U.S. 398 (1963), and Thomas v. Review Bd. of Indiana Employment
Security Div., 450 U.S. 707 (1981), the court concluded that respondents were entitled
to payment of unemployment benefits. Smith v. Employment Div., Dept. of Human Resources,
301 Ore. 209, 217-219, 721 P.2d 445, 449-450 (1986). We granted certiorari. 480 U.S.
916 (1987).
Before this Court in 1987, petitioner continued to maintain that the illegality of
respondents' peyote consumption was relevant to their constitutional claim. We agreed,
concluding that "if a State has prohibited through its criminal laws certain kinds
of religiously motivated conduct without violating the First Amendment, it certainly
follows that it may impose the lesser burden of denying unemployment compensation
benefits to persons who engage in that conduct." Employment Div., Dept. of Human Resources
of Oregon v. Smith, 485 U.S. 660, 670 (1988) (Smith I). We noted, however, that the
Oregon Supreme Court had not decided whether respondents' sacramental use of peyote
was in fact proscribed by Oregon's controlled substance law, and that this issue was
a matter of dispute between the parties. Being "uncertain about the legality of the
religious use of peyote in Oregon," we determined that it would not be "appropriate
for us to decide whether the practice is protected by the Federal Constitution." Id.,
at 673. Accordingly, we [494 U.S. 872, 876] vacated the judgment of the Oregon Supreme
Court and remanded for further proceedings. Id., at 674.
On remand, the Oregon Supreme Court held that respondents' religiously inspired use
of peyote fell within the prohibition of the Oregon statute, which "makes no exception
for the sacramental use" of the drug. 307 Ore. 68, 72-73, 763 P.2d 146, 148 (1988).
It then considered whether that prohibition was valid under the Free Exercise Clause,
and concluded that it was not. The court therefore reaffirmed its previous ruling
that the State could not deny unemployment benefits to respondents for having engaged
in that practice.
We again granted certiorari. 489 U.S. 1077 (1989).
II
Respondents' claim for relief rests on our decisions in Sherbert v. Verner, supra,
Thomas v. Review Bd. of Indiana Employment Security Div., supra, and Hobbie v. Unemployment
Appeals Comm'n of Florida, 480 U.S. 136 (1987), in which we held that a State could
not condition the availability of unemployment insurance on an individual's willingness
to forgo conduct required by his religion. As we observed in Smith I, however, the
conduct at issue in those cases was not prohibited by law. We held that distinction
to be critical, for "if Oregon does prohibit the religious use of peyote, and if that
prohibition is consistent with the Federal Constitution, there is no federal right
to engage in that conduct in Oregon," and "the State is free to withhold unemployment
compensation from respondents for engaging in work-related misconduct, despite its
religious motivation." 485 U.S., at 672 . Now that the Oregon Supreme Court has confirmed
that Oregon does prohibit the religious use of peyote, we proceed to consider whether
that prohibition is permissible under the Free Exercise Clause.
A
The Free Exercise Clause of the First Amendment, which has been made applicable to
the States by incorporation into [494 U.S. 872, 877] the Fourteenth Amendment, see
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides that "Congress shall make
no law respecting an establishment of religion, or prohibiting the free exercise thereof
. . . ." U.S. Const., Amdt. 1 (emphasis added). The free exercise of religion means,
first and foremost, the right to believe and profess whatever religious doctrine one
desires. Thus, the First Amendment obviously excludes all "governmental regulation
of religious beliefs as such." Sherbert v. Verner, supra, at 402. The government may
not compel affirmation of religious belief, see Torcaso v. Watkins, 367 U.S. 488 (1961),
punish the expression of religious doctrines it believes to be false, United States
v. Ballard, 322 U.S. 78, 86 -88 (1944), impose special disabilities on the basis of
religious views or religious status, see McDaniel v. Paty, 435 U.S. 618 (1978); Fowler
v. Rhode Island, 345 U.S. 67, 69 (1953); cf. Larson v. Valente, 456 U.S. 228, 245
(1982), or lend its power to one or the other side in controversies over religious
authority or dogma, see Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial
Presbyterian Church, 393 U.S. 440, 445 -452 (1969); Kedroff v. St. Nicholas Cathedral,
344 U.S. 94, 95 -119 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426
U.S. 696, 708 -725 (1976).
But the "exercise of religion" 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 [494 U.S. 872, 878] for worship purposes,"
or to prohibit bowing down before a golden calf.
Respondents in the present case, however, seek to carry the meaning of "prohibiting
the free exercise [of religion]" one large step further. They contend that their religious
motivation for using peyote places them beyond the reach of a criminal law that is
not specifically directed at their religious practice, and that is concededly constitutional
as applied to those who use the drug for other reasons. They assert, in other words,
that "prohibiting the free exercise [of religion]" includes requiring any individual
to observe a generally applicable law that requires (or forbids) the performance of
an act that his religious belief forbids (or requires). As a textual matter, we do
not think the words must be given that meaning. It is no more necessary to regard
the collection of a general tax, for example, as "prohibiting the free exercise [of
religion]" by those citizens who believe support of organized government to be sinful,
than it is to regard the same tax as "abridging the freedom . . . of the press" of
those publishing companies that must pay the tax as a condition of staying in business.
It is a permissible reading of the text, in the one case as in the other, to say that
if prohibiting the exercise of religion (or burdening the activity of printing) is
not the object of the tax but merely the incidental effect of a generally applicable
and otherwise valid provision, the First Amendment has not been offended. Compare
Citizen Publishing Co. v. United States, 394 U.S. 131, 139 (1969) (upholding application
of antitrust laws to press), with Grosjean v. American Press Co., 297 U.S. 233, 250
-251 (1936) (striking down license tax applied only to newspapers with weekly circulation
above a specified level); see generally Minneapolis Star & Tribune Co. v. Minnesota
Comm'r of Revenue, 460 U.S. 575, 581 (1983).
Our decisions reveal that the latter reading is the correct one. We have never held
that an individual's religious beliefs [494 U.S. 872, 879] excuse him from compliance
with an otherwise valid law prohibiting conduct that the State is free to regulate.
On the contrary, the record of more than a century of our free exercise jurisprudence
contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville
School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594 -595 (1940): "Conscientious
scruples have not, in the course of the long struggle for religious toleration, relieved
the individual from obedience to a general law not aimed at the promotion or restriction
of religious beliefs. The mere possession of religious convictions which contradict
the relevant concerns of a political society does not relieve the citizen from the
discharge of political responsibilities (footnote omitted)." We first had occasion
to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we
rejected the claim that criminal laws against polygamy could not be constitutionally
applied to those whose religion commanded the practice. "Laws," we said, "are made
for the government of actions, and while they cannot interfere with mere religious
belief and opinions, they may with practices. . . . Can a man excuse his practices
to the contrary because of his religious belief? To permit this would be to make the
professed doctrines of religious belief superior to the law of the land, and in effect
to permit every citizen to become a law unto himself." Id., at 166-167.
Subsequent decisions have consistently held that the right of free exercise does
not relieve an individual of the obligation to comply with a "valid and neutral law
of general applicability on the ground that the law proscribes (or prescribes) conduct
that his religion prescribes (or proscribes)." United States v. Lee, 455 U.S. 252,
263 , n. 3 (1982) (STEVENS, J., concurring in judgment); see Minersville School Dist.
Bd. of Ed. v. Gobitis, supra, at 595 (collecting cases). In Prince v. Massachusetts,
321 U.S. 158 (1944), we held that a mother could be prosecuted under the child labor
laws [494 U.S. 872, 880] for using her children to dispense literature in the streets,
her religious motivation notwithstanding. We found no constitutional infirmity in
"excluding [these children] from doing there what no other children may do." Id.,
at 171. In Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion), we upheld
Sunday-closing laws against the claim that they burdened the religious practices of
persons whose religions compelled them to refrain from work on other days. In Gillette
v. United States, 401 U.S. 437, 461 (1971), we sustained the military Selective Service
System against the claim that it violated free exercise by conscripting persons who
opposed a particular war on religious grounds.
Our most recent decision involving a neutral, generally applicable regulatory law
that compelled activity forbidden by an individual's religion was United States v.
Lee, 455 U.S., at 258 -261. There, an Amish employer, on behalf of himself and his
employees, sought exemption from collection and payment of Social Security taxes on
the ground that the Amish faith prohibited participation in governmental support programs.
We rejected the claim that an exemption was constitutionally required. There would
be no way, we observed, to distinguish the Amish believer's objection to Social Security
taxes from the religious objections that others might have to the collection or use
of other taxes. "If, for example, a religious adherent believes war is a sin, and
if a certain percentage of the federal budget can be identified as devoted to war-related
activities, such individuals would have a similarly valid claim to be exempt from
paying that percentage of the income tax. The tax system could not function if denominations
were allowed to challenge the tax system because tax payments were spent in a manner
that violates their religious belief." Id., at 260. Cf. Hernandez v. Commissioner,
490 U.S. 680 (1989) (rejecting free exercise challenge to payment of income taxes
alleged to make religious activities more difficult). [494 U.S. 872, 881]
The only decisions in which we have held that the First Amendment bars application
of a neutral, generally applicable law to religiously motivated action have involved
not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with
other constitutional protections, such as freedom of speech and of the press, see
Cantwell v. Connecticut, 310 U.S., at 304 -307 (invalidating a licensing system for
religious and charitable solicitations under which the administrator had discretion
to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania, 319
U.S. 105 (1943) (invalidating a flat tax on solicitation as applied to the dissemination
of religious ideas); Follett v. McCormick, 321 U.S. 573 (1944) (same), or the right
of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510 (1925), to
direct the education of their children, see Wisconsin v. Yoder, 406 U.S. 205 (1972)
(invalidating compulsory school-attendance laws as applied to Amish parents who refused
on religious grounds to send their children to school). 1 [494 U.S. 872, 882] Some
of our cases prohibiting compelled expression, decided exclusively upon free speech
grounds, have also involved freedom of religion, cf. Wooley v. Maynard, 430 U.S. 705
(1977) (invalidating compelled display of a license plate slogan that offended individual
religious beliefs); West Virginia Bd. of Education v. Barnette, 319 U.S. 624 (1943)
(invalidating 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, 468 U.S. 609, 622 (1984) ("An individual's freedom to speak, to worship,
and to petition the government for the redress of grievances could not be vigorously
protected from interference by the State [if] a correlative freedom to engage in group
effort toward those ends were not also guaranteed").
The present case does not present such a hybrid situation, but a free exercise claim
unconnected with any communicative activity or parental right. Respondents urge us
to hold, quite simply, that when otherwise prohibitable conduct is accompanied by
religious convictions, not only the convictions but the conduct itself must be free
from governmental regulation. We have never held that, and decline to do so now. There
being no contention that Oregon's drug law represents an attempt to regulate religious
beliefs, the communication of religious beliefs, or the raising of one's children
in those beliefs, the rule to which we have adhered ever since Reynolds plainly controls.
"Our cases do not at their farthest reach support the proposition that a stance of
conscientious opposition relieves an objector from any colliding duty fixed by a democratic
government." Gillette v. United States, supra, at 461.
B
Respondents argue that even though exemption from generally applicable criminal laws
need not automatically be extended to religiously motivated actors, at least the claim
for a [494 U.S. 872, 883] religious exemption must be evaluated under the balancing
test set forth in Sherbert v. Verner, 374 U.S. 398 (1963). Under the Sherbert test,
governmental actions that substantially burden a religious practice must be justified
by a compelling governmental interest. See id., at 402-403; see also Hernandez v.
Commissioner, 490 U.S., at 699 . Applying that test we have, on three occasions, invalidated
state unemployment compensation rules that conditioned the availability of benefits
upon an applicant's willingness to work under conditions forbidden by his religion.
See Sherbert v. Verner, supra; Thomas v. Review Bd. of Indiana Employment Security
Div., 450 U.S. 707 (1981); Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S.
136 (1987). We have never invalidated any governmental action on the basis of the
Sherbert test except the denial of unemployment compensation. Although we have sometimes
purported to apply the Sherbert test in contexts other than that, we have always found
the test satisfied, see United States v. Lee, 455 U.S. 252 (1982); Gillette v. United
States, 401 U.S. 437 (1971). In recent years we have abstained from applying the Sherbert
test (outside the unemployment compensation field) at all. In Bowen v. Roy, 476 U.S.
693 (1986), we declined to apply Sherbert analysis to a federal statutory scheme that
required benefit applicants and recipients to provide their Social Security numbers.
The plaintiffs in that case asserted that it would violate their religious beliefs
to obtain and provide a Social Security number for their daughter. We held the statute's
application to the plaintiffs valid regardless of whether it was necessary to effectuate
a compelling interest. See 476 U.S., at 699 -701. In Lyng v. Northwest Indian Cemetery
Protective Assn., 485 U.S. 439 (1988), we declined to apply Sherbert analysis to the
Government's logging and road construction activities on lands used for religious
purposes by several Native American Tribes, even though it was undisputed that the
activities "could have devastating effects on traditional Indian religious practices,"
485 U.S., at 451 . [494 U.S. 872, 884] In Goldman v. Weinberger, 475 U.S. 503 (1986),
we rejected application of the Sherbert test to military dress regulations that forbade
the wearing of yarmulkes. In O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), we
sustained, without mentioning the Sherbert test, a prison's refusal to excuse inmates
from work requirements to attend worship services.
Even if we were inclined to breathe into Sherbert some life beyond the unemployment
compensation field, we would not apply it to require exemptions from a generally applicable
criminal law. The Sherbert test, it must be recalled, was developed in a context that
lent itself to individualized governmental assessment of the reasons for the relevant
conduct. As a plurality of the Court noted in Roy, a distinctive feature of unemployment
compensation programs is that their eligibility criteria invite consideration of the
particular circumstances behind an applicant's unemployment: "The statutory conditions
[in Sherbert and Thomas] provided that a person was not eligible for unemployment
compensation benefits if, `without good cause,' he had quit work or refused available
work. The `good cause' standard created a mechanism for individualized exemptions."
Bowen v. Roy, supra, at 708 (opinion of Burger, C. J., joined by Powell and REHNQUIST,
JJ.). See also Sherbert, supra, at 401, n. 4 (reading state unemployment compensation
law as allowing benefits for unemployment caused by at least some "personal reasons").
As the plurality pointed out in Roy, our decisions in the unemployment cases stand
for the proposition that where the State has in place a system of individual exemptions,
it may not refuse to extend that system to cases of "religious hardship" without compelling
reason. Bowen v. Roy, supra, at 708.
Whether or not the decisions are that limited, they at least have nothing to do with
an across-the-board criminal prohibition on a particular form of conduct. Although,
as noted earlier, we have sometimes used the Sherbert test to analyze free exercise
challenges to such laws, see United States v. [494 U.S. 872, 885] Lee, supra, at 257-260;
Gillette v. United States, supra, at 462, we have never applied the test to invalidate
one. We conclude today that the sounder approach, and the approach in accord with
the vast majority of our precedents, is to hold the test inapplicable to such challenges.
The government's ability to enforce generally applicable prohibitions of socially
harmful conduct, like its ability to carry out other aspects of public policy, "cannot
depend on measuring the effects of a governmental action on a religious objector's
spiritual development." Lyng, supra, at 451. To make an individual's obligation to
obey such a law contingent upon the law's coincidence with his religious beliefs,
except where the State's interest is "compelling" - permitting him, by virtue of his
beliefs, "to become a law unto himself," Reynolds v. United States, 98 U.S., at 167
- contradicts both constitutional tradition and common sense. 2
The "compelling government interest" requirement seems benign, because it is familiar
from other fields. But using it as the standard that must be met before the government
may accord different treatment on the basis of race, see, e. g., [494 U.S. 872, 886]
Palmore v. Sidoti, 466 U.S. 429, 432 (1984), or before the government may regulate
the content of speech, see, e. g., Sable Communications of California v. FCC, 492
U.S. 115, 126 (1989), is not remotely comparable to using it for the purpose asserted
here. What it produces in those other fields - equality of treatment and an unrestricted
flow of contending speech - are constitutional norms; what it would produce here -
a private right to ignore generally applicable laws - is a constitutional anomaly.
3
Nor is it possible to limit the impact of respondents' proposal by requiring a "compelling
state interest" only when the conduct prohibited is "central" to the individual's
religion. Cf. Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S., at 474
-476 (BRENNAN, J., dissenting). It is no [494 U.S. 872, 887] more appropriate for
judges to determine the "centrality" of religious beliefs before applying a "compelling
interest" test in the free exercise field, than it would be for them to determine
the "importance" of ideas before applying the "compelling interest" test in the free
speech field. What principle of law or logic can be brought to bear to contradict
a believer's assertion that a particular act is "central" to his personal faith? Judging
the centrality of different religious practices is akin to the unacceptable "business
of evaluating the relative merits of differing religious claims." United States v.
Lee, 455 U.S., at 263 n. 2 (STEVENS, J., concurring). As we reaffirmed only last Term,
"[i]t is not within the judicial ken to question the centrality of particular beliefs
or practices to a faith, or the validity of particular litigants' interpretations
of those creeds." Hernandez v. Commissioner, 490 U.S., at 699 . Repeatedly and in
many different contexts, we have warned that courts must not presume to determine
the place of a particular belief in a religion or the plausibility of a religious
claim. See, e. g., Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S.,
at 716 ; Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian
Church, 393 U.S., at 450 ; Jones v. Wolf, 443 U.S. 595, 602 -606 (1979); United States
v. Ballard, 322 U.S. 78, 85 -87 (1944). 4 [494 U.S. 872, 888]
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, 366 U.S., at 606 , and precisely because we value and protect that religious
divergence, we cannot afford the luxury of deeming presumptively invalid, as applied
to the religious objector, every regulation of conduct that does not protect an interest
of the highest order. The rule respondents favor would open the prospect of constitutionally
required religious exemptions from civic obligations of almost every conceivable kind
- ranging from [494 U.S. 872, 889] compulsory military service, see, e. g., Gillette
v. United States, 401 U.S. 437 (1971), to the payment of taxes, see, e. g., United
States v. Lee, supra; to health and safety regulation such as manslaughter and child
neglect laws, see, e. g., Funkhouser v. State, 763 P.2d 695 (Okla. Crim. App. 1988),
compulsory vaccination laws, see, e. g., Cude v. State, 237 Ark. 927, 377 S. W. 2d
816 (1964), drug laws, see, e. g., Olsen v. Drug Enforcement Administration, 279 U.S.
App. D.C. 1, 878 F.2d 1458 (1989), and traffic laws, see Cox v. New Hampshire, 312
U.S. 569 (1941); to social welfare legislation such as minimum wage laws, see Tony
and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985), child labor
laws, see Prince v. Massachusetts, 321 U.S. 158 (1944), animal cruelty laws, see,
e. g., Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 723 F. Supp. 1467
(SD Fla. 1989), cf. State v. Massey, 229 N.C. 734, 51 S. E. 2d 179, appeal dism'd,
336 U.S. 942 (1949), environmental protection laws, see United States v. Little, 638
F. Supp. 337 (Mont. 1986), and laws providing for equality of opportunity for the
races, see, e. g., Bob Jones University v. United States, 461 U.S. 574, 603 -604 (1983).
The First Amendment's protection of religious liberty does not require this. 5 [494
U.S. 872, 890]
Values that are protected against government interference through enshrinement in
the Bill of Rights are not thereby banished from the political process. Just as a
society that believes in the negative protection accorded to the press by the First
Amendment is likely to enact laws that affirmatively foster the dissemination of the
printed word, so also a society that believes in the negative protection accorded
to religious belief can be expected to be solicitous of that value in its legislation
as well. It is therefore not surprising that a number of States have made an exception
to their drug laws for sacramental peyote use. See, e. g., Ariz. Rev. Stat. Ann. 13-3402(B)(1)-(3)
(1989); Colo. Rev. Stat. 12-22-317(3) (1985); N. M. Stat. Ann. 30-31-6(D) (Supp. 1989).
But to say that a nondiscriminatory religious-practice exemption is permitted, or
even that it is desirable, is not to say that it is constitutionally required, and
that the appropriate occasions for its creation can be discerned by the courts. It
may fairly be said that leaving accommodation to the political process will place
at a relative disadvantage those religious practices that are not widely engaged in;
but that unavoidable consequence of democratic government must be preferred to a system
in which each conscience is a law unto itself or in which judges weigh the social
importance of all laws against the centrality of all religious beliefs.
* * *
Because respondents' ingestion of peyote was prohibited under Oregon law, and because
that prohibition is constitutional, Oregon may, consistent with the Free Exercise
Clause, deny respondents unemployment compensation when their dismissal results from
use of the drug. The decision of the Oregon Supreme Court is accordingly reversed.
It is so ordered.
Footnotes
[ Footnote 1 ] Both lines of cases have specifically adverted to the non-free-exercise
principle involved. Cantwell, for example, observed that "[t]he fundamental law declares
the interest of the United States that the free exercise of religion be not prohibited
and that freedom to communicate information and opinion be not abridged." 310 U.S.,
at 307 . Murdock said:
"We do not mean to say that religious groups and the press are free from all financial
burdens of government. . . . We have here something quite different, for example,
from a tax on the income of one who engages in religious activities or a tax on property
used or employed in connection with those activities. It is one thing to impose a
tax on the income or property of a preacher. It is quite another thing to exact a
tax from him for the privilege of delivering a sermon. . . . Those who can deprive
religious groups of their colporteurs can take from them a part of the vital power
of the press which has survived from the Reformation." 319 U.S., at 112 .
Yoder said that "the Court's holding in Pierce stands as a charter of the rights
of parents to direct the religious upbringing of their children. And, when the interests
of parenthood are combined with a free exercise claim of the nature revealed by this
record, more than merely a `reasonable relation to some purpose within the competency
of the State' is required to sustain the validity of the State's requirement under
the First Amendment." 406 U.S., at 233 .
[ Footnote 2 ] JUSTICE O'CONNOR seeks to distinguish Lyng v. Northwest Indian Cemetery
Protective Assn., 485 U.S. 439 (1988), and Bowen v. Roy, 476 U.S. 693 (1986), on the
ground that those cases involved the government's conduct of "its own internal affairs,"
which is different because, as Justice Douglas said in Sherbert, "`the Free Exercise
Clause is written in terms of what the government cannot do to the individual, not
in terms of what the individual can exact from the government.'" Post, at 900 (O'CONNOR,
J., concurring in judgment), quoting Sherbert v. Verner, 374 U.S. 398, 412 (1963)
(Douglas, J., concurring). But since Justice Douglas voted with the majority in Sherbert,
that quote obviously envisioned that what "the government cannot do to the individual"
includes not just the prohibition of an individual's freedom of action through criminal
laws but also the running of its programs (in Sherbert, state unemployment compensation)
in such fashion as to harm the individual's religious interests. Moreover, it is hard
to see any reason in principle or practically why the government should have to tailor
its health and safety laws to conform to the diversity of religious belief, but should
not have to tailor its management of public lands, Lyng, supra, or its administration
of welfare programs, Roy, supra.
[ Footnote 3 ] JUSTICE O'CONNOR suggests that "[t]here is nothing talismanic about
neutral laws of general applicability," and that all laws burdening religious practices
should be subject to compelling-interest scrutiny because "the First Amendment unequivocally
makes freedom of religion, like freedom from race discrimination and freedom of speech,
a `constitutional nor[m],' not an `anomaly.'" Post, at 901 (opinion concurring in
judgment). But this comparison with other fields supports, rather than undermines,
the conclusion we draw today. Just as we subject to the most exacting scrutiny laws
that make classifications based on race, see Palmore v. Sidoti, 466 U.S. 429 (1984),
or on the content of speech, see Sable Communications of California v. FCC, 492 U.S.
115 (1989), so too we strictly scrutinize governmental classifications based on religion,
see McDaniel v. Paty, 435 U.S. 618 (1978); see also Torcaso v. Watkins, 367 U.S. 488
(1961). But we have held that race-neutral laws that have the effect of disproportionately
disadvantaging a particular racial group do not thereby become subject to compelling-interest
analysis under the Equal Protection Clause, see Washington v. Davis, 426 U.S. 229
(1976) (police employment examination); and we have held that generally applicable
laws unconcerned with regulating speech that have the effect of interfering with speech
do not thereby become subject to compelling-interest analysis under the First Amendment,
see Citizen Publishing Co. v. United States, 394 U.S. 131, 139 (1969) (antitrust laws).
Our conclusion that generally applicable, religion-neutral laws that have the effect
of burdening a particular religious practice need not be justified by a compelling
governmental interest is the only approach compatible with these precedents.
[ Footnote 4 ] While arguing that we should apply the compelling interest test in
this case, JUSTICE O'CONNOR nonetheless agrees that "our determination of the constitutionality
of Oregon's general criminal prohibition cannot, and should not, turn on the centrality
of the particular religious practice at issue," post, at 906-907 (opinion concurring
in judgment). This means, presumably, that compelling-interest scrutiny must be applied
to generally applicable laws that regulate or prohibit any religiously motivated activity,
no matter how unimportant to the claimant's religion. Earlier in her opinion, however,
JUSTICE O'CONNOR appears to contradict this, saying that the proper approach is "to
determine whether the burden on the specific plaintiffs before us is constitutionally
significant and whether the particular criminal interest asserted by the State before
us is compelling." Post, at 899. "Constitutionally significant burden" would seem
to be "centrality" [494 U.S. 872, 888] under another name. In any case, dispensing
with a "centrality" inquiry is utterly unworkable. It would require, for example,
the same degree of "compelling state interest" to impede the practice of throwing
rice at church weddings as to impede the practice of getting married in church. There
is no way out of the difficulty that, if general laws are to be subjected to a "religious
practice" exception, both the importance of the law at issue and the centrality of
the practice at issue must reasonably be considered.
Nor is this difficulty avoided by JUSTICE BLACKMUN's assertion that "although . .
. courts should refrain from delving into questions whether, as a matter of religious
doctrine, a particular practice is `central' to the religion, . . . I do not think
this means that the courts must turn a blind eye to the severe impact of a State's
restrictions on the adherents of a minority religion." Post, at 919 (dissenting opinion).
As JUSTICE BLACKMUN's opinion proceeds to make clear, inquiry into "severe impact"
is no different from inquiry into centrality. He has merely substituted for the question
"How important is X to the religious adherent?" the question "How great will be the
harm to the religious adherent if X is taken away?" There is no material difference.
[ Footnote 5 ] JUSTICE O'CONNOR contends that the "parade of horribles" in the text
only "demonstrates . . . that courts have been quite capable of . . . strik[ing] sensible
balances between religious liberty and competing state interests." Post, at 902 (opinion
concurring in judgment). But the cases we cite have struck "sensible balances" only
because they have all applied the general laws, despite the claims for religious exemption.
In any event, JUSTICE O'CONNOR mistakes the purpose of our parade: it is not to suggest
that courts would necessarily permit harmful exemptions from these laws (though they
might), but to suggest that courts would constantly be in the business of determining
whether the "severe impact" of various laws on religious practice (to use JUSTICE
BLACKMUN's terminology, post, at 919) or the "constitutiona[l] significan[ce]" of
the "burden on the specific plaintiffs" (to use JUSTICE O'CONNOR's terminology, post,
at 899) suffices to permit us to confer an exemption. It is a parade of horribles
because it is horrible to [494 U.S. 872, 890] contemplate that federal judges will
regularly balance against the importance of general laws the significance of religious
practice. [494 U.S. 872, 891]
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.
I
At the outset, I note that I agree with the Court's implicit determination that the
constitutional question upon which we granted review - whether the Free Exercise Clause
protects a person's religiously motivated use of peyote from the reach of a State's
general criminal law prohibition - is properly presented in this case. As the Court
recounts, respondents Alfred Smith and Galen Black (hereinafter respondents) were
denied unemployment compensation benefits because their sacramental use of peyote
constituted work-related "misconduct," not because they violated Oregon's general
criminal prohibition against possession of peyote. We held, however, in Employment
Div., Dept. of Human Resources of Oregon v. Smith, 485 U.S. 660 (1988) (Smith I),
that whether a State may, consistent with federal law, deny unemployment compensation
benefits to persons for their religious use of peyote depends on whether the State,
as a matter of state law, has criminalized the underlying conduct. See id., at 670-672.
The Oregon Supreme Court, on remand from this Court, concluded that "the Oregon statute
against possession of controlled substances, which include peyote, makes no exception
for the sacramental use of peyote." 307 Ore. 68, 72-73, 763 P.2d 146, 148 (1988) (footnote
omitted). [494 U.S. 872, 892]
Respondents contend that, because the Oregon Supreme Court declined to decide whether
the Oregon Constitution prohibits criminal prosecution for the religious use of peyote,
see id., at 73, n. 3, 763 P.2d, at 148, n. 3, any ruling on the federal constitutional
question would be premature. Respondents are of course correct that the Oregon Supreme
Court may eventually decide that the Oregon Constitution requires the State to provide
an exemption from its general criminal prohibition for the religious use of peyote.
Such a decision would then reopen the question whether a State may nevertheless deny
unemployment compensation benefits to claimants who are discharged for engaging in
such conduct. As the case comes to us today, however, the Oregon Supreme Court has
plainly ruled that Oregon's prohibition against possession of controlled substances
does not contain an exemption for the religious use of peyote. In light of our decision
in Smith I, which makes this finding a "necessary predicate to a correct evaluation
of respondents' federal claim," 485 U.S., at 672 , the question presented and addressed
is properly before the Court.
II
The Court today extracts from our long history of free exercise precedents the single
categorical rule that "if prohibiting the exercise of religion . . . is . . . merely
the incidental effect of a generally applicable and otherwise valid provision, the
First Amendment has not been offended." Ante, at 878 (citations omitted). Indeed,
the Court holds that where the law is a generally applicable criminal prohibition,
our usual free exercise jurisprudence does not even apply. Ante, at 884. To reach
this sweeping result, however, the Court must not only give a strained reading of
the First Amendment but must also disregard our consistent application of free exercise
doctrine to cases involving generally applicable regulations that burden religious
conduct. [494 U.S. 872, 893]
A
The Free Exercise Clause of the First Amendment commands that "Congress shall make
no law . . . prohibiting the free exercise [of religion]." In Cantwell v. Connecticut,
310 U.S. 296 (1940), we held that this prohibition applies to the States by incorporation
into the Fourteenth Amendment and that it categorically forbids government regulation
of religious beliefs. Id., at 303. As the Court recognizes, however, the "free exercise"
of religion often, if not invariably, requires the performance of (or abstention from)
certain acts. Ante, at 877; cf. 3 A New English Dictionary on Historical Principles
401-402 (J. Murray ed. 1897) (defining "exercise" to include "[t]he practice and performance
of rites and ceremonies, worship, etc.; the right or permission to celebrate the observances
(of a religion)" and religious observances such as acts of public and private worship,
preaching, and prophesying). "[B]elief and action cannot be neatly confined in logic-tight
compartments." Wisconsin v. Yoder, 406 U.S. 205, 220 (1972). Because the First Amendment
does not distinguish between religious belief and religious conduct, conduct motivated
by sincere religious belief, like the belief itself, must be at least presumptively
protected by the Free Exercise Clause.
The Court today, however, interprets the Clause to permit the government to prohibit,
without justification, conduct mandated by an individual's religious beliefs, so long
as that prohibition is generally applicable. Ante, at 878. But a law that prohibits
certain conduct - conduct that happens to be an act of worship for someone - manifestly
does prohibit that person's free exercise of his religion. A person who is barred
from engaging in religiously motivated conduct is barred from freely exercising his
religion. Moreover, that person is barred from freely exercising his religion regardless
of whether the law prohibits the conduct only when engaged in for religious reasons,
only by members of that religion, or by all persons. It is difficult to deny that
a law that prohibits [494 U.S. 872, 894] religiously motivated conduct, even if the
law is generally applicable, does not at least implicate First Amendment concerns.
The Court responds that generally applicable laws are "one large step" removed from
laws aimed at specific religious practices. Ibid. The First Amendment, however, does
not distinguish between laws that are generally applicable and laws that target particular
religious practices. Indeed, few States would be so naive as to enact a law directly
prohibiting or burdening a religious practice as such. Our free exercise cases have
all concerned generally applicable laws that had the effect of significantly burdening
a religious practice. If the First Amendment is to have any vitality, it ought not
be construed to cover only the extreme and hypothetical situation in which a State
directly targets a religious practice. As we have noted in a slightly different context,
"`[s]uch a test has no basis in precedent and relegates a serious First Amendment
value to the barest level of minimum scrutiny that the Equal Protection Clause already
provides.'" Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, 141 -142
(1987) (quoting Bowen v. Roy, 476 U.S. 693, 727 (1986) (O'CONNOR, J., concurring in
part and dissenting in part)).
To say that a person's right to free exercise has been burdened, of course, does
not mean that he has an absolute right to engage in the conduct. Under our established
First Amendment jurisprudence, we have recognized that the freedom to act, unlike
the freedom to believe, cannot be absolute. See, e. g., Cantwell, supra, at 304; Reynolds
v. United States, 98 U.S. 145, 161 -167 (1879). Instead, we have respected both the
First Amendment's express textual mandate and the governmental interest in regulation
of conduct by requiring the government to justify any substantial burden on religiously
motivated conduct by a compelling state interest and by means narrowly tailored to
achieve that interest. See Hernandez v. Commissioner, 490 U.S. 680, 699 [494 U.S.
872, 895] (1989); Hobbie, supra, at 141; United States v. Lee, 455 U.S. 252, 257 -258
(1982); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 718
(1981); McDaniel v. Paty, 435 U.S. 618, 626 -629 (1978) (plurality opinion); Yoder,
supra, at 215; Gillette v. United States, 401 U.S. 437, 462 (1971); Sherbert v. Verner,
374 U.S. 398, 403 (1963); see also Bowen v. Roy, supra, at 732 (opinion concurring
in part and dissenting in part); West Virginia State Bd. of Ed. v. Barnette, 319 U.S.
624, 639 (1943). The compelling interest test effectuates the First Amendment's command
that religious liberty is an independent liberty, that it occupies a preferred position,
and that the Court will not permit encroachments upon this liberty, whether direct
or indirect, unless required by clear and compelling governmental interests "of the
highest order," Yoder, supra, at 215. "Only an especially important governmental interest
pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment
freedoms as the price for an equal share of the rights, benefits, and privileges enjoyed
by other citizens." Roy, supra, at 728 (opinion concurring in part and dissenting
in part).
The Court attempts to support its narrow reading of the Clause by claiming that "[w]e
have never held that an individual's religious beliefs excuse him from compliance
with an otherwise valid law prohibiting conduct that the State is free to regulate."
Ante, at 878-879. But as the Court later notes, as it must, in cases such as Cantwell
and Yoder we have in fact interpreted the Free Exercise Clause to forbid application
of a generally applicable prohibition to religiously motivated conduct. See Cantwell,
supra, at 304-307; Yoder, 406 U.S., at 214 -234. Indeed, in Yoder we 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 [494 U.S. 872, 896] to
regulation by the States in the exercise of their undoubted power to promote the health,
safety, and general welfare, or the Federal Government in the exercise of its delegated
powers. But to agree that religiously grounded conduct must often be subject to the
broad police power of the State is not to deny that there are areas of conduct protected
by the Free Exercise Clause of the First Amendment and thus beyond the power of the
State to control, even under regulations of general applicability. . . . .
". . . A regulation neutral on its face may, in its application, nonetheless offend
the constitutional requirement for government neutrality if it unduly burdens the
free exercise of religion." Id., at 219-220 (emphasis added; citations omitted).
The Court endeavors to escape from our decisions in Cantwell and Yoder by labeling
them "hybrid" decisions, ante, at 892, but there is no denying that both cases expressly
relied on the Free Exercise Clause, see Cantwell, 310 U.S., at 303 -307; Yoder, supra,
at 219-229, and that we have consistently regarded those cases as part of the mainstream
of our free exercise jurisprudence. Moreover, in each of the other cases cited by
the Court to support its categorical rule, ante, at 879-880, we rejected the particular
constitutional claims before us only after carefully weighing the competing interests.
See Prince v. Massachusetts, 321 U.S. 158, 168 -170 (1944) (state interest in regulating
children's activities justifies denial of religious exemption from child labor laws);
Braunfeld v. Brown, 366 U.S. 599, 608 -609 (1961) (plurality opinion) (state interest
in uniform day of rest justifies denial of religious exemption from Sunday closing
law); Gillette, supra, at 462 (state interest in military affairs justifies denial
of religious exemption from conscription laws); Lee, supra, at 258-259 (state interest
in comprehensive Social Security system justifies denial of religious exemption from
mandatory participation requirement). That we rejected the free exercise [494 U.S.
872, 897] 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, ante, at 882, 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. Ante, at 885.
In my view, however, the essence of a free exercise claim is relief from a burden
imposed by government on religious practices or beliefs, whether the burden is imposed
directly through laws that prohibit or compel specific religious practices, or indirectly
through laws that, in effect, make abandonment of one's own religion or conformity
to the religious beliefs of others the price of an equal place in the civil community.
As we explained in Thomas:
"Where the state conditions receipt of an important benefit upon conduct proscribed
by a religious faith, or where it denies such a benefit because of conduct mandated
by religious belief, thereby putting substantial pressure on an adherent to modify
his behavior and to violate his beliefs, a burden upon religion exists." 450 U.S.,
at 717 -718. [494 U.S. 872, 898]
See also Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829, 832 (1989);
Hobbie, 480 U.S., at 141 . A State that makes criminal an individual's religiously
motivated conduct burdens that individual's free exercise of religion in the severest
manner possible, for it "results in the choice to the individual of either abandoning
his religious principle or facing criminal prosecution." Braunfeld, supra, at 605.
I would have thought it beyond argument that such laws implicate free exercise concerns.
Indeed, we have never distinguished between cases in which a State conditions receipt
of a benefit on conduct prohibited by religious beliefs and cases in which a State
affirmatively prohibits such conduct. The Sherbert compelling interest test applies
in both kinds of cases. See, e. g., Lee, 455 U.S., at 257 -260 (applying Sherbert
to uphold Social Security tax liability); Gillette, 401 U.S., at 462 (applying Sherbert
to uphold military conscription requirement); Yoder, 406 U.S., at 215 -234 (applying
Sherbert to strike down criminal convictions for violation of compulsory school attendance
law). As I noted in Bowen v. Roy:
"The fact that the underlying dispute involves an award of benefits rather than an
exaction of penalties does not grant the Government license to apply a different version
of the Constitution. . . .
". . . The fact that appellees seek exemption from a precondition that the Government
attaches to an award of benefits does not, therefore, generate a meaningful distinction
between this case and one where appellees seek an exemption from the Government's
imposition of penalties upon them." 476 U.S., at 731 -732 (opinion concurring in part
and dissenting in part).
See also Hobbie, supra, at 141-142; Sherbert, 374 U.S., at 404 . I would reaffirm
that principle today: A neutral criminal law prohibiting conduct that a State may
legitimately regulate is, if anything, more burdensome than a neutral civil [494 U.S.
872, 899] statute placing legitimate conditions on the award of a state benefit.
Legislatures, of course, have always been "left free to reach actions which were
in violation of social duties or subversive of good order." Reynolds, 98 U.S., at
164 ; see also Yoder, supra, at 219-220; Braunfeld, 366 U.S., at 603 -604. Yet because
of the close relationship between conduct and religious belief, "[i]n every case the
power to regulate must be so exercised as not, in attaining a permissible end, unduly
to infringe the protected freedom." Cantwell, 310 U.S., at 304 . Once it has been
shown that a government regulation or criminal prohibition burdens the free exercise
of religion, we have consistently asked the government to demonstrate that unbending
application of its regulation to the religious objector "is essential to accomplish
an overriding governmental interest," Lee, supra, at 257-258, or represents "the least
restrictive means of achieving some compelling state interest," Thomas, supra, at
718. See, e. g., Braunfeld, supra, at 607; Sherbert, supra, at 406; Yoder, supra,
at 214-215; Roy, 476 U.S., at 728 -732 (opinion concurring in part and dissenting
in part). To me, the sounder approach - the approach more consistent with our role
as judges to decide each case on its individual merits - is to apply this test in
each case to determine whether the burden on the specific plaintiffs before us is
constitutionally significant and whether the particular criminal interest asserted
by the State before us is compelling. Even if, as an empirical matter, a government's
criminal laws might usually serve a compelling interest in health, safety, or public
order, the First Amendment at least requires a case-by-case determination of the question,
sensitive to the facts of each particular claim. Cf. McDaniel, 435 U.S., at 628 ,
n. 8 (plurality opinion) (noting application of Sherbert to general criminal prohibitions
and the "delicate balancing required by our decisions in" Sherbert and Yoder). Given
the range of conduct that a State might legitimately make [494 U.S. 872, 900] criminal,
we cannot assume, merely because a law carries criminal sanctions and is generally
applicable, that the First Amendment never requires the State to grant a limited exemption
for religiously motivated conduct.
Moreover, we have not "rejected" or "declined to apply" the compelling interest test
in our recent cases. Ante, at 883-884. Recent cases have instead affirmed that test
as a fundamental part of our First Amendment doctrine. See, e. g., Hernandez, 490
U.S., at 699 ; Hobbie, supra, at 141-142 (rejecting Chief Justice Burger's suggestion
in Roy, supra, at 707-708, that free exercise claims be assessed under a less rigorous
"reasonable means" standard). The cases cited by the Court signal no retreat from
our consistent adherence to the compelling interest test. In both Bowen v. Roy, supra,
and Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988), for example,
we expressly distinguished Sherbert on the ground that the First Amendment does not
"require the Government itself to behave in ways that the individual believes will
further his or her spiritual development . . . . The Free Exercise Clause simply cannot
be understood to require the Government to conduct its own internal affairs in ways
that comport with the religious beliefs of particular citizens." Roy, supra, at 699;
see Lyng, supra, at 449. This distinction makes sense because "the Free Exercise Clause
is written in terms of what the government cannot do to the individual, not in terms
of what the individual can exact from the government." Sherbert, supra, at 412 (Douglas,
J., concurring). Because the case sub judice, like the other cases in which we have
applied Sherbert, plainly falls into the former category, I would apply those established
precedents to the facts of this case.
Similarly, the other cases cited by the Court for the proposition that we have rejected
application of the Sherbert test outside the unemployment compensation field, ante,
at 884, are distinguishable because they arose in the narrow, specialized contexts
in which we have not traditionally required [494 U.S. 872, 901] the government to
justify a burden on religious conduct by articulating a compelling interest. See Goldman
v. Weinberger, 475 U.S. 503, 507 (1986) ("Our review of military regulations challenged
on First Amendment grounds is far more deferential than constitutional review of similar
laws or regulations designed for civilian society"); O'Lone v. Estate of Shabazz,
482 U.S. 342, 349 (1987) ("[P]rison regulations alleged to infringe constitutional
rights are judged under a `reasonableness' test less restrictive than that ordinarily
applied to alleged infringements of fundamental constitutional rights") (citation
omitted). That we did not apply the compelling interest test in these cases says nothing
about whether the test should continue to apply in paradigm free exercise cases such
as the one presented here.
The Court today gives no convincing reason to depart from settled First Amendment
jurisprudence. There is nothing talismanic about neutral laws of general applicability
or general criminal prohibitions, for laws neutral toward religion can coerce a person
to violate his religious conscience or intrude upon his religious duties just as effectively
as laws aimed at religion. Although the Court suggests that the compelling interest
test, as applied to generally applicable laws, would result in a "constitutional anomaly,"
ante, at 886, the First Amendment unequivocally makes freedom of religion, like freedom
from race discrimination and freedom of speech, a "constitutional nor[m]," not an
"anomaly." Ibid. Nor would application of our established free exercise doctrine to
this case necessarily be incompatible with our equal protection cases. Cf. Rogers
v. Lodge, 458 U.S. 613, 618 (1982) (race-neutral law that "`bears more heavily on
one race than another'" may violate equal protection) (citation omitted); Castaneda
v. Partida, 430 U.S. 482, 492 -495 (1977) (grand jury selection). We have in any event
recognized that the Free Exercise Clause protects values distinct from those protected
by the Equal Protection Clause. See Hobbie, 480 U.S., at 141 -142. As the language
of the [494 U.S. 872, 902] Clause itself makes clear, an individual's free exercise
of religion is a preferred constitutional activity. See, e. g., McConnell, Accommodation
of Religion, 1985 S. Ct. Rev. 1, 9 ("[T]he text of the First Amendment itself `singles
out' religion for special protections"); P. Kauper, Religion and the Constitution
17 (1964). A law that makes criminal such an activity therefore triggers constitutional
concern - and heightened judicial scrutiny - even if it does not target the particular
religious conduct at issue. Our free speech cases similarly recognize that neutral
regulations that affect free speech values are subject to a balancing, rather than
categorical, approach. See, e. g., United States v. O'Brien, 391 U.S. 367, 377 (1968);
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46 -47 (1986); cf. Anderson v. Celebrezze,
460 U.S. 780, 792 -794 (1983) (generally applicable laws may impinge on free association
concerns). The Court's parade of horribles, ante, at 888-889, not only fails as a
reason for discarding the compelling interest test, it instead demonstrates just the
opposite: that courts have been quite capable of applying our free exercise jurisprudence
to strike sensible balances between religious liberty and competing state interests.
Finally, the Court today suggests that the disfavoring of minority religions is an
"unavoidable consequence" under our system of government and that accommodation of
such religions must be left to the political process. Ante, at 890. In my view, however,
the First Amendment was enacted precisely to protect the rights of those whose religious
practices are not shared by the majority and may be viewed with hostility. The history
of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule
has had on unpopular or emerging religious groups such as the Jehovah's Witnesses
and the Amish. Indeed, the words of Justice Jackson in West Virginia State Bd. of
Ed. v. Barnette (overruling Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940))
are apt: [494 U.S. 872, 903]
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes
of political controversy, to place them beyond the reach of majorities and officials
and to establish them as legal principles to be applied by the courts. One's right
to life, liberty, and property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to vote; they depend on
the outcome of no elections." 319 U.S., at 638 .
See also United States v. Ballard, 322 U.S. 78, 87 (1944) ("The Fathers of the Constitution
were not unaware of the varied and extreme views of religious sects, of the violence
of disagreement among them, and of the lack of any one religious creed on which all
men would agree. They fashioned a charter of government which envisaged the widest
possible toleration of conflicting views"). The compelling interest test reflects
the First Amendment's mandate of preserving religious liberty to the fullest extent
possible in a pluralistic society. For the Court to deem this command a "luxury,"
ante, at 888, is to denigrate "[t]he very purpose of a Bill of Rights."
III
The Court's holding today not only misreads settled First Amendment precedent; it
appears to be unnecessary to this case. I would reach the same result applying our
established free exercise jurisprudence.
A
There is no dispute that Oregon's criminal prohibition of peyote places a severe
burden on the ability of respondents to freely exercise their religion. Peyote is
a sacrament of the Native American Church and is regarded as vital to respondents'
ability to practice their religion. See O. Stewart, Peyote Religion: A History 327-336
(1987) (describing modern status of peyotism); E. Anderson, Peyote: The Divine Cactus
41-65 (1980) (describing peyote ceremonies); Teachings from [494 U.S. 872, 904] the
American Earth: Indian Religion and Philosophy 96-104 (D. Tedlock & B. Tedlock eds.
1975) (same); see also People v. Woody, 61 Cal. 2d 716, 721-722, 394 P.2d 813, 817-818
(1964). As we noted in Smith I, the Oregon Supreme Court concluded that "the Native
American Church is a recognized religion, that peyote is a sacrament of that church,
and that respondent's beliefs were sincerely held." 485 U.S., at 667 . Under Oregon
law, as construed by that State's highest court, members of the Native American Church
must choose between carrying out the ritual embodying their religious beliefs and
avoidance of criminal prosecution. That choice is, in my view, more than sufficient
to trigger First Amendment scrutiny.
There is also no dispute that Oregon has a significant interest in enforcing laws
that control the possession and use of controlled substances by its citizens. See,
e. g., Sherbert, 374 U.S., at 403 (religiously motivated conduct may be regulated
where such conduct "pose[s] some substantial threat to public safety, peace or order");
Yoder, 406 U.S., at 220 ("[A]ctivities of individuals, even when religiously based,
are often subject to regulation by the States in the exercise of their undoubted power
to promote the health, safety, and general welfare"). As we recently noted, drug abuse
is "one of the greatest problems affecting the health and welfare of our population"
and thus "one of the most serious problems confronting our society today." Treasury
Employees v. Von Raab, 489 U.S. 656, 668 , 674 (1989). Indeed, under federal law (incorporated
by Oregon law in relevant part, see Ore. Rev. Stat. 475.005(6) (1987)), peyote is
specifically regulated as a Schedule I controlled substance, which means that Congress
has found that it has a high potential for abuse, that there is no currently accepted
medical use, and that there is a lack of accepted safety for use of the drug under
medical supervision. See 21 U.S.C. 812(b)(1). See generally R. Julien, A Primer of
Drug Action 149 (3d ed. 1981). In light of our recent decisions holding that the governmental
[494 U.S. 872, 905] interests in the collection of income tax, Hernandez, 490 U.S.,
at 699 -700, a comprehensive Social Security system, see Lee, 455 U.S., at 258 -259,
and military conscription, see Gillette, 401 U.S., at 460 , are compelling, respondents
do not seriously dispute that Oregon has a compelling interest in prohibiting the
possession of peyote by its citizens.
B
Thus, the critical question in this case is whether exempting respondents from the
State's general criminal prohibition "will unduly interfere with fulfillment of the
governmental interest." Lee, supra, at 259; see also Roy, 476 U.S., at 727 ("[T]he
Government must accommodate a legitimate free exercise claim unless pursuing an especially
important interest by narrowly tailored means"); Yoder, supra, at 221; Braunfeld,
366 U.S., at 605 -607. Although the question is close, I would conclude that uniform
application of Oregon's criminal prohibition is "essential to accomplish," Lee, supra,
at 257, its overriding interest in preventing the physical harm caused by the use
of a Schedule I controlled substance. Oregon's criminal prohibition represents that
State's judgment that the possession and use of controlled substances, even by only
one person, is inherently harmful and dangerous. Because the health effects caused
by the use of controlled substances exist regardless of the motivation of the user,
the use of such substances, even for religious purposes, violates the very purpose
of the laws that prohibit them. Cf. State v. Massey, 229 N.C. 734, 51 S. E. 2d 179
(denying religious exemption to municipal ordinance prohibiting handling of poisonous
reptiles), appeal dism'd sub nom. Bunn v. North Carolina, 336 U.S. 942 (1949). Moreover,
in view of the societal interest in preventing trafficking in controlled substances,
uniform application of the criminal prohibition at issue is essential to the effectiveness
of Oregon's stated interest in preventing any possession of peyote. Cf. Jacobson v.
[494 U.S. 872, 906] Massachusetts, 197 U.S. 11 (1905) (denying exemption from small
pox vaccination requirement).
For these reasons, I believe that granting a selective exemption in this case would
seriously impair Oregon's compelling interest in prohibiting possession of peyote
by its citizens. Under such circumstances, the Free Exercise Clause does not require
the State to accommodate respondents' religiously motivated conduct. See, e. g., Thomas,
450 U.S., at 719 . Unlike 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," 406 U.S., at 234 ; see also id., at 238-240 (WHITE,
J., concurring), a religious exemption in this case would be incompatible with the
State's interest in controlling use and possession of illegal drugs.
Respondents contend that any incompatibility is belied by the fact that the Federal
Government and several States provide exemptions for the religious use of peyote,
see 21 CFR 1307.31 (1989); 307 Ore., at 73, n. 2, 763 P.2d, at 148, n. 2 (citing 11
state statutes that expressly exempt sacramental peyote use from criminal proscription).
But other governments may surely choose to grant an exemption without Oregon, with
its specific asserted interest in uniform application of its drug laws, being required
to do so by the First Amendment. Respondents also note that the sacramental use of
peyote is central to the tenets of the Native American Church, but I agree with the
Court, ante, at 886-887, that because "`[i]t is not within the judicial ken to question
the centrality of particular beliefs or practices to a faith,'" quoting Hernandez,
supra, at 699, our determination of the constitutionality of Oregon's general criminal
prohibition cannot, and should not, turn on the centrality of the particular [494
U.S. 872, 907] religious practice at issue. This does not mean, of course, that courts
may not make factual findings as to whether a claimant holds a sincerely held religious
belief that conflicts with, and thus is burdened by, the challenged law. The distinction
between questions of centrality and questions of sincerity and burden is admittedly
fine, but it is one that is an established part of our free exercise doctrine, see
Ballard, 322 U.S., at 85 -88, and one that courts are capable of making. See Tony
and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 303 -305 (1985).
I would therefore adhere to our established free exercise jurisprudence and hold
that the State in this case has a compelling interest in regulating peyote use by
its citizens and that accommodating respondents' religiously motivated conduct "will
unduly interfere with fulfillment of the governmental interest." Lee, supra, at 259.
Accordingly, I concur in the judgment of the Court.
[ Footnote * ] Although JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join
Parts I and II of this opinion, they do not concur in the judgment.
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. 1 [494 U.S. 872, 908]
Until today, I thought this was a settled and inviolate principle of this Court's
First Amendment jurisprudence. The majority, however, perfunctorily dismisses it as
a "constitutional anomaly." Ante, at 886. As carefully detailed in JUSTICE O'CONNOR's
concurring opinion, ante, p. 891, the majority is able to arrive at this view only
by mischaracterizing this Court's precedents. The Court discards leading free exercise
cases such as Cantwell v. Connecticut, 310 U.S. 296 (1940), and Wisconsin v. Yoder,
406 U.S. 205 (1972), as "hybrid." Ante, at 882. The Court views traditional free exercise
analysis as somehow inapplicable to criminal prohibitions (as opposed to conditions
on the receipt of benefits), and to state laws of general applicability (as opposed,
presumably, to laws that expressly single out religious practices). Ante, at 884-885.
The Court cites cases in which, due to various exceptional circumstances, we found
strict scrutiny inapposite, to hint that the Court has repudiated that standard altogether.
Ante, at 882-884. In short, it effectuates a wholesale overturning of settled law
concerning the Religion Clauses of our Constitution. One hopes that the Court is aware
of the consequences, and that its result is not a product of overreaction to the serious
problems the country's drug crisis has generated.
This distorted view of our precedents leads the majority to conclude that strict
scrutiny of a state law burdening the free exercise of religion is a "luxury" that
a well-ordered society [494 U.S. 872, 909] cannot afford, ante, at 888, and that the
repression of minority religions is an "unavoidable consequence of democratic government."
Ante, at 890. I do not believe the Founders thought their dearly bought freedom from
religious persecution a "luxury," but an essential element of liberty - and they could
not have thought religious intolerance "unavoidable," for they drafted 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. 2 As she points out,
"the critical question in this case is whether exempting respondents from the State's
general criminal prohibition `will unduly interfere with fulfillment of the governmental
interest.'" Ante, at 905, quoting United States v. Lee, 455 U.S. 252, 259 (1982).
I do disagree, however, with her specific answer to that question.
I
In weighing the clear interest of respondents Smith and Black (hereinafter respondents)
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 [494 U.S. 872, 910] in fighting the critical
"war on drugs" that must be weighed against respondents' claim, but the State's narrow
interest in refusing to make an exception for the religious, ceremonial use of peyote.
See Bowen v. Roy, 476 U.S. 693, 728 (1986) (O'CONNOR, J., concurring in part and dissenting
in part) ("This Court has consistently asked the Government to demonstrate that unbending
application of its regulation to the religious objector `is essential to accomplish
an overriding governmental interest,'" quoting Lee, 455 U.S., at 257 -258); Thomas
v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 719 (1981) ("focus
of the inquiry" concerning State's asserted interest must be "properly narrowed");
Yoder, 406 U.S., at 221 ("Where fundamental claims of religious freedom are at stake,"
the Court will not accept a State's "sweeping claim" that its interest in compulsory
education is compelling; despite the validity of this interest "in the generality
of cases, we must searchingly examine the interests that the State seeks to promote
. . . and the impediment to those objectives that would flow from recognizing the
claimed Amish exemption"). Failure to reduce the competing interests to the same plane
of generality tends to distort the weighing process in the State's favor. See Clark,
Guidelines for the Free Exercise Clause, 83 Harv. L. Rev. 327, 330-331 (1969) ("The
purpose of almost any law can be traced back to one or another of the fundamental
concerns of government: public health and safety, public peace and order, defense,
revenue. To measure an individual interest directly against one of these rarified
values inevitably makes the individual interest appear the less significant"); Pound,
A Survey of Social Interests, 57 Harv. L. Rev. 1, 2 (1943) ("When it comes to weighing
or valuing claims or demands with respect to other claims or demands, we must be careful
to compare them on the same plane . . . [or else] we may decide the question in advance
in our very way of putting it").
The State's interest in enforcing its prohibition, in order to be sufficiently compelling
to outweigh a free exercise claim, [494 U.S. 872, 911] cannot be merely abstract or
symbolic. The State cannot plausibly assert that unbending application of a criminal
prohibition is essential to fulfill any compelling interest, if it does not, in fact,
attempt to enforce that prohibition. In this case, the State actually has not evinced
any concrete interest in enforcing its drug laws against religious users of peyote.
Oregon has never sought to prosecute respondents, and does not claim that it has made
significant enforcement efforts against other religious users of peyote. 3 The State's
asserted interest thus amounts only to the symbolic preservation of an unenforced
prohibition. But a government interest in "symbolism, even symbolism for so worthy
a cause as the abolition of unlawful drugs," Treasury Employees v. Von Raab, 489 U.S.
656, 687 (1989) (SCALIA, J., dissenting), cannot suffice to abrogate the constitutional
rights of individuals.
Similarly, this Court's prior decisions have not allowed a government to rely on
mere speculation about potential harms, but have demanded evidentiary support for
a refusal to allow a religious exception. See Thomas, 450 U.S., at 719 (rejecting
State's reasons for refusing religious exemption, for lack of "evidence in the record");
Yoder, 406 U.S., at 224 -229 (rejecting State's argument concerning the dangers of
a religious exemption as speculative, and unsupported by the record); Sherbert v.
Verner, 374 U.S. 398, 407 (1963) ("[T]here is no proof whatever to warrant such fears
. . . as those which the [State] now advance[s]"). In this case, the State's justification
for refusing to recognize an exception to its criminal laws for religious peyote use
is entirely speculative.
The State proclaims an interest in protecting the health and safety of its citizens
from the dangers of unlawful drugs. It offers, however, no evidence that the religious
use of peyote [494 U.S. 872, 912] has ever harmed anyone. 4 The factual findings of
other courts cast doubt on the State's assumption that religious use of peyote is
harmful. See State v. Whittingham, 19 Ariz. App. 27, 30, 504 P.2d 950, 953 (1973)
("[T]he State failed to prove that the quantities of peyote used in the sacraments
of the Native American Church are sufficiently harmful to the health and welfare of
the participants so as to permit a legitimate intrusion under the State's police power");
People v. Woody, 61 Cal. 2d 716, 722-723, 394 P.2d 813, 818 (1964) ("[A]s the Attorney
General . . . admits, . . . the opinion of scientists and other experts is `that peyote
. . . works no permanent deleterious injury to the Indian'").
The fact that peyote is classified as a Schedule I controlled substance does not,
by itself, show that any and all uses of peyote, in any circumstance, are inherently
harmful and dangerous. The Federal Government, which created the classifications of
unlawful drugs from which Oregon's drug laws are derived, apparently does not find
peyote so dangerous as to preclude an exemption for religious use. 5 Moreover, [494
U.S. 872, 913] other Schedule I drugs have lawful uses. See Olsen v. Drug Enforcement
Admin., 279 U.S. App. D.C. 1, 6, n. 4, 878 F.2d 1458, 1463, n. 4 (medical and research
uses of marijuana).
The carefully circumscribed ritual context in which respondents used peyote is far
removed from the irresponsible and unrestricted recreational use of unlawful drugs.
6 The Native American Church's internal restrictions on, and supervision of, its members'
use of peyote substantially obviate the State's health and safety concerns. See id.,
at 10, 878 F.2d, at 1467 ("`The Administrator [of the Drug Enforcement Administration
(DEA)] finds that . . . the Native American Church's use of peyote is isolated to
specific ceremonial occasions,'" and so "`an accommodation can be made for a religious
organization which uses peyote in circumscribed ceremonies'" (quoting DEA Final Order));
id., at 7, 878 F.2d, at 1464 ("[F]or members of the Native American Church, use of
peyote outside the ritual is sacrilegious"); Woody, 61 Cal. 2d, at 721, 394 P.2d,
at 817 ("[T]o use peyote for nonreligious purposes is sacrilegious"); R. Julien, A
Primer of Drug Action 148 (3d ed. 1981) ("[P]eyote is seldom abused by members of
the Native American [494 U.S. 872, 914] Church"); Slotkin, The Peyote Way, in Teachings
from the American Earth 96, 104 (D. Tedlock & B. Tedlock eds. 1975) ("[T]he Native
American Church . . . refuses to permit the presence of curiosity seekers at its rites,
and vigorously opposes the sale or use of Peyote for non-sacramental purposes"); Bergman,
Navajo Peyote Use: Its Apparent Safety, 128 Am. J. Psychiatry 695 (1971) (Bergman).
7
Moreover, just as in Yoder, the values and interests of those seeking a religious
exemption in this case are congruent, to a great degree, with those the State seeks
to promote through its drug laws. See Yoder, 406 U.S., at 224 , 228-229 (since the
Amish accept formal schooling up to 8th grade, and then provide "ideal" vocational
education, State's interest in enforcing its law against the Amish is "less substantial
than . . . for children generally"); id., at 238 (WHITE, J., concurring). Not only
does the church's doctrine forbid nonreligious use of peyote; it also generally advocates
self-reliance, familial responsibility, and abstinence from alcohol. See Brief for
Association on American Indian Affairs et al. as Amici Curiae 33-34 (the church's
"ethical code" has four parts: brotherly love, care of family, self-reliance, and
avoidance of alcohol (quoting from the church membership card)); Olsen, 279 U.S. App.
D.C., at 7, 878 F.2d, at 1464 (the Native American Church, "for all purposes other
than the special, stylized ceremony, reinforced the state's prohibition"); [494 U.S.
872, 915] Woody, 61 Cal. 2d, at 721-722, n. 3, 394 P.2d, at 818, n. 3 ("[M]ost anthropological
authorities hold Peyotism to be a positive, rather than negative, force in the lives
of its adherents . . . the church forbids the use of alcohol . . ."). There is considerable
evidence that the spiritual and social support provided by the church has been effective
in combating the tragic effects of alcoholism on the Native American population. Two
noted experts on peyotism, Dr. Omer C. Stewart and Dr. Robert Bergman, testified by
affidavit to this effect on behalf of respondent Smith before the Employment Appeal
Board. Smith Tr., Exh. 7; see also E. Anderson, Peyote: The Divine Cactus 165-166
(1980) (research by Dr. Bergman suggests "that the religious use of peyote seemed
to be directed in an ego-strengthening direction with an emphasis on interpersonal
relationships where each individual is assured of his own significance as well as
the support of the group"; many people have "`come through difficult crises with the
help of this religion . . . . It provides real help in seeing themselves not as people
whose place and way in the world is gone, but as people whose way can be strong enough
to change and meet new challenges'" (quoting Bergman 698)); Pascarosa & Futterman,
Ethnopsychedelic Therapy for Alcoholics: Observations in the Peyote Ritual of the
Native American Church, 8 J. of Psychedelic Drugs, No. 3, p. 215 (1976) (religious
peyote use has been helpful in overcoming alcoholism); Albaugh & Anderson, Peyote
in the Treatment of Alcoholism among American Indians, 131 Am. J. Psychiatry 1247,
1249 (1974) ("[T]he philosophy, teachings, and format of the [Native American Church]
can be of great benefit to the Indian alcoholic"); see generally O. Stewart, Peyote
Religion 75 et seq. (1987) (noting frequent observations, across many tribes and periods
in history, of correlation between peyotist religion and abstinence from alcohol).
Far from promoting the lawless and irresponsible use of drugs, Native American Church
members' spiritual [494 U.S. 872, 916] code exemplifies values that Oregon's drug
laws are presumably intended to foster.
The State also seeks to support its refusal to make an exception for religious use
of peyote by invoking its interest in abolishing drug trafficking. There is, however,
practically no illegal traffic in peyote. See Olsen, 279 U.S. App. D.C., at 6, 7,
878 F.2d, at 1463, 1467 (quoting DEA Final Order to the effect that total amount of
peyote seized and analyzed by federal authorities between 1980 and 1987 was 19.4 pounds;
in contrast, total amount of marijuana seized during that period was over 15 million
pounds). Also, the availability of peyote for religious use, even if Oregon were to
allow an exemption from its criminal laws, would still be strictly controlled by federal
regulations, see 21 U.S.C. 821-823 (registration requirements for distribution of
controlled substances); 21 CFR 1307.31 (1989) (distribution of peyote to Native American
Church subject to registration requirements), and by the State of Texas, the only
State in which peyote grows in significant quantities. See Texas Health & Safety Code
Ann. 481.111 (1990 pamphlet); Texas Admin. Code, Tit. 37, pt. 1, ch. 13, Controlled
Substances Regulations, 13.35-13.41 (1989); Woody, 61 Cal. 2d, at 720, 394 P.2d, at
816 (peyote is "found in the Rio Grande Valley of Texas and northern Mexico"). Peyote
simply is not a popular drug; its distribution for use in religious rituals has nothing
to do with the vast and violent traffic in illegal narcotics that plagues this country.
Finally, the State argues that granting an exception for religious peyote use would
erode its interest in the uniform, fair, and certain enforcement of its drug laws.
The State fears that, if it grants an exemption for religious peyote use, a flood
of other claims to religious exemptions will follow. It would then be placed in a
dilemma, it says, between allowing a patchwork of exemptions that would hinder its
law enforcement efforts, and risking a violation of the Establishment Clause by arbitrarily
limiting its religious exemptions. This [494 U.S. 872, 917] argument, however, could
be made in almost any free exercise case. See Lupu, Where Rights Begin: The Problem
of Burdens on the Free Exercise of Religion, 102 Harv. L. Rev. 933, 947 (1989) ("Behind
every free exercise claim is a spectral march; grant this one, a voice whispers to
each judge, and you will be confronted with an endless chain of exemption demands
from religious deviants of every stripe"). This Court, however, consistently has rejected
similar arguments in past free exercise cases, and it should do so here as well. See
Frazee v. Illinois Dept. of Employment Security, 489 U.S. 829, 835 (1989) (rejecting
State's speculation concerning cumulative effect of many similar claims); Thomas,
450 U.S., at 719 (same); Sherbert, 374 U.S., at 407 .
The State's apprehension of a flood of other religious claims is purely speculative.
Almost half the States, and the Federal Government, have maintained an exemption for
religious peyote use for many years, and apparently have not found themselves overwhelmed
by claims to other religious exemptions. 8 Allowing an exemption for religious peyote
use [494 U.S. 872, 918] would not necessarily oblige the State to grant a similar
exemption to other religious groups. The unusual circumstances that make the religious
use of peyote compatible with the State's interests in health and safety and in preventing
drug trafficking would not apply to other religious claims. Some religions, for example,
might not restrict drug use to a limited ceremonial context, as does the Native American
Church. See, e. g., Olsen, 279 U.S. App. D.C., at 7, 878 F.2d, at 1464 ("[T]he Ethiopian
Zion Coptic Church . . . teaches that marijuana is properly smoked `continually all
day'"). Some religious claims, see n. 8, supra, involve drugs such as marijuana and
heroin, in which there is significant illegal traffic, with its attendant greed and
violence, so that it would be difficult to grant a religious exemption without seriously
compromising law enforcement efforts. 9 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," Yoder, 406 U.S., at 236 ; this does not mean that an
exemption limited to peyote use is tantamount to an establishment of religion. See
Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 144 -145 (1987) ("[T]he
government may (and [494 U.S. 872, 919] sometimes must) accommodate religious practices
and . . . may do so without violating the Establishment Clause"); Yoder, 406 U.S.,
at 220 -221 ("Court must not ignore the danger that an exception from a general [law]
. . . may run afoul of the Establishment Clause, but that danger cannot be allowed
to prevent any exception no matter how vital it may be to the protection of values
promoted by the right of free exercise"); id., at 234, n. 22.
II
Finally, although I agree with JUSTICE O'CONNOR that courts should refrain from delving
into questions whether, as a matter of religious doctrine, a particular practice is
"central" to the religion, ante, at 906-907, I do not think this means that the courts
must turn a blind eye to the severe impact of a State's restrictions on the adherents
of a minority religion. Cf. Yoder, 406 U.S., at 219 (since "education is inseparable
from and a part of the basic tenets of their religion . . . [, just as] baptism, the
confessional, or a sabbath may be for others," enforcement of State's compulsory education
law would "gravely endanger if not destroy the free exercise of respondents' religious
beliefs").
Respondents believe, and their sincerity has never been at issue, that the peyote
plant embodies their deity, and eating it is an act of worship and communion. Without
peyote, they could not enact the essential ritual of their religion. See Brief for
Association on American Indian Affairs et al. as Amici Curiae 5-6 ("To the members,
peyote is consecrated with powers to heal body, mind and spirit. It is a teacher;
it teaches the way to spiritual life through living in harmony and balance with the
forces of the Creation. The rituals are an integral part of the life process. They
embody a form of worship in which the sacrament Peyote is the means for communicating
with the Great Spirit"). See also O. Stewart, Peyote Religion 327-330 (1987) (description
of peyote ritual); [494 U.S. 872, 920] T. Hillerman, People of Darkness 153 (1980)
(description of Navajo peyote ritual).
If Oregon can constitutionally prosecute them for this act of worship, they, like
the Amish, may be "forced to migrate to some other and more tolerant region." Yoder,
406 U.S., at 218 . This potentially devastating impact must be viewed in light of
the federal policy - reached in reaction to many years of religious persecution and
intolerance - of protecting the religious freedom of Native Americans. See American
Indian Religious Freedom Act, 92 Stat. 469, 42 U.S.C. 1996 (1982 ed.) ("[I]t shall
be the policy of the United States to protect and preserve for American Indians their
inherent right of freedom to believe, express, and exercise the traditional religions
. . ., including but not limited to access to sites, use and possession of sacred
objects, and the freedom to worship through ceremonials and traditional rites"). 10
Congress recognized that certain substances, such as peyote, "have religious significance
because they are sacred, they have power, they heal, they are necessary to the exercise
of [494 U.S. 872, 921] the rites of the religion, they are necessary to the cultural
integrity of the tribe, and, therefore, religious survival." H. R. Rep. No. 95-1308,
p. 2 (1978).
The American Indian Religious Freedom Act, in itself, may not create rights enforceable
against government action restricting religious freedom, but this Court must scrupulously
apply its free exercise analysis to the religious claims of Native Americans, however
unorthodox they may be. Otherwise, both the First Amendment and the stated policy
of Congress will offer to Native Americans merely an unfulfilled and hollow promise.
III
For these reasons, I conclude that Oregon's interest in enforcing its drug laws against
religious use of peyote is not sufficiently compelling to outweigh respondents' right
to the free exercise of their religion. Since the State could not constitutionally
enforce its criminal prohibition against respondents, the interests underlying the
State's drug laws cannot justify its denial of unemployment benefits. Absent such
justification, the State's regulatory interest in denying benefits for religiously
motivated "misconduct," see ante, at 874, is indistinguishable from the state interests
this Court has rejected in Frazee, Hobbie, Thomas, and Sherbert. The State of Oregon
cannot, consistently with the Free Exercise Clause, deny respondents unemployment
benefits.
I dissent.
[ Footnote 1 ] See Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) ("The free
exercise inquiry asks whether government has placed a substantial burden on the observation
of a central religious belief or practice and, if so, whether a compelling governmental
interest justifies the burden"); Hobbie v. Unemployment Appeals Comm'n of Fla., 480
U.S. 136, 141 (1987) (state laws burdening religions "must be subjected to strict
scrutiny and could be justified only by proof by the State of a compelling interest");
Bowen v. Roy, 476 U.S. 693, 732 (1986) (O'CONNOR, J., concurring in part and dissenting
in part) ("Our precedents have long required the Government to show that a compelling
state interest is served by its refusal to grant a religious exemption"); United States
v. Lee, 455 U.S. 252, 257 -258 [494 U.S. 872, 908] (1982) ("The state may justify
a limitation on religious liberty by showing that it is essential to accomplish an
overriding governmental interest"); Thomas v. Review Bd. of Indiana Employment Security
Div., 450 U.S. 707, 718 (1981) ("The state may justify an inroad on religious liberty
by showing that it is the least restrictive means of achieving some compelling state
interest"); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("[O]nly those interests
of the highest order and those not otherwise served can overbalance legitimate claims
to the free exercise of religion"); Sherbert v. Verner, 374 U.S. 398, 406 (1963) (question
is "whether some compelling state interest . . . justifies the substantial infringement
of appellant's First Amendment right").
[ Footnote 2 ] I reluctantly agree that, in light of this Court's decision in Employment
Division, Dept. of Human Resources of Ore. v. Smith, 485 U.S. 660 (1988), the question
on which certiorari was granted is properly presented in this case. I have grave doubts,
however, as to the wisdom or propriety of deciding the constitutionality of a criminal
prohibition which the State has not sought to enforce, which the State did not rely
on in defending its denial of unemployment benefits before the state courts, and which
the Oregon courts could, on remand, either invalidate on state constitutional grounds,
or conclude that it remains irrelevant to Oregon's interest in administering its unemployment
benefits program.
It is surprising, to say the least, that this Court which so often prides itself
about principles of judicial restraint and reduction of federal control over matters
of state law would stretch its jurisdiction to the limit in order to reach, in this
abstract setting, the constitutionality of Oregon's criminal prohibition of peyote
use.
[ Footnote 3 ] The only reported case in which the State of Oregon has sought to
prosecute a person for religious peyote use is State v. Soto, 21 Ore. App. 794, 537
P.2d 142 (1975), cert. denied, 424 U.S. 955 (1976).
[ Footnote 4 ] This dearth of evidence is not surprising, since the State never asserted
this health and safety interest before the Oregon courts; thus, there was no opportunity
for factfinding concerning the alleged dangers of peyote use. What has now become
the State's principal argument for its view that the criminal prohibition is enforceable
against religious use of peyote rests on no evidentiary foundation at all.
[ Footnote 5 ] See 21 CFR 1307.31 (1989) ("The listing of peyote as a controlled
substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious
ceremonies of the Native American Church, and members of the Native American Church
so using peyote are exempt from registration. Any person who manufactures peyote for
or distributes peyote to the Native American Church, however, is required to obtain
registration annually and to comply with all other requirements of law"); see Olsen
v. Drug Enforcement Admin., 279 U.S. App. D.C. 1, 6-7, 878 F.2d 1458, 1463-1464 (1989)
(explaining DEA's rationale for the exception).
Moreover, 23 States, including many that have significant Native American populations,
have statutory or judicially crafted exemptions in their drug laws for religious use
of peyote. See 307 Ore. 68, 73, n. 2, 763 P.2d 146, 148, n. 2 (1988) (case below).
Although this does not prove that Oregon [494 U.S. 872, 913] must have such an exception
too, it is significant that these States, and the Federal Government, all find their
(presumably compelling) interests in controlling the use of dangerous drugs compatible
with an exemption for religious use of peyote. Cf. Boos v. Barry, 485 U.S. 312, 329
(1988) (finding that an ordinance restricting picketing near a foreign embassy was
not the least restrictive means of serving the asserted government interest; existence
of an analogous, but more narrowly drawn, federal statute showed that "a less restrictive
alternative is readily available").
[ Footnote 6 ] In this respect, respondents' use of peyote seems closely analogous
to the sacramental use of wine by the Roman Catholic Church. During Prohibition, the
Federal Government exempted such use of wine from its general ban on possession and
use of alcohol. See National Prohibition Act, Title II, 3, 41 Stat. 308. However compelling
the Government's then general interest in prohibiting the use of alcohol may have
been, it could not plausibly have asserted an interest sufficiently compelling to
outweigh Catholics' right to take communion.
[ Footnote 7 ] The use of peyote is, to some degree, self-limiting. The peyote plant
is extremely bitter, and eating it is an unpleasant experience, which would tend to
discourage casual or recreational use. See State v. Whittingham, 19 Ariz. App. 27,
30, 504 P.2d 950, 953 (1973) ("`[P]eyote can cause vomiting by reason of its bitter
taste'"); E. Anderson, Peyote: The Divine Cactus 161 (1980) ("[T]he eating of peyote
usually is a difficult ordeal in that nausea and other unpleasant physical manifestations
occur regularly. Repeated use is likely, therefore, only if one is a serious researcher
or is devoutly involved in taking peyote as part of a religious ceremony"); Slotkin,
The Peyote Way, in Teachings from the American Earth 96, 98 (D. Tedlock & B. Tedlock
eds. 1975) ("[M]any find it bitter, inducing indigestion or nausea").
[ Footnote 8 ] Over the years, various sects have raised free exercise claims regarding
drug use. In no reported case, except those involving claims of religious peyote use,
has the claimant prevailed. See, e. g., Olsen v. Iowa, 808 F.2d 652 (CA8 1986) (marijuana
use by Ethiopian Zion Coptic Church); United States v. Rush, 738 F.2d 497 (CA1 1984)
(same), cert. denied, 470 U.S. 1004 (1985); United States v. Middleton, 690 F.2d 820
(CA11 1982) (same), cert denied, 460 U.S. 1051 (1983); United States v. Hudson, 431
F.2d 468 (CA5 1970) (marijuana and heroin use by Moslems), cert denied, 400 U.S. 1011
(1971); Leary v. United States, 383 F.2d 851 (CA5 1967) (marijuana use by Hindu),
rev'd on other grounds, 395 U.S. 6 (1969); Commonwealth v. Nissenbaum, 404 Mass. 575,
536 N. E. 2d 592 (1989) (marijuana use by Ethiopian Zion Coptic Church); State v.
Blake, 5 Haw. App. 411, 695 P.2d 336 (1985) (marijuana use in practice of Hindu Tantrism);
Whyte v. United States, 471 A. 2d 1018 (D.C. App. 1984) (marijuana use by Rastafarian);
State v. Rocheleau, 142 Vt. 61, 451 A. 2d 1144 (1982) (marijuana use by Tantric Buddhist);
State v. Brashear, 92 N. M. 622, 593 P.2d 63 (1979) (marijuana use by nondenominational
Christian); State v. Randall, 540 S. W. 2d 156 (Mo. App. 1976) (marijuana, LSD, and
hashish use by Aquarian Brotherhood Church). See generally Annotation, Free [494 U.S.
872, 918] Exercise of Religion as Defense to Prosecution for Narcotic or Psychedelic
Drug Offense, 35 A. L. R. 3d 939 (1971 and Supp. 1989).
[ Footnote 9 ] Thus, this case is distinguishable from United States v. Lee, 455
U.S. 252 (1982), in which the Court concluded that there was "no principled way" to
distinguish other exemption claims, and the "tax system could not function if denominations
were allowed to challenge the tax system because tax payments were spent in a manner
that violates their religious belief." Id., at 260.
[ Footnote 10 ] See Federal Agencies Task Force, Report to Congress on American Indian
Religious Freedom Act of 1978, pp. 1-8 (Aug. 1979) (history of religious persecution);
Barsh, The Illusion of Religious Freedom for Indigenous Americans, 65 Ore. L. Rev.
363, 369-374 (1986).
Indeed, Oregon's attitude toward respondents' religious peyote use harkens back to
the repressive federal policies pursued a century ago:
"In the government's view, traditional practices were not only morally degrading,
but unhealthy. `Indians are fond of gatherings of every description,' a 1913 public
health study complained, advocating the restriction of dances and `sings' to stem
contagious diseases. In 1921, Commissioner of Indian Affairs Charles Burke reminded
his staff to punish any Indian engaged in `any dance which involves . . . the reckless
giving away of property . . . frequent or prolonged periods of celebration . . . in
fact, any disorderly or plainly excessive performance that promotes superstitious
cruelty, licentiousness, idleness, danger to health, and shiftless indifference to
family welfare.' Two years later, he forbid Indians under the age of 50 from participating
in any dances of any kind, and directed federal employees `to educate public opinion'
against them." Id., at 370-371 (footnotes omitted). [494 U.S. 872, 922]