Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah

OCTOBER TERM, 1992

															Syllabus

															CHURCH OF THE LUKUMI BABALU AYE, INC., ET AL. v. CITY OF
HIALEAH

															CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT

															No. 91-948. Argued November 4, 1992-Decided June 11, 1993

															Petitioner church and its congregants practice the Santeria
religion, which employs animal sacrifice as one of its principal
forms of devotion. The animals are killed by cutting their carotid
arteries and are cooked and eaten following all Santeria rituals
except healing and death rites. After the church leased land in
respondent city and announced plans to establish a house of worship
and other facilities there, the city council held an emergency
public session and passed, among other enactments, Resolution
87-66, which noted city residents' "concern" over religious
practices inconsistent with public morals, peace, or safety, and
declared the city's "commitment" to prohibiting such practices;
Ordinance 87-40, which incorporates the Florida animal cruelty laws
and broadly punishes "[w]hoever ... unnecessarily or cruelly ...
kills any animal," and has been interpreted to reach killings for
religious reasons; Ordinance 87-52, which defines "sacrifice" as
"to unnecessarily kill ... an animal in a ... ritual ... not for
the primary purpose of food consumption," and prohibits the
"possess[ion], sacrifice, or slaughter" of an animal if it is
killed in "any type of ritual" and there is an intent to use it for
food, but exempts "any licensed [food] establishment" if the
killing is otherwise permitted by law; Ordinance 87-71, which
prohibits the sacrifice of animals, and defines "sacrifice" in the
same manner as Ordinance 87-52; and Ordinance 87-72, which defines
"slaughter" as "the killing of animals for food" and prohibits
slaughter outside of areas zoned for slaughterhouses, but includes
an exemption for "small numbers of hogs and/or cattle" when
exempted by state law. Petitioners filed this suit under 42 U. S.
C. § 1983, alleging violations of their rights under, inter
alia, the Free Exercise Clause of the First Amendment. Although
acknowledging that the foregoing ordinances are not religiously
neutral, the District Court ruled for the city, concluding, among
other things, that compelling governmental interests in preventing
public health risks and cruelty to animals fully justified the
absolute prohibition on ritual sacrifice accomplished by the
ordinances, and that an exception to that prohibition for religious
conduct would unduly interfere with fulfillment of the governmental
interest because any more narrow restrictions would 521 be unenforceable as a result of the Santeria religion's secret
nature. The Court of Appeals affirmed. Held: The judgment is reversed. 936
F.2d 586 , reversed.

															JUSTICE KENNEDY delivered the opinion of the Court with respect
to Parts I, II-A-1, II-A-3, II-B, III, and IV, concluding that the
laws in question were enacted contrary to free exercise principles,
and they are void. Pp. 531-540, 542-547.

															(a) Under the Free Exercise Clause, a law that burdens religious
practice need not be justified by a compelling governmental
interest if it is neutral and of general applicability. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.
S. 872 . However, where such a law is not neutral or not of
general application, it must undergo the most rigorous of scrutiny:
It must be justified by a compelling governmental interest and must
be narrowly tailored to advance that interest. Neutrality and
general applicability are interrelated, and failure to satisfy one
requirement is a likely indication that the other has not been
satisfied. Pp.531-532.

															(b) The ordinances' texts and operation demonstrate that they
are not neutral, but have as their object the suppression of
Santeria's central element, animal sacrifice. That this religious
exercise has been targeted is evidenced by Resolution 87-66's
statements of "concern" and "commitment," and by the use of the
words "sacrifice" and "ritual" in Ordinances 87-40, 87-52, and
87-71. Moreover, the latter ordinances' various prohibitions,
definitions, and exemptions demonstrate that they were
"gerrymandered" with care to proscribe religious killings of
animals by Santeria church members but to exclude almost all other
animal killings. They also suppress much more religious conduct
than is necessary to achieve their stated ends. The legitimate
governmental interests in protecting the public health and
preventing cruelty to animals could be addressed by restrictions
stopping far short of a flat prohibition of all Santeria
sacrificial practice, such as general regulations on the disposal
of organic garbage, on the care of animals regardless of why they
are kept, or on methods of slaughter. Although Ordinance 87-72
appears to apply to substantial nonreligious conduct and not to be
overbroad, it must also be invalidated because it functions in
tandem with the other ordinances to suppress Santeria religious
worship. Pp. 533-540.

															(c) Each of the ordinances pursues the city's governmental
interests only against conduct motivated by religious belief and
thereby violates the requirement that laws burdening religious
practice must be of general applicability. Ordinances 87-40, 87-52,
and 87-71 are substantially underinclusive with regard to the
city's interest in preventing cruelty 522 522 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Syllabus

															to animals, since they are drafted with care to forbid few
animal killings but those occasioned by religious sacrifice, while
many types of animal deaths or kills for nonreligious reasons are
either not prohibited or approved by express provision. The city's
assertions that it is "selfevident" that killing for food is
"important," that the eradication of insects and pests is
"obviously justified," and that euthanasia of excess animals "makes
sense" do not explain why religion alone must bear the burden of
the ordinances. These ordinances are also substantially
underinclusive with regard to the city's public health interests in
preventing the disposal of animal carcasses in open public places
and the consumption of uninspected meat, since neither interest is
pursued by respondent with regard to conduct that is not motivated
by religious conviction. Ordinance 87-72 is underinc1usive on its
face, since it does not regulate nonreligious slaughter for food in
like manner, and respondent has not explained why the commercial
slaughter of "small numbers" of cattle and hogs does not implicate
its professed desire to prevent cruelty to animals and preserve the
public health. Pp. 542-546.

															(d) The ordinances cannot withstand the strict scrutiny that is
required upon their failure to meet the Smith standard. They
are not narrowly tailored to accomplish the asserted governmental
interests. All four are overbroad or underinclusive in substantial
respects because the proffered objectives are not pursued with
respect to analogous nonreligious conduct and those interests could
be achieved by narrower ordinances that burdened religion to a far
lesser degree. Moreover, where, as here, government restricts only
conduct protected by the First Amendment and fails to enact
feasible measures to restrict other conduct producing substantial
harm or alleged harm of the same sort, the governmental interests
given in justification of the restriction cannot be regarded as
compelling. Pp.546-547.

															KENNEDY, J., delivered the opinion of the Court with respect to
Parts I, III, and IV, in which REHNQUIST, C. J., and WHITE,
STEVENS, SCALIA, SOUTER, and THOMAS, JJ., joined, the opinion of
the Court with respect to Part II-B, in which REHNQUIST, C. J., and
WHITE, STEVENS, SCALIA, and THOMAS, JJ., joined, the opinion of the
Court with respect to Parts II-A-l and II-A-3, in which REHNQUIST,
C. J., and STEVENS, SCALIA, and THOMAS, JJ., joined, and an opinion
with respect to Part II-A-2, in which STEVENS, J., joined. SCALIA,
J., filed an opinion concurring in part and concurring in the
judgment, in which REHNQUIST, C. J., joined, post, p. 557.
SOUTER, J., filed an opinion concurring in part and concurring in
the judgment, post, p. 559. BLACKMUN, J., filed an opinion
concurring in the judgment, in which O'CONNOR, J., joined, post, p. 577. 523 Douglas Laycock argued the cause for petitioners. With him on
the briefs were Jeanne Baker, Steven R. Shapiro, and Jorge A.
Duarte. Richard G. Garrett argued the cause for
respondent.

															With him on the brief were Stuart H. Singer and Steven M.
Goldsmith.*

															JUSTICE KENNEDY delivered the opinion of the Court, except as to
Part II-A-2.t

															The principle that government may not enact laws that suppress
religious belief or practice is so well understood that few
violations are recorded in our opinions. Cf. McDaniel v. Paty, 435 U.
S. 618 (1978); Fowler v. Rhode Island, 345 U. S. 67 (1953).
Concerned that this fundamental nonpersecution principle of the
First Amendment was implicated here, however, we granted
certiorari. 503 U. S. 935 (1992).

															*Briefs of amici curiae urging reversal were filed for
Americans United for Separation of Church and State et al. by Edward McGlynn Gaffney, Jr., Steven T. McFarland, Bradley P.
Jacob, and Michael W McConnell; for the Council on
Religious Freedom by Lee Boothby, Robert W Nixon, Walter E.
Carson, and Rolland Truman; and for the Rutherford
Institute by John W Whitehead. Briefs of amici curiae urging affirmance were filed for
the International Society for Animal Rights et al. by Henry Mark
Holzer; for People for the Ethical Treatment of Animals et al.
by Gary L. Francione; and for the Washington Humane Society
by E. Edward Bruce. Briefs of amici curiae were filed for the United States
Catholic Conference by Mark E. Chopko and John A.
Liekweg; for the Humane Society of the United States et al. by Peter Buscemi, Maureen Beyers, Roger A. Kindler, and Eugene Underwood, Jr.; for the Institute for Animal Rights
Law et al. by Henry Mark Holzer; and for the National Jewish
Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps. tTHE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join all
but Part II-A-2 of this opinion. JUSTICE WHITE joins all but Part
II-A of this opinion. JUSTICE SOUTER joins only Parts I, III, and
IV of this opinion. 524 524 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Our review confirms that the laws in question were enacted by
officials who did not understand, failed to perceive, or chose to
ignore the fact that their official actions violated the Nation's
essential commitment to religious freedom. The challenged laws had
an impermissible object; and in all events the principle of general
applicability was violated because the secular ends asserted in
defense of the laws were pursued only with respect to conduct
motivated by religious beliefs. We invalidate the challenged
enactments and reverse the judgment of the Court of Appeals.

															I A

															This case involves practices of the Santeria religion, which
originated in the 19th century. When hundreds of thousands of
members of the Yoruba people were brought as slaves from western
Africa to Cuba, their traditional African religion absorbed
significant elements of Roman Catholicism. The resulting
syncretion, or fusion, is Santeria, "the way of the saints." The
Cuban Yoruba express their devotion to spirits, called oris
has, through the iconography of Catholic saints, Catholic
symbols are often present at Santeria rites, and Santeria devotees
attend the Catholic sacraments. 723 F. Supp. 1467, 1469-1470 (SD
Fla. 1989); 13 Encyclopedia of Religion 66 (M. Eliade ed. 1987); 1
Encyclopedia of the American Religious Experience 183 (C. Lippy
& P. Williams eds. 1988).

															The Santeria faith teaches that every individual has a destiny
from God, a destiny fulfilled with the aid and energy of the oris has. The basis of the Santeria religion is the nurture
of a personal relation with the oris has, and one of the
principal forms of devotion is an animal sacrifice. 13 Encyclopedia
of Religion, supra, at 66. The sacrifice of animals as part
of religious rituals has ancient roots. See generally 12 id., at
554-556. Animal sacrifice is mentioned throughout the Old
Testament, see 14 Encyclopaedia Judaica 600, 600- 525 605 (1971), and it played an important role in the practice of
Judaism before destruction of the second Temple in Jerusalem, see
id., at 605-612. In modern Islam, there is an annual sacrifice
commemorating Abraham's sacrifice of a ram in the stead of his son.
See C. Glasse, Concise Encyclopedia of Islam 178 (1989); 7
Encyclopedia of Religion, supra, at 456.

															According to Santeria teaching, the orishas are powerful
but not immortal. They depend for survival on the sacrifice.
Sacrifices are performed at birth, marriage, and death rites, for
the cure of the sick, for the initiation of new members and
priests, and during an annual celebration. Animals sacrificed in
Santeria rituals include chickens, pigeons, doves, ducks, guinea
pigs, goats, sheep, and turtles. The animals are killed by the
cutting of the carotid arteries in the neck. The sacrificed animal
is cooked and eaten, except after healing and death rituals. See
723 F. Supp., at H71-1472; 13 Encyclopedia of Religion, supra, at 66; M. Gonzalez- Wippler, The Santeria Experience
105 (1982).

															Santeria adherents faced widespread persecution in Cuba, so the
religion and its rituals were practiced in secret. The open
practice of Santeria and its rites remains infrequent. See 723 F.
SUPP.,;lt 1470; 13 Encyclopedia of Religion, supra, at 67;
M. Gonzalez-Wippler, Santeria: The Religion 3-4 (1989). The
religion was brought to this Nation most often by exiles from the
Cuban revolution. The District Court estimated that there are at
least 50,000 practitioners in South Florida today. See 723 F.
Supp., at 1470.

															B

															Petitioner Church of the Lukumi Babalu Aye, Inc. (Church), is a
not-for-profit corporation organized under Florida law in 1973. The
Church and its congregants practice the Santeria religion. The
president of the Church is petitioner Ernesto Pichardo, who is also
the Church's priest and holds the religious title of Italero, the second highest in the Santeria faith. In April
1987, the Church leased land in 526 526 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															the city of Hialeah, Florida, and announced plans to establish a
house of worship as well as a school, cultural center, and museum.
Pichardo indicated that the Church's goal was to bring the practice
of the Santeria faith, including its ritual of animal sacrifice,
into the open. The Church began the process of obtaining utility
service and receiving the necessary licensing, inspection, and
zoning approvals. Although the Church's efforts at obtaining the
necessary licenses and permits were far from smooth, see 723 F.
Supp., at 1477-1478, it appears that it received all needed
approvals by early August 1987.

															The prospect of a Santeria church in their midst was distressing
to many members of the Hialeah community, and the announcement of
the plans to open a Santeria church in Hialeah prompted the city
council to hold an emergency public session on June 9, 1987. The
resolutions and ordinances passed at that and later meetings are
set forth in the Appendix following this opinion.

															A summary suffices here, beginning with the enactments passed at
the June 9 meeting. First, the city council adopted Resolution
87-66, which noted the "concern" expressed by residents of the city
"that certain religions may propose to engage in practices which
are inconsistent with public morals, peace or safety," and declared
that "[t]he City reiterates its commitment to a prohibition against
any and all acts of any and all religious groups which are
inconsistent with public morals, peace or safety." Next, the
council approved an emergency ordinance, Ordinance 87-40, which
incorporated in full, except as to penalty, Florida's animal
cruelty laws. Fla. Stat. ch. 828 (1987). Among other things, the
incorporated state law subjected to criminal punishment "[w]hoever
... unnecessarily or cruelly ... kills any animal." §828.12.

															The city council desired to undertake further legislative
action, but Florida law prohibited a municipality from enacting
legislation relating to animal cruelty that conflicted with 527 state law. § 828.27(4). To obtain clarification, Hialeah's city
attorney requested an opinion from the attorney general of Florida
as to whether § 828.12 prohibited "a religious group from
sacrificing an animal in a religious ritual or practice" and
whether the city could enact ordinances "making religious animal
sacrifice unlawful." The attorney general responded in mid-July. He
concluded that the "ritual sacrifice of animals for purposes other
than food consumption" was not a "necessary" killing and so was
prohibited by § 828.12. Fla. Op. Atty. Gen. 87-56, Annual Report of
the Atty. Gen. 146, 147, 149 (1988). The attorney general appeared
to define "unnecessary" as "done without any useful motive, in a
spirit of wanton cruelty or for the mere pleasure of destruction
without being in any sense beneficial or useful to the person
killing the animal." Id., at 149, n. 11. He advised that
religious animal sacrifice was against state law, so that a city
ordinance prohibiting it would not be in conflict. Id., at
151.

															The city council responded at first with a hortatory enactment,
Resolution 87-90, that noted its residents' "great concern
regarding the possibility of public ritualistic animal sacrifices"
and the state-law prohibition. The resolution declared the city
policy "to oppose the ritual sacrifices of animals" within Hialeah
and announced that any person or organization practicing animal
sacrifice "will be prosecuted."

															In September 1987, the city council adopted three substantive
ordinances addressing the issue of religious animal sacrifice.
Ordinance 87-52 defined "sacrifice" as "to unnecessarily kill,
torment, torture, or mutilate an animal in a public or private
ritual or ceremony not for the primary purpose of food
consumption," and prohibited owning or possessing an animal
"intending to use such animal for food purposes." It restricted
application of this prohibition, however, to any individual or
group that "kills, slaughters or sacrifices animals for any type of
ritual, regardless of whether or not the flesh or blood of the
animal is to be consumed." The ordinance 528 528 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															contained an exemption for slaughtering by "licensed
establishment[s]" of animals "specifically raised for food
purposes." Declaring, moreover, that the city council "has
determined that the sacrificing of animals within the city limits
is contrary to the public health, safety, welfare and morals of the
community," the city council adopted Ordinance 87-71. That
ordinance defined "sacrifice" as had Ordinance 87-52, and then
provided that "[i]t shall be unlawful for any person, persons,
corporations or associations to sacrifice any animal within the
corporate limits of the City of Hialeah, Florida." The final
Ordinance, 87-72, defined "slaughter" as "the killing of animals
for food" and prohibited slaughter outside of areas zoned for
slaughterhouse use. The ordinance provided an exemption, however,
for the slaughter or processing for sale of "small numbers of hogs
and/or cattle per week in accordance with an exemption provided by
state law." All ordinances and resolutions passed the city council
by unanimous vote. Violations of each of the four ordinances were
punishable by fines not exceeding $500 or imprisonment not
exceeding 60 days, or both.

															Following enactment of these ordinances, the Church and Pichardo
filed this action pursuant to 42 U. S. C. § 1983 in the United
States District Court for the Southern District of Florida. Named
as defendants were the city of Hialeah and its mayor and members of
its city council in their individual capacities. Alleging
violations of petitioners' rights under, inter alia, the
Free Exercise Clause, the complaint sought a declaratory judgment
and injunctive and monetary relief. The District Court granted
summary judgment to the individual defendants, finding that they
had absolute immunity for their legislative acts and that the
ordinances and resolutions adopted by the council did not
constitute an official policy of harassment, as alleged by
petitioners. 688 F. Supp. 1522 (SD Fla. 1988).

															After a 9-day bench trial on the remaining claims, the District
Court ruled for the city, finding no violation of petition- 529 ers' rights under the Free Exercise Clause. 723 F. Supp. 1467
(SD Fla. 1989). (The court rejected as well petitioners' other
claims, which are not at issue here.) Although acknowledging that
"the ordinances are not religiously neutral," id., at 1476, and
that the city's concern about animal sacrifice was "prompted" by
the establishment of the Church in the city, id., at 1479, the
District Court concluded that the purpose of the ordinances was not
to exclude the Church from the city but to end the practice of
animal sacrifice, for whatever reason practiced, id., at 1479,1483.
The court also found that the ordinances did not target religious
conduct "on their face," though it noted that in any event
"specifically regulating [religious] conduct" does not violate the
First Amendment "when [the conduct] is deemed inconsistent with
public health and welfare." Id., at 1483-1484. Thus, the
court concluded that, at most, the ordinances' effect on
petitioners' religious conduct was "incidental to [their] secular
purpose and effect." Id., at 1484.

															The District Court proceeded to determine whether the
governmental interests underlying the ordinances were compelling
and, if so, to balance the "governmental and religious interests."
The court noted that "[t]his 'balance depends upon the cost to the
government of altering its activity to allow the religious practice
to continue unimpeded versus the cost to the religious interest
imposed by the government activity.'" Ibid., quoting Grosz v. City of Miami Beach, 721
F.2d 729 , 734 (CAll 1983), cert. denied, 469 U. S. 827 (1984).
The court found four compelling interests. First, the court found
that animal sacrifices present a substantial health risk, both to
participants and the general public. According to the court,
animals that are to be sacrificed are often kept in unsanitary
conditions and are uninspected, and animal remains are found in
public places. 723 F. Supp., at 1474-1475, 1485. Second, the court
found emotional injury to children who witness the sacrifice of
animals. Id., at 1475-1476, 1485-1486. Third, the court
found compelling the city's in- 530 530 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															terest in protecting animals from cruel and unnecessary killing.
The court determined that the method of killing used in Santeria
sacrifice was "unreliable and not humane, and that the animals,
before being sacrificed, are often kept in conditions that produce
a great deal of fear and stress in the animal." Id., at
1472-1473, 1486. Fourth, the District Court found compelling the
city's interest in restricting the slaughter or sacrifice of
animals to areas zoned for slaughterhouse use. Id., at 1486.
This legal determination was not accompanied by factual
findings.

															Balancing the competing governmental and religious interests,
the District Court concluded the compelling governmental interests
"fully justify the absolute prohibition on ritual sacrifice"
accomplished by the ordinances. Id., at 1487. The court also
concluded that an exception to the sacrifice prohibition for
religious conduct would "'unduly interfere with fulfillment of the
governmental interest'" because any more narrow restrictions-e. g.,
regulation of disposal of animal carcasses-would be unenforceable
as a result of the secret nature of the Santeria religion. Id., at 1486-1487, and nn. 57-59. A religious exemption from
the city's ordinances, concluded the court, would defeat the city's
compelling interests in enforcing the prohibition. Id., at
1487.

															The Court of Appeals for the Eleventh Circuit affirmed in a
one-paragraph per curiam opinion. Judgt. order reported at 936 F.2d
586 (1991). Choosing not to rely on the District Court's
recitation of a compelling interest in promoting the welfare of
children, the Court of Appeals stated simply that it concluded the
ordinances were consistent with the Constitution. App. to Pet. for
Cert. A2. It declined to address the effect of Employment Div.,
Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990),
decided after the District Court's opinion, because the District
Court "employed an arguably stricter standard" than that applied in Smith. App. to Pet. for Cert. A2, n. 1. 531 II

															The Free Exercise Clause of the First Amendment, which has been
applied to the States through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U. S. 296 , 303
(1940), provides that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof .... " (Emphasis added.) The city does not argue that
Santeria is not a "religion" within the meaning of the First
Amendment. Nor could it. Although the practice of animal sacrifice
may seem abhorrent to some, "religious beliefs need not be
acceptable, logical, consistent, or comprehensible to others in
order to merit First Amendment protection." Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 , 714
(1981). Given the historical association between animal sacrifice
and religious worship, see supra, at 524-525, petitioners'
assertion that animal sacrifice is an integral part of their
religion "cannot be deemed bizarre or incredible." Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 , 834, n. 2
(1989). Neither the city nor the courts below, moreover, have
questioned the sincerity of petitioners' professed desire to
conduct animal sacrifices for religious reasons. We must consider
petitioners' First Amendment claim.

															In addressing the constitutional protection for free exercise of
religion, our cases establish the general proposition that a law
that is neutral and of general applicability need not be justified
by a compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice. Employment Div., Dept. of Human Resources of Ore. v. Smith, supra. Neutrality and general applicability are
interrelated, and, as becomes apparent in this case, failure to
satisfy one requirement is a likely indication that the other has
not been satisfied. A law failing to satisfy these requirements
must be justified by a compelling governmental interest and must be
narrowly tailored to advance 532 532 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															that interest. These ordinances fail to satisfy the Smith requirements. We begin by discussing neutrality.

															A

															In our Establishment Clause cases we have often stated the
principle that the First Amendment forbids an official purpose to
disapprove of a particular religion or of religion in general. See, e. g., Board of Ed. of Westside Community Schools (Dist. 66)
v. Mergens, 496 U. S. 226 , 248 (1990)
(plurality opinion); School Dist. of Grand Rapids v. Ball, 473 U. S. 373, 389 (1985); Wallace v. Jaffree, 472 U.
S. 38 , 56 (1985); Epperson v. Arkansas, 393 U. S. 97 , 106-107
(1968); School Dist. of Abington v. Schempp, 374 U. S. 203 , 225
(1963); Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 15-16 (1947).
These cases, however, for the most part have addressed governmental
efforts to benefit religion or particular religions, and so have
dealt with a question different, at least in its formulation and
emphasis, from the issue here. Petitioners allege an attempt to
disfavor their religion because of the religious ceremonies it
commands, and the Free Exercise Clause is dispositive in our
analysis.

															At a minimum, the protections of the Free Exercise Clause
pertain if the law at issue discriminates against some or all
religious beliefs or regulates or prohibits conduct because it is
undertaken for religious reasons. See, e. g., Braunfeld v. Brown, 366 U.
S. 599 , 607 (1961) (plurality opinion); Fowler v. Rhode Island, 345 U. S., at 69-70. Indeed, it was
"historical instances of religious persecution and intolerance that
gave concern to those who drafted the Free Exercise Clause." Bowen v. Roy, 476 U. S. 693 , 703 (1986)
(opinion of Burger, C. J.). See J. Story, Commentaries on the
Constitution of the United States §§ 991-992 (abridged ed. 1833)
(reprint 1987); T. Cooley, Constitutional Limitations 467 (1868)
(reprint 1972); McGowan v. Maryland, 366 U. S. 420 , 464, and
n. 2 (1961) (opinion of Frankfurter, J.); Douglas v. Jeannette, 319
U. S. 157 , 179 (1943) (Jackson, J., concurring in re- 533 suIt); Davis v. Beason, 133 U. S. 333 , 342
(1890). These principles, though not often at issue in our Free
Exercise Clause cases, have played a role in some. In McDaniel v. Paty, 435 U. S. 618 (1978), for example,
we invalidated a state law that disqualified members of the clergy
from holding certain public offices, because it "impose[d] special
disabilities on the basis of ... religious status," Employment
Div., Dept. of Human Resources of Ore. v. Smith, 494 U.
S., at 877. On the same principle, in Fowler v. Rhode
Island, supra, we found that a municipal ordinance was applied
in an unconstitutional manner when interpreted to prohibit
preaching in a public park by a Jehovah's Witness but to permit
preaching during the course of a Catholic mass or Protestant church
service. See also Niemotko v. Maryland, 340 U. S. 268 , 272-273
(1951). Cf. Larson v. Valente, 456 U. S. 228 (1982)
(state statute that treated some religious denominations more
favorably than others violated the Establishment Clause).

															1

															Although a law targeting religious beliefs as such is never
permissible, McDaniel v. Paty, supra, at 626
(pluralityopinion); Cantwell v. Connecticut, supra, at 303-304, if the object of a law is to infringe upon or restrict
practices because of their religious motivation, the law is not
neutral, see Employment Div., Dept. of Human Resources of
Ore. v. Smith, supra, at 878-879; and it is invalid
unless it is justified by a compelling interest and is narrowly
tailored to advance that interest. There are, of course, many ways
of demonstrating that the object or purpose of a law is the
suppression of religion or religious conduct. To determine the
object of a law, we must begin with its text, for the minimum
requirement of neutrality is that a law not discriminate on its
face. A law lacks facial neutrality if it refers to a religious
practice without a secular meaning discernible from the language or
context. Petitioners contend that three of the ordinances fail this
test of facial neutrality because they use the words 534 534 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															"sacrifice" and "ritual," words with strong religious
connotations. Brief for Petitioners 16-17. We agree that these
words are consistent with the claim of facial discrimination, but
the argument is not conclusive. The words "sacrifice" and "ritual"
have a religious origin, but current use admits also of secular
meanings. See Webster's Third New International Dictionary 1961,
1996 (1971). See also 12 Encyclopedia of Religion, at 556 ("[T]he
word sacrifice ultimately became very much a secular term in
common usage"). The ordinances, furthermore, define "sacrifice" in
secular terms, without referring to religious practices.

															We reject the contention advanced by the city, see Brief for
Respondent 15, that our inquiry must end with the text of the laws
at issue. Facial neutrality is not determinative. The Free Exercise
Clause, like the Establishment Clause, extends beyond facial
discrimination. The Clause "forbids subtle departures from
neutrality," Gillette v. United States, 401 U. S. 437 , 452
(1971), and "covert suppression of particular religious beliefs," Bowen v. Roy, supra, at 703 (opinion of Burger, C.
J.). Official action that targets religious conduct for distinctive
treatment cannot be shielded by mere compliance with the
requirement of facial neutrality. The Free Exercise Clause protects
against governmental hostility which is masked as well as overt.
"The Court must survey meticulously the circumstances of
governmental categories to eliminate, as it were, religious
gerrymanders." Walz v. Tax Comm'n of New York City, 397 U. S. 664 , 696 (1970)
(Harlan, J., concurring).

															The record in this case compels the conclusion that suppression
of the central element of the Santeria worship service was the
object of the ordinances. First, though use of the words
"sacrifice" and "ritual" does not compel a finding of improper
targeting of the Santeria religion, the choice of these words is
support for our conclusion. There are further respects in which the
text of the city council's enactments discloses the improper
attempt to target Santeria. 535 Resolution 87-66, adopted June 9, 1987, recited that "residents
and citizens of the City of Hialeah have expressed their concern
that certain religions may propose to engage in practices which are
inconsistent with public morals, peace or safety," and
"reiterate[d]" the city's commitment to prohibit "any and all
[such] acts of any and all religious groups." No one suggests, and
on this record it cannot be maintained, that city officials had in
mind a religion other than Santeria.

															It becomes evident that these ordinances target Santeria
sacrifice when the ordinances' operation is considered. Apart from
the text, the effect of a law in its real operation is strong
evidence of its object. To be sure, adverse impact will not always
lead to a finding of impermissible targeting. For example, a social
harm may have been a legitimate concern of government for reasons
quite apart from discrimination. McGowan v. Maryland, 366 U. S., at 442. See, e. g., Reynolds v. United
States, 98 U. S.
145 (1879); Davis v. Beason, 133 U. S. 333 (1890). See
also Ely, Legislative and Administrative Motivation in
Constitutional Law, 79 Yale L. J. 1205, 1319 (1970). The subject at
hand does implicate, of course, multiple concerns unrelated to
religious animosity, for example, the suffering or mistreatment
visited upon the sacrificed animals and health hazards from
improper disposal. But the ordinances when considered together
disclose an object remote from these legitimate concerns. The
design of these laws accomplishes instead a "religious
gerrymander," Walz v. Tax Comm'n of New York City,
supra, at 696 (Harlan, J., concurring), an impermissible
attempt to target petitioners and their religious practices.

															It is a necessary conclusion that almost the only conduct
subject to Ordinances 87-40, 87-52, and 87-71 is the religious
exercise of Santeria church members. The texts show that they were
drafted in tandem to achieve this result. We begin with Ordinance
87-71. It prohibits the sacrifice of animals, but defines sacrifice
as "to unnecessarily kill ... an animal in a public or private
ritual or ceremony not for the 536 536 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															primary purpose of food consumption." The definition excludes
almost all killings of animals except for religious sacrifice, and
the primary purpose requirement narrows the proscribed category
even further, in particular by exempting kosher slaughter, see 723
F. Supp., at 1480. We need not discuss whether this differential
treatment of two religions is itself an independent constitutional
violation. Cf. Larson v. Valente, 456 U. S., at
244-246. It suffices to recite this feature of the law as support
for our conclusion that Santeria alone was the exclusive
legislative concern. The net result of the gerrymander is that few
if any killings of animals are prohibited other than Santeria
sacrifice, which is proscribed because it occurs during a ritual or
ceremony and its primary purpose is to make an offering to the oris has, not food consumption. Indeed, careful drafting
ensured that, although Santeria sacrifice is prohibited, killings
that are no more necessary or humane in almost all other
circumstances are unpunished.

															Operating in similar fashion is Ordinance 87-52, which prohibits
the "possess[ion], sacrifice, or slaughter" of an animal with the
"inten[t] to use such animal for food purposes." This prohibition,
extending to the keeping of an animal as well as the killing
itself, applies if the animal is killed in "any type of ritual" and
there is an intent to use the animal for food, whether or not it is
in fact consumed for food. The ordinance exempts, however, "any
licensed [food] establishment" with regard to "any animals which
are specifically raised for food purposes," if the activity is
permitted by zoning and other laws. This exception, too, seems
intended to cover kosher slaughter. Again, the burden of the
ordinance, in practical terms, falls on Santeria adherents but
almost no others: If the killing is-unlike most Santeria
sacrifices-unaccompanied by the intent to use the animal for food,
then it is not prohibited by Ordinance 87-52; if the killing is
specifically for food but does not occur during the course of "any
type of ritual," it again falls outside the prohibition; and if 537 the killing is for food and occurs during the course of a
ritual, it is still exempted if it occurs in a properly zoned and
licensed establishment and involves animals "specifically raised
for food purposes." A pattern of exemptions parallels the pattern
of narrow prohibitions. Each contributes to the gerrymander.

															Ordinance 87-40 incorporates the Florida animal cruelty statute,
Fla. Stat. § 828.12 (1987). Its prohibition is broad on its face,
punishing "[w]hoever ... unnecessarily ... kills any animal." The
city claims that this ordinance is the epitome of a neutral
prohibition. Brief for Respondent 13-14. The problem, however, is
the interpretation given to the ordinance by respondent and the
Florida attorney general. Killings for religious reasons are deemed
unnecessary, whereas most other killings fall outside the
prohibition. The city, on what seems to be a per se basis,
deems hunting, slaughter of animals for food, eradication of
insects and pests, and euthanasia as necessary. See id., at 22.
There is no indication in the record that respondent has concluded
that hunting or fishing for sport is unnecessary. Indeed, one of
the few reported Florida cases decided under § 828.12 concludes
that the use of live rabbits to train greyhounds is not
unnecessary. See Kiper v. State, 310 So. 2d 42 (Fla.
App.), cert. denied, 328 So. 2d 845 (Fla. 1975). Further, because
it requires an evaluation of the particular justification for the
killing, this ordinance represents a system of "individualized
governmental assessment of the reasons for the relevant conduct," Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 884. As we noted in Smith, in
circumstances in which individualized exemptions from a general
requirement are available, the government "may not refuse to extend
that system to cases of 'religious hardship' without compelling
reason." Ibid., quoting Bowen v. Roy, 476 U.
S., at 708 (opinion of Burger, C. J.). Respondent's application of
the ordinance's test of necessity devalues religious reasons for
killing by judging them to be of lesser import than nonre- 538 538 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															ligious reasons. Thus, religious practice is being singled out
for discriminatory treatment. Id., at 722, and n. 17
(STEVENS, J., concurring in part and concurring in result); id., at 708 (opinion of Burger, C. J.); United States v. Lee, 455 U.
S. 252 , 264, n. 3 (1982) (STEVENS, J., concurring in
judgment).

															We also find significant evidence of the ordinances' improper
targeting of Santeria sacrifice in the fact that they proscribe
more religious conduct than is necessary to achieve their stated
ends. It is not unreasonable to infer, at least when there are no
persuasive indications to the contrary, that a law which visits
"gratuitous restrictions" on religious conduct, McGowan v. Maryland, 366 U. S., at 520 (opinion of Frankfurter, J.),
seeks not to effectuate the stated governmental interests, but to
suppress the conduct because of its religious motivation.

															The legitimate governmental interests in protecting the public
health and preventing cruelty to animals could be addressed by
restrictions stopping far short of a fiat prohibition of all
Santeria sacrificial practice. * If improper disposal, not the
sacrifice itself, is the harm to be prevented, the city could have
imposed a general regulation on the disposal of organic garbage. It
did not do so. Indeed, counsel for the city conceded at oral
argument that, under the ordinances, Santeria sacrifices would be
illegal even if they occurred in licensed, inspected, and zoned
slaughterhouses. Tr. of Oral Arg. 45. See also id., at 42, 48.
Thus, these broad ordinances prohibit Santeria sacrifice even when
it does not threaten the city's

															*Respondent advances the additional governmental interest in
prohibiting the slaughter or sacrifice of animals in areas of the
city not zoned for slaughterhouses, see Brief for Respondent 28-31,
and the District Court found this interest to be compelling, see
723 F. Supp. 1467, 1486 (SD Fla. 1989). This interest cannot
justify Ordinances 87-40, 87-52, and 87-71, for they apply to
conduct without regard to where it occurs. Ordinance 87-72 does
impose a locational restriction, but this asserted governmental
interest is a mere restatement of the prohibition itself, not a
justification for it. In our discussion, therefore, we put aside
this asserted interest. 539 interest in the public health. The District Court accepted the
argument that narrower regulation would be unenforceable because of
the secrecy in the Santeria rituals and the lack of any central
religious authority to require compliance with secular disposal
regulations. See 723 F. Supp., at 1486-1487, and nn. 58-59. It is
difficult to understand, however, how a prohibition of the
sacrifices themselves, which occur in private, is enforceable if a
ban on improper disposal, which occurs in public, is not. The
neutrality of a law is suspect if First Amendment freedoms are
curtailed to prevent isolated collateral harms not themselves
prohibited by direct regulation. See, e. g., Schneider v. State, 308 U. S. 147 , 162
(1939).

															Under similar analysis, narrower regulation would achieve the
city's interest in preventing cruelty to animals. With regard to
the city's interest in ensuring the adequate care of animals,
regulation of conditions and treatment, regardless of why an animal
is kept, is the logical response to the city's concern, not a
prohibition on possession for the purpose of sacrifice. The same is
true for the city's interest in prohibiting cruel methods of
killing. Under federal and Florida law and Ordinance 87-40, which
incorporates Florida law in this regard, killing an animal by the
"simultaneous and instantaneous severance of the carotid arteries
with a sharp instrument"-the method used in kosher slaughter-is
approved as humane. See 7 U. S. C. § 1902(b); Fla. Stat. §
828.23(7)(b) (1991); Ordinance 87-40, § 1. The District Court found
that, though Santeria sacrifice also results in severance of the
carotid arteries, the method used during sacrifice is less reliable
and therefore not humane. See 723 F. Supp., at 14721473. If the
city has a real concern that other methods are less humane,
however, the subject of the regulation should be the method of
slaughter itself, not a religious classification that is said to
bear some general relation to it.

															Ordinance 87-72-unlike the three other ordinancesdoes appear to
apply to substantial nonreligious conduct and 540 540 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Opinion of KENNEDY, J.

															not to be overbroad. For our purposes here, however, the four
substantive ordinances may be treated as a group for neutrality
purposes. Ordinance 87-72 was passed the same day as Ordinance
87-71 and was enacted, as were the three others, in direct response
to the opening of the Church. It would be implausible to suggest
that the three other ordinances, but not Ordinance 87-72, had as
their object the suppression of religion. We need not decide
whether Ordinance 87-72 could survive constitutional scrutiny if it
existed separately; it must be invalidated because it functions,
with the rest of the enactments in question, to suppress Santeria
religious worship.

															2

															In determining if the object of a law is a neutral one under the
Free Exercise Clause, we can also find guidance in our equal
protection cases. As Justice Harlan noted in the related context of
the Establishment Clause, "[n]eutrality in its application requires
an equal protection mode of analysis." Walz v. Tax Comm'n
of New York City, 397 U. S., at 696 (concurring opinion). Here,
as in equal protection cases, we may determine the city council's
object from both direct and circumstantial evidence. Arlington
Heights v. Metropolitan Housing Development Corp., 429 U. S. 252 ,
266 (1977). Relevant evidence includes, among other things, the
historical background of the decision under challenge, the specific
series of events leading to the enactment or official policy in
question, and the legislative or administrative history, including
contemporaneous statements made by members of the decisionmaking
body. Id., at 267-268. These objective factors bear on the
question of discriminatory object. Personnel Administrator of
Mass. v. Feeney, 442 U. S. 256 , 279, n. 24
(1979).

															That the ordinances were enacted "'because of,' not merely 'in
spite of,'" their suppression of Santeria religious practice, id.,
at 279, is revealed by the events preceding their enactment.
Although respondent claimed at oral argument 541 that it had experienced significant problems resulting from the
sacrifice of animals within the city before the announced opening
of the Church, Tr. of Oral Arg. 27, 46, the city council made no
attempt to address the supposed problem before its meeting in June
1987, just weeks after the Church announced plans to open. The
minutes and taped excerpts of the June 9 session, both of which are
in the record, evidence significant hostility exhibited by
residents, members of the city council, and other city officials
toward the Santeria religion and its practice of animal sacrifice.
The public crowd that attended the June 9 meetings interrupted
statements by council members critical of Santeria with cheers and
the brief comments of Pichardo with taunts. When Councilman
Martinez, a supporter of the ordinances, stated that in
prerevolution Cuba "people were put in jail for practicing this
religion," the audience applauded. Taped excerpts of Hialeah City
Council Meeting, June 9, 1987.

															Other statements by members of the city council were in a
similar vein. For example, Councilman Martinez, after noting his
belief that Santeria was outlawed in Cuba, questioned: "[I]f we
could not practice this [religion] in our homeland [Cuba], why
bring it to this country?" Councilman Cardoso said that Santeria
devotees at the Church "are in violation of everything this country
stands for." Councilman Mejides indicated that he was "totally
against the sacrificing of animals" and distinguished kosher
slaughter because it had a "real purpose." The "Bible says we are
allowed to sacrifice an animal for consumption," he continued, "but
for any other purposes, I don't believe that the Bible allows
that." The president of the city council, Councilman Echevarria,
asked: "What can we do to prevent the Church from opening?"

															Various Hialeah city officials made comparable comments.

															The chaplain of the Hialeah Police Department told the city
council that Santeria was a sin, "foolishness," "an abomination to
the Lord," and the worship of "demons." He advised 542 542 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															the city council: "We need to be helping people and sharing with
them the truth that is found in Jesus Christ." He concluded: "I
would exhort you ... not to permit this Church to exist." The city
attorney commented that Resolution 87-66 indicated: "This community
will not tolerate religious practices which are abhorrent to its
citizens .... " Ibid. Similar comments were made by the
deputy city attorney. This history discloses the object of the
ordinances to target animal sacrifice by Santeria worshippers
because of its religious motivation.

															3

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

															B

															We turn next to a second requirement of the Free Exercise
Clause, the rule that laws burdening religious practice must be of
general applicability. Employment Div., Dept. of Human Resources
of Ore. v. Smith, 494 U. S., at 879-881. All laws are
selective to some extent, but categories of selection are of
paramount concern when a law has the incidental effect of burdening
religious practice. The Free Exercise Clause "protect[s] religious
observers against unequal treatment," Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 , 148 (1987)
(STEVENS, J., concurring in judgment), and inequality results when
a legislature decides that 543 the governmental interests it seeks to advance are worthy of
being pursued only against conduct with a religious motivation.

															The principle that government, in pursuit of legitimate
interests, cannot in a selective manner impose burdens only on
conduct motivated by religious belief is essential to the
protection of the rights guaranteed by the Free Exercise Clause.
The principle underlying the general applicability requirement has
parallels in our First Amendment jurisprudence. See, e. g.,
Cohen v. Cowles Media Co., 501 U. S. 663 , 669-670
(1991); University of Pennsylvania v. EEOC, 493 U. S.
182, 201 (1990); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575 , 585
(1983); Larson v. Valente, 456 U. S., at 245-246; Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull
Memorial Presbyterian Church, 393 U. S. 440 , 449
(1969). In this case we need not define with precision the standard
used to evaluate whether a prohibition is of general application,
for these ordinances fall well below the minimum standard necessary
to protect First Amendment rights.

															Respondent claims that Ordinances 87-40, 87-52, and 87-71
advance two interests: protecting the public health and preventing
cruelty to animals. The ordinances are underinclusive for those
ends. They fail to prohibit nonreligious conduct that endangers
these interests in a similar or greater degree than Santeria
sacrifice does. The underinclusion is substantial, not
inconsequential. Despite the city's proffered interest in
preventing cruelty to animals, the ordinances are drafted with care
to forbid few killings but those occasioned by religious sacrifice.
Many types of animal deaths or kills for nonreligious reasons are
either not prohibited or approved by express provision. For
example, fishing-which occurs in Hialeah, see A. Khedouri & F.
Khedouri, South Florida Inside Out 57 (1991)-is legal.
Extermination of mice and rats within a home is also permitted.
Florida law incorporated by Ordinance 87-40 sanctions 544 544 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															euthanasia of "stray, neglected, abandoned, or unwanted
animals," Fla. Stat. § 828.058 (1987); destruction of animals
judicially removed from their owners "for humanitarian reasons" or
when the animal "is of no commercial value," § 828.073(4)(c)(2);
the infliction of pain or suffering "in the interest of medical
science," § 828.02; the placing of poison in one's yard or
enclosure, § 828.08; and the use of a live animal "to pursue or
take wildlife or to participate in any hunting," § 828.122(6)(b),
and "to hunt wild hogs," § 828.122(6)(e).

															The city concedes that "neither the State of Florida nor the
City has enacted a generally applicable ban on the killing of
animals." Brief for Respondent 21. It asserts, however, that animal
sacrifice is "different" from the animal killings that are
permitted by law. Ibid. According to the city, it is
"self-evident" that killing animals for food is "important"; the
eradication of insects and pests is "obviously justified"; and the
euthanasia of excess animals "makes sense." Id., at 22.
These ipse dixits do not explain why religion alone must
bear the burden of the ordinances, when many of these secular
killings fall within the city's interest in preventing the cruel
treatment of animals.

															The ordinances are also underinclusive with regard to the city's
interest in public health, which is threatened by the disposal of
animal carcasses in open public places and the consumption of
uninspected meat, see Brief for Respondent 32, citing 723 F. Supp.,
at 1474-1475, 1485. Neither interest is pursued by respondent with
regard to conduct that is not motivated by religious conviction.
The health risks posed by the improper disposal of animal carcasses
are the same whether Santeria sacrifice or some nonreligious
killing preceded it. The city does not, however, prohibit hunters
from bringing their kill to their houses, nor does it regulate
disposal after their activity. Despite substantial testimony at
trial that the same public health hazards result from improper
disposal of garbage by restaurants, see 11 Record 566, 545 590-591, restaurants are outside the scope of the ordinances.
Improper disposal is a general problem that causes substantial
health risks, 723 F. Supp., at 1485, but which respondent addresses
only when it results from religious exercise.

															The ordinances are underinclusive as well with regard to the
health risk posed by consumption of uninspected meat. Under the
city's ordinances, hunters may eat their kill and fishermen may eat
their catch without undergoing governmental inspection. Likewise,
state law requires inspection of meat that is sold but exempts meat
from animals raised for the use of the owner and "members of his
household and nonpaying guests and employees." Fla. Stat. §
585.88(1)(a) (1991). The asserted interest in inspected meat is not
pursued in contexts similar to that of religious animal
sacrifice.

															Ordinance 87-72, which prohibits the slaughter of animals
outside of areas zoned for slaughterhouses, is underinclusive on
its face. The ordinance includes an exemption for "any person,
group, or organization" that "slaughters or processes for sale,
small numbers of hogs and/or cattle per week in accordance with an
exemption provided by state law." See Fla. Stat. § 828.24(3)
(1991). Respondent has not explained why commercial operations that
slaughter "small numbers" of hogs and cattle do not implicate its
professed desire to prevent cruelty to animals and preserve the
public health. Although the city has classified Santeria sacrifice
as slaughter, subjecting it to this ordinance, it does not regulate
other killings for food in like manner.

															We conclude, in sum, that each of Hialeah's ordinances pursues
the city's governmental interests only against conduct motivated by
religious belief. The ordinances "ha[ve] every appearance of a
prohibition that society is prepared to impose upon [Santeria
worshippers] but not upon itself." Florida Star v. B. J. F., 491 U.
S. 524 , 542 (1989) (SCALIA, J., concurring in part and
concurring in judgment). This 546 546 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															precise evil is what the requirement of general applicability is
designed to prevent.

															III

															A law burdening religious practice that is not neutral or not of
general application must undergo the most rigorous of scrutiny. To
satisfy the commands of the First Amendment, a law restrictive of
religious practice must advance" 'interests of the highest order'"
and must be narrowly tailored in pursuit of those interests. McDaniel v. Paty, 435 U. S., at 628, quoting Wisconsin v. Yoder, 406 U. S. 205 , 215
(1972). The compelling interest standard that we apply once a law
fails to meet the Smith requirements is not "water[ed] ...
down" but "really means what it says." Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U. S., at 888. A
law that targets religious conduct for distinctive treatment or
advances legitimate governmental interests only against conduct
with a religious motivation will survive strict scrutiny only in
rare cases. It follows from what we have already said that these
ordinances cannot withstand this scrutiny.

															First, even were the governmental interests compelling, the
ordinances are not drawn in narrow terms to accomplish those
interests. As we have discussed, see supra, at 538540,
543-546, all four ordinances are overbroad or underinclusive in
substantial respects. The proffered objectives are not pursued with
respect to analogous nonreligious conduct, and those interests
could be achieved by narrower ordinances that burdened religion to
a far lesser degree. The absence of narrow tailoring suffices to
establish the invalidity of the ordinances. See Arkansas
Writers' Project, Inc. Respondent has not demonstrated, moreover, that, in the context
of these ordinances, its governmental interests are compelling.
Where government restricts only conduct protected by the First
Amendment and fails to enact feasible 547 measures to restrict other conduct producing substantial harm or
alleged harm of the same sort, the interest given in justification
of the restriction is not compelling. It is established in our
strict scrutiny jurisprudence that "a law cannot be regarded as
protecting an interest 'of the highest order' ... when it leaves
appreciable damage to that supposedly vital interest unprohibited." Florida Star v. B. J. F., supra, at 541-542
(SCALIA, J., concurring in part and concurring in judgment)
(citation omitted). See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 , 119-120
(1991). Cf. Florida Star v. B. J. F., supra, at 540 541; Smith v. Daily Mail Publishing Co., 443 U. S. 97 ,
104105 (1979); id., at 110 (REHNQUIST, J., concurring in judgment).
As we show above, see supra, at 543-546, the ordinances are
underinclusive to a substantial extent with respect to each of the
interests that respondent has asserted, and it is only conduct
motivated by religious conviction that bears the weight of the
governmental restrictions. There can be no serious claim that those
interests justify the ordinances.

															IV

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

															Reversed. 548 548 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Appendix to opinion of the Court

															APPENDIX TO OPINION OF THE COURT

															City of Hialeah, Florida, Resolution No. 87-66, adopted June 9,
1987, provides: "WHEREAS, residents and citizens of the City of Hialeah have
expressed their concern that certain religions may propose to
engage in practices which are inconsistent with public morals,
peace or safety, and "WHEREAS, the Florida Constitution, Article I, Declaration of
Rights, Section 3, Religious Freedom, specifically states that
religious freedom shall not justify practices inconsistent with
public morals, peace or safety. "NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF
THE CITY OF HIALEAH, FLORIDA, that: "1. The City reiterates its commitment to a prohibition against
any and all acts of any and all religious groups which are
inconsistent with public morals, peace or safety." City of Hialeah, Florida, Ordinance No. 87-40, adopted June 9,
1987, provides: "WHEREAS, the citizens of the City of Hialeah, Florida, have
expressed great concern over the potential for animal sacrifices
being conducted in the City of Hialeah; and "WHEREAS, Section 828.27, Florida Statutes, provides that
'nothing contained in this section shall prevent any county or
municipality from enacting any ordinance relating to animal control
or cruelty to animals which is identical to the provisions of this
Chapter ... except as to penalty.' "NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF
THE CITY OF HIALEAH, FLORIDA, that: 549 "Section 1. The Mayor and City Council of the City of
Hialeah, Florida, hereby adopt Florida Statute, Chapter
828-'Cruelty to Animals' (copy attached hereto and made a part
hereof), in its entirety (relating to animal control or cruelty to
animals), except as to penalty. "Section 2. Repeal of Ordinances in Conflict. "All ordinances or parts of ordinances in conflict herewith are
hereby repealed to the extent of such conflict. "Section 3. Penalties. "Any person, firm or corporation convicted of violating the
provisions of this ordinance shall be punished by a fine, not
exceeding $500.00, or by a jail sentence, not exceeding sixty (60)
days, or both, in the discretion of the Court. "Section 4. Inclusion in Code. "The provisions of this Ordinance shall be included and
incorporated in the Code of the City of Hialeah, as an addition or
amendment thereto, and the sections of this Ordinance shall be
re-numbered to conform to the uniform numbering system of the
Code. "Section 5. Severability Clause. "If any phrase, clause, sentence, paragraph or section of this
Ordinance shall be declared invalid or unconstitutional by the
judge or decree of a court of competent jurisdiction, such
invalidity or unconstitutionality shall not effect any of the
remaining phrases, clauses, sentences, paragraphs or sections of
this ordinance. "Section 6. Effective Date. "This Ordinance shall become effective when passed by the City
Council of the City of Hialeah and signed by the Mayor of the City
of Hialeah." City of Hialeah Resolution No. 87-90, adopted August 11, 1987,
provides: "WHEREAS, the residents and citizens of the City of Hialeah,
Florida, have expressed great concern regard- 550 550 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Appendix to opinion of the Court ing the possibility of public ritualistic animal sacrifices in
the City of Hialeah, Florida; and "WHEREAS, the City of Hialeah, Florida, has received an opinion
from the Attorney General of the State of Florida, concluding that
public ritualistic animal sacrifices is [sic] a violation of
the Florida State Statute on Cruelty to Animals; and "WHEREAS, the Attorney General further held that the sacrificial
killing of animals other than for the primary purpose of food
consumption is prohibited under state law; and "WHEREAS, the City of Hialeah, Florida, has enacted an ordinance
mirroring state law prohibiting cruelty to animals. "NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF
THE CITY OF HIALEAH, FLORIDA, that: "Section 1. It is the policy of the Mayor and City
Council of the City of Hialeah, Florida, to oppose the ritual
sacrifices of animals within the City of Hialeah, FLorida [sic]. Any individual or organization that seeks to practice
animal sacrifice in violation of state and local law will be
prosecuted." City of Hialeah, Florida, Ordinance No. 87-52, adopted September
8, 1987, provides: "WHEREAS, the residents and citizens of the City of Hialeah,
Florida, have expressed great concern regarding the possibility of
public ritualistic animal sacrifices within the City of Hialeah,
Florida; and "WHEREAS, the City of Hialeah, Florida, has received an opinion
from the Attorney General of the State of Florida, concluding that
public ritualistic animal sacrifice, other than for the primary
purpose of food consumption, is a violation of state law; and 551 "WHEREAS, the City of Hialeah, Florida, has enacted an ordinance
(Ordinance No. 87-40), mirroring the state law prohibiting cruelty
to animals.

															"WHEREAS, the City of Hialeah, Florida, now wishes to
specifically prohibit the possession of animals for slaughter or
sacrifice within the City of Hialeah, Florida.

															"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF
THE CITY OF HIALEAH, FLORIDA, that: "Section 1. Chapter 6 of the Code of Ordinances of the
City of Hialeah, Florida, is hereby amended by adding thereto two
(2) new Sections 6-8 'Definitions' and 6-9 'Prohibition Against
Possession Of Animals For Slaughter Or Sacrifice', which is to read
as follows:

															"Section 6-8. Definitions

															"1. Animal-any living dumb creature.

															"2. Sacrifice-to unnecessarily kill, torment, torture, or
mutilate an animal in a public or private ritual or ceremony not
for the primary purpose of food consumption.

															"3. Slaughter-the killing of animals for food. "Section 6-9.
Prohibition Against Possession of Animals for Slaughter Or
Sacrifice.

															"1. No person shall own, keep or otherwise possess, sacrifice,
or slaughter any sheep, goat, pig, cow or the young of such
species, poultry, rabbit, dog, cat, or any other animal, intending
to use such animal for food purposes.

															"2. This section is applicable to any group or individual that
kills, slaughters or sacrifices animals for any type of ritual,
regardless of whether or not the flesh or blood of the animal is to
be consumed.

															"3. Nothing in this ordinance is to be interpreted as
prohibiting any licensed establishment from slaughtering for food
purposes any animals which are specifically 552 552 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Appendix to opinion of the Court raised for food purposes where such activity is properly zoned
and/or permitted under state and local law and under rules
promulgated by the Florida Department of Agriculture. "Section 2. Repeal of Ordinance in Conflict. "All ordinances or parts of ordinances in conflict herewith are
hereby repealed to the extent of such conflict. "Section 3. Penalties. "Any person, firm or corporation convicted of violating the
provisions of this ordinance shall be punished by a fine, not
exceeding $500.00, or by a jail sentence, not exceeding sixty (60)
days, or both, in the discretion of the Court. "Section 4. Inclusion in Code. "The provisions of this Ordinance shall be included and
incorporated in the Code of the City of Hialeah, as an addition or
amendment thereto, and the sections of this Ordinance shall be
re-numbered to conform to the uniform numbering system of the
Code. "Section 5. Severability Clause. "If any phrase, clause, sentence, paragraph or section of this
Ordinance shall be declared invalid or unconstitutional by the
judgement or decree of a court of competent jurisdiction, such
invalidity or unconstitutionality shall not effect any of the
remaining phrases, clauses, sentences, paragraphs or sections of
this ordinance. "Section 6. Effective Date. "This Ordinance shall become effective when passed by the City
Council of the City of Hialeah and signed by the Mayor of the City
of Hialeah." City of Hialeah, Florida, Ordinance No. 87-71, adopted September
22, 1987, provides: "WHEREAS, the City Council of the City of Hialeah, Florida, has
determined that the sacrificing of animals 553 within the city limits is contrary to the public health, safety,
welfare and morals of the community; and

															"WHEREAS, the City Council of the City of Hialeah, Florida,
desires to have qualified societies or corporations organized under
the laws of the State of Florida, to be authorized to investigate
and prosecute any violation(s) of the ordinance herein after set
forth, and for the registration of the agents of said
societies.

															"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF
THE CITY OF HIALEAH, FLORIDA, that: "Section 1. For the purpose of this ordinance, the word
sacrifice shall mean: to unnecessarily kill, torment, torture, or
mutilate an animal in a public or private ritual or ceremony not
for the primary purpose of food consumption. "Section 2. For the purpose of this ordinance, the word
animal shall mean: any living dumb creature. "Section 3. It shall be unlawful for any person, persons,
corporations or associations to sacrifice any animal within the
corporate limits of the City of Hialeah, Florida. "Section 4. All societies or associations for the
prevention of cruelty to animals organized under the laws of the
State of Florida, seeking to register with the City of Hialeah for
purposes of investigating and assisting in the prosecution of
violations and provisions [sic] of this Ordinance, shall apply to
the City Council for authorization to so register and shall be
registered with the Office of the Mayor of the City of Hialeah,
Florida, following approval by the City Council at a public hearing
in accordance with rules and regulations (i. e., criteria)
established by the City Council by resolution, and shall
thereafter, be empowered to assist in the prosection of any
violation of this Ordinance. 554 554 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Appendix to opinion of the Court "Section 5. Any society or association for the prevention
of cruelty to animals registered with the Mayor of the City of
Hialeah, Florida, in accordance with the provisions of Section 4
hereinabove, may appoint agents for the purposes of investigating
and assisting in the prosecution of violations and provisions [sic]
of this Ordinance, or any other laws of the City of Hialeah,
Florida, for the purpose of protecting animals and preventing any
act prohibited hereunder. "Section 6. Repeal of Ordinances in Conflict.

															"All ordinances or parts of ordinances in conflict herewith are
hereby repealed to the extent of such conflict. "Section 7. Penalties.

															"Any person, firm or corporation convicted of violating the
provisions of this ordinance shall be punished by a fine, not
exceeding $500.00, or by a jail sentence, not exceeding sixty (60)
days, or both, in the discretion of the Court. "Section 8. Inclusion in Code.

															"The provisions of this Ordinance shall be included and
incorporated in the Code of the City of Hialeah, as an addition or
amendment thereto, and the sections of this Ordinance shall be
re-numbered to conform to the uniform numbering system of the
Code. "Section 9. Severability Clause.

															"If any phrase, clause, sentence, paragraph or section of this
Ordinance shall be declared invalid or unconstitutional by the
judgment or decree of a court of competent jurisdiction, such
invalidity or unconstitutionality shall not effect any of the
remaining phrases, clauses, sentences, paragraphs or sections of
this Ordinance. "Section 10. Effective Date.

															"This Ordinance shall become effective when passed by the City
Council of the City of Hialeah and signed by the Mayor of the City
of Hialeah." 555 City of Hialeah, Florida, Ordinance No. 87-72, adopted September
22, 1987, provides: "WHEREAS, the City Council of the City of Hialeah, Florida, has
determined that the slaughtering of animals on the premises other
than those properly zoned as a slaughter house, is contrary to the
public health, safety and welfare of the citizens of Hialeah,
Florida. "NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF
THE CITY OF HIALEAH, FLORIDA, that: "Section 1. For the purpose of this Ordinance, the word
slaughter shall mean: the killing of animals for food. "Section 2. For the purpose of this Ordinance, the word
animal shall mean: any living dumb creature. "Section 3. It shall be unlawful for any person, persons,
corporations or associations to slaughter any animal on any
premises in the City of Hialeah, Florida, except those properly
zoned as a slaughter house, and meeting all the health, safety and
sanitation codes prescribed by the City for the operation of a
slaughter house. "Section 4. All societies or associations for the
prevention of cruelty to animals organized under the laws of the
State of Florida, seeking to register with the City of Hialeah for
purposes of investigating and assisting in the prosecution of
violations and provisions [sic] of this Ordinance, shall apply to
the City Council for authorization to so register and shall be
registered with the Office of the Mayor of the City of Hialeah,
Florida, following approval by the City Council at a public hearing
in accordance with rules and regulations (i. e., criteria)
established by the City Council by resolution, and shall
thereafter, be empowered to assist in the prosection of any
violations of this Ordinance. 556 556 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Appendix to opinion of the Court "Section 5. Any society or association for the prevention
of cruelty to animals registered with the Mayor of the City of
Hialeah, Florida, in accordance with the provisions of Section 4
hereinabove, may appoint agents for the purposes of investigating
and assisting in the prosecution of violations and provisions [sic]
of this Ordinance, or any other laws of the City of Hialeah,
Florida, for the purpose of protecting animals and preventing any
act prohibited hereunder. "Section 6. This Ordinance shall not apply to any person,
group, or organization that slaughters, or processes for sale,
small numbers of hogs and/or cattle per week in accordance with an
exemption provided by state law. "Section 7. Repeal of Ordinances in Conflict.

															"All ordinances or parts of ordinances in conflict herewith are
hereby repealed to the extent of such conflict. "Section 8. Penalties.

															"Any person, firm or corporation convicted of violating the
provisions of this ordinance shall be punished by a fine, not
exceeding $500.00, or by a jail sentence, not exceeding sixty (60)
days, or both, in the discretion of the Court. "Section 9. Inclusion in Code.

															"The provisions of this Ordinance shall be included and
incorporated in the Code of the City of Hialeah, as an addition or
amendment thereto, and the sections of this Ordinance shall be
re-numbered to conform to the uniform numbering system of the
Code. "Section 10. Severability Clause.

															"If any phrase, clause, sentence, paragraph or section of this
Ordinance shall be declared invalid or unconstitutional by the
judgment or decree of a court of competent jurisdiction, such
invalidity or unconstitutionality shall not effect any of the
remaining phrases, clauses, sentences, paragraphs or sections of
this ordinance. 557 "Section 11. Effective Date. "This Ordinance shall become effective when passed by the City
Council of the City of Hialeah and signed by the Mayor of the City
of Hialeah." JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, concurring in
part and concurring in the judgment.

															The Court analyzes the "neutrality" and the "general
applicability" of the Hialeah ordinances in separate sections
(Parts II-A and II-B, respectively), and allocates various
invalidating factors to one or the other of those sections. If it
were necessary to make a clear distinction between the two terms, I
would draw a line somewhat different from the Court's. But I think
it is not necessary, and would frankly acknowledge that the terms
are not only "interrelated," ante, at 531, but substantially
overlap.

															The terms "neutrality" and "general applicability" are not to be
found within the First Amendment itself, of course, but are used in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.
S. 872 (1990), and earlier cases to describe those
characteristics which cause a law that prohibits an activity a
particular individual wishes to engage in for religious reasons
nonetheless not to constitute a "law ... prohibiting the free
exercise" of religion within the meaning of the First Amendment. In
my view, the defect of lack of neutrality applies primarily to
those laws that by their terms impose disabilities on the
basis of religion (e. g., a law excluding members of a certain sect
from public benefits, cf. Mc Daniel v. Paty, 435 U. S. 618 (1978)),
see Bowen v. Roy, 476 U. S. 693, 703-704 (1986)
(opinion of Burger, C. J.); whereas the defect of lack of general
applicability applies primarily to those laws which, though neutral
in their terms, through their design, construction, or enforcement
target the practices of a particular religion for discriminatory
treatment, see Fowler v. Rhode Island, 345 U. S. 67 (1953). But
certainly a law that is not of general applicability (in the
sense 558 558 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Opinion of SCALIA, J.

															I have described) can be considered "nonneutral"; and certainly
no law that is nonneutral (in the relevant sense) can be thought to
be of general applicability. Because I agree with most of the
invalidating factors set forth in Part II of the Court's opinion,
and because it seems to me a matter of no consequence under which
rubric ("neutrality," Part II-A, or "general applicability," Part
II-B) each invalidating factor is discussed, I join the judgment of
the Court and all of its opinion except section 2 of Part II-A.

															I do not join that section because it departs from the opinion's
general focus on the object of the laws at issue to consider
the subjective motivation of the lawmakers, i. e., whether the Hialeah City Council actually intended to
disfavor the religion of Santeria. As I have noted elsewhere, it is
virtually impossible to determine the singular "motive" of a
collective legislative body, see, e. g., Edwards v. Aguillard, 482
U. S. 578 , 636-639 (1987) (dissenting opinion), and this Court
has a long tradition of refraining from such inquiries, see, e.
g., Fletcher v. Peck, 6 Cranch 87, 130-131 (1810)
(Marshall, C. J.); United States v. O'Brien, 391 U. S. 367 , 383-384
(1968).

															Perhaps there are contexts in which determination of legislative
motive must be undertaken. See, e. g., United States v. Lovett, 328
U. S. 303 (1946). But I do not think that is true of analysis
under the First Amendment (or the Fourteenth, to the extent it
incorporates the First). See Edwards v. Aguillard,
supra, at 639 (SCALIA, J., dissenting). The First Amendment
does not refer to the purposes for which legislators enact laws,
but to the effects of the laws enacted: "Congress shall make no law
... prohibiting the free exercise [of religion] .... " This does
not put us in the business of invalidating laws by reason of the
evil motives of their authors. Had the Hialeah City Council set out
resolutely to suppress the practices of Santeria, but ineptly
adopted ordinances that failed to do so, I do not see how those
laws could be said to "prohibi[t] the free exercise" of 559 religion. Nor, in my view, does it matter that a legislature
consists entirely of the purehearted, if the law it enacts in fact
singles out a religious practice for special burdens. Had the
ordinances here been passed with no motive on the part of any
councilman except the ardent desire to prevent cruelty to animals
(as might in fact have been the case), they would nonetheless be
invalid.

															JUSTICE SOUTER, concurring in part and concurring in the
judgment.

															This case turns on a principle about which there is no
disagreement, that the Free Exercise Clause bars government action
aimed at suppressing religious belief or practice. The Court holds
that Hialeah's animal-sacrifice laws violate that principle, and I
concur in that holding without reservation.

															Because prohibiting religious exercise is the object of the laws
at hand, this case does not present the more difficult issue
addressed in our last free-exercise case, Employment Div., Dept.
of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990),
which announced the rule that a "neutral, generally applicable" law
does not run afoul of the Free Exercise Clause even when it
prohibits religious exercise in effect. The Court today refers to
that rule in dicta, and despite my general agreement with the
Court's opinion I do not join Part II, where the dicta appear, for
I have doubts about whether the Smith rule merits adherence.
I write separately to explain why the Smith rule is not
germane to this case and to express my view that, in a case
presenting the issue, the Court should reexamine the rule Smith declared.

															I

															According to Smith, if prohibiting the exercise of
religion results from enforcing a "neutral, generally applicable"
law, the Free Exercise Clause has not been offended. Id., at
878-880. I call this the Smith rule to distinguish it from
the noncontroversial principle, also expressed in Smith though 560 560 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Opinion of SOUTER, J.

															established long before, that the Free Exercise Clause is
offended when prohibiting religious exercise results from a law
that is not neutral or generally applicable. It is this
noncontroversial principle, that the Free Exercise Clause requires
neutrality and general applicability, that is at issue here. But
before turning to the relationship of Smith to this case, it
will help to get the terms in order, for the significance of the Smith rule is not only in its statement that the Free
Exercise Clause requires no more than "neutrality" and "general
applicability," but also in its adoption of a particular, narrow
conception of free-exercise neutrality.

															That the Free Exercise Clause contains a "requirement for
governmental neutrality," Wisconsin v. Yoder, 406 U. S. 205 ,
220 (1972), is hardly a novel proposition; though the term does not
appear in the First Amendment, our cases have used it as shorthand
to describe, at least in part, what the Clause commands. See, e.
g., Jimmy Swaggart Ministries v. Board of Equalization of
Cal., 493 U. S.
378 , 384 (1990); Thomas v. Review Bd. of Indiana
Employment Security Div., 450 U. S. 707 , 717
(1981); Yoder, supra, at 220; Committee for Public
Ed. & Religious Liberty v. Nyquist, 413 U. S. 756 , 792-793
(1973); School Dist. of Abington v. Schempp, 374 U. S. 203 , 222
(1963); see also McDaniel v. Paty, 435 U. S. 618 , 627-629
(1978) (plurality opinion) (invalidating a nonneutral law without
using the term). Nor is there anything unusual about the notion
that the Free Exercise Clause requires general applicability,
though the Court, until today, has not used exactly that term in
stating a reason for invalidation. See Fowler v. Rhode
Island, 345 U. S.
67 (1953); cf. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575 , 585
(1983); Larson v. Valente, 456 U. S. 228, 245-246
(1982).1

															1 A law that is not generally applicable according to the
Court's definition (one that "selective[ly] impose[s] burdens only
on conduct motivated by religious belief," ante, at 543)
would, it seems to me, fail almost any test for neutrality.
Accordingly, the cases stating that the Free Exercise 561 While general applicability is, for the most part,
selfexplanatory, free-exercise neutrality is not self-revealing.
Cf. Lee v. Weisman, 505 U. S. 577 , 627 (1992)
(SOUTER, J., concurring) (considering Establishment Clause
neutrality). A law that is religion neutral on its face or in its
purpose may lack neutrality in its effect by forbidding something
that religion requires or requiring something that religion
forbids. Cf. McConnell & Posner, An Economic Approach to Issues
of Religious Freedom, 56 U. Chi. L. Rev. 1, 35 (1989) ("[A]
regulation is not neutral in an economic sense if, whatever its
normal scope or its intentions, it arbitrarily imposes greater
costs on religious than on comparable nonreligious activities"). A
secular law, applicable to all, that prohibits consumption of
alcohol, for example, will affect members of religions that require
the use of wine differently from members of other religions and
nonbelievers, disproportionately burdening the practice of, say,
Catholicism or Judaism. Without an exemption for sacramental wine,
Prohibition may fail the test of religion neutrality.2

															It does not necessarily follow from that observation, of course,
that the First Amendment requires an exemption from Prohibition;
that depends on the meaning of neutrality as the Free Exercise
Clause embraces it. The point here is the unremarkable one that our
common notion of neutrality is broad enough to cover not merely
what might be called formal neutrality, which as a free-exercise
requirement

															Clause requires neutrality are also fairly read for the
proposition that the Clause requires general applicability.

															2 Our cases make clear, to look at this from a different
perspective, that an exemption for sacramental wine use would not
deprive Prohibition of neutrality. Rather, "[s]uch an accommodation
[would] 'reflec[t] nothing more than the governmental obligation of
neutrality in the face of religious differences.''' Wisconsin v. Yoder, 406 U. S. 205 , 235, n. 22
(1972) (quoting Sherbert v. Verner, 374 U. S. 398 , 409
(1963)); see also Lee v. Weisman, 505 U. S. 577, 627
(1992) (SOUTER, J., concurring). The prohibition law in place
earlier this century did in fact exempt "wine for sacramental
purposes." National Prohibition Act, Title II, § 3, 41 Stat.
308. 562 562 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Opinion of SOUTER, J.

															would only bar laws with an object to discriminate against
religion, but also what might be called substantive neutrality,
which, in addition to demanding a secular object, would generally
require government to accommodate religious differences by
exempting religious practices from formally neutrallaws. See
generally Laycock, Formal, Substantive, and Disaggregated
Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1990). If the
Free Exercise Clause secures only protection against deliberate
discrimination, a formal requirement will exhaust the Clause's
neutrality command; if the Free Exercise Clause, rather, safeguards
a right to engage in religious activity free from unnecessary
governmental interference, the Clause requires substantive, as well
as formal, neutrality.3

															Though Smith used the term "neutrality" without a
modifier, the rule it announced plainly assumes that free-exercise
neutrality is of the formal sort. Distinguishing between laws whose
"object" is to prohibit religious exercise and those that prohibit
religious exercise as an "incidental effect," Smith placed
only the former within the reaches of the Free Exercise Clause; the
latter, laws that satisfy formal neutrality, Smith would
subject to no free-exercise scrutiny at all, even when they
prohibit religious exercise in application. 494 U. S., at 878. The
four Justices who rejected the Smith rule, by contrast, read
the Free Exercise Clause as embracing what I have termed
substantive neutrality. The enforcement of a law "neutral on its
face," they said, may "nonetheless offend [the Free Exercise
Clause's] requirement

															3 One might further distinguish between formal neutrality and
facial neutrality. While facial neutrality would permit discovery
of a law's object or purpose only by analysis of the law's words,
structure, and operation, formal neutrality would permit enquiry
also into the intentions of those who enacted the law. Compare ante, at 540-542 (opinion of KENNEDY, J., joined by STEVENS,
J.) with ante, p. 557 (opinion of SCALIA, J., joined by
REHNQUIST, C. J.). For present purposes, the distinction between
formal and facial neutrality is less important than the distinction
between those conceptions of neutrality and substantive
neutrality. 563 for government neutrality if it unduly burdens the free exercise
of religion." Id., at 896 (opinion of O'CONNOR, J., joined
by Brennan, Marshall, and BLACKMUN, JJ.) (internal quotation marks
and citations omitted). The rule these Justices saw as flowing from
free-exercise neutrality, in contrast to the Smith rule,
"requir[es] 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." Id., at 894 (emphasis added).

															The proposition for which the Smith rule stands, then, is
that formal neutrality, along with general applicability, are
sufficient conditions for constitutionality under the Free Exercise
Clause. That proposition is not at issue in this case, however, for
Hialeah's animal-sacrifice ordinances are not neutral under any
definition, any more than they are generally applicable. This case,
rather, involves the noncontroversial principle repeated in Smith, that formal neutrality and general applicability are
necessary conditions for freeexercise constitutionality. It is only
"this fundamental nonpersecution principle of the First Amendment
[that is] implicated here," ante, at 523, and it is to that
principle that the Court adverts when it holds that Hialeah's
ordinances "fail to satisfy the Smith requirements," ante, at 532. In applying that principle the Court does not
tread on troublesome ground.

															In considering, for example, whether Hialeah's animalsacrifice
laws violate free-exercise neutrality, the Court rightly observes
that "[a]t a minimum, the protections of the Free Exercise Clause
pertain if the law at issue discriminates against some or all
religious beliefs or regulates or prohibits conduct because it is
undertaken for religious reasons," ibid., and correctly finds
Hialeah's laws to fail those standards. The question whether the
protections of the Free Exercise Clause also pertain if the law at
issue, though nondiscriminatory in its object, has the effect
nonetheless of placing a burden on religious exercise is not before
the Court 564 564 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Opinion of SOUTER, J.

															today, and the Court's intimations on the matter are therefore
dicta.

															The Court also rightly finds Hialeah's laws to fail the test of
general applicability, and as the Court "need not define with
precision the standard used to evaluate whether a prohibition is of
general application, for these ordinances fall well below the
minimum standard necessary to protect First Amendment rights," ante, at 543, it need not discuss the rules that apply to
prohibitions found to be generally applicable. The question whether
"there are areas of conduct protected by the Free Exercise Clause
of the First Amendment and thus beyond the power of the State to
control, even under regulations of general applicability," Yoder, 406 U. S., at 220, is not before the Court in this
case, and, again, suggestions on that score are dicta.

															II

															In being so readily susceptible to resolution by applying the
Free Exercise Clause's "fundamental nonpersecution principle," ante, at 523, this is far from a representative freeexercise
case. While, as the Court observes, the Hialeah City Council has
provided a rare example of a law actually aimed at suppressing
religious exercise, ante, at 523-524, Smith was
typical of our free-exercise cases, involving as it did a formally
neutral, generally applicable law. The rule Smith announced,
however, was decidedly untypical of the cases involving the same
type of law. Because Smith left those prior cases standing,
we are left with a free-exercise jurisprudence in tension with
itself, a tension that should be addressed, and that may
legitimately be addressed, by reexamining the Smith rule in
the next case that would turn upon its application.

															A

															In developing standards to judge the enforceability of formally
neutral, generally applicable laws against the mandates of the Free
Exercise Clause, the Court has addressed 565 the concepts of neutrality and general applicability by
indicating, in language hard to read as not foreclosing the Smith rule, that the Free Exercise Clause embraces more than
mere formal neutrality, and that formal neutrality and general
applicability are not sufficient conditions for freeexercise
constitutionality: "In a variety of ways we have said that '[a] regulation neutral
on its face may, in its application, nonetheless offend the
constitutional requirement for governmental neutrality if it unduly
burdens the free exercise of religion.'" Thomas, 450 U. S.,
at 717 (quoting Yoder, supra, at 220). "[T]o agree that religiously grounded conduct must often be
subject to the broad police power of the State is not to deny that
there are areas of conduct protected by the Free Exercise Clause of
the First Amendment and thus beyond the power of the State to
control, even under regulations of general applicability." 450 U.
S., at 717. Not long before the Smith decision, indeed, the Court
specifically rejected the argument that "neutral and uniform"
requirements for governmental benefits need satisfy only a
reasonableness standard, in part because "[s]uch a test has no
basis in precedent." Hobbie v. Unemployment Appeals
Comm'n of Fla., 480 U. S. 136 , 141 (1987)
(internal quotation marks omitted). Rather, we have said, "[o]ur
cases have established that '[t]he free exercise inquiry asks
whether government has placed a substantial burden on the
observation of a central religious belief or practice and, if so,
whether a compelling governmental interest justifies the burden.'" Swaggart Ministries, 493 U. S., at 384-385 (quoting Hernandez v. Commissioner, 490 U. S. 680 , 699
(1989)).

															Thus we have applied the same rigorous scrutiny to burdens on
religious exercise resulting from the enforcement of formally
neutral, generally applicable laws as we have applied to burdens
caused by laws that single out religious ex- 566 566 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Opinion of SOUTER, J.

															ercise: "'only those interests of the highest order and those
not otherwise served can overbalance legitimate claims to the free
exercise of religion.'" McDaniel v. Paty, 435 U. S.,
at 628 (plurality opinion) (quoting Yoder, supra, at 215).
Compare McDaniel, supra, at 628-629 (plurality opinion)
(applying that test to a law aimed at religious conduct) with Yoder, supra, at 215-229 (applying that test to a formally
neutral, general law). Other cases in which the Court has applied
heightened scrutiny to the enforcement of formally neutral,
generally applicable laws that burden religious exercise include Hernandez v. Commissioner, supra, at 699; Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 ,
835 (1989); Hobbie v. Unemployment Appeals Comm'n,
supra, at 141; Bob Jones Univ. v. United States, 461 U. S. 574 ,
604 (1983); United States v. Lee, 455 U. S. 252 , 257-258 (1982); Thomas, supra, at 718; Sherbert v. Verner, 374 U.
S. 398 , 403 (1963); and Cantwell v. Connecticut, 310 U. S. 296 ,
304-307 (1940).

															Though Smith sought to distinguish the free-exercise
cases in which the Court mandated exemptions from secular laws of
general application, see 494 U. S., at 881-885, I am not persuaded. Wisconsin v. Yoder, and Cantwell v. Connecticut, according to Smith, were not true
free-exercise cases but "hybrid[s]" involving "the Free Exercise
Clause in conjunction with other constitutional protections, such
as freedom of speech and of the press, or the right of parents ...
to direct the education of their children." Smith, supra, at
881, 882. Neither opinion, however, leaves any doubt that
"fundamental claims of religious freedom [were] at stake." Yoder, supra, at 221; see also Cantwell, supra, at
303-307.4

															4 Yoder, which involved a challenge by Amish parents to
the enforcement against them of a compulsory school attendance law,
mentioned the parental rights recognized in Pierce v. Society of Sisters, 268 U. S. 510 (1925), as Smith pointed out. See Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U. S., at 881, n. 1
(citing Yoder, 406 U. S., at 233). But Yoder did so
only to distinguish Pierce, which involved a 567 And the distinction Smith draws strikes me as ultimately
untenable. If a hybrid claim is simply one in which another
constitutional right is implicated, then the hybrid exception would
probably be so vast as to swallow the Smith rule, and,
indeed, the hybrid exception would cover the situation exemplified
by Smith, since free speech and associational rights are
certainly implicated in the peyote ritual. But if a hybrid claim is
one in which a litigant would actually obtain an exemption from a
formally neutral, generally applicable law under another
constitutional provision, then there would have been no reason for
the Court in what Smith calls the hybrid cases to have
mentioned the Free Exercise Clause at all. Smith sought to confine the remaining free-exercise
exemption victories, which involved unemployment compensa-

															substantive due process challenge to a compulsory school
attendance law and which required merely a showing of
"'reasonable[ness].' " 406 U. S., at 233 (quoting Pierce,
supra, at 535). Where parents make a "free exercise claim," the Yoder Court said, the Pierce reasonableness test is
inapplicable and the State's action must be measured by a stricter
test, the test developed under the Free Exercise Clause and
discussed at length earlier in the opinion. See 406 U. S., at 233;
id., at 213-229. Quickly after the reference to parental rights,
the Yoder opinion makes clear that the case involves "the
central values underlying the Religion Clauses." Id., at
234. The Yoders raised only a free-exercise defense to their
prosecution under the school-attendance law, id., at 209, and n. 4;
certiorari was granted only on the free-exercise issue, id., at
207; and the Court plainly understood the case to involve "conduct
protected by the Free Exercise Clause" even against enforcement of
a "regulatio[n] of general applicability," id., at 220.

															As for Cantwell, Smith pointed out that the case
explicitly mentions freedom of speech. See 494 U. S., at 881, n. 1
(citing Cantwell v. Connecticut, 310 U. S., at 307).
But the quote to which Smith refers occurs in a portion of
the Cantwell opinion (titled: "[slecond," and dealing
with a breach-of-peace conviction for playing phonograph records,
see 310 U. S., at 307) that discusses an entirely different issue
from the section of Cantwell that Smith cites as
involving a "neutral, generally applicable law" (titled: "[flirst," and dealing with a licensing system for
solicitations, see Cantwell, supra, at 303-307). See Smith, supra, at 881. 568 568 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Opinion of SOUTER, J.

															tion systems, see Frazee, supra; Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987); Thomas v. Review Bd. of Indiana Employment Security
Div., 450 U. S.
707 (1981); and Sherbert, supra, as "stand[ing] 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." 494 U.
S., at 884. But prior to Smith the Court had already refused
to accept that explanation of the unemployment compensation cases.
See Hobbie, supra, at 142, n. 7; Bowen v. Roy, 476 U. S. 693 ,
715-716 (1986) (opinion of BLACKMUN, J.); id., at 727-732 (opinion
of O'CONNOR, J., joined by Brennan and Marshall, JJ.); id., at 733
(WHITE, J., dissenting). And, again, the distinction fails to
exclude Smith: "If Smith is viewed as an unemployment
compensation case, the distinction is obviously spurious. If Smith is viewed as a hypothetical criminal prosecution for
peyote use, there would be an individual governmental assessment of
the defendants' motives and actions in the form of a criminal
trial." McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1124 (1990). Smith also
distinguished the unemployment compensation cases on the ground
that they did not involve "an across-the-board criminal prohibition
on a particular form of conduct." 494 U. S., at 884. But even Chief
Justice Burger's plurality opinion in Bowen v. Roy, on which Smith drew for its analysis of the unemployment
compensation cases, would have applied its reasonableness test only
to "denial of government benefits" and not to "governmental action
or legislation that criminalizes religiously inspired activity or
inescapably compels conduct that some find objectionable for
religious reasons," Bowen v. Roy, supra, at 706
(opinion of Burger, C. J., joined by Powell and REHNQUIST, JJ.); to
the latter category of governmental action, it would have applied
the test employed in Yoder, which involved an
across-the-board criminal prohibition and which Chief Justice
Burger's opinion treated as an ordinary free- 569 exercise case. See Bowen v. Roy, 476 U. S., at
706-707; id., at 705, n. 15; Yoder, 406 U. S., at
218; see also McDaniel v. Paty, 435 U. S., at 628, n.
8 (noting cases in which courts considered claims for exemptions
from general criminal prohibitions, cases the Court thought were
"illustrative of the general nature of free-exercise protections
and the delicate balancing required by our decisions in [Sherbert and Yoder,] when an important state
interest is shown").

															As for the cases on which Smith primarily relied as
establishing the rule it embraced, Reynolds v. United
States, 98 U. S. 145 (1879), and Minersville School
Dist. v. Gobitis, 310 U. S. 586 (1940), see Smith,
supra, at 879, their subsequent treatment by the Court would
seem to require rejection of the Smith rule. Reynolds, which in upholding the polygamy conviction of a
Mormon stressed the evils it saw as associated with polygamy, see
98 U. S., at 166 ("polygamy leads to the patriarchal principle, and
... fetters the people in stationary despotism"); id., at 165, 168,
has been read as consistent with the principle that religious
conduct may be regulated by general or targeting law only if the
conduct "pose[s] some substantial threat to public safety, peace or
order." Sherbert v. Verner, 374 U. S., at 403; see
also United States v. Lee, 455 U. S., at 257-258; Bob Jones University, 461 U. S., at 603; Yoder,
supra, at 230. And Gobitis, after three Justices who
originally joined the opinion renounced it for disregarding the
government's constitutional obligation "to accommodate itself to
the religious views of minorities," Jones v. Opelika, 316 U. S. 584 ,
624 (1942) (opinion of Black, Douglas, and Murphy, JJ.), was
explicitly overruled in West Virginia Bd. of Ed. v. Barnette, 319
U. S. 624 , 642 (1943); see also id., at 643-644 (Black and
Douglas, JJ., concurring).

															Since holding in 1940 that the Free Exercise Clause applies to
the States, see Cantwell v. Connecticut, 310 U. S. 296 , the Court
repeatedly has stated that the Clause sets strict limits on the
government's power to burden religious exercise, whether it is a
law's object to do so or its unantici- 570 570 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Opinion of SOUTER, J.

															pated effect. Smith responded to these statements by
suggesting that the Court did not really mean what it said,
detecting in at least the most recent opinions a lack of commitment
to the compelling-interest test in the context of formally neutral
laws. Smith, supra, at 884-885. But even if the Court's
commitment were that palid, it would argue only for moderating the
language of the test, not for eliminating constitutional scrutiny
altogether. In any event, I would have trouble concluding that the
Court has not meant what it has said in more than a dozen cases
over several decades, particularly when in the same period it
repeatedly applied the compelling-interest test to require
exemptions, even in a case decided the year before Smith. See Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 (1989).5 In sum, it seems to me difficult to escape the con-

															5 Though Smith implied that the Court, in considering
claims for exemptions from formally neutral, generally applicable
laws, has applied a "water[ed] down" version of strict scrutiny,
494 U. S., at 888, that appraisal confuses the cases in which we
purported to apply strict scrutiny with the cases in which we did
not. We did not purport to apply strict scrutiny in several cases
involving discrete categories of governmental action in which there
are special reasons to defer to the judgment of the political
branches, and the opinions in those cases said in no uncertain
terms that traditional heightened scrutiny applies outside those
categories. See O'Lone v. Estate of Shabazz, 482 U. S. 342 , 349 (1987)
("[P]rison regulations ... are judged under a 'reasonableness' test
less restrictive than that ordinarily applied to alleged
infringements of fundamental constitutional rights"); 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"); see
also Johnson v. Robison, 415 U. S. 361 , 385-386
(1974); Gillette v. United States, 401 U. S. 437 , 462
(1971). We also did not purport to apply strict scrutiny in several
cases in which the claimants failed to establish a constitutionally
cognizable burden on religious exercise, and again the opinions in
those cases left no doubt that heightened scrutiny applies to the
enforcement of formally neutral, generallaws that do burden free
exercise. See Jimmy Swaggart Ministries v. Board of
Equalization of Gal., 493 U. S. 378 , 384-385
(1990) ("Our cases have established that [t]he free exercise
inquiry asks whether government 571 clusion that, whatever Smith's virtues, they do not
include a comfortable fit with settled law.

															B

															The Smith rule, in my view, may be reexamined
consistently with principles of stare decisis. To begin
with, the Smith rule was not subject to "full-dress
argument" prior to its announcement. Mapp v. Ohio, 367 U. S. 643 ,
676-677 (1961) (Harlan, J., dissenting). The State of Oregon in Smith contended that its refusal to exempt religious peyote
use survived the strict scrutiny required by "settled free exercise
principles," inasmuch as the State had "a compelling interest in
regulating" the practice of peyote use and could not "accommodate
the religious practice without compromis-

															has placed a substantial burden on the observation of a central
religious belief or practice and, if so, whether a compelling
governmental interest justifies the burden") (internal quotation
marks and citation omitted); Lyng v. Northwest Indian
Cemetery Protective Assn., 485 U. S. 439 , 450 (1988)
("[T]his Court has repeatedly held that indirect coercion or
penalties on the free exercise of religion, not just outright
prohibitions, are subject to [the] scrutiny" employed in Sherbert v. Verner, 374 U. S. 398 (1963); see
also Braunfeld v. Brown, 366 U. S. 599 , 606-607
(1961) (plurality opinion). Among the cases in which we have
purported to apply strict scrutiny, we have required free-exercise
exemptions more often than we have denied them. Compare Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829 (1989); Hobbie v. Unemployment Appeals Comm'n of
Fla., 480 U. S.
136 (1987); Thomas v. Review Bd. of Indiana
Employment Security Div., 450 U. S. 707 (1981); Wisconsin v. Yoder, 406 U. S. 205 (1972);
Cantwell v. Connecticut, 310 U. S. 296 (1940),
with Hernandez v. Commissioner, 490 U. S. 680 (1989); Bob Jones Univ. v. United States, 461 U. S. 574
(1983); United States v. Lee, 455 U. S. 252 (1982). And
of the three cases in which we found that denial of an exemption
survived strict scrutiny (all tax cases), one involved the
government's "fundamental, overriding interest in eradicating
racial discrimination in education," Bob Jones University,
supra, at 604; in a second the Court "doubt[ed] whether the
alleged burden ... [was] a substantial one," Hernandez,
supra, at 699; and the Court seemed to be of the same view in
the third, see Lee, supra, at 261, n. 12. These cases, I
think, provide slim grounds for concluding that the Court has not
been true to its word. 572 572 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Opinion of SOUTER, J.

															ing its interest." Brief for Petitioners in Smith, O. T.
1989, No. 88-1213, p. 5; see also id., at 5-36; Reply Brief for
Petitioners in Smith, pp. 6-20. Respondents joined issue on
the outcome of strict scrutiny on the facts before the Court, see
Brief for Respondents in Smith, pp. 14-41, and neither party
squarely addressed the proposition the Court was to embrace, that
the Free Exercise Clause was irrelevant to the dispute. Sound
judicial decisionmaking requires "both a vigorous prosecution and a
vigorous defense" of the issues in dispute, Christiansburg
Garment Co. v. EEOC, 434 U. S. 412 , 419
(1978), and a constitutional rule announced sua sponte is
entitled to less deference than one addressed on full briefing and
argument. Cf. Ladner v. United States, 358 U. S. 169 , 173 (1958)
(declining to address "an important and complex" issue concerning
the scope of collateral attack upon criminal sentences because it
had received "only meagre argument" from the parties, and the Court
thought it "should have the benefit of a full argument before
dealing with the question").

															The Smith rule's vitality as precedent is limited further
by the seeming want of any need of it in resolving the question
presented in that case. JUSTICE O'CONNOR reached the same result as
the majority by applying, as the parties had requested, "our
established free exercise jurisprudence," 494 U. S., at 903, and
the majority never determined that the case could not be resolved
on the narrower ground, going instead straight to the broader
constitutional rule. But the Court's better practice, one supported
by the same principles of restraint that underlie the rule of stare decisis, is not to "'formulate a rule of
constitutional law broader than is required by the precise facts to
which it is to be applied.''' Ashwander v. TVA, 297 U. S. 288 ,
347 (1936) (Brandeis, J., concurring) (quoting Liverpool, New
York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33 , 39 (1885)).
While I am not suggesting that the Smith Court lacked the
power to announce its rule, I think a rule of law unnecessary to
the outcome of a case, especially one not put 573 into play by the parties, approaches without more the sort of "dicta ... which may be followed if sufficiently persuasive
but which are not controlling." Humphrey's Executor v. United States, 295 U. S. 602 , 627
(1935); see also Kastigar v. United States, 406 U. S. 441 , 454-455
(1972).

															I do not, of course, mean to imply that a broad constitutional
rule announced without full briefing and argument necessarily lacks
precedential weight. Over time, such a decision may become "part of
the tissue of the law," Radovich v. National Football
League, 352 U. S.
445 , 455 (1957) (Frankfurter, J., dissenting), and may be
subject to reliance in a way that new and unexpected decisions are
not. Cf. Planned Parenthood of Southeastern Pa. v. Casey,
505 U. S. 833, 854-855 (1992). Smith, however, is not
such a case. By the same token, by pointing out Smith's recent vintage I do not mean to suggest that novelty alone is
enough to justify reconsideration. "[S]tare decisis," as
Justice Frankfurter wrote, "is a principle of policy and not a
mechanical formula," Helvering v. Hallock, 309 U. S. 106 , 119
(1940), and the decision whether to adhere to a prior decision,
particularly a constitutional decision, is a complex and difficult
one that does not lend itself to resolution by application of
simple, categorical rules, but that must account for a variety of
often competing considerations.

															The considerations of full briefing, necessity, and novelty thus
do not exhaust the legitimate reasons for reexamining prior
decisions, or even for reexamining the Smith rule. One
important further consideration warrants mention here, however,
because it demands the reexamination I have in mind. Smith presents not the usual question of whether to follow a
constitutional rule, but the question of which constitutional rule
to follow, for Smith refrained from overruling prior
free-exercise cases that contain a free-exercise rule fundamentally
at odds with the rule Smith declared. Smith, indeed,
announced its rule by relying squarely upon 574 574 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Opinion of SOUTER, J.

															the precedent of prior cases. See 494 U. S., at 878 ("Our
decisions reveal that the ... reading" of the Free Exercise Clause
contained in the Smith rule "is the correct one"). Since
that precedent is nonetheless at odds with the Smith rule,
as I have discussed above, the result is an intolerable tension in
free-exercise law which may be resolved, consistently with
principles of stare decisis, in a case in which the tension
is presented and its resolution pivotal.

															While the tension on which I rely exists within the body of our
extant case law, a rereading of that case law will not, of course,
mark the limits of any enquiry directed to reexamining the Smith rule, which should be reviewed in light not only of
the precedent on which it was rested but also of the text of the
Free Exercise Clause and its origins. As for text, Smith did
not assert that the plain language of the Free Exercise Clause
compelled its rule, but only that the rule was "a permissible
reading" of the Clause. Ibid. Suffice it to say that a
respectable argument may be made that the pre-Smith law
comes closer to fulfilling the language of the Free Exercise Clause
than the rule Smith announced. "[T]he Free Exercise Clause
... , by its terms, gives special protection to the exercise of
religion," Thomas, 450 U. S., at 713, specifying an activity
and then flatly protecting it against government prohibition. The
Clause draws no distinction between laws whose object is to
prohibit religious exercise and laws with that effect, on its face
seemingly applying to both.

															Nor did Smith consider the original meaning of the Free
Exercise Clause, though overlooking the opportunity was no unique
transgression. Save in a handful of passing remarks, the Court has
not explored the history of the Clause since its early attempts in
1879 and 1890, see Reynolds v. United States, 98 U.
S., at 162-166, and Davis v. Beason, 133 U. S. 333 ,342 (1890),
attempts that recent scholarship makes clear were incomplete. See
generally McConnell, The Origins and Historical Understanding of
Free Exercise of Religion, 575 103 Harv. L. Rev. 1409 (1990).6 The curious absence of history
from our free-exercise decisions creates a stark contrast with our
cases under the Establishment Clause, where historical analysis has
been so prominent.7

															This is not the place to explore the history that a century of
free-exercise opinions have overlooked, and it is enough to note
that, when the opportunity to reexamine Smith presents itself, we
may consider recent scholarship raising serious questions about the
Smith rule's consonance with the original understanding and purpose
of the Free Exercise Clause. See McConnell, The Origins and
Historical Understanding of Free Exercise of Religion, supra;
Durham, Religious Liberty and the Call of Conscience, 42 DePaul L.
Rev. 71, 79-85 (1992); see also Office of Legal Policy, U. S. Dept.
of Justice, Report to the Attorney General, Religious Liberty under
the Free Exercise Clause 38-42 (1986) (predating Smith). There
appears to be a strong argument from the

															6 Reynolds denied the free-exercise claim of a Mormon
convicted of polygamy, and Davis v. Beason upheld
against a free-exercise challenge a law denying the right to vote
or hold public office to members of organizations that practice or
encourage polygamy. Exactly what the two cases took from the Free
Exercise Clause's origins is unclear. The cases are open to the
reading that the Clause sometimes protects religious conduct from
enforcement of generally applicable laws, see supra, at 569
(citing cases); that the Clause never protects religious conduct
from the enforcement of generally applicable laws, see Smith, 494 U. S., at 879; or that the Clause does not
protect religious conduct at all, see Yoder, 406 U. S., at
247 (Douglas, J., dissenting in part); McConnell, The Origins and
Historical Understanding of Free Exercise of Religion, 103 Harv. L.
Rev. 1409, 1488, and n. 404 (1990).

															7See Engel v. Vitale, 370 U. S. 421 , 425-436
(1962); McGowan v. Maryland, 366 U. S. 420 , 431-443
(1961); Everson v. Board of Ed. of Ewing, 330 U. S. 1 , 8-16 (1947);
see also Lee v. Weisman, 505 U. S. 577 , 612-616,
622626 (1992) (SOUTER, J., concurring); Wallace v. Jaffree, 472 U. S. 38 ,
91-107 (1985) (REHNQUIST, J., dissenting); School Dist. of Abington
v. Schempp, 374 U. S.
203 , 232-239 (1963) (Brennan, J., concurring); McGowan v.
Maryland, supra, at 459-495 (Frankfurter, J., concurring); Everson,
supra, at 31-43 (Rutledge, J., dissenting). 576 576 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															Opinion of SOUTER, J.

															Clause's development in the First Congress, from its origins in
the post-Revolution state constitutions and pre-Revolution colonial
charters, and from the philosophy of rights to which the Framers
adhered, that the Clause was originally understood to preserve a
right to engage in activities necessary to fulfill one's duty to
one's God, unless those activities threatened the rights of others
or the serious needs of the State. If, as this scholarship
suggests, the Free Exercise Clause's original "purpose [was] to
secure religious liberty in the individual by prohibiting any
invasions thereof by civil authority," School Dist. of
Abington v. Schempp, 374 U. S., at 223, then there would
be powerful reason to interpret the Clause to accord with its
natural reading, as applying to all laws prohibiting religious
exercise in fact, not just those aimed at its prohibition, and to
hold the neutrality needed to implement such a purpose to be the
substantive neutrality of our pre-Smith cases, not the
formal neutrality sufficient for constitutionality under Smith. s

															8 The Court today observes that "historical instances of
religious persecution and intolerance ... gave concern to those who
drafted the Free Exercise Clause." Ante, at 532 (internal
quotation marks and citations omitted). That is no doubt true, and
of course it supports the proposition for which it was summoned,
that the Free Exercise Clause forbids religious persecution. But
the Court's remark merits this observation: the fact that the
Framers were concerned about victims of religious persecution by no
means demonstrates that the Framers intended the Free Exercise
Clause to forbid only persecution, the inference the Smith rule requires. On the contrary, the eradication of persecution
would mean precious little to a member of a formerly persecuted
sect who was nevertheless prevented from practicing his religion by
the enforcement of "neutral, generally applicable" laws. If what
drove the Framers was a desire to protect an activity they deemed
special, and if "the [Framers] were well aware of potential
conflicts between religious conviction and social duties," A. Adams
& C. Emmerich, A Nation Dedicated to Religious Liberty 61
(1990), they may well have hoped to bar not only prohibitions of
religious exercise fueled by the hostility of the majority, but
prohibitions flowing from the indifference or ignorance of the
majority as well. 577 The scholarship on the original understanding of the Free
Exercise Clause is, to be sure, not uniform. See, e. g.,
Hamburger, A Constitutional Right of Religious Exemption: An
Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992); Bradley,
Beguiled: Free Exercise Exemptions and the Siren Song of
Liberalism, 20 Hofstra L. Rev. 245 (1991). And there are
differences of opinion as to the weight appropriately accorded
original meaning. But whether or not one considers the original
designs of the Clause binding, the interpretive significance of
those designs surely ranks in the hierarchy of issues to be
explored in resolving the tension inherent in free-exercise law as
it stands today.

															III

															The extent to which the Free Exercise Clause requires government
to refrain from impeding religious exercise defines nothing less
than the respective relationships in our constitutional democracy
of the individual to government and to God. "Neutral, generally
applicable" laws, drafted as they are from the perspective of the
nonadherent, have the unavoidable potential of putting the believer
to a choice between God and government. Our cases now present
competing answers to the question when government, while pursuing
secular ends, may compel disobedience to what one believes religion
commands. The case before us is rightly decided without resolving
the existing tension, which remains for another day when it may be
squarely faced.

															JUSTICE BLACKMUN, with whom JUSTICE O'CONNOR joins, concurring
in the judgment.

															The Court holds today that the city of Hialeah violated the
First and Fourteenth Amendments when it passed a set of restrictive
ordinances explicitly directed at petitioners' religious practice.
With this holding I agree. I write separately to emphasize that the
First Amendment's protection of religion extends beyond those rare
occasions on which the government explicitly targets religion (or a
particular reli- 578 578 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															BLACKMUN, J., concurring in judgment

															gion) for disfavored treatment, as is done in this case. In my
view, a statute that burdens the free exercise of religion "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." Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.
S. 872 , 907 (1990) (dissenting opinion). The Court, however,
applies a different test. It applies the test announced in Smith, under which "a law that is neutral and of general
applicability need not be justified by a compelling governmental
interest even if the law has the incidental effect of burdening a
particular religious practice." Ante, at 531. I continue to
believe that Smith was wrongly decided, because it ignored
the value of religious freedom as an affirmative individual liberty
and treated the Free Exercise Clause as no more than an
antidiscrimination principle. See 494 U. S., at 908-909. Thus,
while I agree with the result the Court reaches in this case, I
arrive at that result by a different route.

															When the State enacts legislation that intentionally or
unintentionally places a burden upon religiously motivated
practice, it must justify that burden by "showing that it is the
least restrictive means of achieving some compelling state
interest." Thomas v. Review Bd. of Indiana Employment
Security Div., 450 U. S. 707 , 718
(1981). See also Wisconsin v. Yoder, 406 U. S. 205 , 215
(1972). A State may no more create an underinclusive statute, one
that fails truly to promote its purported compelling interest, than
it may create an overinclusive statute, one that encompasses more
protected conduct than necessary to achieve its goal. In the latter
circumstance, the broad scope of the statute is unnecessary to
serve the interest, and the statute fails for that reason. In the
former situation, the fact that allegedly harmful conduct falls
outside the statute's scope belies a governmental assertion that it
has genuinely pursued an interest "of the highest order." Ibid. If the State's goal is important enough to prohibit
religiously motivated activity, it 579 will not and must not stop at religiously motivated activity.
Cf. Zablocki v. Redhail, 434 U. S. 374 , 390 (1978)
(invalidating certain restrictions on marriage as "grossly
underinclusive with respect to [their] purpose"); Supreme Court
of N. H. v. Piper, 470 U. S. 274 , 285, n. 19
(1985) (a rule excluding nonresidents from the bar of New Hampshire
"is underinclusive ... because it permits lawyers who move away
from the State to retain their membership in the bar").

															In this case, the ordinances at issue are both overinclusive and
underinclusive in relation to the state interests they purportedly
serve. They are overinclusive, as the majority correctly explains,
because the "legitimate governmental interests in protecting the
public health and preventing cruelty to animals could be addressed
by restrictions stopping far short of a fiat prohibition of all
Santeria sacrificial practice." Ante, at 538. They are
underinclusive as well, because "[d]espite the city's proffered
interest in preventing cruelty to animals, the ordinances are
drafted with care to forbid few killings but those occasioned by
religious sacrifice." Ante, at 543. Moreover, the
"ordinances are also underinclusive with regard to the city's
interest in public health .... " Ante, at 544.

															When a law discriminates against religion as such, as do the
ordinances in this case, it automatically will fail strict scrutiny
under Sherbert v. Verner, 374 U. S. 398 , 402-403,
407 (1963) (holding that governmental regulation that imposes a
burden upon religious practice must be narrowly tailored to advance
a compelling state interest). This is true because a law that
targets religious practice for disfavored treatment both burdens
the free exercise of religion and, by definition, is not precisely
tailored to a compelling governmental interest.

															Thus, unlike the majority, I do not believe that "[a] law
burdening religious practice that is not neutral or not of general
application must undergo the most rigorous of scrutiny." Ante, at 546. In my view, regulation that targets religion
in this way, ipso facto, fails strict scrutiny. It is for
this reason 580 580 CHURCH OF LUKUMI BABALU AYE, INC. v. HIALEAH

															BLACKMUN, J., concurring in judgment

															that a statute that explicitly restricts religious practices
violates the First Amendment. Otherwise, however, "[t]he First
Amendment ... does not distinguish between laws that are generally
applicable and laws that target particular religious practices."
Smith, 494 U. S., at 894 (opinion concurring in judgment).

															It is only in the rare case that a state or local legislature
will enact a law directly burdening religious practice as such. See
ibid. Because respondent here does single out religion in this way,
the present case is an easy one to decide.

															A harder case would be presented if petitioners were requesting
an exemption from a generally applicable anticruelty law. The
result in the case before the Court today, and the fact that every
Member of the Court concurs in that result, does not necessarily
reflect this Court's views of the strength of a State's interest in
prohibiting cruelty to animals. This case does not present, and I
therefore decline to reach, the question whether the Free Exercise
Clause would require a religious exemption from a law that
sincerely pursued the goal of protecting animals from cruel
treatment. The number of organizations that have filed amicus briefs on behalf of this interest, * however,
demonstrates that it is not a concern to be treated lightly.

															*See Brief for Washington Humane Society in support of
Respondent; Brieffor People for the Ethical Treatment of Animals,
New Jersey Animal Rights Alliance, and Foundation for Animal Rights
Advocacy in support of Respondent; Brief for Humane Society of the
United States, American Humane Association, American Society for
the Prevention of Cruelty to Animals, Animal Legal Defense Fund,
Inc., and Massachusetts Society for the Prevention of Cruelty to
Animals in support of Respondent; Brief for the International
Society for Animal Rights, Citizens for Animals, Farm Animal Reform
Movement, In Defense of Animals, Performing Animal Welfare Society,
and Student Action Corps for Animals in support of Respondent; and
Brief for the Institute for Animal Rights Law, American Fund for
Alternatives to Animal Research, Farm Sanctuary, Jews for Animal
Rights, United Animal Nations, and United Poultry Concerns in
support of Respondent.