Encounter in the Courts

Encounter in the CourtsThe First Amendment of the United States Constitution prohibits the establishment of religion and protects its free exercise. The meaning of these two provisions raises questions that often end up in the Supreme Court. A 1963 ruling required that governments prove that there exists compelling state interest behind legislation that burdens religious practice. This requirement (known as the Sherbert test) was weakened by later decisions, including a 1990 case that allowed states to enforce generally applicable laws even if they burden religious practice—a decision that faced considerable backlash by religious freedom advocates.

The United States Constitution both prohibits the establishment of religion and protects the free exercise of religion. These twin principles have guided what have been called “church-state” relations in the United States. The issues have become increasingly complex in a multireligious America, where the “church” in question may now be the mosque, the Buddhist temple, the Hindu temple, or the Sikh gurdwara. Every religious tradition brings its own questions: Can a Muslim school teacher wear her hijab, or head-covering, on the job as a public school teacher? Can a Sikh student wear the kirpan, the symbolic knife required of all initiated Sikhs, to school, or a Sikh worker wear a turban on a hard-hat job, in apparent violation of safety regulations? Should a crèche be displayed in the Christmas season on public property? Can the sanctity of Native lands be protected from road-building? Should the taking of peyote by Native Americans be protected as the free exercise of religion? Can a city council pass an ordinance prohibiting the sacrifice of animals by the adherents of the Santería faith?

These difficult questions make clear that the courts are one vital arena of America’s new pluralism. For better or worse, as fresh controversies arise, people of differing religions encounter one another in the courts. Just as the “church” is not a single entity in multireligious America, the “state” is multiple too: there are zoning boards, city councils, state governments, and the federal government. At all levels, courts hear disputes and offer interpretations of laws and regulations, and the constitutional principles that undergird them.

Cases involving the First Amendment principles of non-establishment of religion and free exercise of religion have often posed difficult questions. Sometimes the two principles almost seem to be in tension: the free exercise of religion calling for special protection of religious interests, while the non-establishment of religion prohibiting any such special treatment. Since the second half of the 20th century, “church-state” issues in America increasingly have been on the agenda of courts. Every year, the Supreme Court rules on a number of cases that have made their way through the appeals process to the highest court in the land.

On the non-establishment side, a landmark decision was Everson v. Board of Education (1947) in which the Supreme Court first held that the non-establishment principle of the First Amendment applied to the states. Everson involved a challenge to a New Jersey law that authorized school districts to cover the transportation costs of students attending parochial schools. The Supreme Court upheld the law as constitutional and its decision was clearly and narrowly defined: the busing program was a generally available benefit that should not be denied to children simply because their destination was a religious school. While the Court has consistently ruled against state support of private religious schools, in this case, the benefit in question was not to the schools, but to the children. Justice Black wrote: “The First Amendment requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.” The extended logic of this decision was that religious communities should have “equal access” to those benefits that are available to non-religious communities. In other words, if a high school gymnasium in Bethesda, Maryland can be used by the Girl Scouts or the Garden Club, it cannot be denied use by the Hindu Temple community for its annual fall Diwali festival.

In the area of free exercise, the case of Sherbert v. Verner (1963) set a precedent that guided religious liberty decisions for thirty years. In South Carolina, Adell Sherbert, a Seventh-Day Adventist, was fired from her job because she refused to accept a schedule requiring her to work on Saturday, her Sabbath, and was then refused state unemployment compensation. In her case, the Supreme Court articulated three questions to guide their decision: Has the religious freedom of a person been infringed or burdened by some government action? If so, is there a “compelling state interest” that would nonetheless justify the government action? Finally, is there any other way the government interest can be satisfied without restricting religious liberty? In sum, religious liberty is the rule; any exception to the rule can be justified only by a “compelling state interest.” In the Sherbert case, the Court ruled that there was no state interest compelling enough to warrant the burden placed upon Ms. Sherbert’s religious freedom.

Similarly, when an Amish community in Wisconsin insisted on withdrawing its children from public schools after the eighth grade and the State of Wisconsin insisted the children comply with compulsory education laws, the Supreme Court applied the three-pronged test and ruled that the religious freedom of the Amish outweighed the state’s interest in four years’ more compulsory education (Wisconsin v. Yoder, 1972).

Beginning in the 1980s, however, a series of Supreme Court rulings gradually weakened the force of the Sherbert test and, in the view of many, weakened the Constitutional guarantee of the free exercise of religion. In each case, the government did not have to demonstrate a compelling interest or alter its basic procedures to accommodate a specific religious claim. For example, in Bowen v. Roy (1986), an Abnaki Indian asked that his daughter, Little Bird of the Snow, be exempt from having to have a Social Security number in order to receive benefits from the Aid to Families with Dependent Children program. The father insisted that to assign a number to his daughter would “rob her of her spirit” and interfere with her spiritual growth by making her a number, regulated by the Federal government. The Court ruled that requirement did not impair the free exercise of religion and, as a result, the government did not need to demonstrate a compelling interest. Little Bird of the Snow would have to have a Social Security number.

Altering government procedures to accommodate various religious practices was also at stake in the case of Goldman v. Weinberger (1986). Dr. Goldman, an Orthodox Jewish psychiatrist serving in the U.S. Air Force, insisted on his right to wear his yarmulke on duty in the hospital, even though Air Force regulations prohibited a uniformed officer from wearing a head covering inside. The Air Force insisted that its code of military discipline requires that it not be continually making exceptions. The Court concluded that the compelling state interest test did not apply to the military. Deferring to the Air Force’s judgment, the Court upheld the regulation as constitutional.

The case of O’Lone v. Estate of Shabazz (1987) was decided along similar lines. Here, a Muslim prison inmate wanted to return from outside work at noon for Friday prayers with other Muslims. He was turned down because officials insisted that it would require extra prison security at the worksite and the gate in order to bring him back, and the Court upheld the prison system’s refusal to alter prison practices. In making this ruling, the Court also said that a restrictive institution like the prison system had security needs and regulations that would necessarily mean that inmates’ Constitutional rights would not be as broad as those of ordinary citizens and thus the government need not demonstrate a compelling state interest.

In the case of Lyng v. The Northwest Indian Cemetery Protective Association (1988), the issue was whether the Native Americans’ right to preserve intact their sacred sites outweighed the government’s right to build roads through Forest Service land. The Yurok, Karok, and Tolowa Indians argued that building a logging road through the land would have “devastating effects” on their religious ways. A lower court acted to prevent the Forest Service from building the road, but the Forest Service appealed to the Supreme Court. In this case, the Supreme Court supported the Forest Service, saying: “Incidental effects of government programs which may make it more difficult to practice certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs [do not] require government to bring forward a compelling justification for its otherwise lawful actions… However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen’s religious needs and desires… Whatever rights the Indians may have to the use of the area, however, those rights do not divest the government of its right to use what is, after all, its land.” Here, the balance tipped in favor of the government.

These increasingly restrictive interpretations of the guarantees of the First Amendment culminated in a controversial Supreme Court decision about the use of peyote, a hallucinogen. In Employment Division, Department of Human Resources of Oregon v. Smith (1990), two members of the Native American Church ingested peyote, as is common in the ceremonial life of the church, and were subsequently fired from their jobs for “misconduct.” The state of Oregon denied them unemployment compensation because they had been dismissed for the use of peyote, which was classified as an illegal drug. The Supreme Court upheld Oregon’s decision, arguing that the state had a “generally applicable” law against drug use. The law did not specifically target the Native American Church or any other group, and to carve out exceptions to the laws would be impracticable. Justice Scalia argued that to require the government to demonstrate a compelling state interest in enforcing generally applicable laws would be “courting anarchy.”

The Smith decision effectively undermined many years of court precedent that normally followed Sherbert and required the demonstration of a compelling state interest to justify an infringement on the free exercise of religion. Many critics insisted that refusing to apply the compelling state interest test to “generally applicable laws” would seriously damage the First Amendment protection of religious freedom. The Smith decision, critics argued, would be especially hard on minority religions, since generally applicable laws are passed by the majority. Freedom of religion, on the other hand, is not subject to majority rule. The purpose of the Bill of Rights was precisely to limit the power of the majority in areas of fundamental rights—such as freedom of conscience and speech.

Concern over the power of the majority was at the center of a case entitled Church of the Lukumi Babalu Aye v. City of Hialeah (1993). The case began in 1987 when Ernesto Pichardo, a priest of the Afro-Caribbean Santería religion, purchased a building and a former used car lot to open a place of worship. Ceremonial practice in Santería includes the sacrifice of chickens, pigeons or other small animals to the orisha, their gods. The city council of Hialeah, Florida met to consider the matter and passed three ordinances that effectively prohibited animal sacrifice within the city limits. As the city attorney explained, “This community will not tolerate religious practices which are abhorrent to its citizens.” Ernesto Pichardo and others protested, however, that the ordinances specifically targeted Santería, as they did not prohibit the killing of animals within city limits for secular reasons, but only for religious ones, and only, seemingly, for those of the Santería religion. Indeed, the ordinances specifically excluded Jewish kosher slaughter practices. The Supreme Court unanimously struck down the ordinances, stating that they were not generally applicable laws at all, but specifically aimed at the Santería religion. As Justice Kennedy wrote, “Although the practice of animal sacrifice may seem abhorrent to some, ‘religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.’”

The Santería case was an easy one, resting on the principle that “government may not enact laws that suppress religious belief or practice.” However, there were many people, including Justice Souter, who were still disquieted about the merits and the precedent of the Smith decision. By this time, legislation called the Religious Freedom Restoration Act (RFRA) had been introduced in Congress precisely to restore the religious freedom many felt had been eroded with the Smith decision. This Act, passed in 1995, stated simply: “The government cannot burden a person’s free exercise of religion, even if the burden results from a rule of general applicability, unless the burden is essential to further a compelling governmental interest and is the least restrictive means of furthering that interest.”

The Supreme Court, however, severely limited the scope of RFRA in a case entitled City of Boerne v. Flores (1997). In this case, the Catholic Archbishop of San Antonio invoked RFRA to challenge a local zoning board decision as a violation of his congregation’s free exercise of religion. The Supreme Court rejected the claim, concluding that Congress did not have the power to redefine a constitutional right. Because the First Amendment as interpreted by the Smith case did not require a compelling state interest for a generally applicable law, Congress could not impose such a requirement on the states. Congress, however, could impose such a requirement on the federal government. RFRA remains valid as to federal laws and regulations and has since been used in cases in which the Supreme Court decides that the law is applicable. This was true in Burwell v. Hobby Lobby (2014): the Court ruled that the Green family, which owns a large craft store chain, was protected by RFRA and did not have to provide their employees with coverage for contraceptives, a requirement of the Affordable Care Act that the Greens insisted conflicted with their Christian religious beliefs. 

The intersection of religious belief and commerce is contested ground; in the past decade, a series of conflicts have concerned whether businesses can refuse to provide services if doing so violates a religious principle. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), Jack Phillips, a baker from Colorado, argued that creating cakes was a form of artistic expression and free speech. When two men requested a wedding cake to celebrate their upcoming marriage, Phillips refused on the grounds that using his talents in service of a message that contradicted his religious beliefs infringed upon his First Amendment right to free expression. His refusal was found by the Colorado Civil Rights Commission to be a violation of the Colorado Anti-Discrimination Act. The United States Supreme Court ruled in Phillips’ favor, citing comments made by one member of the Commission as evidence that the body had been hostile towards Phillips’ religion. Although the ruling was extremely narrow, it was a particularly prominent example of a larger trend of legal contests between religious, often Christian, creative professionals (including bakers, florists, and illustrators) and same-gender couples seeking services for their weddings. 

Additional Content

Peyote Case: Majority Opinion

Employment Division, Department of Human Resources of Oregon v. Smith
No. 88-1213
494 U.S. 872 (1990)
April 17, 1990

Justice Scalia delivered the opinion of the Court.

This case requires us to decide whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use.

Oregon law prohibits the knowing or intentional possession of a “controlled substance” unless the substance has been prescribed by a medical
practitioner. Persons who violate this provision by possessing a controlled substance listed on Schedule I are “guilty of a Class B felony.” As compiled by the State Board of Pharmacy under its statutory authority, Schedule I contains the drug peyote, a hallucinogen derived from the plant Lophophorawilliamsii Lemaire.

Respondents Alfred Smith and Galen Black were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which both are members. When respondents applied to petitioner Employment Division for unemployment compensation, they were determined to be ineligible for benefits because they had been discharged for work-related “misconduct”. 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 — 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, the [Oregon] court concluded that respondents were entitled to payment of unemployment benefits. . . .


The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into the Fourteenth Amendment, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . . ” The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all “governmental regulation of religious beliefs as such.” The government may not compel affirmation of religious belief, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side in controversies over religious authority or dogma.

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

Respondents in the present case, however, seek to carry the meaning of “prohibiting the free exercise [of religion]” one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that “prohibiting the free exercise [of religion]” includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires).

As a textual matter, we do not think the words must be given that meaning.

It is no more necessary to regard the collection of a general tax, for example, as “prohibiting the free exercise [of religion]” by those citizens
who believe support of organized government to be sinful than it is to regard the same tax as “abridging the freedom . . . of the press” of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that, if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.

Our decisions reveal that the latter reading is the correct one. We have never held that an individual’s religious beliefs excuse him from

compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis:

“Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”

We first had occasion to assert that principle in Reynolds v. United States, 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.”

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 (1982) In Prince v. Massachusetts (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.” In Braunfeld v. Brown (1961) 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 (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 (1982). 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.

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. . . . 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.”


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 [p*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. Applying that test, we have, on three occasions, invalidated state unemployment compensation rules that conditioned the availability of benefits upon an applicant’s willingness to work under conditions forbidden by his religion. We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation.

In recent years we have abstained from applying the Sherbert test (outside the unemployment compensation field) at all. In Bowen v. Roy (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. In Lyng v. Northwest Indian Cemetery Protective Assn. (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.” In Goldman v. Weinberger (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 (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. . . . Although, as noted earlier, we have sometimes used the Sherbert test to analyze free exercise challenges to such laws, we have never applied the test to invalidate one. We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, “cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.” To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, “to become a law unto himself,” — contradicts both constitutional tradition and common sense. . . .  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.) It is no more appropriate for judges to determine the “centrality” of religious beliefs before applying a “compelling interest” test in the free exercise field than it would be for them to determine the “importance” of ideas before applying the “compelling interest” test in the free speech field. What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is “central” to his personal faith? Judging the centrality of different religious practices is akin to the unacceptable “business of evaluating the relative merits of differing religious claims. As we reaffirmed only last Term, "[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretation of those creeds."

Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.

If the “compelling interest” test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if “compelling interest” really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment’s protection of religious liberty does not require this.

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use. But to say that a nondiscriminatory religious practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

* * * *

Because respondents’ ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from use of the drug. The decision of the Oregon Supreme Court is accordingly reversed.

It is so ordered.

[Employment Division, Department of Human Resources of Oregon v. SmithNo. 88-1213. 494 U.S. 872 (1990). April 17, 1990. Legal Information Institute, Cornell University Law School. http://www.law.cornell.edu/supct/.]

Peyote Case: Dissenting Opinion

Employment Division, Department of Human Resources of Oregon v. Smith
No. 88-1213
494 U.S. 872 (1990) 

Justice Blackmun (with Justices Brennan and Marshall)  
Dissenting Opinion

Until today, I thought this was a settled and inviolate principle of this Court’s First Amendment jurisprudence. The majority, however, perfunctorily dismisses it as a “constitutional anomaly.” As carefully detailed in Justice O’Connor’s concurring opinion, the majority is able to arrive at this view only by mischaracterizing this Court’s precedents. The Court discards leading free exercise cases such as Cantwell v. Connecticut, 310 U.S. 296 (1940), and Wisconsin v. Yoder, 406 U.S. 205 (1972), as “hybrid.” The Court views traditional free exercise analysis as somehow inapplicable to criminal prohibitions (as opposed to conditions on the receipt of benefits), and to state laws of general applicability (as opposed, presumably, to laws that expressly single out religious practices). The Court cites cases in which, due to various exceptional circumstances, we found strict scrutiny inapposite, to hint that the Court has repudiated that standard altogether. In short, it effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country’s drug crisis has generated.

This distorted view of our precedents leads the majority to conclude that strict scrutiny of a state law burdening the free exercise of religion is a “luxury” that a well-ordered society cannot afford and that the repression of minority religions is an “unavoidable consequence of democratic government.” I do not believe the Founders thought their dearly bought freedom from religious persecution a “luxury,” but an essential element of liberty — and they could not have thought religious intolerance “unavoidable,” for they drafted the Religion Clauses precisely in order to avoid that intolerance.

For these reasons, I agree with Justice O’Connor’s analysis of the applicable free exercise doctrine, and I join parts I and II of her opinion. As she points out, “the critical question in this case is whether exempting respondents from the State’s general criminal prohibition ‘will unduly interfere with fulfillment of the governmental interest.’” I do disagree, however, with her specific answer to that question.


In weighing respondents’ clear interest in the free exercise of their religion against Oregon’s asserted interest in enforcing its drug laws, it is important to articulate in precise terms the state interest involved. It is not the State’s broad interest in fighting the critical “war on drugs” that must be weighed against respondents’ claim, but the State’s narrow interest in refusing to make an exception for the religious, ceremonial use of peyote. . . . The State’s interest in enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, [p*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. The State’s asserted interest thus amounts only to the symbolic preservation of an unenforced prohibition. But a government interest in “symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs,” cannot suffice to abrogate the constitutional rights of individuals.

Similarly, this Court’s prior decisions have not allowed a government to rely on mere speculation about potential harms, but have demanded evidentiary support for a refusal to allow a religious exception. In this case, the State’s justification for refusing to recognize an exception to its criminal laws for religious peyote use is entirely speculative.

The State proclaims an interest in protecting the health and safety of its citizens from the dangers of unlawful drugs. It offers, however, no evidence that the religious use of peyote has ever harmed anyone. The factual findings of other courts cast doubt on the State’s assumption that religious use of peyote is harmful. The fact that peyote is classified as a Schedule I controlled substance does not, by itself, show that any and all uses of peyote, in any circumstance, are inherently harmful and dangerous. The Federal Government, which created the classifications of unlawful drugs from which Oregon’s drug laws are derived, apparently does not find peyote so dangerous as to preclude an exemption for religious use. Moreover, other Schedule I drugs have lawful uses.  

The carefully circumscribed ritual context in which respondents used peyote is far removed from the irresponsible and unrestricted recreational use of unlawful drugs.  The Native American Church’s internal restrictions on, and supervision of, its members’ use of peyote substantially obviate the State’s health and safety concerns. See Olsen, 279 U.S.App.D.C. at 10, 878 F.2d at 1467 (“The Administrator [of 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)).

Moreover, just as in Yoder, the values and interests of those seeking a religious exemption in this case are congruent, to a great degree, with those the State seeks to promote through its drug laws. Not only does the Church’s doctrine forbid nonreligious use of peyote; it also generally advocates self-reliance, familial responsibility, and abstinence from alcohol.  Far from promoting the lawless and irresponsible use of drugs, Native American Church members’ spiritual code exemplifies values that Oregon’s drug laws are presumably intended to foster.

The State also seeks to support its refusal to make an exception for religious use of peyote by invoking its interest in abolishing drug trafficking. There is, however, practically no illegal traffic in peyote. Peyote simply is not a popular drug; its distribution for use in religious rituals has nothing to do with the vast and violent traffic in illegal narcotics that plagues this country.

Finally, the State argues that granting an exception for religious peyote use would erode its interest in the uniform, fair, and certain enforcement of its drug laws. The State fears that, if it grants an exemption for religious peyote use, a flood of other claims to religious exemptions will follow. It would then be placed in a dilemma, it says, between allowing a patchwork of exemptions that would hinder its law enforcement efforts, and risking a violation of the Establishment Clause by arbitrarily limiting its religious exemptions. This argument, however, could be made in almost any free exercise case.  This Court, however, consistently has rejected similar arguments in past free exercise cases, and it should do so here as well.

The State’s apprehension of a flood of other religious claims is purely speculative. Almost half the States, and the Federal Government, have maintained an exemption for religious peyote use for many years, and apparently have not found themselves overwhelmed by claims to other religious exemptions. Allowing an exemption for religious peyote use would not necessarily oblige the State to grant a similar exemption to other religious groups. The unusual circumstances that make the religious use of peyote compatible with the State’s interests in health and safety and in preventing drug trafficking would not apply to other religious claims. Some religions, for example, might not restrict drug use to a limited ceremonial context, as does the Native American Church.  Some religious claims involve drugs such as marijuana and heroin, in which there is significant illegal traffic, with its attendant greed and violence, so that it would be difficult to grant a religious exemption without seriously compromising law enforcement efforts. That the State might grant an exemption for religious peyote use, but deny other religious claims arising in different circumstances, would not violate the Establishment Clause. Though the State must treat all religions equally, and not favor one over another, this obligation is fulfilled by the uniform application of the “compelling interest” test to all free exercise claims, not by reaching uniform results as to all claims. A showing that religious peyote use does not unduly interfere with the State’s interests is “one that probably few other religious groups or sects could make,” Yoder, 406 U.S. at 236; this does not mean that an exemption limited to peyote use is tantamount to an establishment of religion.


Finally, although I agree with Justice O’Connor that courts should refrain from delving into questions of 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.

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.

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,  1996 (“it 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”). 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 the rites of the religion, they are necessary to the cultural integrity of the tribe, and, therefore, religious survival.”

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.


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,” 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.

[Employment Division, Department of Human Resources of Oregon v. SmithNo. 88-1213. 494 U.S. 872 (1990). Legal Information Institute, Cornell University Law School. http://www.law.cornell.edu/supct/.]

Santeria v. City of Hialeah, FL

Church of the Lukumi Babalu Aye, Inc. and Ernesto Pichardo v. City of Hialeah
No. 91-948
508 U.S. 520 (1993)
June 11, 1993 

Justice Kennedy delivered the opinion of the Court, except as to Part II-A-2.

The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions. Concerned that this fundamental nonpersecution principle of the First Amendment was implicated here, however, we granted certiorari. Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the Nation’s essential commitment to religious freedom. The challenged laws had an impermissible object; and in all events the principle of general applicability was violated because the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs. We invalidate the challenged enactments and reverse the judgment of the Court of Appeals.

A. This case involves practices of the Santeria religion, which originated in the nineteenth century. When hundreds of thousands of members of the Yoruba people were brought as slaves from eastern Africa to Cuba, their traditional African religion absorbed significant elements of Roman Catholicism. The resulting syncretion, or fusion, is Santeria, “the way of the saints.” The Cuban Yoruba express their devotion to spirits, called orishas, through the iconography of Catholic saints, Catholic symbols are often present at Santeria rites, and Santeria devotees attend the Catholic sacraments. The Santeria faith teaches that every individual has a destiny from God, a destiny fulfilled with the aid and energy of the orishas. The basis of the Santeria religion is the nurture of a personal relation with the orishas, and one of the principal forms of devotion is an animal sacrifice.

The sacrifice of animals as part of religious rituals has ancient roots. Animal sacrifice is mentioned throughout the Old Testament, and it played an important role in the practice of Judaism before destruction of the second Temple in Jerusalem. In modern Islam, there is an annual sacrifice commemorating Abraham’s sacrifice of a ram in the stead of his son. According to Santeria teaching, the orishas are powerful but not immortal. They depend for survival on the sacrifice. Sacrifices are performed at birth, marriage, and death rites, for the cure of the sick, for the initiation of new members and priests, and during an annual celebration. Animals sacrificed in Santeria rituals include chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles. The animals are killed by the cutting of the carotid arteries in the neck.  The sacrificed animal is cooked and eaten, except after healing and death rituals.

Santeria adherents faced widespread persecution in Cuba, so the religion and its rituals were practiced in secret.  The open practice of Santeria and its rites remains infrequent. The religion was brought to this Nation most often by exiles from the Cuban revolution.  The District Court estimated that there are at least 50,000 practitioners in South Florida today.

B. Petitioner Church of the Lukumi Babalu Aye, Inc. (Church), is a not-for-profit corporation organized under Florida law in 1973.  The Church and its congregants practice the Santeria religion. The president of the Church is petitioner Ernesto Pichardo, who is also the Church’s priest and holds the religious title of Italero, the second highest in the Santeria faith. In April 1987, the Church leased land in the city of Hialeah, Florida, and announced plans to establish a house of worship as well as a school, cultural center, and museum.  Pichardo indicated that the Church’s goal was to bring the practice of the Santeria faith, including its ritual of animal sacrifice, into the open.  The Church began the process of obtaining utility service and receiving the necessary licensing, inspection, and zoning approvals.  Although the Church’s efforts at obtaining the necessary licenses and permits were far from smooth, it appears that it received all needed approvals by early August 1987.

The prospect of a Santeria church in their midst was distressing to many members of the Hialeah community, and the announcement of the plans to open a Santeria church in Hialeah prompted the city council to hold an emergency public session on June 9, 1987.  The resolutions and ordinances passed at that and later meetings are set forth in the appendix following this opinion.  A summary suffices here, beginning with the enactments passed at the June 9 meeting.  First, the city council adopted Resolution 87-66, which noted the “concern” expressed by residents of the city “that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and declared that “[t]he City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety.”  Next, the council approved an emergency ordinance that incorporated in full, except as to penalty, Florida’s animal cruelty laws. Among other things, the incorporated state law [Fla.Stat. 828.12] subjected to criminal punishment “[w]hoever . . . unnecessarily or cruelly . . . kills any animal.” The city council desired to undertake further legislative action, but Florida law prohibited a municipality from enacting legislation relating to animal cruelty that conflicted with state law. To obtain clarification, Hialeah’s city attorney requested an opinion from the attorney general of Florida as to whether 828.12 prohibited “a religious group from sacrificing an animal in a religious ritual or practice” and whether the city could enact ordinances “making religious animal sacrifice unlawful.”  The attorney general responded in mid-July.  He concluded that the “ritual sacrifice of animals for purposes other than food consumption” was not a “necessary” killing and so was prohibited by 828.12. The attorney general appeared to define “unnecessary” as “done without any useful motive, in a spirit of wanton cruelty or for the mere pleasure of destruction without being in any sense beneficial or useful to the person killing the animal.” He advised that religious animal sacrifice was against state law, so that a city ordinance prohibiting it would not be in conflict.

The city council responded at first with a hortatory enactment, Resolution 87-90, that noted its residents’ “great concern regarding the possibility of public ritualistic animal sacrifices” and the state law prohibition.  The resolution declared the city policy “to oppose the ritual sacrifices of animals” within Hialeah and announced that any person or organization practicing animal sacrifice “will be prosecuted.”   In September 1987, the city council adopted three substantive ordinances addressing the issue of religious animal sacrifice.  Ordinance 87-52 defined “sacrifice” as “to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption,” and prohibited owning or possessing an animal “intending to use such animal for food purposes.”  It restricted application of this prohibition, however, to any individual or group that “kills, slaughters or sacrifices animals for any type of ritual, regardless of whether or not the flesh or blood of the animal is to be consumed.”  The ordinance contained an exemption for slaughtering by “licensed establishment[s]” of animals “specifically raised for food purposes.”  Declaring, moreover, that the city council “has determined that the sacrificing of animals within the city limits is contrary to the public health, safety, welfare and morals of the community,” the city council adopted Ordinance 87-71.  That ordinance defined sacrifice as had Ordinance 87-52, and then provided that “[i]t shall be unlawful for any person, persons, corporations or associations to sacrifice any animal within the corporate limits of the City of Hialeah, Florida.” The final Ordinance, 87-72, defined “slaughter” as “the killing of animals for food” and prohibited slaughter outside of areas zoned for slaughter-house use. The ordinance provided an exemption, however, for the slaughter or processing for sale of “small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law.” All ordinances and resolutions passed the city council by unanimous vote.

Following enactment of these ordinances, the Church and Pichardo filed this action pursuant to 42 U. S. C. 1983 in the United States District Court for the Southern District of Florida. Named as defendants were the city of Hialeah and its mayor and members of its city council in their individual capacities. Alleging violations of petitioners’ rights under, inter alia, the Free Exercise Clause, the complaint sought a declaratory judgment and injunctive and monetary relief… After a 9-day bench trial…the District Court ruled for the city, finding no violation of petitioners’ rights under the Free Exercise Clause… The court found four compelling interests.  First, the court found that animal sacrifices present a substantial health risk, both to participants and the general public.  According to the court, animals that are to be sacrificed are often kept in unsanitary conditions and are uninspected, and animal remains are found in public places. Second, the court found emotional injury to children who witness the sacrifice of animals. Third, the court found compelling the city’s interest in protecting animals from cruel and unnecessary killing.  The court determined that the method of killing used in Santeria sacrifice was “unreliable and not humane, and that the animals, before being sacrificed, are often kept in conditions that produce a great deal of fear and stress in the animal.” Fourth, the District Court found compelling the city’s interest in restricting the slaughter or sacrifice of animals to areas zoned for slaughterhouse use. This legal determination was not accompanied by factual findings.  Balancing the competing governmental and religious interests, the District Court concluded the compelling governmental interests “fully justify the absolute prohibition on ritual sacrifice” accomplished by the ordinances…

The city does not argue that Santeria is not a “religion” within the meaning of the First Amendment.  Nor could it.  Although the practice of animal sacrifice may seem abhorrent to some, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Given the historical association between animal sacrifice and religious worship, petitioners’ assertion that animal sacrifice is an integral part of their religion “cannot be deemed bizarre or incredible.” Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners’ professed desire to conduct animal sacrifices for religious reasons.  We must consider petitioners’ First Amendment claim.

In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.  [Employment Div., Dept. of Human Resources of Oregon v. Smith] Neutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely indication that the other has not been satisfied.  A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.  These ordinances fail to satisfy the Smith requirements. . . .

A.   In our Establishment Clause cases we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general. These cases, however, for the most part have addressed governmental efforts to benefit religion or particular religions, and so have dealt with a question different, at least in its formulation and emphasis, from the issue here.  Petitioners allege an attempt to disfavor their religion because of the religious ceremonies it commands, and the Free Exercise Clause is dispositive in our analysis. At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. Indeed, it was “historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause.”  These principles, though not often at issue in our Free Exercise Clause cases, have played a role in some.  In McDaniel v. Paty (1978), for example, we invalidated a State law that disqualified members of the clergy from holding certain public offices, because it “impose[d] special disabilities on the basis of . . . religious status,”

1.   Although a law targeting religious beliefs as such is never permissible, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest.  There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct.  To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face.  A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.  Petitioners contend that three of the ordinances fail this test of facial neutrality because they use the words “sacrifice” and “ritual,” words with strong religious connotations.

We agree that these words are consistent with the claim of facial dis- crimination, but the argument is not conclusive.  The words “sacrifice” and “ritual” have a religious origin, but current use admits also of secular meanings.  The ordinances, furthermore, define “sacrifice” in secular terms, without referring to religious practices.   We reject the contention advanced by the city, that our inquiry must end with the text of the laws at issue.  Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination.  The Clause “forbids subtle departures from neutrality,” and “covert suppression of particular religious beliefs.” Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.  The Free Exercise Clause protects against governmental hostility which is masked, as well as overt.  The record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances.  First, though use of the words “sacrifice” and “ritual” does not compel a finding of improper targeting of the Santeria religion, the choice of these words is support for our conclusion.

There are further respects in which the text of the city council’s enactments discloses the improper attempt to target Santeria.  Resolution 87-66, adopted June 9, 1987, recited that “residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and “reiterate[d]” the city’s commitment to prohibit “any and all [such] acts of any and all religious groups.”  No one suggests, and on this record it cannot be maintained, that city officials had in mind a religion other than Santeria.   It becomes evident that these ordinances target Santeria sacrifice when the ordinances’ operation is considered. . . . It is a necessary conclusion that almost the only conduct subject to Ordinances 87-40, 87-52, and 87-71 is the religious exercise of Santeria church members.  The texts show that they were drafted in tandem to achieve this result.

We begin with Ordinance 87-71.  It prohibits the sacrifice of animals but defines sacrifice as “to unnecessarily kill . . . an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.”  The definition excludes almost all killings of animals except for religious sacrifice, and the primary purpose requirement narrows the proscribed category even further, in particular by exempting Kosher slaughter.   We need not discuss whether this differential treatment of two religions is itself an independent constitutional violation. It suffices to recite this feature of the law as support for our conclusion that Santeria alone was the exclusive legislative concern.  The net result of the gerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice, which is proscribed because it occurs during a ritual or ceremony and its primary purpose is to make an offering to the orishas, not food consumption.  Indeed, careful drafting ensured that, although Santeria sacrifice is prohibited, killings that are no more necessary or humane in almost all other circumstances are unpunished.

Operating in similar fashion is Ordinance 87-52, which prohibits the “possess[ion], sacrifice, or slaughter” of an animal with the “inten[t] to use such animal for food purposes.”  This prohibition, extending to the keeping of an animal as well as the killing itself, applies if the animal is killed in “any type of ritual” and there is an intent to use the animal for food, whether or not it is in fact consumed for food.  The ordinance exempts, however, “any licensed [food] establishment” with regard to “any animals which are specifically raised for food purposes,” if the activity is permitted by zoning and other laws.  This exception, too, seems intended to cover Kosher slaughter.  Again, the burden of the ordinance, in practical terms, falls on Santeria adherents but almost no others. If the killing is “unlike most Santeria sacrifices” unaccompanied by the intent to use the animal for food, then it is not prohibited by Ordinance 87-52; if the killing is specifically for food but does not occur during the course of “any type of ritual,” it again falls outside the prohibition; and if the killing is for food and occurs during the course of a ritual, it is still exempted if it occurs in a properly zoned and licensed establishment and involves animals “specifically raised for food purposes.”  A pattern of exemptions parallels the pattern of narrow prohibitions.  Each contributes to the gerrymander.

Ordinance 87-40 incorporates the Florida animal cruelty statute. Its prohibition is broad on its face, punishing “[w]hoever . . . unnecessarily . . . kills any animal.”  The city claims that this ordinance is the epitome of a neutral prohibition. The problem, however, is the interpretation given to the ordinance by respondent and the Florida attorney general.  Killings for religious reasons are deemed unnecessary, whereas most other killings fall outside the prohibition.  The city, on what seems to be a per se basis, deems hunting, slaughter of animals for food, eradication of insects and pests, and euthanasia as necessary. There is no indication in the record that respondent has concluded that hunting or fishing for sport is unnecessary.  Indeed, one of the few reported Florida cases decided under 828.12 concludes that the use of live rabbits to train greyhounds is not unnecessary.

We also find significant evidence of the ordinances’ improper targeting of Santeria sacrifice in the fact that they proscribe more religious conduct than is necessary to achieve their stated ends. . . .The legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a flat prohibition of all Santeria sacrificial practice.  If improper disposal, not the sacrifice itself, is the harm to be prevented, the city could have imposed a general regulation on the disposal of organic garbage.  It did not do so.  Indeed, counsel for the city conceded at oral argument that, under the ordinances, Santeria sacrifices would be illegal even if they occurred in licensed, inspected, and zoned slaughterhouses. Thus, these broad ordinances prohibit Santeria sacrifice even when it does not threaten the city’s interest in the public health. . . . Under similar analysis, narrower regulation would achieve the city’s interest in preventing cruelty to animals.  With regard to the city’s interest in ensuring the adequate care of animals, regulation of conditions and treatment, regardless of why an animal is kept, is the logical response to the city’s concern, not a prohibition on possession for the purpose of sacrifice.  The same is true for the city’s interest in prohibiting cruel methods of killing.  Under federal and Florida law and Ordinance 87-40, which incorporates Florida law in this regard, killing an animal by the “simultaneous and instantaneous severance of the carotid arteries with a sharp instrument—the method used in Kosher slaughter” is approved as humane. The District Court found that, though Santeria sacrifice also results in severance of the carotid arteries, the method used during sacrifice is less reliable and therefore not humane. If the city has a real concern that other methods are less humane, however, the subject of the regulation should be the method of slaughter itself, not a religious classification that is said to bear some general relation to it. . . .

2.  In determining if the object of a law is a neutral one under the Free Exercise Clause, we can also find guidance in our equal protection cases. . . . Here, as in equal protection cases, we may determine the city council’s object from both direct and circumstantial evidence. . . . Relevant evidence includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, as well as the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body. . . . The minutes and taped excerpts of the June 9 session, both of which are in the record, evidence significant hostility exhibited by residents, members of the city council, and other city officials toward the Santeria religion and its practice of animal sacrifice.  The public crowd that attended the June 9 meetings interrupted statements by council members critical of Santeria with cheers and the brief comments of Pichardo with taunts.  When Councilman Martinez, a supporter of the ordinances, stated that in prerevolution Cuba “people were put in jail for practicing this religion,” the audience applauded.  Other statements by members of the city council were in a similar vein.  For example, Councilman Martinez, after noting his belief that Santeria was outlawed in Cuba, questioned, “if we could not practice this [religion] in our homeland [Cuba], why bring it to this country?”  Councilman Cardoso said that Santeria devotees at the Church “are in violation of everything this country stands for.”  Councilman Mejides indicated that he was “totally against the sacrificing of animals” and distinguished Kosher slaughter because it had a “real purpose.”  The “Bible says we are allowed to sacrifice an animal for consumption,” he continued, “but for any other purposes, I don’t believe that the Bible allows that.”  The president of the city council, Councilman Echevarria, asked, “What can we do to prevent the Church from opening?”  Various Hialeah city officials made comparable comments.  The chaplain of the Hialeah Police Department told the city council that Santeria was a sin, “foolishness,—an abomination to the Lord,” and the worship of “demons.” He advised the city council that “We need to be helping people and sharing with them the truth that is found in Jesus Christ.”  He concluded: “I would exhort you…not to permit this Church to exist.”  The city attorney commented that Resolution 87-66 indicated that “This community will not tolerate religious practices which are abhorrent to its citizens…”  Similar comments were made by the deputy city attorney.  This history discloses the object of the ordinances to target animal sacrifice by Santeria worshippers because of its religious motivation.

3.   In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion.  The pattern we have recited discloses animosity to Santeria adherents and their religious practices; the ordinances by their own terms target this religious exercise; the texts of the ordinances were gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings; and the ordinances suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense.  These ordinances are not neutral, and the court below committed clear error in failing to reach this conclusion.

B.   We turn next to a second requirement of the Free Exercise Clause, the rule that laws burdening religious practice must be of general applicability.  Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U. S., at 879-881.  All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice.  The Free Exercise Clause “protect[s] religious observers against unequal treatment,” and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation. . . . Despite the city’s proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice.  Many types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by express provision. . . . Florida law incorporated by Ordinance 87-40 sanctions euthanasia of “stray, neglected, abandoned, or unwanted animals,” destruction of animals judicially removed from their owners “for humanitarian reasons” or when the animal “is of no commercial value,” the infliction of pain or suffering “in the interest of medical science,” the placing of poison in one’s yard or enclosure,  and the use of a live animal “to pursue or take wildlife or to participate in any hunting,” and “to hunt wild hogs.”  The city concedes that “neither the State of Florida nor the City has enacted a generally applicable ban on the killing of animals.”  It asserts, however, that animal sacrifice is “different” from the animal killings that are permitted by law.  According to the city, it is “self-evident” that killing animals for food is “important”; the eradication of insects and pests is “obviously justified”; and the euthanasia of excess animals “makes sense.” These ipse dixits do not explain why religion alone must bear the burden of the ordinances, when many of these secular killings fall within the city’s interest in preventing the cruel treatment of animals.

The ordinances are also underinclusive with regard to the city’s interest in public health, which is threatened by the disposal of animal carcasses in open public places and the consumption of uninspected meat.  Neither interest is pursued by respondent with regard to conduct that is not motivated by religious conviction.  The health risks posed by the improper disposal of animal carcasses are the same whether Santeria sacrifice or some nonreligious killing preceded it.  The city does not, however, prohibit hunters from bringing their kill to their houses, nor does it regulate disposal after their activity.  Despite substantial testimony at trial that the same public health hazards result from improper disposal of garbage by restaurants,  restaurants are outside the scope of the ordinances.  Improper disposal is a general problem that causes substantial health risks, but which respondent addresses only when it results from religious exercise.

The ordinances are underinclusive as well with regard to the health risk posed by consumption of uninspected meat.  Under the city’s ordinances, hunters may eat their kill and fisherman may eat their catch without undergoing governmental inspection.  Likewise, state law requires inspection of meat that is sold but exempts meat from animals raised for the use of the owner and “members of his household and nonpaying guests and employees.” The asserted interest in inspected meat is not pursued in contexts similar to that of religious animal sacrifice. . . .

We conclude, in sum, that each of Hialeah’s ordinances pursues the city’s governmental interests only against conduct motivated by religious belief.  The ordinances “ha[ve] every appearance of a prohibition that society is prepared to impose upon [Santeria worshippers] but not upon itself.” This precise evil is what the requirement of general applicability is designed to prevent.

A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.  To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance “interests of the highest order” and must be narrowly tailored in pursuit of those interests. . . . A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.  It follows from what we have already said that these ordinances cannot withstand this scrutiny. As we have discussed, all four ordinances are overbroad or underinclusive in substantial respects.  The proffered objectives are not pursued with respect to analogous non-religious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.  The absence of narrow tailoring suffices to establish the invalidity of the ordinances. Respondent has not demonstrated, moreover, that, in the context of these ordinances, its governmental interests are compelling. Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling… As we show above, the ordinances are underinclusive to a substantial extent with respect to each of the interests that respondent has asserted, and it is only conduct motivated by religious conviction that bears the weight of the governmental restrictions.  There can be no serious claim that those interests justify the ordinances.

The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.  Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void.


[Church of the Lukumi Babalu Aye, Inc. and Ernesto Pichardo v. City of HialeahNo. 91-948. 508 U.S. 520 (1993). June 11, 1993. Legal Information Institute, Cornell University Law School. http://www.law.cornell.edu/supct/.]

The Religious Freedom Restoration Act of 1993

Excerpted from the Religious Freedom Restoration Act of 1993 [Public Law 103-141], passed by the 103rd Congress in 1993 and signed into law by President Clinton on November 16 of that year.

An Act to protect the free exercise of religion.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Sec. 1. Short Title.

This Act may be cited as the ‘Religious Freedom Restoration Act of 1993.’

Sec. 2. Congressional Findings and Declaration of Purposes.

(a) Findings: The Congress finds that—

1) the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;

2) laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;

3) governments should not substantially burden religious exercise without compelling justification;

4) in Employment Division v. Smith, 494 U.S. 872 (1990) the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.

(b) Purposes: The purposes of this Act are—

1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and

2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

Sec. 3. Free Exercise of Religion Protected.

(a) In General: Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).

(b) Exception: Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

1) is in furtherance of a compelling governmental interest; and

2) is the least restrictive means of furthering that compelling governmental interest.

(c) Judicial Relief: A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

. . .

Sec. 5. Definitions.

As used in this Act–

1) the term ‘government’ includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State;

2) the term ‘State’ includes the District of Columbia, the Commonwealth of Puerto Rico, and each territory and possession of the United States;

3) the term ‘demonstrates’ means meets the burdens of going forward with the evidence and of persuasion; and

4) the term ‘exercise of religion’ means the exercise of religion under the First Amendment to the Constitution.

Sec. 6. Applicability.

(a) In General. This Act applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the enactment of this Act.

(b) Rule of Construction. Federal statutory law adopted after the date of the enactment of this Act is subject to this Act unless such law explicitly excludes such application by reference to this Act.

(c) Religious Belief Unaffected. Nothing in this Act shall be construed to authorize any government to burden any religious belief.

Sec. 7. Establishment Clause Unaffected.

Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion (referred to in this section as the ‘Establishment Clause’). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of ‘granting,’ used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

Speaker of the House of Representatives.
Vice President of the United States and President of the Senate.

[Public Law 103-41, 103rd Cong., 1st sess., 1993.]

[Religious Freedom Restoration Act of 1993 [Public Law 103-141]. 103rd Congress. 1993. United States Department of Justice: Legislative Histories. www.justice.gov.]

Everson v. Board of Education of the Township of Ewing (1947)

Everson v. Board of Education of the Township of Ewing
No. 52
133 N.J.L. 350, 44 A.2d 333 (1947)
February 10, 1947


Pursuant to a New Jersey statute authorizing district boards of education to make rules and contracts for the transportation of children to and from schools other than private schools operated for profit, a board of education by resolution authorized the reimbursement of parents for fares paid for the transportation by public carrier of children attending public and Catholic schools. The Catholic schools operated under the superintendency of a Catholic priest and, in addition to secular education, gave religious instruction in the Catholic Faith. A district taxpayer challenged the validity under the Federal Constitution of the statute and resolution so far as they authorized reimbursement to parents for the transportation of children attending sectarian schools. No question was raised as to whether the exclusion of private schools operated for profit denied equal protection of the laws; nor did the record show that there were any children in the district who attended, or would have attended but for the cost of transportation, any but public or Catholic schools.

[Everson v. Board of Education of the Township of Ewing. No. 52. 133 N.J.L. 350, 44 A.2d 333 (1947). February 10, 1947. Legal Information Institute, Cornell University Law School. http://www.law.cornell.edu/supct/.]

Sherbert v. Verner (1963)

Sherbert V. Verner 
374 U.S. 398 (1963)
June 17, 1963


Appellant, a member of the Seventh-Day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. She was unable to obtain other employment because she would not work on Saturday, and she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act, which provides that a claimant is ineligible for benefits if he has failed, without good cause, to accept available suitable work when offered him. The State Commission denied appellant’s application on the ground that she would not accept suitable work when offered, and its action was sustained by the State Supreme Court.

Held: As so applied, the South Carolina statute abridged appellant’s right to the free exercise of her religion, in violation of the First Amendment, made applicable to the states by the Fourteenth Amendment. Pp. 399-410.

(a) Disqualification of appellant for unemployment compensation benefits, solely because of her refusal to accept employment in which she would have to work on Saturday contrary to her religious belief, imposes an unconstitutional burden on the free exercise of her religion. Pp. 403-406.

(b) There is no compelling state interest enforced in the eligibility provisions of the South Carolina statute which justifies the substantial infringement of appellant’s right to religious freedom under the First Amendment. Pp. 406-409.

(c) This decision does not foster the “establishment” of the Seventh-Day Adventist religion in South Carolina contrary to the First Amendment. Pp. 409-410.

[Sherbert v. Verner. No.526. 374 U.S. 398 (1963). June 17, 1963. Legal Information Institute, Cornell University Law School. http://www.law.cornell.edu/supct/.]

Wisconsin v. Yoder (1971)

Wisconsin v. Yoder
No. 70-110
406 U.S. 205 (1972)
May 15, 1972


Respondents, members of the Old Order Amish religion and the Conservative Amish Mennonite Church, were convicted of violating Wisconsin’s compulsory school attendance law (which requires a child’s school attendance until age 16) by declining to send their children to public or private school after they had graduated from the eighth grade. The evidence showed that the Amish provide continuing informal vocational education to their children designed to prepare them for life in the rural Amish community. The evidence also showed that respondents sincerely believed that high school attendance was contrary to the Amish religion and way of life, and that they would endanger their own salvation and that of their children by complying with the law. The State Supreme Court sustained respondents’ claim that application of the compulsory school attendance law to them violated their rights under the Free Exercise Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment.

[Wisconsin v. Yoder. No. 70-110 (1972). The Oyez Project, IIT Chicago-Kent College of Law. www.oyez.org. Justia US Supreme Court Center. http://supreme.justia.com/cases/federal/us/406/205/case.html.]

Bowen v. Roy (1986)

Bowen v. Roy
No. 84-780
476 U.S. 693 (1986)
June 11, 1986


Appellees applied for and received benefits under the Aid to Families with Dependent Children (AFDC) program and the Food Stamp program. They refused, however, to comply with the federal statutory requirements that participants in those programs furnish the state welfare agencies who administer the programs with their Social Security numbers and those of each member of their household as a condition of receiving benefits, and that each state agency utilize those numbers in administering the programs. Appellees contended that obtaining a Social Security number for their 2-year-old daughter would violate their Native American religious beliefs. Thereafter, the Pennsylvania Department of Public Welfare terminated AFDC benefits payable to appellees on the child’s behalf and instituted proceedings to reduce the level of food stamps that appellees’ household was receiving. Appellees then filed an action in Federal District Court, claiming that the Free Exercise Clause of the First Amendment entitled them to an exemption from the Social Security number requirements, and requesting injunctive and other relief. Following a trial in which it was disclosed that the child had in fact been assigned a Social Security number, the court held that the public interest in maintaining an efficient and fraud-resistant system could be met without requiring a Social Security number for the child. The court then enjoined the Secretary of Health and Human Services from using and disseminating the Social Security number issued in the child’s name, and also enjoined the federal and state defendants from denying appellees benefits, until the child’s 16th birthday, because of their refusal to provide a Social Security number for her.

[Bowen v. Roy. No. 84-780. 476 U.S. 693 (1986). The Oyez Project, IIT Chicago-Kent School of Law. www.oyez.org. Justia: US Supreme Court Center. http://supreme.justia.com/cases/federal/us/476/693/case.html.]

Goldman v. Weinberger (1986)

Goldman v. Weinberger
No. 84-1097
475 U.S. 503 (1986)
March 25, 1986


Petitioner, an Orthodox Jew and ordained rabbi, was ordered not to wear a yarmulke while on duty and in uniform as a commissioned officer in the Air Force at March Air Force Base, pursuant to an Air Force regulation that provides that authorized headgear may be worn out of doors but that indoors “[h]eadgear [may] not be worn…except by armed security police in the performance of their duties.” Petitioner then brought an action in Federal District Court, claiming that the application of the regulation to prevent him from wearing his yarmulke infringed upon his First Amendment freedom to exercise his religious beliefs. The District Court permanently enjoined the Air Force from enforcing the regulation against petitioner. The Court of Appeals reversed.

Held: The First Amendment does not prohibit the challenged regulation from being applied to petitioner, even though its effect is to restrict the wearing of the headgear required by his religious beliefs. That Amendment does not require the military to accommodate such practices as wearing a yarmulke in the face of its view that they would detract from the uniformity sought by dress regulations. Here, the Air Force has drawn the line essentially between religious apparel that is visible and that which is not, and the challenged regulation reasonably and evenhandedly regulates dress in the interest of the military’s perceived need for uniformity. Pp. 506-510.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and STEVENS, JJ joined. STEVENS, J filed a concurring opinion, in which WHITE and POWELL, JJ., joined, post, p. 510. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 513. BLACKMUN, J., filed a dissenting opinion, post, p. 524. O’CONNOR, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 528.[p504]

[Goldman v. Weinberger. No. 84-1097. 475 U.S. 503 (1986). March 25, 1986. Legal Information Institute, Cornell University Law School.  http://www.law.cornell.edu/supct/.]

O’Lone v. Estate of Shabazz (1986)

O’Lone v. Estate of Shabazz
No. 85-1722
482 U.S. 342 (1987)
June 9, 1987

Respondents, prison inmates and members of the Islamic faith, brought suit under 42 U.S.C. § 1983 contending that two policies adopted by New Jersey prison officials prevented them from attending Jumu’ah, a Muslim congregational service held on Friday afternoons, and thereby violated their rights under the Free Exercise Clause of the First Amendment. The first such policy, Standard 853, required inmates in respondents’ custody classifications to work outside the buildings in which they were housed and in which Jumu’ah was held, while the second, a policy memorandum, prohibited inmates assigned to outside work from returning to those buildings during the day. The Federal District Court concluded that no constitutional violation had occurred, but the Court of Appeals vacated and remanded, ruling that the prison policies could be sustained only if the State showed that the challenged regulations were intended to and did serve the penological goal of security, and that no reasonable method existed by which prisoners’ religious rights could be accommodated without creating bona fide security problems. The court also held that the expert testimony of prison officials should be given due weight on, but is not dispositive of, the accommodation issue.

[O’Lone v. Estate of Shabazz. No. 85-1722. 482 U.S. 342 (1987). June 9, 1987. Oyez Project, IIT Chicago-Kent College of Law. www.oyez.org. Justia: US Supreme Court Center. http://supreme.justia.com/cases/federal/us/482/342/case.html.]

Lyng v. Northwest Indian Cemetery Protective Association 1988

Lyng v. Northwest Indian Cemetery Protective Association
No. 86-1013
485 U.S. 439
April 19, 1988


In 1982, the United States Forest Service prepared a final environmental impact statement for constructing a paved road through federal land, including the Chimney Rock area of the Six Rivers National Forest. This area, as reported in a study commissioned by the Service, has historically been used by certain American Indians for religious rituals that depend upon privacy, silence, and an undisturbed natural setting. Rejecting the study’s recommendation that the road not be completed through the Chimney Rock area because it would irreparably damage the sacred areas, and also rejecting alternative routes outside the National Forest, the Service selected a route through the Chimney Rock area that avoided archeological sites and was removed as far as possible from the sites used by the Indians for specific spiritual activities. At about the same time, the Service also adopted a management plan allowing for timber harvesting in the same area, but providing for protective zones around all the religious sites identified in the study. After exhausting administrative remedies, respondents — an Indian organization, individual Indians, nature organizations and members thereof, and the State of California — filed suit in Federal District Court challenging both the road-building and timber harvesting decisions. The court issued a permanent injunction that prohibited the Government from constructing the Chimney Rock section of the road or putting the timber harvesting plan into effect, holding, inter alia, that such actions would violate respondent Indians’ rights under the Free Exercise Clause of the First Amendment and would violate certain federal statutes. The Court of Appeals affirmed in pertinent part.


1. The courts below did not clearly explain whether — in keeping with the principle requiring that courts reach constitutional questions only when necessary — they determined that a decision on the First Amendment issue was necessary because it might entitle respondents to relief beyond that to which they were entitled on their statutory claims. The structure and wording of the District Court’s injunction, however, suggest that the statutory holding would not have supported all the relief [p440] granted, and the Court of Appeals’ silence as to the necessity of reaching theFirst Amendment issue may have reflected its understanding that the District Court’s injunction necessarily rested in part on constitutional grounds. Because it appears reasonably likely that the First Amendment issue was necessary to the decisions below, and because the Government is confident that it can cure the statutory defects identified below, it would be inadvisable for this Court to vacate and remand without addressing the constitutional question on the merits. Pp. 445-447.

2. The Free Exercise Clause does not prohibit the Government from permitting timber harvesting in the Chimney Rock area or constructing the proposed road. Pp. 447-458.

(a) In Bowen v. Roy, 476 U.S. 693 — which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause — this Court rejected the same kind of challenge that respondents assert. Just as in Roy, the affected individuals here would not be coerced by the Government’s action into violating their religious beliefs; nor would the governmental action penalize the exercise of religious rights by denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. 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. Even assuming that the Government’s actions here will virtually destroy the Indians’ ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents’ legal claims. Pp. 447-453.

(b) The Government’s right to the use of its own lands need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents. The Government has taken numerous steps to minimize the impact that construction of the road will have on the Indians’ religious activities — such as choosing the route that best protects sites of specific rituals from adverse audible intrusions and planning steps to reduce the visual impact of the road on the surrounding country. Such solicitude accords with the policy and requirements of the American Indian Religious Freedom Act. Contrary to respondents’ contention, however, that Act does not create any enforceable legal right that could authorize the District Court’s injunction. Pp. 453-455.

795 F.2d 688, reversed and remanded. [p441]

O’CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 458. KENNEDY, J., took no part in the consideration or decision of the case.

[Lyng v. Northwest Indian Cemetery Protective Association. No. 86-1013. 485 U.S. 439 (1988). April 19, 1988. Legal Information Institute, Cornell University Law School. www.law.cornell.edu/supct/.]

City of Boerne v. Flores (1997)

City of Boerne v. Flores
No. 95-2074
73 F.3d 1352, reversed.
June 25, 1997


Respondent, the Catholic Archbishop of San Antonio, applied for a building permit to enlarge a church in Boerne, Texas. When local zoning authorities denied the permit, relying on an ordinance governing historic preservation in a district which, they argued, included the church, the Archbishop brought this suit challenging the permit denial under, inter alia, the Religious Freedom Restoration Act of 1993 (RFRA). The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under §5 of the Fourteenth Amendment. The court certified its order for interlocutory appeal, and the Fifth Circuit reversed, finding RFRA to be constitutional.

Held: RFRA exceeds Congress’ power. Pp. 2+27.

(a) Congress enacted RFRA in direct response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, in which the Court upheld against a free exercise challenge a state law of general applicability criminalizing peyote use, as applied to deny unemployment benefits to Native American Church members who lost their jobs because of such use. In so ruling, the Court declined to apply the balancing test of Sherbert v. Verner, 374 U.S. 398, which asks whether the law at issue substantially burdens a religious practice and, if so, whether the burden is justified by a compelling government interest. RFRA prohibits “[g]overnment” from “substantially burden[ing]” a person’s exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that … interest.” 42 U.S.C. § 2000bb+1. RFRA’s mandate applies to any branch of Federal or State Government, to all officials, and to other persons acting under color of law. §2000bb-2(1). Its universal coverage includes “all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA’s enactment].” §2000bb-3(a). Pp. 2+6.

(b) In imposing RFRA’s requirements on the States, Congress relied on the Fourteenth Amendment, which, inter alia, guarantees that no State shall make or enforce any law depriving any person of “life, liberty, or property, without due process of law,” or denying any person the “equal protection of the laws,” §1, and empowers Congress “to enforce” those guarantees by “appropriate legislation,” §5. Respondent and the United States as amicus contend that RFRA is permissible enforcement legislation under §5. Although Congress certainly can enact legislation enforcing the constitutional right to the free exercise of religion, see, e.g., Cantwell v. Connecticut,310 U.S. 296, 303, its §5 power “to enforce” is only preventive or “remedial,” South Carolina v. Katzenbach, 383 U.S. 301, 326. The Amendment’s design and §5’s text are inconsistent with any suggestion that Congress has the power to decree the substance of the Amendment’s restrictions on the States. Legislation which alters the Free Exercise Clause’s meaning cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed. There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect. The need to distinguish between remedy and substance is supported by the Fourteenth Amendment’s history and this Court’s case law, see, e.g., Civil Rights Cases, 109 U.S. 3, 13+14, 15; Oregon v. Mitchell, 400 U.S. 112, 209, 296. The Amendment’s design has proved significant also in maintaining the traditional separation of powers between Congress and the Judiciary, depriving Congress of any power to interpret and elaborate on its meaning by conferring self-executing substantive rights against the States, cf. id., at 325, and thereby leaving the interpretive power with the Judiciary. Pp. 6+19.

(c) RFRA is not a proper exercise of Congress’ §5 enforcement power because it contradicts vital principles necessary to maintain separation of powers and the federal-state balance. An instructive comparison may be drawn between RFRA and the Voting Rights Act of 1965, provisions of which were upheld in Katzenbach, supra, and subsequent voting rights cases. In contrast to the record of widespread and persisting racial discrimination which confronted Congress and the Judiciary in those cases, RFRA’s legislative record lacks examples of any instances of generally applicable laws passed because of religious bigotry in the past 40 years. Rather, the emphasis of the RFRA hearings was on laws like the one at issue that place incidental burdens on religion. It is difficult to maintain that such laws are based on animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country. RFRA’s most serious shortcoming, however, lies in the fact that it is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections, proscribing state conduct that the Fourteenth Amendment itself does not prohibit. Its sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. Its restrictions apply to every government agency and official, §2000bb+2(1), and to all statutory or other law, whether adopted before or after its enactment, §2000bb+3(a). It has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who claims a substantial burden on his or her free exercise of religion. Such a claim will often be difficult to contest. See Smith, supra, at 887. Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. 494 U.S., at 888. Furthermore, the least restrictive means requirement was not used in the pre-Smith jurisprudence RFRA purported to codify. All told, RFRA is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens, and is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. Pp. 19+27.

73 F.3d 1352, reversed.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Thomas, and Ginsburg, JJ., joined, and in all but Part III+A+1 of which Scalia, J., joined. Stevens, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part, in which Stevens, J., joined. O’Connor, J., filed a dissenting opinion, in which Breyer, J., joined except as to a portion of Part I. Souter, J., and Breyer, J., filed dissenting opinions.

[City of Boerne v. Flores. No. 95-2074. 73 F.3d 1352, reversed (1997). June 25, 1997. Legal Information Institute, Cornell University Law School. http://www.law.cornell.edu/supct/.]