uipl_4290a.pdf

ETA Advisory File Text

NOTE Where it is feasible a syllabus headnote will be released as is be ing done in connection with this caw at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has bee n prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co. 200 U. S. 821 837. SUPREME COURT OF THE UNITED STATES Syllabus EMPLOYMENT DIVISION DEPARTMENT OFHUMAN RESOURCES OF OREGON ET AL. v. SMITH ET AL. CERTIORARI TO THE SUPREME COURT OF OREGON No. 88-1213. Argued November 6 1989 - Decided April 17 1990 Respondents Smith and Black were fired by a private drug rehabilitation organization they ingested peyote a hallucinogenic drug for sacramental purposes at a ceremony of their Nat ive American Church. Their applications for unemployment compensation were denied by the State of Oregon under a sta te law disqualifying employees discharged for work-related misconduct. Holding that the denials violated respond ents First Amendment free exercise rights the State Court of Appeals reversed. The State Supreme Court affirmed but this Court vacated the judgment an d remanded for a determination whether sacramental peyote use is proscribed by the State s controlled substance law which makes it a felony to knowingly or intentionally possess the drug. Pending that de termination the Court refused to decide whether such use is protected by the Constitution. On remand the State Supreme Court held that peyote use violated and wa s not excepted from the state-law prohibition but concluded that that pr ohibition was invalid under the Free Exercise Clause. Held The Free Exercise Clause permits the State to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use. Pp. 8-17. a Although a State would be Prohibiting the free exercise of religion in violation of the Clause if it sought to ban the performance of or from physical acts solelyreligious motivation the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids or requires the performance of an act that his religious belief requires or forbids if the law is not specifically directed to relig ious practice and is otherwise II EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITHSyllabus constitutional as applied to those who engage in the specified act for nonreligious reasons. See e. g. Reynolds v. United States 98 U.S. 145 166-167. The only decisions in which this Court has held that the First Amendment bars application of a neutral generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone but that Clause in conjunction with other constitutional protections. See e. g. Cantwell v. Connecticut 310 U.S. 296 304-307 Wisconsin v. Yoder 406 U. S. 205. Pp. 4-9. b Respondents claim for a religious exemption from the Oregon law cannot be evaluated under the balancing test set forth in the line of cases following Sherbert v. Verner 374 U.S. 898 402-403 whereby governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. That test was developed in a context-unemployment compensation eligibility rules-that lent itself to individualized govermental assessment of the reasons for the relevant conduct. The test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by compelling governmental interest on the basis of religious belief. Nor could such a right be limited to situations in which the conduct prohibited is central to the individual religion since that would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith. Cf. Hernandez v. Commissioner 490 U.S. . Thus although it is constitutionally permissible to exempt peyote use from operation of drug laws it is not constitutionally required. Pp. 9-17. 307 Ore. 68 763 P. 2d 146 reversed. SCALLA J. delivered the opinion of the Court in which REHNQUIST C. J. and WHITE STEVENS AND KENNEDY JJ. Joined. O CONNOR J. filed an opinion concurring in the judgment in Parts I and II of which BRENNAN MARSHALL and BLACKMUN JJ. joined without concurring in the judgment. BLACKMUN J. filed a dissenting opinion which BRENNAN and MARSHALL JJ. joined. NOTICE This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the reporter of Decisions Supreme Court of the United States Washington D. C. 20648 of any typographical or other formal errors in order that correc tions may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES No. 88-1213 EMPLOYMENT DIVISION DEPARTMENT OFHUMAN RESOURCES OF OREGON ET AL. PETITIONERS v. ALFRED L.SMITH ET AL. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OREGON April 17 1996 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 fro m their jobs because of such religiously inspired use.I Oregon law prohibits the knowing or intentional possession of a control led substance unless the substance has been prescribed by a medical practitioner. Ore. Rev. Stat. 475.992 4 1987 . The law defines controlled substance as a drug classified in Schedules I through V of the Federal Controlled Subst ances Act 21 U. S. C. 811-812 1982 ed. and Supp. V as modified by the State Board of Pharmacy. Ore. Rev. Stat. 475.005 6 1987 . Persons who violate this provision by possessing a controlled substance listed on Schedule I are guilty of a Class B felony. 475.992 4 a . As compiled by the State Board of Pharmacy under its statutory authority s ee Ore. Rev. Stat. 475.035 1987 Schedule I contains the drug peyote a hallucinogen derived from the plant Lophophorawilliamsii Lenmire. Ore. Admin. Rule 855- 80-021 3 s 1988 . 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 t he 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 discharge d 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 si nce that purpose was inadequate to justify the burden that disqualification imposed on respondents religious practice. Citing our decisions in Sherbert v. Verner 374 U. S. 3 1963 and Thomas v. Review Board Indiana Employment Security Div. 450 U. S. 707 1981 the court concluded that respondents were entitled to payment of unemployment bene fits. Smith v. Employment Div. Dept. of Human Resources 301 Ore. 209 217-219 721 P. 2d 449-450 1986 . We granted certiora ri. 480 U. S. 916 1987 . Before this Court in 1987 petitioner continued to maintain that the ill egality of respondents peyote consumption was relevant to their constitutional claim. We agreed concluding that if a State has prohibited through its crimin al laws certain kinds of religiously motivated conduct without violating the Fir st Amendment it certainly follows that it may impose the lesser burden of denying unemployment. compensation benefits to persons who engage in that conduct. Employment Div. Dept. of Human Resources of Oregon v. Smith 485 U. S. 660 670 1988 Smith 1 . We noted however that the Oregon Supreme Court had not decided whether responden ts sacramental use of peyote was in fact proscribed by Oregon s controlled substance law and that this issue was a matter of dispute between the parties. Being uncertain about the legality of the religious use of peyote in Oregon we determined that it would not be appropriate for us to decide whether the practice is protected by the Federal Consti tution. Id. at 673. Accordingly we vacated the judgment of the Oregon Supreme Court and remanded for further proceeding s. Id. at 674. On remand the Oregon Supreme Court held that respondents religiously i nspired use of peyote fell within the prohibition of the Oregon statute which makes no exception for the sac ramental use of the drug. 307 Ore. 68 72-73 763 P. 2d 146 148 1988 . It then considered whether that prohibition was valid under the Free Exercise Clause and concluded that it was not. The court therefore reaffirmed its previous r uling that the State could not deny unemployment benefits to respondents for having engaged in that practice. We again granted certiorari. 489 U. S. 1989 II Respondents claim for relief rests on our decisions in Sherbert v. Verner supra Thomas v. Review Board Indiana Employment Security Div. supra and Hobbie v. Unemployment Appeals Comm n of Florida 480 U. S. 136 1987 in which we held that a State could not condition the availability of unemp loyment insurance on an individual s willingness to forgo conduct required by his religion. As we observed in Smith I -h owever the conduct at issue in those cases was not prohibited by law. We held that distinction to be critical for if Oregon does prohibit the religious use of peyote and if that prohibition is consistent with the Federal Constitution the re is no federal right to engage in that conduct in Oregon and the State is free to withhold unemployment compensation fr om respondents for engaging in work-related misconduct despite its religious motivation. 485 U. S. at 672. Now that the Oregon Supreme Court has confirmed that Oregon does prohibit the religious use of peyote we proceed to consider whether that prohibition is permissible under the Free Exercise Clause. A The Free Exercise Clause of the First Amendment which has been made app licable to the States by incorporation into the Fourteenth Amendment see Cantwell v. Connecticut 310 U. S. 296 SW 1940 provides that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. . . . U. S. Const. Am. I emphasis added . The free exercise of religion means first and forem ost the right to believe and profess whatever religious doctrine one desires. Thus the First Amendment obviously excl udes all governmental regulation of religious beliefs as such. Sherbert v. Verner supra at 402. The government may not compel affirmation of religious belief s ee Torasco v. Watkins 367 U. S. 488 1961 punish the expression of religious doctrines it believes to be false United States v. Ballard 322 U. S. 78 86-88 1944 impose special disabilities on the basis of religious views or religiou s status see McDaniel v. Paty 435 U. S. 618 1978 Fowler v. Rhode Island 345 U. S. 67 69 1953 cf. Larson v. Valente 456 U. S. 245 1982 or lend its power to one or the other side in c ontroversies over religious authority or dogma see Presbyterian Church v. Hull Church 393 U. S. 440 445-452 1969 Kedroff v. St. Nicholas Cathedral U. S. 94 95-119 1952 Serbian Eastern Orthodox Diocese v. Milivojevich 426 U. S. 696 708-725 1976 . But the exercise of religion often involves not only belief and profes sion but the performance of or abstention from physical acts assembling with others for a worship service participati ng in sacramental use of bread and wine proselytizing abstaining from certain foods or certain modes of transpo rtation. It would be true we think though no case of ours has involved the point that a state would be prohibitin g the free exercise of religion if it sought to ban such acts or abstentions only when they are engaged in for religious rea sons or only because of the religious belief that they display. It would doubtless be unconstitutional for example to ba n 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 usi ng peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practi ce and that is concededly constitutional as applied to those who use the drug for other reasons. They assert in other words t hat 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 matt er we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general t ax for example as prohibiting the free exercise of religion by those citizens who believe support of organized govern ment to be sinful than it is to regard the same tax as abridging the freedom ... of the press of those publishing comp anies that must pay the tax as a condition of staying in business. It is a permissible reading of the text in the one cue as in the other to say that if prohibiting the exercise of religion or burdening the activity of printing is not th e object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision the First Amendment has not been offended. Compare Citizen Publishing Co. v. United States 394 U. S. 131 139 1969 upholding application of antitrust laws to press with Grosjean v. American Press Co. 297 U. S. 233 250-251 1936 striking down license tax applied only to newspapers with weekly circulation above a specified level see generally Minneapolis Star Tribune Co. v. Minnesota Commissioner of Revenue 460 U. S. 575 581 1983 . Our decisions reveal that the latter reading is the correct one. We have never held that an individual s religious beliefs excuse him from compliance with an otherwise valid law prohibiting condu ct that the State is free to regulate. On the contrary the record of more than a century of our free exercise jurispr udence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis 310 U. S. 586 594-595 1940 Conscientious scruples have not in the course of the long struggle for religious toleration reliev ed 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 societ y does not relieve the citizen from the discharge of political responsibilities footnote omitted . We first had occasion to assert that principle in Reynolds v. United States 98 U. S. 145 1879 where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. Laws we said are made for the government of actions and while they cannot interfere with mere religious belief - and opinions they may wit h practices. Can a man excuse his practices to the contrary because of his religious belief To permit this would be to make the professed doctrines of religious belief superior to the law of the land and in effect to permit every citizen to become a law unto himself. Id. at 166-167. Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the l aw proscribes or prescribes conduct that his religion prescribes or proscribes . United States v. Lee 455 U. S. 252 263 n. 3 1982 STEVENS J. concurring in judgment see Minersville School Dist. Bd. of Educ. v. Gobitis supra at 595 collecting cases . In Prince v. Massachusetts 321 U. S. 158 1944 we held that a mother could be prosecuted under the child labor laws for using her children to dispense literature in the streets her religious motivation notwithstanding. We found no constitutional infirmity in excluding these children from doing there what no other children may do. Id. at 171. In Braunfield v. Brown 366 U. S. 599 1961 plurality opinion we upheld Sunday-closing laws against the claim that they burdened the religious practices of persons whose religions compelled them to reft-ain from work on other days. In Gillette v. United States 401 U. S. 437 461 1971 we sustained the military selective service system against the claim that it violated free exercise by conscripting persons who opposed a particular war on religious grounds. Our most recent decision involving a neutral generally applicable regulatory law that compelled activity forbidden by an individual s religion was United States v. Lee 455 U. S. at 258-261. There an Amish employer on behalf of himself and his employees sought exemption from collection and payment of Social Security taxes on the ground that the Amish faith prohibited participation in governmental support programs. W e rejected the claim that an exemption was constitutionally required. There would be no way we observed to distinguish the 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 feder al budget can be identified as devoted to war-related activities such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax. The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief. Id. at 260. Cf. Hernandez v. Commissioner 490 U. S. 1989 rejecting free exercise challenge to payment of income taxes alleged to make religious activities more difficult . 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 t he Free Exercise Clause in conjunction with other constitutional protections such as freedom of speech and of the press see Cantwell v. Connecticut 310 U. S. at 304-307 invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious Murdock v. Pennsylvania 319 U. S. 105 1943 invalidating a flat tax on solicitation as applied to the dissemination of religious ideas Follett v. McCormick 321 U. S. 573 1944 same or the right of parents acknowledged in Pierce v. Society of Sisters 268 U. S. 510 1925 to direct the education of their children see Wisconsin v. Yoder 406 U. S. 205 1972 invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school . 1 1 Both lines of cases have specifically adverted to the non-free exercise principle involved. Cantwell for example observed that t he fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to information and opinion be not abridged. 310 U. S. at 307. Murdock said We do not mean to say that religious groups and the press are free from all financial burdens of government... We have here something quite different for example from a tax on the income of one who engages in religious activities or a tax on property used or employed in connection with those activities. It is one thing to impose a tax on the Income or property of a preacher. It is quite another to exact a tax from him for the privilege of delivering a sermon...Those who can deprive religious groups of their colporteurs can take from them a part of the vital power of the press which has survived from the Reformation. 319 U.S. at 112.88-1213-OPINION 9 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH Yoder said that the Court s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And when the interests of parenthood are with a free exercise claim of the nature revealed by this record more than merely a reasonable relation to some purpose within the competency of the State is required to sustain the validity of the States requirement under the First Amendment. 406 U. S. at 233 Some of our cases prohibiting compelled expression decided exclusively upon free speech grounds have also involved freedom of religion cf. Wooley v. Maynard 430 U. S. 705 1977 invalidating compelled display of a license plate slogan that offended individual religious beliefs West Virginia Board of Education v. Barnette 319 U. S. 624 1943 invalidating compulsory flag salute statute challenged by religious ob jectors . And it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns. Cf. Roberts v. United States Jaycees 468 U. S. 609 622 1983 An individual s freedom to speak to worship and to petition the government for the redress of grievances could not be vigor ously protected from interference by the State if a correlative freedom to engage in group effort toward those ends were not also guaranteed. . The present case does not present such a hybrid situation but a free exercise claim unconnected with any communicative activity or parental right. Respondents urge us to hold quite simply that when otherwise prohibitable conduct is accompanied by religious convictions not only the convictions but the conduct itself must be free from governmental regulation. We have never held that and decline to do so now. There bei ng no contention that Oregon s drug law represents an attempt to regulate religious beliefs the communication of religious beliefs or the raisi ng 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 object or from any colliding duty fixed by a democratic government. Gillette v. United States supra at 461. B Respondents argue that even though exemption from generally applicable criminal laws need not automatically be extended to religiously motivated actors at least the claim for a religious exemption must be evaluated under the balancing test set forth in Sherbert v. Verner 374 U. S. 398 1963 . Under the Sherbert test governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. See id. at 402-403 see also Hernandez v. Commissioner supra at . Applying that test we have on three occasions invalidated state unemployment compensation rules that conditioned the availability of benefits upon an applicant s willingness to work under conditions forbidden by his religion. See Sherbert v. Verner supra Thomas v. Review Board Indiana Employment Div. 450 U. S. 707 1981 Hobbie v. Unemployment Appeals Comm n of Florida 480 U. S. 136 1987 . We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Although we have sometimes purported to apply the Sherbert test in contexts other than that we have always found the test satisfied see United States v. Lee 455 U. S. 252 1982 Gillette v. United States 401 U. S. 437 1971 . In recent years we have abstained from applying the Sherbert test outside the unemployment compensation field at all. In Bowen v. Roy 476 U.S. 693 1986 we declined to apply Sherbert analysis to a federal statutory scheme that required benefit applicants and recipients to provide their Social Security numbers. The plaintiffs in that case asserted that it would violate their religious beliefs to obtain and provide a Social Security number for their daughter. We held the statute s application to the plaintiffs valid regardless of whether it was necessa ry to effectuate a compelling interest. See id. at 699-701. In Lyng v. Northwest Indian Cemetery Protective Assn. 485 U. S. 439 1988 we declined to apply Sherbert analysis to the Government s logging and road construction activities on lands used for religious purposes by several Native American Tribes even though it was undisputed that the activitie s could have devastating effects on traditional Indian religious practices 485 U. S. at 451. In Goldman v. Weinberger 475 U. S. 503 1986 we rejected application of the Sherbert test to military dress regulations that forbade the wearing of yarmulkes. In O Lone v. Estate of Shabazz 482 U. S. 342 1987 we sustained without mentioning the Sherbert test a prison s refusal to excuse inmates from work requirements to attend worship services. Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field we would not apply it to require exemptions from a generally applicable criminal law. The Sherbert test it must be recalled was developed In a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct. As a plurality of the Court noted in Roy a distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant s unemployment The statutory conditions in Sherbert and Thom4u provided that a person was not eligible for unemployment compensation benefits if without good cause he had - quit work or refused available work. The good cause standard created a mechanism for individualized exemptions. Bowen v. Roy supra at 708 opinion of Burger C. J. joined by Powell and REHNQUIST JJ. . See also Sherbert supra at 401 n. 4 reading state unemployment compensation law as allowing benefits for unemployment caused by at least some personal reasons . As the plurality pointed out in R oy our decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions it may not refuse to extend that system to cases of religious hardship without compelling reason. Bowen v. Roy supra at 708. 88-1213-OPINION 12 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH Whether or not the decisions are that limited they at least have nothing to do with an across-the-board criminal prohibition on a particular form of conduct. Although as noted earlier we have sometime s used the Sherbert test to analyze free exercise challenges to such laws see United States v. Lee supra at 257-260 Gil1ette v. United States supra at 462 we have never applied the test to invalidate one. We conclude today that the sounder approach and the approach in accord with the vast majority of our precedents is to hold the test inapplicable to such challenges. The government s ability to enforce generally applicable prohibitions of socially harmful conduct like its ability to carry out other aspects of public policy cannot depend on measuring the effects of a governmental action on a religious objector s spiritual development. Lyng supra at 451. To make an individual s obligation to obey such a law contingent upon the law s coincidence with his religious beliefs except where the State s interest is compelling -- permitting by virtue of his beliefs to become a law unto himself Reynolds v. United States 98 U. S. at 167--contradicts both constitutional tradition and common sense. 2 JUSTICE O CONNOR seeks to distinguish Lyng v. Northwest Indian Cemetery Protective Assn. supra and Bowen v. Roy supra on the grounds that those cases involved the government s conduct of its own internal affairs which is different because as Justice Douglas in Sherbert the Free Exercise Clause is written in terms of what the government cannot do to the individual not in terms of what the individual can exact from the government . Post at 10 O CONNOR J. concurring quoting Sherbert supra at 412 Douglas J. concurring . But since Justice Douglas voted with the majority in Sherbert that quote obviously envisioned that what the government cannot do to the individual not just the prohibition of an individual s freedom of action through criminal laws but also the running of its programs in Sherbert state unemployment compensation in such fashion as to harm the individual s religious interests. Moreover it is hard to see any reason in principle or practicality why the government should have to tailor its health and safety laws to conform to the diversity of religious belief but should not have to tailor its management of public lands Lyng supra or its administration of welfare programs Roy supra.88-1213-OPINION 13 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH The compelling government interest requirement seems benign because i t is familiar from other fields. But using it as the standard that must be met before the government may accord different treatment on the basis of race see e. g. Palmore v. Sidoti 466 U. S. 429 432 1984 or before the government may regulate the content of speech see e. g. Sable Communications of California v. FCC 492 U. S. 1989 is not remotely comparable to using it for the purpose asserted here. What it produces in those other fields--equality of treatment and an unrestrict ed flow of contending speech--are constitutional norms what it would produce here--a private right to ignore generally applicable laws--is a constitutional anomaly. 3 JUSTICE O CONNOR suggests that t here is nothing talismanic about neutral laws of general applicability and that all laws burdening religious practices should be subject to compelling-interest scrutiny because the First Amendment unequivocally makes freedom of religion like freedom from race discrimination and freedom of speech a constitutional norm not an anomaly. Post at 11 O CONNOR J. concurring . But this comparison with other fields supports rather than undermines the conclusion we draw today. Just as we subject to the most scrutiny laws that make class ifications based on race see Palmore v. Sidoti supra or on the content of speech see Sable Communications supra so too we strictly scrutinize governmental classifications based on religion see McDaniel v. Paty 435 U. S. 618 1978 see also Torcaso v. Watkins 367 U. S. 488 1961 . But we have held that race-neutral laws that have the effect of disproportionately disadvantaging a particular racial group do not thereby become subject to compelling- interest analysis under the Equal Protection Clause see Washington v. Davis 426 U. S. 229 1976 police employment examination and we have held that generally applicable laws unconcerned with regulating speech that have the effect of interfering with speech do not thereby become subject to compelling-analysis under the First Amendment see Citizen Publishing Co. v. United States 394 U. S. 131 139 1969 antitrust laws . Our conclusion that generally applicable religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest is the only approach compatible with these precedents.88-1213-OPINION 14 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH 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. supra at BRENNAN J. dissenting . It is no more appropriate for judges to determine the centrality of religiou s beliefs before applying a compelling interest test in the free exercis e 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 claim. United States v. Lee 455 U. S. at 263 n. 2 STEVENs J. concurring . As we reaffirmed only last Term i t is not within the judicial ken to question the centrality of particular beliefs or practic es to a faith or the validity of particular litigants interpretation of those creeds. Hernandez v. Commissioner 490 U. S. at . Repeatedly and in many different contexts we have warned that courts mu st not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim. See e. g. Thomas v. Review Board Indiana Employment Security Div. 450 U. S. at 716 Presbyterian Church v. Hull Church 393 U. S. at 450 Jones v. Wolf 443 U. S. 595 602-606 1979 United States v. Ballard 322 U. S. 78 85-87 1944 . 4 4 While arguing that we should apply the compelling interest test in this case JUSTICE O CONNOR nonetheless agrees that our determination of the constitutionality of Oregon s general criminal prohibition cannot and should not turn on the centrality of the particular religious practice at issue post at 15 O CONNOR J. concurring . This means presumably that compelling interest scrutiny must be applied to generally applicable laws that regulate or prohibit any religiously motivated activity no matter how unimportant to the claimant s religion.88-1213-OPINION 15 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH 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 di rect 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 Braunfield v. Brown 366 U. S. at 606 and precisely because we value and protect religion. Earlier in her opinion ever JUSTICE O CONNOR appears to contradict this saying that the proper approach is to determine whether the burden on the specific plaintiffs be fore us is constitutionally significant whether the particular criminal interest asserted by the State before us is compelling. Post at 9. Constitutionally significant burden would seem to be centrality under another name. In any case dispensing with a centrality inquiry is utterly unworkable. It would require for example the same degree of compelling state interest to impede the practice of throwing rice at church weddings as to impede the practice of getting married in church. There is no way out of the difficulty that if general laws are to be subjected to a religious practice exception both the importance of the law at issue and the centrality of the practice at issue must reasonably be considered. Nor is this difficulty avoided by JUSTICE BLACKMUN s assertion that although courts should refrain from delving into questions 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. Post at 13 BLACKMUN J. dissenting . As JUSTICE BLACKMUN s opinion proceeds to make clear inquiry into severe impact is no different from inquiry into centrality. He has merely substituted for the question How important is X to the religious adherent the question How great will be the harm to the religious adherent if X is taken away There is no material difference.88-1213-OPINION 16 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH that religious divergence we cannot afford the luxury of deeming presum ptively invalid as applied to the religious objector every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind ranging from compulsory military service see e. g. Gillette v. United States 401 U. S. 437 1971 to the payment of taxes see e. g. United States v. Lee supra to health and safety regulation such as manslaughter and child neglect laws see e. g. Funkhouser v. State 763 P. 2d 695 Okla. Crim. App. 1988 compulsory vaccination laws see e. g. Cude v. State 237 Ark. 927 377 S. W. 2d 816 1964 drug laws see e. g. Olsen v. Drug Enforcement Administration U. S. App. D. C. 878 F. 2d 1458 1989 and traffic laws see Cox v. New Hampshire 312 U. S. 569 1941 to social welfare legislation such as minimum wage laws see Susan and Tony Alamo Foundation v. Secretary of Labor 471 U. S. 290 1985 child labor laws see Prince v. Massachusetts 321 U. S. 158 1944 cruelty laws see e. g. Church of the Lukumi Babalu Aye Inc. v. City of Hialeah 723 F. Supp. 1467 S. D. Fla. 1989 cf. State v. Massey 229 N. C. 734 51 S. E. 2d 179 appeal dism d 336 U. S. 942 1949 environmental protection laws see United States v. Little 638 F. Supp. 337 Mont. 1986 and laws providing for equality of opportunity for the races see e.g. Bob Jones University v. United States 461 U. S. 574 603-604 1983 . The First Amendment s protection of religious liberty does not require this. 5 5 JUSTICE O CONNOR contends that the parade of horribles in the text only demonstrates ... that courts have been quite capable of strik ing sensible balances between religious liberty and competing state interests. Post at 11 O CONNOR J. concurring . But the cases we cite have struck sensible balances only because they have all applied the general laws despite the claims for religious exemption. In any event JUSTICE O CONNOR mistakes the purpose of our parade 88-1213-OPINION 17 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH 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 s o also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use. See e. g. Ariz. Rev. Stat. Ann. 13-3402 b l - 3 1989 Colo. Rev. Stat. 12-22317 3 1985 N. M. Stat. Ann. 30-31-6 D Supp. 1989 . But to say t hat 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 b ut 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 it is not to suggest that courts would necessarily permit harmful exemptions from these laws though they might but to suggest that courts would constantly be in the business of determining whether the severe impact of various laws on religious practice to use JUSTICE BLACKMUN s terminology or the constitutiona l significance of the burden on the particular plaintiffs to use JUSTICE O CONNOR S terminology suffices to permit us to confer an exemption. It is a parade of horribles because it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the of religious practice.88-1213-OPINION 18 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH 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. SUPREME COURT OF THE UNITED STATES No. 88-1213 EMPLOYMENT DIVISION DEPARTMENT OFHUMAN RESOURCES OF OREGON ET AL. PETITIONERS v. ALFRED L.SMITH ET AL. ON WRIT OF CERTIORARI TO THE SUPREME COURTOF OREGON April 17 1990 JUSTICE BLACKMUN with whom JUSTICE BRENNAN and JUSTICE MARSHALL join dissenting. This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general and the State s refusal to allow a religious exemption in particular are justified by a compelling interest that cannot be served by less restrictive means 1 1 See Hernandez v. Commissioner 490 U.S.------ 1989 The free exercise inquiry whether government has placed a burden on the observation of a central religious belief or practice and if so whether a compelling government interest justifies the burden dip op. 17 Robbie v. Unemployment Appeals Comm n of Fla. 480 U. S. 136 141 1987 state laws burdening religions - must be subjected to strict scrutiny and could be justified only by proof by the State of a compelling interest Bowen v. Roy 476 U. S. 693 732 1986 O CONNOR J. concurring in part and in part Mur precedents have long required the Government to show that a compelling state interest is served by its refusal to grant a religious exemption United States v. Lee 455 U. S. 252 257-258 1982 The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest nom v. Review Bd. of Indiana Security Div 450 U. S. 707 718 1981 The state may justify an inroad on religious liberty by showing that it is the most restrictive means of achieving some compelling state interest Wisconsin v. Yoder 406 U. S. 205 215 1972 only those interests of the order and those not otherwise served can overbalance legitimate claims to the free exercise of religion Sherbert v. Verner 374 U.S. 398 406 1963 question is whether some compelling state interest justifies the substantial infringement of appellant s First Amendment right . 88-1213 -- DISSENT 2 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH Until today I thought this was a settled and inviolate principle of this Court s First Amendment jurisprudence. The majority however perfunctorily dismisses it as a constitutional anomaly. Ante at 13. As carefully detailed in JUSTICE O CONNOR S concurring opinion ante the majority is able to arrive at this view only by mischaracterizing this Court s precedents. The Court discards leading free exercise cases such as Cantwell v. Connecticut 310 U. S. 296 1940 and Wisconsin v. Yoder 406 U. S. 205 1972 as hybrid. Ante at 9. The Court views traditional free exercise analysis as somehow inapplicable to criminal prohibitions as opposed t o conditions on the receipt of benefits and to state laws of general applicability as opposed presumably to laws th at expressly single out religious practices . Ante at 11-12. The Court cites cases in which due to various exceptional circumstances we found ct scrutiny inapposite to hint that the Court has repudiated that standard altogether. Ante at 10-11. 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 of 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 ante at 15 and that the repression of minority religions is an unavoidable consequence of democratic government. Ante at 17. I do not believe the Founders thought their dearly bought freedom from religious persecu- 89-1213-DISSENT 3 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH tion a luxury but an essential element of liberty-and they could not have thought religious intolerance unavoidable for they drafted the Religion Clauses precisely in order to avoid that intolerance. For these reasons I agree with JUSTICE O CONNOR s analysis of the applicable free exercise doctrine and I join parts I and II of her opinion. 2 As she points out the critical question in this case is whether exempting respondents from the State s general criminal prohibition will unduly interfere with fulfillment of the governmental interest. Ante at 15 quoting United States v. Lee 455 U. S. 252 259 1982 . I do disagree however with her specific answer to that question. I In weighing 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. See Bowen v. Roy 476 U. S. 693 728 1986 O CONNOR J. concurring in part and dissenting in part This Court has consistently asked the Government 2 I reluctantly agree that in light of this Court s decision in Employment Division v. Smith 485 U. S. 660 1988 the question on which certiorari was granted is properly presented in this case. I have grave doubts however as to the wisdom or propriety of the constitutionality of a criminal prohibition which the State has sought to enforce which the State did not rely on in defending its denial of unemployment benefits before the state courts and which the Oregon courts could on remand either invalidate on state constitutional groun ds or conclude that it remains irrelevant to Oregon s interest inits unemployment benefits program. It is surprising to say the least that this Court which so often prides itself about principles of judicial restraint and reduction of federal control over of state law would stretch its jurisdiction to the limit in order to reach in this abstract setting the constitutionality of Oregon s criminal prohibition of peyote use.88-1213-DISSENT 4 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH to demonstrate that unbending application of its regulation to the relig ious objector Is essential to accomplish an overriding governmental interest quoting Lee 455 U. S. at 257-258 Thomas v. Review Bd. of Indiana Employment Security Div. 450 U. S. 707 719 1981 focus of the inquiry concerning State s asserted interest must be properly narrowed Yoder 406 U. S. at 221 Where fundamental claims of religious freedom are at st ake the Court will not accept a State s sweeping claim that its interest in compulsory education is compelling- despite the validity of interest m the generality of cases we must searchingly examine the interests that the State seeks to promote - - - and the impediment to those objectives t would flow from recognizing the claimed Amish exception . Failure to reduce the competing interests to the same plane of generality tends to distort the weighing process in the State s favor. See Clark Guidelines for the Fre e Exercise Clause 83 Harv. L. Rev. 327 330-331 1969 The purpose o f almost any law can be traced back to one or another of the fundamental concerns of government public health and safety public peace and order defense revenue. To measure an individual interest directly against one of these rarified values inevitably the individual interest appear the less significant Pound A Survey of Social Interests 57 Harv. L. Rev. 1 2 1943 When it comes to weighing or valuing claims or demands with respect to other claims or demands we must be careful to compare them on the same plane. . . or else we may decide the question in advance in our very way of putting it . The State s interest in enforcing its prohibition in order to be sufficiently compelling to outweigh a free exercise claim 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 88-1213-DISSENT 5 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH 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 Treasury Employees v. Von Raab U. S. 1989 SCALIA J. dissenting slip op. 8 cannot suffice to abrogate the constitutional rights of individuals. Similarly this Court s prior decisions have not allowed a government to rely on mere speculation about potential harms but have demanded evidentiary support for a refusal to allow a religious exception. See Thomas 450 U. S. at 719 rejecting State s reasons for refusing religious exemption for lack of evidence in the record Yoder 406 U. S. at 224-229 rejecting State s argument concerning the dangers of a religious exemption as speculative and unsupported by the record Sherbert v. Verner 374 U. S. 398 407 1963 there is no proof whatever to such fears . . . as those which the St ate now advance s . In this case the State s justification for refusing to recognize an exception to its criminal laws for religious peyote use is entirely speculative. The State proclaims an interest in protecting the health and safety of its citizens from the dangers of unlawful drugs. It offers however no evidence that the religious use of peyote has ever harmed anyone. 4 The factual findings of other courts The only reported case in which the State of Oregon has sought to prosecute a person for religious peyote use is State v. Soto 21 Ore. App. 794 537 P. 2d 142 197 5 cert. denied 424 U. S. 955 1976 . This dearth of evidence is not surprising since the State never asserted this health and safety interest before the Oregon courts thus there was no opportunity for fact finding concerning the alleged dangers of peyote use. What has now become State s principal argument for its view that the criminal prohibition is enforceable against religious use of peyote rests on no evidentiary foundation at all. 88-1213-DISSENT 6 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH courts cast doubt on the State s assumption that religious use of peyote is harmful. See State v. Whittingham 19 Ariz. App. 27 30 504 P. 2d 950 953 1973 the State failed to prove that the quantities of peyote used in the sacraments of the Native American Church are sufficiently harmful to the health and welfare of the participants so as to permit a legitimate intrusion under the State s police power People v. Woody 61 Cal. 2d 716 722- 723 394 P. 2d 813 818 1964 as the Attorney General . . . admits the opinion of scientists and other experts is that peyote ... works no permanent deleterious injury to the Indian . The fact that peyote is classified as a Schedule I controlled substance does not by itself show that any and all uses of peyote in any circumstance are inherently harmful and dangerous. The Federal Government which created the classifications of unlawful drugs from which Oregon s drug laws are derived apparently does not find peyote so dangerous as to preclude an exemption for religious use. 5 See 21 CFR V307.31 1989 The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church and members of the Native American Church so peyote am exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church however is required to obtain registration annually and to comply with all other requirements of the law see Olsen v. Drug Enforcement Admin. U. S. App. D. C. 878 F. 2nd 1458 1463-1464 1989 explaining DEA s rationale for the exception . Moreover 23 States including many that have significant Native America n populations have statutory or judicially crafted exemptions in their drug laws for religious use of peyote. See Smith v. Employment Division 307 Ore. 68 73 n. 2 763 P. 2d 146 448 n. 2 1988 . Although this does not prove that Oregon must have such an exception too it is significant that these States and the Federal Government all find their presumably compelling interests in controlling the use of dangerous drugs compatible with an exemption for religious use of peyote. U Boos v. Barry 485 U. S. 312 329 1988 finding that an ordinance restricting picketing near a foreign embassy was not the least restrictive means of serving the asserted government interest existence of an analogous but more narrowly drawn federal statute showed that a less restrictive alternative is readily available .88-1213-DISSENT 7 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH Moreover other Schedule I drugs have lawful uses. See Olsen v. Drug Enforcement Admin. U. S. App. D. C. n. 4 878 F. 2d at 1458 1463 n. 4 medical and research uses of marijuana . The carefully circumscribed ritual context in which respondents used peyote is far removed from the irresponsible and unrestricted recreational use of unlawful drugs. 6 The Native American Church s internal restrictions on and supervision of its members use of peyote substantially obviate the State s health and safety concerns. See Olsen U. S. App. D. C. at 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 id. at 878 F. 2d at 1464 for members of the Native American Church use of peyote outside the ritual is sacrilegious Woody 61 Cal. 2d at 721 394 P. 2d at 817 to use peyote for nonreligious purposes is sacrilegious R. Julien A Primer of Drug Action 148 3d ed. 1981 peyote is seldom abused by members of the Native American Church J. Slotkin The Peyote Way in Teachings from the American Faith D. Tedlock. B. Tedlock eds. 1975 96 104 the Native American Church ... refuses to permit the presence of curiosity seekers at its rites and vigorously opposes the sale or use of Peyote for 6 In this respect respondents use of peyote seems closely analogous to the sacramental use of wine by the Roman Catholic Church. During Prohibition the Federal Government exempted such use of wine from its general ban on possession and use of alcohol. See National Prohibition Act Title II 8 41 Stat. 308. However compelling the Government s then general interest in prohibiting the use of alcohol may have been it could not have asserted an interest sufficiently compelling to outweigh Catholics right to take communion.88-1213-DISSENT 8 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH non-sacramental purposes R. Bergman Navajo Peyote Use Its Apparent Safety M Am. J. Psychiatry 695 1971 Bergman . 7 Moreover just as in Yoder the values and interests of those seeking a religious exemption in this case are congruent to a great degree with those the State seeks to promote through its drug laws. See Yoder 406 U.S. at 224 228-229 since the Amish accept formal schooling up to 8th grade and then provide ideal vocational education State s interest i n enforcing its law against the Amish is less substantial than. . . for children generally id. at 238 WHITE J. concurring opinion . Not only does the Church s doctrine forbid nonreligious use of peyote it al so generally-advocates self-reliance responsibility and abstinence from alcohol. See Brief for Association on American Indian Affairs et al. as Amici Curiae 33-34 the Church s ethical code has four parts brother ly love care of family self-reliance and avoidance of alcohol quoting from the Church membership card 0lsen U. S. App. D. C. at 878 F. 2d at 1464 the Native American Church for all purposes other than the special stylized ceremony reinforced the state s prohibition Woody 61 Cal. 2d at 721-722 n. 3 394 P. 2d at 818 n. 3 most anthropological authorities hold Peyotism to be a positive rather than negative force in the lives of its adherents ... the church forbids the use of alcohol . . . . There is considerable evidence that the spiritual and social support provided by the Church has been effective i n The use of peyote is to some degree self-limiting. The peyote plant is bitter and eating it is an unpleasant experience which would tend to discourage casual or recreational use. See State v. Whittingham 19 Ariz. App. 27 30 504 P. 2d 950 953 1973 peyote can cause vomiting by reason of its bitter taste E. Anderson Peyote The Divine Cactus 161 1980 T he eating of peyote usually is a difficult ordeal in that nausea and other unpleasant physical manifestations occur regularly. Repeated use is likely therefore only if one is a serious researcher or is devoutly involved in taking peyote as part of a religious ceremony Slotkin The Peyote Way at 98 many find it bitter inducing indigestion or nausea . 88-1213-DISSENT 9 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH combating the tragic effects of alcoholism on the Native American popula tion. Two noted experts on peyotism Dr. Omer C. Stewart and Dr. Robert Bergman testified by affidavit to this e ffect on behalf of respondent Smith before the Employment Appeal Board. Smith Tr. Exh. 7 see also E. Anderson Peyote The Divine Cactus 165-166 1980 research by Dr. Bergman suggests that the religious use of peyote seemed to be directed in an ego-strengthening direction with an emphasis on interpersonal relationships where each individual is assured of his own significance as well as the support of the group many people have come through difficult crises with the help of this religion .... It provides real help in seeing themselves not as people whose place and way in the world is gone but as people whose way can be strong enough to change and meet new challenges quoting Bergman at 698 P. Pascarosa and S. Futterman Ethnopsychedelic Therapy for Alcoholics Observations in the Peyote Ritual of the Native American Church 8 No. 3 J. of Psychedelic Drugs 215 1976 religious peyote use has been helpful in overcoming alcoholism B. Albaugh and P. Anderson Peyote in the Treatment of Alcoholism among American Indians 131 11 Am. J. Psychiatry 1247 1249 1974 the philosophy teachings and format of the Native America n Church can be of great benefit to the Indian alcoholic see generally O. Stewart Peyote Religion 75 et seq. 1987 noting frequent observations across many tribes and periods in history of correlation between peyoti st religion 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 . See Olsen U. S. App. D. C. at 878 F. 2d at 1463 1467 quoting DEA 88-1213-DISSENT 10 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH Final Order to the effect that total amount of peyote seized and analyze d by federal authorities between 1980 and 1987 was 19.4 pounds in contrast total amount of marijuana seized during that period was over 15 million pounds . Also the availability of peyote for religious use even if Oregon were to allow an exemption from its criminal laws would still be strictly controlled by federal regulations see 21 U. S. C. 821 -823 registration requirements for distribution of controlled substances 21 CFR 1307.31 1989 distribution of peyote to Native American Ch urch subject to registration requirements and by the State of Texas the only State in which peyote grows in significant quantities. See Texas Health Safety Code 481.111 1990 Texas Admin. Code Tit. 37 pt. 1 c h. 13 Controlled Substances Regulations 13.35-13.41 1989 Woody 61 Cal. 2d at 720 394 P. 2d at 816 peyote is found in the Rio Grande Valley of Texas and northern Mexico . Peyote simply is not a popular drug its distribution for use in religious rituals has nothing to do with the vast and violent traffic in illegal narcotics that plagues 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. See Lupu Where Rights Begin The Problem of Burdens on the Free Exercise of Religion 102 Harv. L. Rev. 933 947 1989 Behind every free exercise claim is a spectral march grant this one a voice whispers to each judge and you will be confronted with an endless chain of exemption demands from religious deviants of every stripe . This 88-1213-DISSENT 11 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH Court however consistently has rejected similar arguments in past free exercise cases and it should do so here as well. See Frazee v. Illinois Dept. of Employment Security U. S. 1989 slip op. 6 rejecting State s speculation concerning cumulative effect of many similar claims Thomas 450 U. S. at 719 same Sherbert 374 U. S. at 407. The State s apprehension of a flood of other religious claims is purely speculative. Almost half the States and the Federal Government have maintained an exemption for religious peyote use for many years and apparently have not found themselves overwhelmed by claims to other religious exemptions. 8 Allowing an exemption for religious peyote use 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. ---------------- Over the years various sects have raised free exercise claims regarding drug use. In no reported case except those involving claim of religious peyote use has the claimant prevailed. See e. g. 0lsen. v. Iowa 808 F. 2d 652 CA8 1986 marijuana use by Ethiopian Zion Coptic Church United States v. Rush 738 F. 2d 497 CA11 1984 cert. denied 470 U. S. 1004 1985 same United States v. Middleton 690 F. 2d 820 CA11 1982 cert denied 460 U. S. 1051 1983 same United States v. Hudson 431 F. 2d 468 CA5 1970 cert denied 400 U. S. 1011 1971 marijuana and heroin use by Moslems Leary v. United States 383 F. 2d 851 CA5 1967 rev d on other grounds 395 U. S. 6 1969 marijuana use by Hindu Commonwea1th v. Nissenbaum 404 Mass. 575 536 N. E. 2d 592 1989 marijuana use by Ethiopian Zion Coptic Church State v. Blake Haw. App. 695 P. 2d 836 1985 marijuana use in practice of Hindu Tantrism Whyte v. United States 471 A. 2d 1018 D. C. App. 1984 marijuana use by Rastafarian State v. Rocheleau 142 Vt. 61 451 A. 2d 1144 1982 marijuana use by Tantric Buddhist State v. Brashear 92 N. M. 622 593 P. 2d 63 1979 marijuana use by nondenominational Christian State v. Randall 540 S. W. 2d 156 Mo. App. 1976 marijuana LSD and hashish use by Aquarian Brotherhood Church . See generally Annotation Free Exercise of Religion as Defense to Prosecution for Narcotic or Psychedelic Drug Offense 35 A. L. R. 3d 939 1971 and Supp. 1989 .88-1213-DISSENT 12 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH Some religions for example might not restrict drug use to a limited ceremonial context as does the Native American Church. See e. g. Olsen U. S. App. D. C. at 878 F. 2d at 1464 the Ethiopian Zion Coptic Church ... teaches that marijuana is properly smoked continually day . Some religious claims see n. 8 supra involve drugs such as marijuana and heroin in which there is significant illegal traffic wit h its attendant greed and violence so that it would be cult to grant a religious exemption without seriously compromising law enforcement efforts. 9 That the State might grant an exemption for religious peyote use but deny other religious ms arising in different circumstances wou ld not violate the Establishment Clause. Though the State must treat all religions eq y 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 establishmen t of religion. See Hobbie v. Unemployment Appeals Comm n of Fla. 480 U. S. 136 144-145 1987 the government may and some times must accommodate religious practices and. . . may do so without violating the Establishme nt Clause Yoder 406 U. S. at 220-221 Court must not ignore the danger that an exception from a general law . . . may run afoul of the Establishment Clause but that danger cannot be allowed to prevent any exception no matter how vital it may be to the protection of values promoted by the right of free exercise id. at 234 n. 22. Thus this case is distinguishable from United States v. Lee 455 U. S. 252 1982 in which the Court concluded that there was no principled way to distinguish other exemption claims and the tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief. 455 U. S. at 260. 88-1213 DISSENT 13 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES v. SMITHIII 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 ante at 16 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 religion. Cf. Yoder 406 U. S. at 219 since education is inseparablefrom and a part of the basic tenets of their religion just as baptism the confessional or a sabbath may be for others enforcement of State s compulsory education law would gravely endanger if not the free exercise of respondents religious beliefs. Respondents believe and their sincerity has never been at issue the peyote plant embodies their deity and eating it is an act of worship and communion. Without peyote they could not enact the essential ritual of their religion. See Brief for Association on American Indian Affairs et al. as Amici Curiae 5-6 To the members peyote is consecrated with powers to heal body mind and spirit. It is a teacher it teaches the way to spiritual life through living in harmony and balance with forces of the Creation. The rituals are an integral part of the life process. They embody a form of worship in which the sacrament Peyote is means for communicating with the Great Spirit . See also Stewart Religion at 327- 330 description of peyote ritual T. Hillerman People of Darkness 158 1980 description of Navajo peyote ritual . If Oregon can constitutionally prosecute them for this act of worship they like the Amish may be forced to migrate to some other and more tolerant region. Yoder 406 U. S. at 218. This potentially devastating impact must be viewed in light of the federal policy--reached in reaction to many years of religi ous persecution and intolerance--of protecting the religious freedom of Native Americans. 88-1212-DISSENT 14 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH See American Indian Religious Freedom 92 Stat. 469 42 U.S.C. 1996 it shall be the policy of United States to protect and preserve for American Indians their inherent right of freedom to believe express and exercis e the traditional religions. . . including but not limited to access to sites use and possession of sacred objects and the freedom to worship through ceremonials and traditional rites . 10 Congress recognized that certain substances such as peyote have religious significance because they are sacred they have power they heal they are necessary to the cultural integrity of the tribe and therefore religious survival. H. R. Rep. No. 95-1308 p. 2 1978 . The American Indian Religious Freedom Act in itself may not create rights enforceable against government action restricting religious freedom but this Court must scrupulously apply its free exercise analysis to the religious claims of Native Americans however unorthodox they may be. 10 See Report to Congress on American Indian Religious Freedom Act of 1978 pp. 108 1979 history of religious persecution Barsh The Illusion of Religious Freedom for Indigenous Americans 65 Ore. L. Rev. 363 369-374 1986 . Indeed Oregon s attitude toward respondents religious peyote use harkens back to the repressive federal policies pursued a century ago In the government s view traditional practices were not only morally degrading but unhealthy. Indians are fond of gatherings of every description a 1918 public health study complained advocating the restriction of dances and sings to stem contagious diseases. In 1921 the Commissioner of Indian Affairs Charles burke reminded his staff to punish any Indian engaged in any dance which involves . . . the reckless giving away of property . . . frequent or prolonged period of celebration . . . in fact any disorderly or plainly excessive performance that promotes superstitious cruelty licentiousness idleness danger to health and shiftless indifference to family welfare. Two years later he forbid Indians under the age of 50 from participating in any dances of any kind and directed federal employees to educate public opinion against them. Id. at 370-371 footnotes omitted . 88-1213-DISSENT 15 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH Otherwise both the First Amendment and the stated policy of Congress wi ll offer to Native Americans merely an unfulfilled and hollow promise. IV 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. Sinc e 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 Stat e s regulatory interest in denying beneflts for religiously motivated misconduct see ante at 2 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.SUPREME COURT OF THE UNITED STATESNo. 88-1213 EMPLOYMENT DIVISION DEPARTMENT OFHUMAN RESOURCES OF OREGON ET AL. PETITIONERS v. ALFRED L.SMITH ET AL. ON WRIT OF CERTIORARI TO THE SUPREME COURTOF OREGON April 17 1990 JUSTICE O CONNOR with whom JUSTICE BRENNAN JUSTICE MARSHALL and JUSTICE BLACKMUN join as to Parts I and II concurring in the judgment. Although I agree with the result the Court reaches in this case I cannot join its opinion. In my view today s holding dramatically departs from well-settled First Amendment jurisprudence appears unnecessary to resolve the question presented and is incompatible with our Nation s fundamental commitment to individual religious liberty.I At the outset I note that I agree with the Court s implicit determinati on that the constitutional question upon which we granted review-whether the Free Exercise Clause protects a person s reli giously motivated use of peyote from the reach of a State s general criminal law prohibition -is properly presented in this case. As the Court recounts respondents Alfred Smith and Galen Black were denied unemployment compensation benefits bec ause their sacramental use of peyote Although JUSTICE BRENNAN JUSTICE MARSHALL and JUSTICE BLACKMUN join P arts I and II of this opinion they do not concur in the judgment. 88-1213-CONCUR 2 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH constituted work-related misconduct not because they violated Oregon s general criminal prohibition against possession of peyote. We held however in Employment Div. Dept. of Human Resources of Oregon v. Smith 485 U. S. 660 1988 Smith V that whether a State may consistent with federal la w deny unemployment compensation benefits to persons for their religious use of peyote depends on whether the State as a matter of state law has criminalized the underlying conduct. See id. at 670-672. The Oregon Supreme Court on remand from this Court concluded that the Oregon statute against possession of controlled substances which include peyote makes no exce ption for the sacramental use of peyote. 307 Ore. 68 72-73 763 P. 2d 1469 148 1988 footnote omitted . Respondents contend that because the Oregon Supreme Court declined to decide whether the Oregon Constitution prohibits criminal prosecution for the religious use of peyote see id. at 73 n. 3 763 P. 2d at 148 n. 3 any ruling on the federal constitutional question would be premature. Respondents are of course correct that the Oregon Supreme Court may eventually decide that the Oregon Constitution requires the State to pro vide an exemption from its general criminal prohibition for the religious use of peyote. Such a decision would then reopen the question whether it State may nevertheless deny unemployment compensation benefits to claimants who ar e discharged for engaging in such conduct. As the case comes to us today however the Oregon Supreme Court has plainly ruled that Oregon s prohib ition against possession of controlled substances does not contain an exemptio n for the religious use of peyote. In light of our decision in Smith I which makes this finding a necessary predicate to a correct evaluation of responden ts federal claim 485 U. S. at 672 the question presented and addressed is properly before the Court. 88-1213-CONCUR 3 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITHII The Court today extracts from our long history of free exercise precedents the single categorical rule that if prohibiting the exercise of religion ... is merely the incidental effect of a generally applicable a nd otherwise valid provision the First Amendment has not been offended. Ante at 5-6 citations omitted . Indeed the Court holds that where the law is a generally applicable criminal prohibition our usual free exercise jurisprudence does not even apply. Ante at 11. To reach this sweeping result however the Court must not only give a strained reading of the First Amendment but must also disregard our consistent application of free exercise doctrine to cases involving generally applicable regulations that burden religious conduct.A The Free Exercise Clause of the First Amendment commands that Congress shall make no law . . . prohibiting the free exercise of religion . In Cantwell v. Connecticut 310 U. S. 296 1940 we held that this prohibition applies to the States by incorporation into the Fourteenth Amendment and that it categorically forbids government regulation of religious beliefs. Id. at 303. As the Court recognizes however the free exercise of religion often if not invariably requires the performance of or abstention from certain acts. Ante at 5 cf. 3 A New English Dictionary on Historical Principles 401-402 J. Murray ed. 1897 defining exercise to include t he practice and performance of rites and ceremonies worship etc. the right or permission to celebrate the observances of a religion and religious observances such as acts of public and private worship preaching and prophesying . B elief and action cannot be neatly confined in logic-tight compartments. Wisconsin v. Yoder 406 U. S. 205 220 1972 . Because the First Amendment does not distinguish between religious belief and religious conduct conduct motivated by sincere religious belief like the belief itself 88-1213-CONCUR 4 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH must therefore be at least presumptively protected by the Free Exercise Clause. The Court today however interprets the Clause to permit the government to prohibit without justification conduct mandated by an individual s religious beliefs so long as that prohibition is generally applicable. Ante at 5. But a law that prohibits certain conduct--conduct that happens to be an act of worship for someone -manifestly does prohibit that person s free exercise of his religion. A person who is barred from engaging in religi ously motivated conduct is barred from freely exercising his religion. Moreover that person is barred from freely exercising his religion regardless of whether the law prohibits the conduct only when engaged in for religious reasons only by members of that religion or by all persons. It is difficult to deny t a law that prohibits religiously motivated conduct even if th e law is generally applicable does not at least implicate First Amendment concerns. The Court responds that generally applicable laws are one Large step removed from laws aimed at specific religious practices. Ante at 5. The First Amendment however does not distinguish between laws that are generally applicable and laws that target particular religious practices. Indeed few States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such. Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice. If the First Amendment is to have any vitality it ought not be construed to cover only the extreme and hypothetical situat ion in which a State directly targets a religious practice. As we have noted in a slightly different context s uch a test has no ba sis in precedent and relegates a serious First Amendment value to the barest level of scrutiny that the Equal Protection Clause already provides. Hobbie v. Unemployment Appeals Comm n of Florida 480 U. S. 136 141-142 1897 quoting Brown v. 88-1213-CONCUR 5 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH Roy 476 U. S. 693 727 1986 opinion concurring in part and dissentin g in part . To say that a person s right to free exercise has been burdened of course does not mean that he has an absolute right to engage in the conduct. Under our established First Amendment jurisprudence we have recognized that the freedom to act unlike the freedom to believe cannot be absolute. See e. g. Cantwell supra at 304 Reynolds v. United States 98 U. S. 145 161-167 1879 . Instead we have respected both the First A mendment s express textual mandate and the governmental interest in regulation of conduct by requiring the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest. See Hernandez v. Commissioner 490 U. S. 1989 Hobbie supra at 141 United States v. Lee 455 U. S. 252 257-258 1982 Thomas v. Review Bd. Indiana Employment Security Div. 450 U. S. 707 718 1981 McDaniel v. Paty 435 U. S. 618 626-629 1978 plurality opinion Yoder supra at 215 Gillette v. United States 401 U. S. 437 462 1971 Sherbert v. Verner 374 U. S. 398p 403 1963 see also Bowen v. Roy supra at 732 opinion concurring in part and dissenting in part West Virginia State Bd. of Educ. v. Barnette 319 U. S. 624 639 1943 . The compelling interest test effectuates the First Amendment s command that religious liberty is an independent liberty that it occupi es a preferred position and that the Court will not permit encroachments upo n this liberty whether direct or indirect unless required by clear and compelling governmental interests of the highest order Yoder supra at 215. Only an especially important governmental interest pursued by narrowly tailored means can -justify exacting a sacrifice of First Amendment freedoms as the price for an equal share of the rights benefits and privileges enjoyed by other citizens. Roy supra at 728 opinion concurring in part and dissenting in part . 88-1213-CONCUR 6 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH The Court attempts to support its narrow reading of the Clause by claimi ng that w e have never held that an individual s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. Ante at 6. But as the Court later notes as it must in cases such as Cantwell and Yoder we have in fact interpreted the Free Exercise Clause to forbid application of a generally applicable prohibition to religiously motivated conduct. See Cantwell supra at 3U-307 Yoder supra at 214-234. Indeed in Yoder we expressly rejected the interpretation the Court now adopts O ur decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals even when religiously based are often subject to regulation by the States in the exercise of their undoubted power to promote the health safety and general welfare or the Federal Government in the exercise of its delegated powers. But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are -areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control even under regulation of general applicability. . . . . .A regulation neutral on its face may in its application nonethel ess offend the constitutional requirement for government neutrality if it unduly burdens the free exercise of religion. 406 U. S. at 219-220 emphasis added citations omitted . The Court endeavors to escape from our decisions in Cantwell-- and Yoder by labeling them hybrid decisions ante at 9 but there is no denying that both cases expressly relied on the Free Exercise Clause se e Cantwell. 310 U. S. at 303- 307 Yoder 406 U. S. at 219-229 and that we have consistently regarded those cases as part of the mainstream of88-1213-CONCUR 7 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH our free exercise jurisprudence. Moreover in each of the other cases ci ted by the Court to support its categorical rule ante at 7-8 we rejected the particular constitutional claims before us only after carefully weighin g the competing interests. See Prince v. Massachusetts 321 U. S. 158 168-170 1944 state interest in regulating children s activities justifies denial of religious exemption from child labor laws Braunfield v. Brown 366 U. S. 599 608-609 1961 plurality opinion state interest in uniform day of rest justifies denial of religious exemption from Sunday closing law Gillette supra at 462 state interest in military affairs justifies denial of religious exemption from conscription laws Lee supra at 258-259 state interest in comprehensive social security system justifies denial of religious exemption from mandatory participation requirement . That we rejected the free exercise claims in those cases hardly calls into question the applicability of First Amendment doctrine in the first place. Indeed it is surely unusual to judge the vitality of a constitutional doctrine by looking to the win-loss record of the plaintiffs who happen to come befo re us. B Respondents of course do not contend that their conduct is automatical ly immune from all governmental regulation simply because it is motivated by their sincere religious beliefs. The Court s rejection of that argument ante at 9 might therefore be regarded as merely harmless dictum. Rather respondents invoke our traditional compelling interest test to argue that the Free Exercise Clause requires the State to grant them a limited exemptio n from its general criminal prohibition against the possession of peyote. The Court today however denies them even the opportunity to make that argument concluding that the sounder approach and the approach in accord with t he vast majority of our precedents is to hold the compelling interest test inapplicable to challenges to general criminal prohibitions. Ante at 12. 88-1213-CONCUR 8 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH In my view however the essence of a free exercise claim is relief from a burden imposed by government on religious practices or beliefs whether the burden is imposed directly through laws that prohibit or compel specific religious practices or indirectly through laws that in effect make abandonment of one s own religion or conformity to the religious beliefs of others the price of an equal place in the civil community. As we explain ed in Thomas Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith or where it denies such a benefit because of conduct mandated by religious belief thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs a burden upon religion exists. 450 U. S. at 717-718. See also Frazee v. Minzis Dept. of Employment Security 489 U. S. 1989 Hobbie 480 U. S. at 141. A State that makes criminal an individual s religiously motivated conduct burdens that individual s fre e exercise of religion in the severest manner possible for it results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution. Braunfield supra at 605. I would have thought it beyond argument that such laws implicate free exercise concerns. Indeed we have never distinguished between cases which a State conditions receipt of a benefit on conduct prohibited by religious beliefs and cases in which a State affirmatively prohibits such conduct. The Sherbert compelling interest test applies in both kinds of cases. See e.g. Lee 455 U. S. at 257-260 applying Sherbert to uphold social security tax liability Gillette 401 U. S. at 462 applying Sherbert to uphold military conscription requirement Yoder supra at 215-234 applying Sherbert to strike down criminal convictions for violation of compulsory school attendance law . As I noted in Roy v. Bowen 88-1213-CONCUR 9 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH The fact that the underlying dispute involves an award of benefits rather than an exaction of penalties does not grant the Government license to apply a different version of the Constitution.... . . . The fact that appellees seek exemption from a precondition that t he Government attaches to an award of benefits does not therefore generate a meaningful distinction between this case and one where appellees seek an exemption from the Government s imposition of penalties upon them. 476 U. S. at 731-732 opinion concurring in part and dissenting in part . See also Hobbie supra at 141-142 Sherbert 374 U. S. at 404. I would reaffirm that principle today a neutral criminal law prohibiting conduct that a State may legitimately regulate is if anything more burdensome than a neutral civil statute placing legitimate conditions on the award of a state benefit. Legislatures of course have always been left free to reach actions which were in violation of social duties or subversive of good order. Reynolds 98 U. S. at 164 see also Yoder 406 U. S. at 219-220 Braunfield 366 U. S. at 603-604. Yet because of the close relationship between conduct and religious belief i n every case the power to regu late must be so exercised as not in attaining a permissible end unduly to infringe the protected freedom. Cantwell 310 U. S. at 304. Once it has been shown that a government regulation or criminal prohibition burdens the free exercise of religion we have consistently asked the Government to demonstrate that unbending application of its regulation to the religiou s objector is essential to accomplish an overriding governmental interest Lee supra at 257-258 or represents the least restrictive means of achieving some compelling state interest Thom4as 450 U. S. at 718. See e. g. Braunfield supra at 607 Sherbert supra at 406 Yoder supra at 214-215 Roy 476 U. S. at 728-732 opinion concurring in part and dissenting in part . To me 88-1213-CONCUR 10 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH the sounder approach--the approach more consistent with our role as judg es to decide each case on its individual merits- -is to apply this test in each case to determine whether the burden on the specific plaintiffs before us is constitutionally significant and whether the particular criminal interest asserted by the State before us is compelling. Even if as an empirical matter a government s criminal laws might usually serve a compelling interest in health safety or public order the First Amendment at least requires a case-by-case determination of the question sensitive to the facts of each particular claim. Cf. McDaniel 435 U. S. at 628 n. 8 plurality opinion noting application of Sherbert to general criminal prohibitions and the delicate balancing required by our decisions in Sherbert and Yoder . Given the range of conduct that a State might legitimately make criminal we cannot assume merely because a law carries criminal sanctions and is generally applicable that the First Amendment never requires the State to grant a limited exemption for religiously motivated conduct. Moreover we have not rejected or declined to apply the compelling interest test in our recent cases. Ante at 10-11. Recent cases have instead affirmed that test as a fundamental part of our First Amendment doctrine . See e. g. Hernandez 490 U. S. at Hobbie supra at 141-142 rejecting Chief Justice Burger s suggestion in Roy supra at 707-708 that free exercise claims be assessed under a less rigorous reasonable means standard . The cases cited by the Court signal no retreat from our consistent adherence to the compelling interest test. In both Bowen v. Roy supra and Lyng v. Northunst Indian Cemetery Protective Assn. 485 U. S. 439 1988 for example we expressly distinguished Sherbert on the ground that the First Amendment does not require the Government itself to behave in ways that the individual believes will further his or her spiritual development....The Free Exercise Clause simply cannot be understood to require the Government to conduct88-1213-CONCUR 11 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH its own internal affairs in ways that comport with the religious beliefs of particular citizens. Roy supra at 699 see Lyng supra at 449. This distinction makes sense because the Free Exercise Clause is written in terms of what the government cannot do to the individual not in terms of what the individual can exact from the government. Sherbert supra at 412 Douglas J. concurring . Because the case sub judice like the other cases in which we have applied Sherbert plainly falls into the former category I would apply those established precedents to the facts of this case. Similarly the other cases cited by the Court for the proposition that we have rejected application of the Sherbert test outside the unemployment compensation field ante at 11 are distinguishable because they arose in the narrow specialized contexts in which we have not traditionally required the government to justify a burden on religious conduct by articulating a compelling interest. See Goldman v. Weinberger 475 U. S. 503 507 1986 Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society OLone v. Estate of Shabazz 482 U. S. 342 349 1987 P rison regulations alleged to infringe constitutional rights are judged under a reasonableness test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights citation omitted . That we did n ot apply the compelling interest test in these cases says nothing about whether the test should continue to apply in paradigm free exercise cases such as the one presented here. The Court today gives no convincing reason to depart from settled First Amendment jurisprudence. There is nothing talismanic about neutral laws of general applicability or general criminal prohibitions for laws neutral toward religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion. Although the Court suggests that the88-1213-CONCUR 12 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH compelling interest test as applied to generally applicable laws would result in a constitutional anomaly ante at 13 the First Amendment unequivocally makes freedom of religion like freedom from race discrimination and freedom of speech a constitutional nor m not an anomaly. Ibid. Nor would application of our established free exercise doctrine to this case necessarily be incompatible with our equal protection cases. Cf. Rogen v. Lodge 458 U. S. 613 618 1982 race-neutral law that bears more heavily on one race than another may violate equal protect ion citation omitted Castaneda v. Partida 430 U. S. 482 492-495 1977 grand jury selection . We have in any event recognized that the Free Exercise Clause protects values distinct from those protected by the Equ al Protection Clause. See Hobbi 6 480 U. S. at 141-142. As the language of the Clause itself makes clear an individual s free exercise of religion is a preferred constitutional activity. See e. g. McConnell Accommodation of Religion 1985 Sup. Ct. Rev. 1 9 T he text of the First Amendment itself singles out religion for special protections P. Kauper Religion a nd the Constitution 17 1964 . A law that makes criminal such an activity the refore triggers constitutional concern--and heightened judicial scrutiny--even if it does not target the particular religious conduct at issue. Our free speech cases similarly recognize that neutral regulations that affect free speech values are subject to a balancing rather than categorical approach. See e.g. United States v. O Brien 391 U. S. 367 377 1968 City of Renton v. Playtinte Theatres Inc. 476 U. - S. 41 4647 1986 cf. Anderson v. Celebrezze 460 U. S. 780 792-794 1983 generally applicable laws may impinge on free association concerns . The Court s parade of horribles ante at 15-16 not only fails as a reason for discarding the compelling interest test it instead demonstrates just the opposite that courts have been quite capable of applying our free exercise jurisprudence to strike sensible 88-1213-CONCUR 13 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH balances between religious liberty and competing state interests. Finally the Court today suggests that the disfavoring of minority religions is an unavoidable consequence under our system of government and that accommodation of such religions must be left to the political proce ss. Ante at 17. In my view however the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah s Witnesses and the Amish. Indeed the words of Justice Jackson in West Virginia Board of Education v. Barnette overruling Minersville School District v Gobitis 310 U. S. 586 1940 are apt The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One s right to life liberty and property to free speech a free press freedom of worship and assembly and other fundamental rights may not be submitted to vote they depend on the outcome of no elections. 319 U.S. at 638. See also United States v. Ballard 322 U. S. 78 87 1944 The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects of the violence of disagreement among them and of the lack of an y one religions creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views . The compelling interest test reflects the First Amendments man date of preserving religious liberty to the extent possible in a pluralistic soc iety. For the Court to deem this command a luxury 88-1213-CONCUR 14 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH ante at 15 is to denigrate t he very purpose of a Bill of Rights. III The Court s holding today not only misreads settled First Amendment precedent it appears to be unnecessary to this case. I would reach the same result applying our established free exercise jurisprudence.A There is no dispute that Oregon s criminal prohibition of peyote places a severe burden on the ability of respondents to freely exercise their religion. Peyote is a sacrament of the Native American Church and is reg arded as vital to respondents ability to practice their religion. See 0. Stewart Peyote Religion A History 327-336 1987 describing modem status of peyotism E. Anderson Peyote The Divine Cactus 41-65 1980 desc ribing peyote ceremonies Teachings from the American Earth Indian Religion and Philosophy 96-104 D. Tedlock B. Tedlock eds. 1975 same see also People v. Woody 61 Cal. 2d 716 721-722 394 P. 2d 813 817-818 1964 . As we noted in Smith I the Oregon Supreme Court concluded that the Native American Church is a recognized religion that peyote is a sacrament of that church and that respondent s beliefs were sincerely held. 485 U. S. at 667. Under Oregon law as construed by that State s highest court members of the Native American Church must choose between carrying out the ritual embodying their religious beliefs and avoidance of criminal prosecution. That choice is in my view more than sufficient to trigger First Amendment scrutiny. There is also no dispute that Oregon has a significant interest in enforcing laws that control the possession and use of controlled substances by its citizens. See e.g. Sherbert 374 U. S. at 403 religiously motivated conduct may be regulated where such conduct pose s some substantial threat to public safety peace or order Yoder 406 U. S. at 220 activities of individuals even when religiously based are often 88-1213-CONCUR EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH 15 subject to regulation by the States in the exercise of their undoubted p ower to promote the health safety and general welfare . As we recently noted drug abuse is one of the greatest problems affecting the health and wel fare of our population and thus one of the most serious problems confronting our society today. Treasury Employees v. Von Raab 489 U. S. 1989 slip op. at 10 15 . Indeed under federal law incorporated by Ore gon law in relevant part see Ore. Rev. Stat. 475.005 6 1989 peyote is specifically regulated as a Schedule I controlled substance which means that Congress has found that it has a high potential for abuse that there is no currently accepted medical use and that there is a lack of accepted safety for use of the drug under medical supervision. See 21 U. S. C. 812 b 1 . See generally R. Julien A Primer of Drug Action 149 3d ed. 1981 . In light of our recent decisions holding that the governmental interests in the collection of income tax Hernandez 490 U. S. at a comprehensive social security system see Lee 455 U. S. at 258-259 and military conscription see Gillette 401 U. S. at 460 are compelling respondents do not seriously dispute that Oregon has a compelling interest in prohibiting t he possession of peyote by its citizens. B Thus the critical question in this case is whether exempting respondent s from the State s general criminal prohibition will unduly interfere with fulfillment of the governmental interest. Lee supra at 259 se also Roy 476 U. S. at 727 The Government must accommodate a legitimate free exercise claim unle ss pursuing an especially unimportant interest by narrowly tailored means Yoder 406 U. S. at 221 Braunfield 366 U. S. at 605-607. Although the question is close I would conclude that uniform application of Oregon s criminal prohibition is essential to accomplish Lee supra at 257 its overriding interest in preventing the physical 88-1213-CONCUR 16 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH harm caused by the use of a Schedule I controlled substance. Oregon s criminal prohibition represents that State s judgment that the possession and use of controlled substances even by only one person is inherently har mful and dangerous. Because the health effects caused by the use of controlled substances exist regardless of the motivation of the user the use of such substances even for religious purposes violates the very purpose of th e laws that prohibit them. Cf. State v. Massey 229 N. C. 734 51 S. E. 2d 179 denying religious exemption to municipal ordinance prohibiting handling of poisonous reptiles appeal dism d sub nom. Bunn v. North Carolina 336 U.S. 942 1949 . Moreover in view of the societal interest in preventing trafficking in controlled substances uniform application of the criminal prohibition at issue is essential to the effectiveness of Orego n s stated interest in preventing any possession of peyote. Cf. Jacobson v. Massachusetts 197 U. S. 11 1905 denying exemption from small pox vaccination requirement . For these reasons I believe that granting a selective exemption in case would seriously impair Oregon s compelling interest in prohibiting possession of peyote by its citizens. Under such circumstances the Free Exercise C lause does not require the State to accommodate respondents religiously motivated conduct. See e.g. Thomas 450 U. S. at 719. Unlike in Yoder where we noted that t he record strongly indicates that accommodating the relig ious objections of the Amish by forgoing one or at most two additional years of compulsory education will not impair the physical or mental health of the child or result in an inability to be self supporting or to discharge t he duties and responsibilities of citizenship or in any other way materially detract from the welfare of society 406 U. S. at 234 see also id. at 238- 240 WHITE J. concurring a religious exemption in case would be incompatible with the State s interest in controlling use -and possession of illegal drugs.88-1213-CONCUR 17 EMPLOYMENT DIV. ORE. DEPT. OF HUMAN RES. v. SMITH Respondents contend that any incompatibility is belied by the fact that the Federal Government and several States provide exemptions for the religious use of peyote see 21 CFR 1307.31 1989 307 Ore. at 73 n. 2 763 P. 2d at 148 n. 2 citing 11 state statutes that expressly exempt sacramental peyote use from criminal proscription . But other governments may surely choose to grant an exemption without Oregon with its specific asserted interest in uniform application of its drug laws being required to do so by the First Amendment. Respondents also note that the sacramental use of peyote is central to the tenets of the Native American Church but I agree with the Court ante at 13- 14 that because that is not within the judicial ken to question the centrality of particular beliefs or practices to a faith Hernandez supra at slip op. at 17 our determination of the constitutionality of Oregon s general criminal prohibition cannot and should not turn on the centrality of the particular religious practice at issu e. This does not mean of course that courts may not make factual findings as to whether a claimant holds a sincerely held religious belief that conflicts with and thus is burdened by the challenged law. The distinction betwe en questions of centrality and questions of sincerity and burden is admittedly fine but it is one that is an established part of our free exercise doctrine see Ballard 322 U. S. at 85-88 and one that courts are capable of making. See Tony and Susan Alamo Foundation v. Secretary of Labor 471 U. S. 290f 303-305 1985 . I would therefore adhere to our established free exercise jurisprudence and hold that the State in this case has a compelling interest in regulating peyote use by its citizens and that accommodating respondents religious ly motivated conduct will unduly interfere with fulfillment of the governmental interest. Lee 455 U. S. at 259. Accordingly I concur in the judgment of the Court.