Employment Division, Department of Human Resources of Oregon v. Smith

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 ivilliamsii 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 […]

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 […] 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. […] 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 […] Accordingly, we 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 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., Arndt. 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) […], 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) […].

But the “exercise of religion” often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a State would be “prohibiting the free exercise [of religion]” if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of “statues that are to be used for worship purposes,” or to prohibit bowing down before a golden calf.

Respondents in the present case, however, seek to carry the meaning of “prohibiting the free exercise [of religion]” one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that “prohibiting the free exercise [of religion]” includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as “prohibiting the free exercise [of religion]” by those citizens who believe support of organized government to be sinful, than it is to regard the same tax as “abridging the freedom … of the press” of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. […]

Our decisions reveal that the latter reading is the correct one. We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of 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 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. […]

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 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”).

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. […] Yoder said that “the Court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.” 406 U. S., at 233.

The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right. Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now. There being no contention that Oregon’s drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one’s children in those beliefs, the rule to which we have adhered ever since Reynolds plainly controls. “Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government.” Gillette v. United States, supra, at 461.

B

Respondents argue that even though exemption from generally applicable criminal laws need not automatically be extended to religiously motivated actors, at least the claim for a 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 […]. 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 […]. 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) […]. 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 them 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. 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. […]

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.). […] 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. 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.

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., 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.

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 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 […].

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 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.

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.

Justice O’Connor, concurring in the judgment.

[Justice O’Connor, joined in Parts I and II by Justices Brennan, Marshall, and Blackmun (who did not concur in the judgment), accepted the result but rejected the majority’s abandonment of compelling-interest balancing. Her opinion is heavily abridged.]

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.

* * *

“[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. […] A person who is barred from engaging in religiously motivated conduct is barred from freely exercising his religion.

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. […] Instead, we have respected both the First Amendment’s express textual mandate and the governmental interest in regulation of conduct by requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest. […] The compelling interest test effectuates the First Amendment’s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests “of the highest order,” Yoder, supra, at 215.

* * *

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.

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 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.”

* * *

[…] 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. […] 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. […]

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.

Notes & Questions

1. The inversion. Put Sherbert and Smith side by side and state precisely what changed. Before: a substantial burden on religious exercise — even the “indirect” pressure of a withheld benefit check — triggered compelling-interest scrutiny, and the claimant presumptively won unless the State carried a heavy justificatory load. After: neutrality plus general applicability is a safe harbor, full stop, and the severity of the burden is constitutionally irrelevant — a law that incidentally makes a religion’s central sacrament a Class B felony gets the same zero scrutiny as a law that incidentally raises the price of communion wine. Now notice what should unsettle you procedurally: Oregon asked the Court to apply Sherbert and find its drug interest compelling; nobody asked the Court to discard the test, and O’Connor stood ready to affirm on exactly that narrower ground. Why does Scalia reach for the categorical rule anyway? What vision of the judicial role — and of what free exercise litigation does to courts — is driving Part II-B?

2. The two escape hatches. Smith does not overrule a single case; it re-shelves the whole library. Track the moves. Sherbert survives, but only where a “system of individualized exemptions” — like unemployment compensation’s “good cause” inquiry — invites the State to assess particular circumstances and then refuses “religious hardship” a hearing. Yoder and Cantwell survive as “hybrid” cases, free exercise “in conjunction with” speech or parental rights. Test each hatch for doctrinal integrity. If a losing free exercise claim plus a losing parental-rights claim yields a winning hybrid claim, what is doing the arithmetic? Conversely, the individualized-exemption theory has real teeth: if a law contains discretionary or categorical secular exceptions, is it still “generally applicable” — and does strict scrutiny then come roaring back? Which of the two hatches would you predict grows into a body of law, and which withers? Why?

3. A hypo. A state statute prohibits any person under 21 from possessing or consuming alcohol, with a single exception for supervised tasting by students enrolled in accredited culinary programs. A 17-year-old altar server is cited for sipping consecrated wine at Mass; the parish sues. Work it through under Smith: is the law neutral? Generally applicable, given the culinary carve-out? Does the exception create a “mechanism for individualized exemptions,” or is a categorical secular exemption different? Can the parish assemble a hybrid — free exercise plus parental rights of the server’s parents, or plus associational rights of the congregation? Then run the same facts under Sherbert/Yoder and under O’Connor’s concurrence. If the outcomes diverge, identify exactly which analytical step produces the divergence.

4. Attack the opinion. Scalia claims that “[w]e have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law” — yet Yoder excused the Amish from a compulsory-attendance statute backed by criminal penalties, and the opinion must invent the hybrid category to absorb it. His foundations are Reynolds, a 19th-century anti-Mormon polygamy case, and Frankfurter’s Gobitis — a decision overruled three years after it issued, in Barnette. And consider the anarchy argument on its own terms: the parade of horribles insists that honest compelling-interest review would imperil everything from tax collection to traffic laws, but the federal government and nearly two dozen states already exempted sacramental peyote without incident, and claimants almost never won under Sherbert anyway (as the majority itself documents). If the test was toothless in practice, what exactly was the anarchy risk — and if it had teeth only in unemployment cases, why not just say so and affirm?

5. The political process, tested. Smith’s closing paragraph is a wager: leave accommodation to legislatures, accept that minority faiths will be “at a relative disadvantage,” and call that cost “unavoidable.” The wager was promptly called. Congress responded with the Religious Freedom Restoration Act of 1993, purporting to restore Sherbert and Yoder by statute across the board, and in 1994 amended the American Indian Religious Freedom Act to protect sacramental peyote use nationwide — so Smith and Black’s church ultimately got from Congress what the Court refused. Is that history a vindication of Scalia’s institutional claim (the process worked, even for a small and unpopular faith) or a refutation of it (it took a national statute, two decades of litigation over RFRA’s scope, and the claimants still lost their own case)? And what does it mean for a “constitutional norm” that its content now depends on which sovereign’s statute book you open — a question to hold onto for City of Boerne and Fulton.