U.S. Supreme Court Employment Div. v. Smith., 494
U.S. 872 (1990) Employment Division, Department
of Human Resources of Oregon v.
Smith No. 88-1213 Argued Nov. 6, 1989 Decided April 17,
1990 494
U.S. 872 CERTIORARI TO THE SUPREME COURT OF
OREGON Syllabus Respondents Smith and Black were fired by a private drug
rehabilitation organization because they ingested peyote, a
hallucinogenic drug, for sacramental purposes at a ceremony of
their Native American Church. Their applications for unemployment
compensation were denied by the State of Oregon under a state law
disqualifying employees discharged for work-related "misconduct."
Holding that the denials violated respondents' First Amendment free
exercise rights, the State Court of Appeals reversed. The State
Supreme Court affirmed, but this Court vacated the judgment and
remanded for a determination whether sacramental peyote use is
proscribed by the State's controlled substance law, which makes it
a felony to knowingly or intentionally possess the drug. Pending
that determination, the Court refused to decide whether such use is
protected by the Constitution. On remand, the State Supreme Court
held that sacramental peyote use violated, and was not excepted
from, the state law prohibition, but concluded that that
prohibition was invalid under the Free Exercise Clause. Held: The Free Exercise Clause permits the State to
prohibit sacramental peyote use, and thus to deny unemployment
benefits to persons discharged for such use. Pp. 494 U. S.
876 -890.

															(a) Although a State would be "prohibiting the free exercise [of
religion]" in violation of the Clause if it sought to ban the
performance of (or abstention from) physical acts solely because of
their religious motivation, the Clause does not relieve an
individual of the obligation to comply with a law that incidentally
forbids (or requires) the performance of an act that his religious
belief requires (or forbids) if the law is not specifically
directed to religious practice and is otherwise constitutional as
applied to those who engage in the specified act for nonreligious
reasons. See, e.g., Reynolds v. United States, 98 U. S. 145 , 98 U. S.
166 -167. The only decisions in which this Court has held
that the First Amendment bars application of a neutral, generally
applicable law to religiously motivated action are distinguished on
the ground that they involved not the Free Exercise Clause alone,
but that Clause in conjunction with other constitutional Page 494 U. S. 873 protections. See, e.g., Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S.
304 -307; Wisconsin v. Yoder, 406 U.
S. 205 . Pp. 494 U. S.
876 -882.

															(b) Respondents' claim for a religious exemption from the Oregon
law cannot be evaluated under the balancing test set forth in the
line of cases following Sherbert v. Verner, 374 U.
S. 398 , 374 U. S.
402 -403, whereby governmental actions that substantially
burden a religious practice must be justified by a "compelling
governmental interest." That test was developed in a context --
unemployment compensation eligibility rules -- that lent itself to
individualized governmental assessment of the reasons for the
relevant conduct. The test is inapplicable to an across-the-board
criminal prohibition on a particular form of conduct. A holding to
the contrary would create an extraordinary right to ignore
generally applicable laws that are not supported by "compelling
governmental interest" on the basis of religious belief. Nor could
such a right be limited to situations in which the conduct
prohibited is "central" to the individual's religion, since that
would enmesh judges in an impermissible inquiry into the centrality
of particular beliefs or practices to a faith. Cf. Hernandez v.
Commissioner, 490 U. S. 680 , 490 U. S. 699 .
Thus, although it is constitutionally permissible to exempt
sacramental peyote use from the operation of drug laws, it is not
constitutionally required. Pp. 494 U. S.
882 -890.

															307 Or. 68, 763 P.2d 146 ,
reversed.

															SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, STEVENS, and KENNEDY, JJ., joined.
O'CONNOR, J., filed an opinion concurring in the judgment, in Parts
I and II of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined
without concurring in the judgment, post, p. 494 U. S. 891 .
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, post, p. 494 U. S.
907 . Page 494 U. S. 874 Justice SCALIA delivered the opinion of the Court.

															This case requires us to decide whether the Free Exercise Clause
of the First Amendment permits the State of Oregon to include
religiously inspired peyote use within the reach of its general
criminal prohibition on use of that drug, and thus permits the
State to deny unemployment benefits to persons dismissed from their
jobs because of such religiously inspired use. I Oregon law prohibits the knowing or intentional possession of a
"controlled substance" unless the substance has been prescribed by
a medical practitioner. Ore.Rev.Stat. § 475.992(4) (1987). The law
defines "controlled substance" as a drug classified in Schedules I
through V of the Federal Controlled Substances Act, 21 U.S.C. §§
811-812 (1982 ed. and Supp. V), as modified by the State Board of
Pharmacy. Ore.Rev.Stat. § 475.005(6) (1987). Persons who violate
this provision by possessing a controlled substance listed on
Schedule I are "guilty of a Class B felony." § 475.992(4)(a). As
compiled by the State Board of Pharmacy under its statutory
authority, see Ore.Rev.Stat. § 475.035 (1987), Schedule I
contains the drug peyote, a hallucinogen derived from the plant
Lophophorawilliamsii Lemaire. Ore.Admin. Rule 855-80-021(3)(s)
(1988).

															Respondents Alfred Smith and Galen Black were fired from their
jobs with a private drug rehabilitation organization because they
ingested peyote for sacramental purposes at a ceremony of the
Native American Church, of which both are members. When respondents
applied to petitioner Employment Division for unemployment
compensation, they were determined to be ineligible for benefits
because they had been discharged for work-related "misconduct". The
Oregon Court of Appeals reversed that determination, holding that
the denial of benefits violated respondents' free exercise rights
under the First Amendment. Page 494 U. S. 875 On appeal to the Oregon Supreme Court, petitioner argued that
the denial of benefits was permissible because respondents'
consumption of peyote was a crime under Oregon law. The Oregon
Supreme Court reasoned, however, that the criminality of
respondents' peyote use was irrelevant to resolution of their
constitutional claim -- since the purpose of the "misconduct"
provision under which respondents had been disqualified was not to
enforce the State's criminal laws, but to preserve the financial
integrity of the compensation fund, and since that purpose was
inadequate to justify the burden that disqualification imposed on
respondents' religious practice. Citing our decisions in Sherbert v. Verner, 374 U. S. 398 (1963), and Thomas v. Review Board, Indiana Employment Security
Div., 450 U. S. 707 (1981), the court concluded that respondents were entitled to
payment of unemployment benefits. Smith v. Employment Div.,
Dept. of Human Resources, 301 Or. 209, 217-219, 721 P.2d
445 , 449-450 (1986). We granted certiorari. 480 U.S. 916
(1987).

															Before this Court in 1987, petitioner continued to maintain that
the illegality of respondents' peyote consumption was relevant to
their constitutional claim. We agreed, concluding that

															"if a State has prohibited through its criminal laws certain
kinds of religiously motivated conduct without violating the First
Amendment, it certainly follows that it may impose the lesser
burden of denying unemployment compensation benefits to persons who
engage in that conduct." Employment Div., Dept. of Human Resources of Oregon v.
Smith, 485 U. S. 660 , 485 U. S. 670 (1988) ( Smith I ). We noted, however, that the Oregon
Supreme Court had not decided whether respondents' sacramental use
of peyote was in fact proscribed by Oregon's controlled substance
law, and that this issue was a matter of dispute between the
parties. Being "uncertain about the legality of the religious use
of peyote in Oregon," we determined that it would not be
"appropriate for us to decide whether the practice is protected by
the Federal Constitution." Id. at 485 U. S. 673 .
Accordingly, we Page 494 U. S. 876 vacated the judgment of the Oregon Supreme Court and remanded
for further proceedings. Id. at 485 U. S.
674 .

															On remand, the Oregon Supreme Court held that respondents'
religiously inspired use of peyote fell within the prohibition of
the Oregon statute, which "makes no exception for the sacramental
use" of the drug. 307 Or. 68, 72-73, 763 P.2d 146 ,
148 (1988). It then considered whether that prohibition was valid
under the Free Exercise Clause, and concluded that it was not. The
court therefore reaffirmed its previous ruling that the State could
not deny unemployment benefits to respondents for having engaged in
that practice.

															We again granted certiorari. 489 U.S. 1077 (1989). II Respondents' claim for relief rests on our decisions in Sherbert v. Verner, supra, Thomas v. Review Board, Indiana
Employment Security Div., supra, and Hobbie v.
Unemployment Appeals Comm'n of Florida, 480 U.
S. 136 (1987), in which we held that a State could not
condition the availability of unemployment insurance on an
individual's willingness to forgo conduct required by his religion.
As we observed in Smith I, however, the conduct at issue
in those cases was not prohibited by law. We held that distinction
to be critical, for

															"if Oregon does prohibit the religious use of peyote, and if
that prohibition is consistent with the Federal Constitution, there
is no federal right to engage in that conduct in Oregon,"

															and

															"the State is free to withhold unemployment compensation from
respondents for engaging in work-related misconduct, despite its
religious motivation."

															485 U.S. at 485 U. S. 672 .
Now that the Oregon Supreme Court has confirmed that Oregon does
prohibit the religious use of peyote, we proceed to consider
whether that prohibition is permissible under the Free Exercise
Clause. A The Free Exercise Clause of the First Amendment, which has been
made applicable to the States by incorporation into Page 494 U. S. 877 the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U. S. 296 , 303
(1940), provides that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof. . . . " U.S. Const. Am. I (emphasis added). The free
exercise of religion means, first and foremost, the right to
believe and profess whatever religious doctrine one desires. Thus,
the First Amendment obviously excludes all "governmental regulation
of religious beliefs as such." Sherbert v. Verner, supra, 374 U.S. at 374 U. S. 402 .
The government may not compel affirmation of religious belief, see Torcaso v. Watkins, 367 U. S. 488 (1961), punish the expression of religious doctrines it believes to
be false, United States v. Ballard, 322 U. S.
78 , 322 U. S. 86 -88
(1944), impose special disabilities on the basis of religious views
or religious status, see McDaniel v. Paty, 435 U.
S. 618 (1978); Fowler v. Rhode Island, 345 U. S. 67 , 345 U. S. 69 (1953); cf. Larson v. Valente, 456 U.
S. 228 , 456 U. S. 245 (1982), or lend its power to one or the other side in controversies
over religious authority or dogma, see Presbyterian Church v.
Hull Church, 393 U. S. 440 , 393 U. S.
445 -452 (1969); Kedroff v. St. Nicholas
Cathedral, 344 U. S. 94 , 344 U. S. 95 -119
(1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U. S. 696 , 426 U. S.
708 -725 (1976).

															But the "exercise of religion" often involves not only belief
and profession but the performance of (or abstention from) physical
acts: assembling with others for a worship service, participating
in sacramental use of bread and wine, proselytizing, abstaining
from certain foods or certain modes of transportation. It would be
true, we think (though no case of ours has involved the point),
that a state would be "prohibiting the free exercise [of religion]"
if it sought to ban such acts or abstentions only when they are
engaged in for religious reasons, or only because of the religious
belief that they display. It would doubtless be unconstitutional,
for example, to ban the casting of "statues that are to be used Page 494 U. S. 878 for worship purposes," or to prohibit bowing down before a
golden calf.

															Respondents in the present case, however, seek to carry the
meaning of "prohibiting the free exercise [of religion]" one large
step further. They contend that their religious motivation for
using peyote places them beyond the reach of a criminal law that is
not specifically directed at their religious practice, and that is
concededly constitutional as applied to those who use the drug for
other reasons. They assert, in other words, that "prohibiting the
free exercise [of religion]" includes requiring any individual to
observe a generally applicable law that requires (or forbids) the
performance of an act that his religious belief forbids (or
requires). As a textual matter, we do not think the words must be
given that meaning. It is no more necessary to regard the
collection of a general tax, for example, as "prohibiting the free
exercise [of religion]" by those citizens who believe support of
organized government to be sinful than it is to regard the same tax
as "abridging the freedom . . . of the press" of those publishing
companies that must pay the tax as a condition of staying in
business. It is a permissible reading of the text, in the one case
as in the other, to say that, if prohibiting the exercise of
religion (or burdening the activity of printing) is not the object
of the tax, but merely the incidental effect of a generally
applicable and otherwise valid provision, the First Amendment has
not been offended. Compare Citizen Publishing Co. v. United
States, 394 U. S. 131 , 139
(1969) (upholding application of antitrust laws to press), with
Grosjean v. American Press Co., 297 U.
S. 233 , 297 U. S.
250 -251 (1936) (striking down license tax applied only
to newspapers with weekly circulation above a specified level); see generally Minneapolis Star & Tribune Co. v. Minnesota
Commissioner of Revenue, 460 U. S. 575 , 460 U. S. 581 (1983).

															Our decisions reveal that the latter reading is the correct one.
We have never held that an individual's religious beliefs Page 494 U. S. 879 excuse him from compliance with an otherwise valid law
prohibiting conduct that the State is free to regulate. On the
contrary, the record of more than a century of our free exercise
jurisprudence contradicts that proposition. As described succinctly
by Justice Frankfurter in Minersville School Dist. Bd. of Educ.
v. Gobitis, 310 U. S. 586 , 310 U. S.
594 -595 (1940):

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

															(Footnote omitted.) We first had occasion to assert that
principle in Reynolds v. United States, 98 U. S.
145 (1879), where we rejected the claim that criminal
laws against polygamy could not be constitutionally applied to
those whose religion commanded the practice. "Laws," we said,

															"are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with
practices. . . . Can a man excuse his practices to the contrary
because of his religious belief? To permit this would be to make
the professed doctrines of religious belief superior to the law of
the land, and in effect to permit every citizen to become a law
unto himself." Id. at 166- 98 U. S.
167 .

															Subsequent decisions have consistently held that the right of
free exercise does not relieve an individual of the obligation to
comply with a

															"valid and neutral law of general applicability on the ground
that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes)." United States v. Lee, 455 U. S. 252 , 455 U. S. 263 ,
n. 3 (1982) (STEVENS, J., concurring in judgment); see
Minersville School Dist. Bd. of Educ. v. Gobitis, supra, 310
U.S. at 310 U. S. 595 (collecting cases). In Prince v. Massachusetts, 321 U. S. 158 (1944), we held that a mother could be prosecuted under the child
labor laws Page 494 U. S. 880 for using her children to dispense literature in the streets,
her religious motivation notwithstanding. We found no
constitutional infirmity in "excluding [these children] from doing
there what no other children may do." Id. at 321 U. S. 171 .
In Braunfeld v. Brown, 366 U. S. 599 (1961) (plurality opinion), we upheld Sunday closing laws against
the claim that they burdened the religious practices of persons
whose religions compelled them to refrain from work on other days.
In Gillette v. United States, 401 U.
S. 437 , 401 U. S. 461 (1971), we sustained the military selective service system against
the claim that it violated free exercise by conscripting persons
who opposed a particular war on religious grounds.

															Our most recent decision involving a neutral, generally
applicable regulatory law that compelled activity forbidden by an
individual's religion was United States v. Lee, 455 U.S.
at 455 U. S.
258 -261. There, an Amish employer, on behalf of himself
and his employees, sought exemption from collection and payment of
Social Security taxes on the ground that the Amish faith prohibited
participation in governmental support programs. We rejected the
claim that an exemption was constitutionally required. There would
be no way, we observed, to distinguish the Amish believer's
objection to Social Security taxes from the religious objections
that others might have to the collection or use of other taxes.

															"If, for example, a religious adherent believes war is a sin,
and if a certain percentage of the federal budget can be identified
as devoted to war-related activities, such individuals would have a
similarly valid claim to be exempt from paying that percentage of
the income tax. The tax system could not function if denominations
were allowed to challenge the tax system because tax payments were
spent in a manner that violates their religious belief." Id. at 455 U. S. 260 . Cf. Hernandez v. Commissioner, 490 U.
S. 680 (1989) (rejecting free exercise challenge to
payment of income taxes alleged to make religious activities more
difficult). Page 494 U. S. 881 The only decisions in which we have held that the First
Amendment bars application of a neutral, generally applicable law
to religiously motivated action have involved not the Free Exercise
Clause alone, but the Free Exercise Clause in conjunction with
other constitutional protections, such as freedom of speech and of
the press, see Cantwell v. Connecticut, 310 U.S. at 304, 310 U. S. 307 (invalidating a licensing system for religious and charitable
solicitations under which the administrator had discretion to deny
a license to any cause he deemed nonreligious); Murdock v.
Pennsylvania, 319 U. S. 105 (1943) (invalidating a flat tax on solicitation as applied to the
dissemination of religious ideas); Follett v. McCormick, 321 U. S. 573 (1944) (same), or the right of parents, acknowledged in Pierce
v. Society of Sisters, 268 U. S. 510 (1925), to direct the education of their children, see
Wisconsin v. Yoder, 406 U. S. 205 (1972) (invalidating compulsory school attendance laws as applied
to Amish parents who refused on religious grounds to send their
children to school). [ Footnote
1 ] Page 494 U. S. 882 Some of our cases prohibiting compelled expression, decided
exclusively upon free speech grounds, have also involved freedom of
religion, cf. Wooley v. Maynard, 430 U.
S. 705 (1977) (invalidating compelled display of a
license plate slogan that offended individual religious beliefs); West Virginia Board of Education v. Barnette, 319 U.
S. 624 (1943) (invalidating compulsory flag salute
statute challenged by religious objectors). And it is easy to
envision a case in which a challenge on freedom of association
grounds would likewise be reinforced by Free Exercise Clause
concerns. Cf. Roberts v. United States Jaycees, 468 U. S. 609 , 468 U. S. 622 (1983) ("An individual's freedom to speak, to worship, and to
petition the government for the redress of grievances could not be
vigorously protected from interference by the State [if] a
correlative freedom to engage in group effort toward those ends
were not also guaranteed.").

															The present case does not present such a hybrid situation, but a
free exercise claim unconnected with any communicative activity or
parental right. Respondents urge us to hold, quite simply, that
when otherwise prohibitable conduct is accompanied by religious
convictions, not only the convictions but the conduct itself must
be free from governmental regulation. We have never held that, and
decline to do so now. There being no contention that Oregon's drug
law represents an attempt to regulate religious beliefs, the
communication of religious beliefs, or the raising of one's
children in those beliefs, the rule to which we have adhered ever
since Reynolds plainly controls.

															"Our cases do not at their farthest reach support the
proposition that a stance of conscientious opposition relieves an
objector from any colliding duty fixed by a democratic
government." Gillette v. United States, supra, 401 U.S. at 401 U. S.
461 . B Respondents argue that, even though exemption from generally
applicable criminal laws need not automatically be extended to
religiously motivated actors, at least the claim for a Page 494 U. S. 883 religious exemption must be evaluated under the balancing test
set forth in Sherbert v. Verner, 374 U.
S. 398 (1963). Under the Sherbert test,
governmental actions that substantially burden a religious practice
must be justified by a compelling governmental interest. See
id. at 374 U. S.
402 -403; see also Hernandez v. Commissioner,
supra, 490 U.S. at 490 U. S. 699 .
Applying that test, we have, on three occasions, invalidated state
unemployment compensation rules that conditioned the availability
of benefits upon an applicant's willingness to work under
conditions forbidden by his religion. See Sherbert v. Verner,
supra; Thomas v. Review Board, Indiana Employment Div., 450 U. S. 707 (1981); Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U. S. 136 (1987). We have never invalidated any governmental action on the
basis of the Sherbert test except the denial of
unemployment compensation. Although we have sometimes purported to
apply the Sherbert test in contexts other than that, we
have always found the test satisfied, see United States v.
Lee, 455 U. S. 252 (1982); Gillette v. United States, 401 U.
S. 437 (1971). In recent years we have abstained from
applying the Sherbert test (outside the unemployment
compensation field) at all. In Bowen v. Roy, 476 U.
S. 693 (1986), we declined to apply Sherbert analysis to a federal statutory scheme that required benefit
applicants and recipients to provide their Social Security numbers.
The plaintiffs in that case asserted that it would violate their
religious beliefs to obtain and provide a Social Security number
for their daughter. We held the statute's application to the
plaintiffs valid regardless of whether it was necessary to
effectuate a compelling interest. See id. at 476 U. S.
699 -701. In Lyng v. Northwest Indian Cemetery
Protective Assn., 485 U. S. 439 (1988), we declined to apply Sherbert analysis to the
Government's logging and road construction activities on lands used
for religious purposes by several Native American Tribes, even
though it was undisputed that the activities "could have
devastating effects on traditional Indian religious practices," 485
U.S. at 485 U. S.
451 . Page 494 U. S. 884 In Goldman v. Weinberger, 475 U.
S. 503 (1986), we rejected application of the Sherbert test to military dress regulations that forbade
the wearing of yarmulkes. In O'Lone v. Estate of Shabazz, 482 U. S. 342 (1987), we sustained, without mentioning the Sherbert test, a prison's refusal to excuse inmates from work requirements
to attend worship services.

															Even if we were inclined to breathe into Sherbert some
life beyond the unemployment compensation field, we would not apply
it to require exemptions from a generally applicable criminal law.
The Sherbert test, it must be recalled, was developed in a
context that lent itself to individualized governmental assessment
of the reasons for the relevant conduct. As a plurality of the
Court noted in Roy, a distinctive feature of unemployment
compensation programs is that their eligibility criteria invite
consideration of the particular circumstances behind an applicant's
unemployment:

															"The statutory conditions [in Sherbert and Thomas ] provided that a person was not eligible for
unemployment compensation benefits if, 'without good cause,' he had
quit work or refused available work. The 'good cause' standard
created a mechanism for individualized exemptions." Bowen v. Roy, supra, 476 U.S. at 476 U. S. 708 (opinion of Burger, C.J., joined by Powell and REHNQUIST, JJ.). See also Sherbert, supra, 374 U.S. at 374 U. S. 401 n. 4 (reading state unemployment compensation law as allowing
benefits for unemployment caused by at least some "personal
reasons"). As the plurality pointed out in Roy, our
decisions in the unemployment cases stand for the proposition that
where the State has in place a system of individual exemptions, it
may not refuse to extend that system to cases of "religious
hardship" without compelling reason. Bowen v. Roy, supra, 476 U.S. at 476 U. S.
708 .

															Whether or not the decisions are that limited, they at least
have nothing to do with an across-the-board criminal prohibition on
a particular form of conduct. Although, as noted earlier, we have
sometimes used the Sherbert test to analyze free exercise
challenges to such laws, see United States v. Page 494 U. S. 885 Lee, supra, 455 U.S. at 455 U. S.
257 -260; Gillette v. United States, supra, 401
U.S. at 401 U. S. 462 ,
we have never applied the test to invalidate one. We conclude today
that the sounder approach, and the approach in accord with the vast
majority of our precedents, is to hold the test inapplicable to
such challenges. The government's ability to enforce generally
applicable prohibitions of socially harmful conduct, like its
ability to carry out other aspects of public policy, "cannot depend
on measuring the effects of a governmental action on a religious
objector's spiritual development." Lyng, supra, 485 U.S.
at 485 U. S. 451 .
To make an individual's obligation to obey such a law contingent
upon the law's coincidence with his religious beliefs, except where
the State's interest is "compelling" -- permitting him, by virtue
of his beliefs, "to become a law unto himself," Reynolds v.
United States, 98 U.S. at 98 U. S. 167 --
contradicts both constitutional tradition and common sense.
[ Footnote 2 ]

															The "compelling government interest" requirement seems benign,
because it is familiar from other fields. But using it as the
standard that must be met before the government may accord
different treatment on the basis of race, see, e.g., Page 494 U. S. 886 Palmore v. Sidoti, 466 U. S. 429 , 466 U. S. 432 (1984), or before the government may regulate the content of
speech, see, e.g., Sable Communications of California v.
FCC, 492 U. S. 115 (1989), is not remotely comparable to using it for the purpose
asserted here. What it produces in those other fields -- equality
of treatment, and an unrestricted flow of contending speech -- are
constitutional norms; what it would produce here -- a private right
to ignore generally applicable laws -- is a constitutional anomaly.
[ Footnote 3 ]

															Nor is it possible to limit the impact of respondents' proposal
by requiring a "compelling state interest" only when the conduct
prohibited is "central" to the individual's religion. Cf. Lyng
v. Northwest Indian Cemetery Protective Assn., supra, 485 U.S.
at 485 U. S.
474 -476 (BRENNAN, J., dissenting). It is no Page 494 U. S. 887 more appropriate for judges to determine the "centrality" of
religious beliefs before applying a "compelling interest" test in
the free exercise field than it would be for them to determine the
"importance" of ideas before applying the "compelling interest"
test in the free speech field. What principle of law or logic can
be brought to bear to contradict a believer's assertion that a
particular act is "central" to his personal faith? Judging the
centrality of different religious practices is akin to the
unacceptable "business of evaluating the relative merits of
differing religious claims." United States v. Lee, 455
U.S. at 455 U. S. 263 n. 2 (STEVENS, J., concurring). As we reaffirmed only last
Term,

															"[i]t is not within the judicial ken to question the centrality
of particular beliefs or practices to a faith, or the validity of
particular litigants' interpretation of those creeds." Hernandez v. Commissioner, 490 U.S. at 490 U. S. 699 .
Repeatedly and in many different contexts, we have warned that
courts must not presume to determine the place of a particular
belief in a religion or the plausibility of a religious claim. See, e.g., Thomas v. Review Board, Indiana Employment Security
Div., 450 U.S. at 450 U. S. 716 ; Presbyterian Church v. Hull Church, 393 U.S. at 393 U. S. 450 ; Jones v. Wolf, 443 U. S. 595 , 443 U. S.
602 -606 (1979); United States v. Ballard, 322 U. S. 78 , 322 U. S. 85 -87
(1944). [ Footnote 4 ] Page 494 U. S. 888 If the "compelling interest" test is to be applied at all, then,
it must be applied across the board, to all actions thought to be
religiously commanded. Moreover, if "compelling interest" really
means what it says (and watering it down here would subvert its
rigor in the other fields where it is applied), many laws will not
meet the test. Any society adopting such a system would be courting
anarchy, but that danger increases in direct proportion to the
society's diversity of religious beliefs, and its determination to
coerce or suppress none of them. Precisely because "we are a
cosmopolitan nation made up of people of almost every conceivable
religious preference," Braunfeld v. Brown, 366 U.S. at 366 U. S. 606 ,
and precisely because we value and protect that religious
divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious
objector, every regulation of conduct that does not protect an
interest of the highest order. The rule respondents favor would
open the prospect of constitutionally required religious exemptions
from civic obligations of almost every conceivable kind -- ranging
from Page 494 U. S. 889 compulsory military service, see, e.g., Gillette v. United
States, 401 U. S. 437 (1971), to the payment of taxes, see, e.g., United States v.
Lee, supra; to health and safety regulation such as
manslaughter and child neglect laws, see, e.g., Funkhouser v.
State, 763
P.2d 695 (Okla.Crim.App.1988), compulsory vaccination laws, see, e.g., Cude v. State, 237 Ark. 927, 377 S.W.2d
816 (1964), drug laws, see, e.g., Olsen v. Drug Enforcement
Administration, 279 U.S.App.D.C. 1, 878 F.2d 1458 (1989), and
traffic laws, see Cox v. New Hampshire, 312 U.
S. 569 (1941); to social welfare legislation such as
minimum wage laws, see Susan and Tony Alamo Foundation v.
Secretary of Labor, 471 U. S. 290 (1985), child labor laws, see Prince v. Massachusetts, 321 U. S. 158 (1944), animal cruelty laws, see, e.g., Church of the Lukumi
Babalu Aye Inc. v. City of Hialeah, 723 F.
Supp. 1467 (S.D.Fla.1989), cf. State v. Massey, 229
N.C. 734, 51 S.E.2d 179, appeal dism'd, 336 U.S. 942
(1949), environmental protection laws, see United States v.
Little, 638 F.
Supp. 337 (Mont.1986), and laws providing for equality of
opportunity for the races, see, e.g., Bob Jones University v.
United States, 461 U. S. 574 , 461 U. S.
603 -604 (1983). The First Amendment's protection of
religious liberty does not require this. [ Footnote 5 ] Page 494 U. S. 890 Values that are protected against government interference
through enshrinement in the Bill of Rights are not thereby banished
from the political process. Just as a society that believes in the
negative protection accorded to the press by the First Amendment is
likely to enact laws that affirmatively foster the dissemination of
the printed word, so also a society that believes in the negative
protection accorded to religious belief can be expected to be
solicitous of that value in its legislation as well. It is
therefore not surprising that a number of States have made an
exception to their drug laws for sacramental peyote use. See,
e.g., Ariz.Rev.Stat.Ann. § 13-3402(B)(1) (3) (1989);
Colo.Rev.Stat. § 12-22-317(3) (1985); N.M.Stat.Ann. § 30-31-6(D)
(Supp.1989). But to say that a nondiscriminatory religious practice
exemption is permitted, or even that it is desirable, is not to say
that it is constitutionally required, and that the appropriate
occasions for its creation can be discerned by the courts. It may
fairly be said that leaving accommodation to the political process
will place at a relative disadvantage those religious practices
that are not widely engaged in; but that unavoidable consequence of
democratic government must be preferred to a system in which each
conscience is a law unto itself or in which judges weigh the social
importance of all laws against the centrality of all religious
beliefs. * * * * Because respondents' ingestion of peyote was prohibited under
Oregon law, and because that prohibition is constitutional, Oregon
may, consistent with the Free Exercise Clause, deny respondents
unemployment compensation when their dismissal results from use of
the drug. The decision of the Oregon Supreme Court is accordingly
reversed. It is so ordered. Page 494 U. S. 891 [ Footnote 1 ]

															Both lines of cases have specifically adverted to the non-free
exercise principle involved. Cantwell, for example,
observed that

															"[t]he fundamental law declares the interest of the United
States that the free exercise of religion be not prohibited and
that freedom to communicate information and opinion be not
abridged."

															310 U.S. at 310 U. S. 307 . Murdock said:

															"We do not mean to say that religious groups and the press are
free from all financial burdens of government. . . . We have here
something quite different, for example, from a tax on the income of
one who engages in religious activities or a tax on property used
or employed in connection with those activities. It is one thing to
impose a tax on the income or property of a preacher. It is quite
another thing to exact a tax from him for the privilege of
delivering a sermon. . . . Those who can deprive religious groups
of their colporteurs can take from them a part of the vital power
of the press which has survived from the Reformation."

															319 U.S. at 319 U. S.
112 . Yoder said that

															"the Court's holding in Pierce stands as a charter of
the rights of parents to direct the religious upbringing of their
children. And, when the interests of parenthood are combined with a
free exercise claim of the nature revealed by this record, more
than merely a 'reasonable relation to some purpose within the
competency of the State' is required to sustain the validity of the
State's requirement under the First Amendment."

															406 U.S. at 406 U. S.
233 .

															[ Footnote 2 ]

															Justice O'CONNOR seeks to distinguish Lyng v. Northwest
Indian Cemetery Protective Assn., supra, and Bowen v. Roy,
supra, on the ground that those cases involved the
government's conduct of "its own internal affairs," which is
different because, as Justice Douglas said in Sherbert, "'the Free Exercise Clause is written in terms of what the
government cannot do to the individual, not in terms of what the
individual can exact from the government.'" Post at 494 U. S. 900 (O'CONNOR, J., concurring), quoting Sherbert, supra, at 374 U. S. 412 (Douglas, J., concurring). But since Justice Douglas voted with the
majority in Sherbert, that quote obviously envisioned that
what "the government cannot do to the individual" includes not just
the prohibition of an individual's freedom of action through
criminal laws, but also the running of its programs (in Sherbert, state unemployment compensation) in such fashion
as to harm the individual's religious interests. Moreover, it is
hard to see any reason in principle or practicality why the
government should have to tailor its health and safety laws to
conform to the diversity of religious belief, but should not have
to tailor its management of public lands, Lyng, supra, or
its administration of welfare programs, Roy, supra. [ Footnote 3 ]

															Justice O'CONNOR suggests that "[t]here is nothing talismanic
about neutral laws of general applicability," and that all laws
burdening religious practices should be subject to compelling
interest scrutiny because

															"the First Amendment unequivocally makes freedom of religion,
like freedom from race discrimination and freedom of speech, a
'constitutional norm,' not an 'anomaly.'" Post at 494 U. S. 901 (O'CONNOR, J., concurring). But this comparison with other fields
supports, rather than undermines, the conclusion we draw today.
Just as we subject to the most exacting scrutiny laws that make
classifications based on race, see Palmore v. Sidoti,
supra, or on the content of speech, see Sable
Communications, supra, so too we strictly scrutinize
governmental classifications based on religion, see McDaniel v.
Paty, 435 U. S. 618 (1978); see also Torcaso v. Watkins, 367 U.
S. 488 (1961). But we have held that race-neutral laws
that have the effect of disproportionately disadvantaging
a particular racial group do not thereby become subject to
compelling interest analysis under the Equal Protection Clause, see Washington v. Davis, 426 U. S. 229 (1976) (police employment examination); and we have held that
generally applicable laws unconcerned with regulating speech that
have the effect of interfering with speech do not thereby
become subject to compelling interest analysis under the First
Amendment, see Citizen Publishing Co. v. United States, 394 U. S. 131 , 394 U. S. 139 (1969) (antitrust laws). Our conclusion that generally applicable,
religion-neutral laws that have the effect of burdening a
particular religious practice need not be justified by a compelling
governmental interest is the only approach compatible with these
precedents.

															[ Footnote 4 ]

															While arguing that we should apply the compelling interest test
in this case, Justice O'CONNOR nonetheless agrees that

															"our determination of the constitutionality of Oregon's general
criminal prohibition cannot, and should not, turn on the centrality
of the particular religious practice at issue," post at 494 U. S.
906 -907 (O'CONNOR, J., concurring). This means,
presumably, that compelling interest scrutiny must be applied to
generally applicable laws that regulate or prohibit any religiously motivated activity, no matter how unimportant to the
claimant's religion. Earlier in her opinion, however, Justice
O'CONNOR appears to contradict this, saying that the proper
approach is

															"to determine whether the burden on the specific plaintiffs
before us is constitutionally significant and whether the
particular criminal interest asserted by the State before us is
compelling." Post at 494 U. S. 899 .
"Constitutionally significant burden" would seem to be "centrality"
under another name. In any case, dispensing with a "centrality"
inquiry is utterly unworkable. It would require, for example, the
same degree of "compelling state interest" to impede the practice
of throwing rice at church weddings as to impede the practice of
getting married in church. There is no way out of the difficulty
that, if general laws are to be subjected to a "religious practice"
exception, both the importance of the law at issue and the centrality of the practice at issue must
reasonably be considered.

															Nor is this difficulty avoided by Justice BLACKMUN's assertion
that

															"although courts should refrain from delving into questions of
whether, as a matter of religious doctrine, a particular practice
is 'central' to the religion, I do not think this means that the
courts must turn a blind eye to the severe impact of a State's
restrictions on the adherents of a minority religion." Post at 494 U. S. 919 (dissenting opinion). As Justice BLACKMUN's opinion proceeds to
make clear, inquiry into "severe impact" is no different from
inquiry into centrality. He has merely substituted for the question
"How important is X to the religious adherent?" the question "How
great will be the harm to the religious adherent if X is taken
away?" There is no material difference.

															[ Footnote 5 ]

															Justice O'CONNOR contends that the "parade of horribles" in the
text only

															"demonstrates . . . that courts have been quite capable of
strik[ing] sensible balances between religious liberty and
competing state interests." Post at 494 U. S. 902 (O'CONNOR, J., concurring). But the cases we cite have struck
"sensible balances" only because they have all applied the general
laws, despite the claims for religious exemption. In any event,
Justice O'CONNOR mistakes the purpose of our parade: it is not to
suggest that courts would necessarily permit harmful exemptions
from these laws (though they might), but to suggest that courts
would constantly be in the business of determining whether the
"severe impact" of various laws on religious practice (to use
Justice BLACKMUN's terminology) or the "constitutiona[l]
significan[ce]" of the "burden on the particular plaintiffs" (to
use Justice O'CONNOR's terminology) suffices to permit us to confer
an exemption. It is a parade of horribles because it is horrible to
contemplate that federal judges will regularly balance against the
importance of general laws the significance of religious
practice.

															Justice O'CONNOR, with whom Justice BRENNAN, Justice MARSHALL,
and Justice BLACKMUN join as to Parts I and II, concurring in the
judgment. * Although I agree with the result the Court reaches in this case,
I cannot join its opinion. In my view, today's holding dramatically
departs from well settled First Amendment jurisprudence, appears
unnecessary to resolve the question presented, and is incompatible
with our Nation's fundamental commitment to individual religious
liberty. I At the outset, I note that I agree with the Court's implicit
determination that the constitutional question upon which we
granted review -- whether the Free Exercise Clause protects a
person's religiously motivated use of peyote from the reach of a
State's general criminal law prohibition -- is properly presented
in this case. As the Court recounts, respondents Alfred Smith and
Galen Black were denied unemployment compensation benefits because
their sacramental use of peyote constituted work-related
"misconduct," not because they violated Oregon's general criminal
prohibition against possession of peyote. We held, however, in Employment Div., Dept. of Human Resources of Oregon v.
Smith, 485 U. S. 660 (1988) ( Smith I ), that whether a State may, consistent
with federal law, deny unemployment compensation benefits to
persons for their religious use of peyote depends on whether the
State, as a matter of state law, has criminalized the underlying
conduct. See id. at 485 U. S.
670 -672. The Oregon Supreme Court, on remand from this
Court, concluded that "the Oregon statute against possession of
controlled substances, which include peyote, makes no exception for
the sacramental use of peyote." 307 Or. 68, 72-73, 763 P.2d 146 ,
148 (1988) (footnote omitted). Page 494 U. S. 892 Respondents contend that, because the Oregon Supreme Court
declined to decide whether the Oregon Constitution prohibits
criminal prosecution for the religious use of peyote, see
id. at 73, n. 3, 763 P.2d at 148, n. 3, any ruling on the
federal constitutional question would be premature. Respondents are
of course correct that the Oregon Supreme Court may eventually
decide that the Oregon Constitution requires the State to provide
an exemption from its general criminal prohibition for the
religious use of peyote. Such a decision would then reopen the
question whether a State may nevertheless deny unemployment
compensation benefits to claimants who are discharged for engaging
in such conduct. As the case comes to us today, however, the Oregon
Supreme Court has plainly ruled that Oregon's prohibition against
possession of controlled substances does not contain an exemption
for the religious use of peyote. In light of our decision in Smith I, which makes this finding a "necessary predicate
to a correct evaluation of respondents' federal claim," 485 U.S. at 485 U. S. 672 ,
the question presented and addressed is properly before the
Court. II The Court today extracts from our long history of free exercise
precedents the single categorical rule that

															"if prohibiting the exercise of religion . . . is . . . merely
the incidental effect of a generally applicable and otherwise valid
provision, the First Amendment has not been offended." Ante at 494 U. S. 878 (citations omitted). Indeed, the Court holds that, where the law is
a generally applicable criminal prohibition, our usual free
exercise jurisprudence does not even apply. Ante at 494 U. S. 884 .
To reach this sweeping result, however, the Court must not only
give a strained reading of the First Amendment but must also
disregard our consistent application of free exercise doctrine to
cases involving generally applicable regulations that burden
religious conduct. Page 494 U. S. 893 A The Free Exercise Clause of the First Amendment commands that
"Congress shall make no law . . . prohibiting the free exercise [of
religion]." In Cantwell v. Connecticut, 310 U.
S. 296 (1940), we held that this prohibition applies to
the States by incorporation into the Fourteenth Amendment and that
it categorically forbids government regulation of religious
beliefs. Id. at 310 U. S. 303 .
As the Court recognizes, however, the "free exercise" of religion
often, if not invariably, requires the performance of (or
abstention from) certain acts. Ante at 494 U. S. 877 ; cf. 3 A New English Dictionary on Historical Principles
401-402 (J. Murray, ed. 1897) (defining "exercise" to include
"[t]he practice and performance of rites and ceremonies, worship,
etc.; the right or permission to celebrate the observances (of a
religion)" and religious observances such as acts of public and
private worship, preaching, and prophesying). "[B]elief and action
cannot be neatly confined in logic-tight compartments." Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 220 (1972). Because the First Amendment does not distinguish between
religious belief and religious conduct, conduct motivated by
sincere religious belief, like the belief itself, must therefore be
at least presumptively protected by the Free Exercise Clause.

															The Court today, however, interprets the Clause to permit the
government to prohibit, without justification, conduct mandated by
an individual's religious beliefs, so long as that prohibition is
generally applicable. Ante at 494 U.
S. . But a law that prohibits certain conduct -- conduct
that happens to be an act of worship for someone -- manifestly does
prohibit that person's free exercise of his religion. A person who
is barred from engaging in religiously motivated conduct is barred
from freely exercising his religion. Moreover, that person is
barred from freely exercising his religion regardless of whether
the law prohibits the conduct only when engaged in for religious
reasons, only by members of that religion, or by all persons. It is
difficult to deny that a law that prohibits Page 494 U. S. 894 religiously motivated conduct, even if the law is generally
applicable, does not at least implicate First Amendment
concerns.

															The Court responds that generally applicable laws are "one large
step" removed from laws aimed at specific religious practices. Ibid. The First Amendment, however, does not distinguish
between laws that are generally applicable and laws that target
particular religious practices. Indeed, few States would be so
naive as to enact a law directly prohibiting or burdening a
religious practice as such. Our free exercise cases have all
concerned generally applicable laws that had the effect of
significantly burdening a religious practice. If the First
Amendment is to have any vitality, it ought not be construed to
cover only the extreme and hypothetical situation in which a State
directly targets a religious practice. As we have noted in a
slightly different context,

															"'[s]uch a test has no basis in precedent and relegates a
serious First Amendment value to the barest level of minimum
scrutiny that the Equal Protection Clause already provides.'" Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U. S. 136 , 480 U. S.
141 -142 (1987) (quoting Bowen v. Roy, 476 U. S. 693 , 476 U. S. 727 (1986) (opinion concurring in part and dissenting in part)).

															To say that a person's right to free exercise has been burdened,
of course, does not mean that he has an absolute right to engage in
the conduct. Under our established First Amendment jurisprudence,
we have recognized that the freedom to act, unlike the freedom to
believe, cannot be absolute. See, e.g., Cantwell, supra, 310 U.S. at 310 U. S. 304 ; Reynolds v. United States, 98 U. S.
145 , 98 U. S.
161 -167. Instead, we have respected both the First
Amendment's express textual mandate and the governmental interest
in regulation of conduct by requiring the Government to justify any
substantial burden on religiously motivated conduct by a compelling
state interest and by means narrowly tailored to achieve that
interest. See Hernandez v. Commissioner, 490 U.
S. 680 , Page 494 U. S. 895 490 U. S. 699 (1989); Hobbie, supra, 480 U.S. at 480 U. S. 141 ; United States v. Lee, 455 U. S. 252 , 455 U. S.
257 -258 (1982); Thomas v. Review Bd., Indiana
Employment Security Div., 450 U. S. 707 , 450 U. S. 718 (1981); McDaniel v. Paty, 435 U.
S. 618 , 435 U. S.
626 -629 (1978) (plurality opinion); Yoder,
supra, 406 U.S. at 406 U. S. 215 ; Gillette v. United States, 401 U.
S. 437 , 401 U. S. 462 (1971); Sherbert v. Verner, 374 U.
S. 398 , 374 U. S. 403 (1963); see also Bowen v. Roy, supra, 476 U.S. at 476 U. S. 732 (opinion concurring in part and dissenting in part); West
Virginia State Bd. of Educ. v. Barnette, 319 U.
S. 624 , 319 U. S. 639 (1943). The compelling interest test effectuates the First
Amendment's command that religious liberty is an independent
liberty, that it occupies a preferred position, and that the Court
will not permit encroachments upon this liberty, whether direct or
indirect, unless required by clear and compelling governmental
interests "of the highest order," Yoder, supra, 406 U.S.
at 406 U. S.
215 .

															"Only an especially important governmental interest pursued by
narrowly tailored means can justify exacting a sacrifice of First
Amendment freedoms as the price for an equal share of the rights,
benefits, and privileges enjoyed by other citizens." Roy, supra, 476 U.S. at 476 U. S. 728 (opinion concurring in part and dissenting in part).

															The Court attempts to support its narrow reading of the Clause
by claiming that

															"[w]e have never held that an individual's religious beliefs
excuse him from compliance with an otherwise valid law prohibiting
conduct that the State IS free to regulate." Ante at 494 U. S.
878 -879. But as the Court later notes, as it must, in
cases such as Cantwell and Yoder, we have in fact
interpreted the Free Exercise Clause to forbid application of a
generally applicable prohibition to religiously motivated conduct. See Cantwell, supra, 310 U.S. at 310 U. S.
304 -307; Yoder, supra, 406 U.S. at 406 U. S.
214 -234. Indeed, in Yoder we expressly rejected
the interpretation the Court now adopts:

															"[O]ur decisions have rejected the idea that religiously
grounded conduct is always outside the protection of the Free
Exercise Clause. It is true that activities of individuals, even
when religiously based, are often subject Page 494 U. S. 896 to regulation by the States in the exercise of their undoubted
power to promote the health, safety, and general welfare, or the
Federal Government in the exercise of its delegated powers. But to
agree that religiously grounded conduct must often be subject to
the broad police power of the State is not to deny that there are
areas of conduct protected by the Free Exercise Clause of the First
Amendment and thus beyond the power of the State to control, even under regulations of general applicability. . . .
"

															". . . A regulation neutral on its face may, in its application,
nonetheless offend the constitutional requirement for government
neutrality if it unduly burdens the free exercise of religion."

															406 U.S. at 406 U. S.
219 -220 (emphasis added; citations omitted).

															The Court endeavors to escape from our decisions in Cantwell and Yoder by labeling them "hybrid"
decisions, ante at 494 U. S. 892 ,
but there is no denying that both cases expressly relied on the
Free Exercise Clause, see Cantwell, 310 U.S. at 310 U. S.
303 -307; Yoder, 406 U.S. at 406 U. S.
219 -229, and that we have consistently regarded those
cases as part of the mainstream of our free exercise jurisprudence.
Moreover, in each of the other cases cited by the Court to support
its categorical rule, ante at 494 U. S.
879 -880, we rejected the particular constitutional
claims before us only after carefully weighing the competing
interests. See Prince v. Massachusetts, 321 U.
S. 158 , 321 U. S.
168 -170 (1944) (state interest in regulating children's
activities justifies denial of religious exemption from child labor
laws); Braunfeld v. Brown, 366 U.
S. 599 , 366 U. S.
608 -609 (1961) (plurality opinion) (state interest in
uniform day of rest justifies denial of religious exemption from
Sunday closing law); Gillette, supra, 401 U.S. at 462
(state interest in military affairs justifies denial of religious
exemption from conscription laws); Lee, supra, 455 U.S. at 455 U. S.
258 -259 (state interest in comprehensive social security
system justifies denial of religious exemption from mandatory
participation requirement). That we rejected the free exercise Page 494 U. S. 897 claims in those cases hardly calls into question the
applicability of First Amendment doctrine in the first place.
Indeed, it is surely unusual to judge the vitality of a
constitutional doctrine by looking to the win-loss record of the
plaintiffs who happen to come before us. B Respondents, of course, do not contend that their conduct is
automatically immune from all governmental regulation simply
because it is motivated by their sincere religious beliefs. The
Court's rejection of that argument, ante at 494 U. S. 882 ,
might therefore be regarded as merely harmless dictum. Rather,
respondents invoke our traditional compelling interest test to
argue that the Free Exercise Clause requires the State to grant
them a limited exemption from its general criminal prohibition
against the possession of peyote. The Court today, however, denies
them even the opportunity to make that argument, concluding that
"the sounder approach, and the approach in accord with the vast
majority of our precedents, is to hold the [compelling interest]
test inapplicable to" challenges to general criminal prohibitions. Ante at 494 U. S.
885 .

															In my view, however, the essence of a free exercise claim is
relief from a burden imposed by government on religious practices
or beliefs, whether the burden is imposed directly through laws
that prohibit or compel specific religious practices, or indirectly
through laws that, in effect, make abandonment of one's own
religion or conformity to the religious beliefs of others the price
of an equal place in the civil community. As we explained in Thomas: "Where the state conditions receipt of an important benefit upon
conduct proscribed by a religious faith, or where it denies such a
benefit because of conduct mandated by religious belief, thereby
putting substantial pressure on an adherent to modify his behavior
and to violate his beliefs, a burden upon religion exists."

															450 U.S. at 450 U. S.
717 -718. Page 494 U. S. 898 See also Frazee v. Illinois Dept. of Employment
Security, 489 U. S. 829 , 489 U. S. 832 (1989); Hobbie, 480 U.S. at 480 U. S. 141 .
A State that makes criminal an individual's religiously motivated
conduct burdens that individual's free exercise of religion in the
severest manner possible, for it "results in the choice to the
individual of either abandoning his religious principle or facing
criminal prosecution." Braunfeld, supra, 366 U.S. at 366 U. S. 605 .
I would have thought it beyond argument that such laws implicate
free exercise concerns.

															Indeed, we have never distinguished between cases in which a
State conditions receipt of a benefit on conduct prohibited by
religious beliefs and cases in which a State affirmatively
prohibits such conduct. The Sherbert compelling interest
test applies in both kinds of cases. See, e.g., Lee, 455
U.S. at 455 U. S.
257 -260 (applying Sherbert to uphold social
security tax liability); Gillette, 401 U.S. at 401 U. S. 462 (applying Sherbert to uphold military conscription
requirement); Yoder, supra, 406 U.S. at 406 U. S.
215 -234 (applying Sherbert to strike down
criminal convictions for violation of compulsory school attendance
law). As I noted in Bowen v. Roy: "The fact that the underlying dispute involves an award of
benefits rather than an exaction of penalties does not grant the
Government license to apply a different version of the
Constitution. . . . "

															". . . The fact that appellees seek exemption from a
precondition that the Government attaches to an award of benefits
does not, therefore, generate a meaningful distinction between this
case and one where appellees seek an exemption from the
Government's imposition of penalties upon them."

															476 U.S. at 476 U. S.
731 -732 (opinion concurring in part and dissenting in
part). See also Hobbie, supra, 480 U.S. at 480 U. S.
141 -142; Sherbert, 374 U.S. at 374 U. S. 404 .
I would reaffirm that principle today: a neutral criminal law
prohibiting conduct that a State may legitimately regulate is, if
anything, more burdensome than a neutral civil Page 494 U. S. 899 statute placing legitimate conditions on the award of a state
benefit.

															Legislatures, of course, have always been "left free to reach
actions which were in violation of social duties or subversive of
good order." Reynolds, 98 U.S. at 98 U. S. 164 ; see also Yoder, 406 U.S. at 406 U. S.
219 -220; Braunfeld, 366 U.S. at 366 U. S.
603 -604. Yet because of the close relationship between
conduct and religious belief,

															"[i]n every case the power to regulate must be so exercised as
not, in attaining a permissible end, unduly to infringe the
protected freedom." Cantwell, 310 U.S. at 310 U. S. 304 .
Once it has been shown that a government regulation or criminal
prohibition burdens the free exercise of religion, we have
consistently asked the Government to demonstrate that unbending
application of its regulation to the religious objector "is
essential to accomplish an overriding governmental interest," Lee, supra, 455 U.S. at 455 U. S.
257 -258, or represents "the least restrictive means of
achieving some compelling state interest," Thomas, 450
U.S. at 450 U. S. 718 . See, e.g., Braunfeld, supra, 366 U.S. at 366 U. S. 607 ; Sherbert, supra, 374 U.S. at 374 U. S. 406 ; Yoder, supra, 406 U.S. at 406 U. S.
214 -215; Roy, 476 U.S. at 476 U. S.
728 -732 (opinion concurring in part and dissenting in
part). To me, the sounder approach -- the approach more consistent
with our role as judges to decide each case on its individual
merits -- is to apply this test in each case to determine whether
the burden on the specific plaintiffs before us is constitutionally
significant, and whether the particular criminal interest asserted
by the State before us is compelling. Even if, as an empirical
matter, a government's criminal laws might usually serve a
compelling interest in health, safety, or public order, the First
Amendment at least requires a case-by-case determination of the
question, sensitive to the facts of each particular claim. Cf.
McDaniel, 435 U.S. at 435 U. S. 628 , n. 8 (plurality opinion) (noting
application of Sherbert to general criminal prohibitions
and the "delicate balancing required by our decisions in" Sherbert and Yoder ). Given the range of conduct
that a State might legitimately make Page 494 U. S. 900 criminal, we cannot assume, merely because a law carries
criminal sanctions and is generally applicable, that the First
Amendment never requires the State to grant a limited exemption for
religiously motivated conduct.

															Moreover, we have not "rejected" or "declined to apply" the
compelling interest test in our recent cases. Ante at 494 U. S.
883 -884. Recent cases have instead affirmed that test as
a fundamental part of our First Amendment doctrine. See, e.g.,
Hernandez, 490 U.S. at 490 U. S. 699 ; Hobbie, supra, 480 U.S. at 480 U. S.
141 -142 (rejecting Chief Justice Burger's suggestion in Roy, supra, 476 U.S. at 476 U. S.
707 -708, that free exercise claims be assessed under a
less rigorous "reasonable means" standard). The cases cited by the
Court signal no retreat from our consistent adherence to the
compelling interest test. In both Bowen v. Roy, supra, and Lyng v. Northwest Indian Cemetary Protective Assn., 485 U. S. 439 (1988), for example, we expressly distinguished Sherbert on the ground that the First Amendment does not

															"require the Government itself to behave in ways that
the individual believes will further his or her spiritual
development. . . . The Free Exercise Clause simply cannot be
understood to require the Government to conduct its own internal
affairs in ways that comport with the religious beliefs of
particular citizens." Roy, supra, 476 U.S. at 476 U. S. 699 ; see Lyng, supra, 485 U.S. at 485 U. S. 449 .
This distinction makes sense because

															"the Free Exercise Clause is written in terms of what the
government cannot do to the individual, not in terms of what the
individual can exact from the government." Sherbert, supra, 374 U.S. at 374 U. S. 412 (Douglas, J., concurring). Because the case sub judice, like the other cases in which we have applied Sherbert, plainly falls into the former category, I would apply those
established precedents to the facts of this case.

															Similarly, the other cases cited by the Court for the
proposition that we have rejected application of the Sherbert test outside the unemployment compensation field, ante at 494 U. S. 884 ,
are distinguishable because they arose in the narrow, specialized
contexts in which we have not traditionally required Page 494 U. S. 901 the government to justify a burden on religious conduct by
articulating a compelling interest. See Goldman v.
Weinberger, 475 U. S. 503 , 475 U. S. 507 (1986) ("Our review of military regulations challenged on First
Amendment grounds is far more deferential than constitutional
review of similar laws or regulations designed for civilian
society"); O'Lone v. Estate of Shabazz, 482 U.
S. 342 , 482 U. S. 349 (1987) ("[P]rison regulations alleged to infringe constitutional
rights are judged under a reasonableness' test less restrictive
than that ordinarily applied to alleged infringements of
fundamental constitutional rights") (citation omitted). That we did
not apply the compelling interest test in these cases says nothing
about whether the test should continue to apply in paradigm free
exercise cases such as the one presented here. The Court today gives no convincing reason to depart from
settled First Amendment jurisprudence. There is nothing talismanic
about neutral laws of general applicability or general criminal
prohibitions, for laws neutral toward religion can coerce a person
to violate his religious conscience or intrude upon his religious
duties just as effectively as laws aimed at religion. Although the
Court suggests that the compelling interest test, as applied to
generally applicable laws, would result in a "constitutional
anomaly," ante at 494 U. S. 886 , the First Amendment unequivocally makes
freedom of religion, like freedom from race discrimination and
freedom of speech, a "constitutional nor[m]," not an "anomaly." Ibid. Nor would application of our established free
exercise doctrine to this case necessarily be incompatible with our
equal protection cases. Cf. Rogers v. Lodge, 458 U.
S. 613 , 458 U. S. 618 (1982) (race-neutral law that " bears more heavily on one race
than another'" may violate equal protection) (citation omitted); Castaneda v. Partida, 430 U. S. 482 , 430 U. S.
492 -495 (1977) (grand jury selection). We have, in any
event, recognized that the Free Exercise Clause protects values
distinct from those protected by the Equal Protection Clause. See Hobbie, 480 U.S. at 480 U. S.
141 -142. As the language of the Page 494 U. S. 902 Clause itself makes clear, an individual's free exercise of
religion is a preferred constitutional activity. See,
e.g., McConnell, Accommodation of Religion, 1985 Sup.Ct.Rev.
1, 9 ("[T]he text of the First Amendment itself `singles out'
religion for special protections"); P. Kauper, Religion and the
Constitution 17 (1964). A law that makes criminal such an activity
therefore triggers constitutional concern -- and heightened
judicial scrutiny -- even if it does not target the particular
religious conduct at issue. Our free speech cases similarly
recognize that neutral regulations that affect free speech values
are subject to a balancing, rather than categorical, approach. See, e.g., United States v. O'Brien, 391 U.
S. 367 , 391 U. S. 377 (1968); City of Renton v. Playtime Theatres, Inc., 475 U. S. 41 , 475 U. S. 46 -47
(1986); cf. Anderson v. Celebrezze, 460 U.
S. 780 , 460 U. S.
792 -794 (1983) (generally applicable laws may impinge on
free association concerns). The Court's parade of horribles, ante at 494 U. S.
888 -889, not only fails as a reason for discarding the
compelling interest test, it instead demonstrates just the
opposite: that courts have been quite capable of applying our free
exercise jurisprudence to strike sensible balances between
religious liberty and competing state interests.

															Finally, the Court today suggests that the disfavoring of
minority religions is an "unavoidable consequence" under our system
of government, and that accommodation of such religions must be
left to the political process. Ante at 494 U. S. 890 .
In my view, however, the First Amendment was enacted precisely to
protect the rights of those whose religious practices are not
shared by the majority and may be viewed with hostility. The
history of our free exercise doctrine amply demonstrates the harsh
impact majoritarian rule has had on unpopular or emerging religious
groups such as the Jehovah's Witnesses and the Amish. Indeed, the
words of Justice Jackson in West Virginia Board of Education v.
Barnette (overruling Minersville School District v.
Gobitis, 310 U. S. 586 (1940)) are apt: Page 494 U. S. 903 "The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the courts. One's right
to life, liberty, and property, to free speech, a free press,
freedom of worship and assembly, and other fundamental rights may
not be submitted to vote; they depend on the outcome of no
elections."

															319 U.S. at 319 U. S. 638 . See also United States v. Ballard, 322 U. S.
78 , 322 U. S. 87 (1944) ("The Fathers of the Constitution were not unaware of the
varied and extreme views of religious sects, of the violence of
disagreement among them, and of, the lack of any one religions
creed on which all men would agree. They fashioned a charter of
government which envisaged the widest possible toleration of
conflicting views"). The compelling interest test reflects the
First Amendment's mandate of preserving religious liberty to the
fullest extent possible in a pluralistic society. For the Court to
deem this command a "luxury," ante at 494 U. S. 888 ,
is to denigrate "[t]he very purpose of a Bill of Rights." III The Court's holding today not only misreads settled First
Amendment precedent; it appears to be unnecessary to this case. I
would reach the same result applying our established free exercise
jurisprudence. A There is no dispute that Oregon's criminal prohibition of peyote
places a severe burden on the ability of respondents to freely
exercise their religion. Peyote is a sacrament of the Native
American Church, and is regarded as vital to respondents' ability
to practice their religion. See O. Stewart, Peyote
Religion: A History 327-336 (1987) (describing modern status of
peyotism); E. Anderson, Peyote: The Divine Cactus 41-65 (1980)
(describing peyote ceremonies); Teachings from Page 494 U. S. 904 the American Earth: Indian Religion and Philosophy 96-104 (D.
Tedlock & B. Tedlock eds. 1975) (same); see also People v.
Woody, 61 Cal. 2d
716 , 721-722, 40 Cal. Rptr. 69, 73-74, 394 P.2d 813, 817-818
(1964). As we noted in Smith I, the Oregon Supreme Court
concluded that

															"the Native American Church is a recognized religion, that
peyote is a sacrament of that church, and that respondent's beliefs
were sincerely held."

															485 U.S. at 485 U. S. 667 .
Under Oregon law, as construed by that State's highest court,
members of the Native American Church must choose between carrying
out the ritual embodying their religious beliefs and avoidance of
criminal prosecution. That choice is, in my view, more than
sufficient to trigger First Amendment scrutiny.

															There is also no dispute that Oregon has a significant interest
in enforcing laws that control the possession and use of controlled
substances by its citizens. See, e.g., Sherbert, 374 U.S.
at 374 U. S. 403 (religiously motivated conduct may be regulated where such conduct
"pose[s] some substantial threat to public safety, peace or
order"); Yoder, 406 U.S. at 406 U. S. 220 ("activities of individuals, even when religiously based, are often
subject to regulation by the States in the exercise of their
undoubted power to promote the health, safety and general
welfare"). As we recently noted, drug abuse is "one of the greatest
problems affecting the health and welfare of our population" and
thus "one of the most serious problems confronting our society
today." Treasury Employees v. Von Raab, 489 U.
S. 656 , 489 U. S. 668 , 489 U. S. 674 (1989). Indeed, under federal law (incorporated by Oregon law in
relevant part, see Ore.Rev.Stat. § 475.005(6) (1989)),
peyote is specifically regulated as a Schedule I controlled
substance, which means that Congress has found that it has a high
potential for abuse, that there is no currently accepted medical
use, and that there is a lack of accepted safety for use of the
drug under medical supervision. See 21 U.S.C. § 812(b)(1). See generally R. Julien, A Primer of Drug Action 149 (3d
ed. 1981). In light of our recent decisions holding that the
governmental Page 494 U. S. 905 interests in the collection of income tax, Hernandez, 490 U.S. at 490 U. S.
699 -700, a comprehensive social security system, see
Lee, 455 U.S. at 455 U. S.
258 -259, and military conscription, see
Gillette, 401 U.S. at 401 U. S. 460 , are compelling, respondents do not
seriously dispute that Oregon has a compelling interest in
prohibiting the possession of peyote by its citizens. B Thus, the critical question in this case is whether exempting
respondents from the State's general criminal prohibition "will
unduly interfere with fulfillment of the governmental interest." Lee, supra, 455 U.S. at 455 U. S. 259 ; see also Roy, 476 U.S. at 476 U. S. 727 ("[T]he Government must accommodate a legitimate free exercise
claim unless pursuing an especially important interest by narrowly
tailored means"); Yoder, 406 U.S. at 406 U. S. 221 ; Braunfeld, 366 U.S. at 366 U. S.
605 -607. Although the question is close, I would
conclude that uniform application of Oregon's criminal prohibition
is "essential to accomplish," Lee, supra, at 455 U.S. at 455 U. S. 257 ,
its overriding interest in preventing the physical harm caused by
the use of a Schedule I controlled substance. Oregon's criminal
prohibition represents that State's judgment that the possession
and use of controlled substances, even by only one person, is
inherently harmful and dangerous. Because the health effects caused
by the use of controlled substances exist regardless of the
motivation of the user, the use of such substances, even for
religious purposes, violates the very purpose of the laws that
prohibit them. Cf. State v. Massey, 229 N.C. 734, 51
S.E.2d 179 (denying religious exemption to municipal ordinance
prohibiting handling of poisonous reptiles), appeal dism'd sub
nom. Bunn v. North Carolina, 336 U.S. 942 (1949). Moreover, in
view of the societal interest in preventing trafficking in
controlled substances, uniform application of the criminal
prohibition at issue is essential to the effectiveness of Oregon's
stated interest in preventing any possession of peyote. Cf. 197 U. S. Page 494 U. S. 906 Massachusetts, 197 U. S. 11 (1905)
(denying exemption from smallpox vaccination requirement).

															For these reasons, I believe that granting a selective exemption
in this case would seriously impair Oregon's compelling interest in
prohibiting possession of peyote by its citizens. Under such
circumstances, the Free Exercise Clause does not require the State
to accommodate respondents' religiously motivated conduct. See,
e.g., Thomas, 450 U.S. at 450 U. S. 719 .
Unlike in Yoder, where we noted that

															"[t]he record strongly indicates that accommodating the
religious objections of the Amish by forgoing one, or at most two,
additional years of compulsory education will not impair the
physical or mental health of the child, or result in an inability
to be self-supporting or to discharge the duties and
responsibilities of citizenship, or in any other way materially
detract from the welfare of society,"

															406 U.S. at 406 U. S. 234 ; see also id. at 406 U. S.
238 -240 (WHITE, J., concurring), a religious exemption
in this case would be incompatible with the State's interest in
controlling use and possession of illegal drugs.

															Respondents contend that any incompatibility is belied by the
fact that the Federal Government and several States provide
exemptions for the religious use of peyote, see 21 CFR §
1307.31 (1989); 307 Or. at 73, n. 2, 763 P.2d at 148, n. 2 (citing
11 state statutes that expressly exempt sacramental peyote use from
criminal proscription). But other governments may surely choose to
grant an exemption without Oregon, with its specific asserted
interest in uniform application of its drug laws, being required to
do so by the First Amendment. Respondents also note that the
sacramental use of peyote is central to the tenets of the Native
American Church, but I agree with the Court, ante at 494 U. S.
886 -887, that because "[i]t is not within the judicial
ken to question the centrality of particular beliefs or practices
to a faith," Hernandez, supra, at 494 U. S. 699 ,
our determination of the constitutionality of Oregon's general
criminal prohibition cannot, and should not, turn on the centrality
of the particular Page 494 U. S. 907 religious practice at issue. This does not mean, of course, that
courts may not make factual findings as to whether a claimant holds
a sincerely held religious belief that conflicts with, and thus is
burdened by, the challenged law. The distinction between questions
of centrality and questions of sincerity and burden is admittedly
fine, but it is one that is an established part of our free
exercise doctrine, see Ballard, 322 U.S. at 322 U. S. 85 -88,
and one that courts are capable of making. See Tony and Susan
Alamo Foundation v. Secretary of Labor, 471 U.
S. 290 , 471 U. S.
303 -305 (1985).

															I would therefore adhere to our established free exercise
jurisprudence and hold that the State in this case has a compelling
interest in regulating peyote use by its citizens, and that
accommodating respondents' religiously motivated conduct "will
unduly interfere with fulfillment of the governmental interest." Lee, 455 U.S. at 455 U. S. 259 .
Accordingly, I concur in the judgment of the Court.

															* Although Justice BRENNAN, Justice MARSHALL, and Justice
BLACKMUN join Parts I and II of this opinion, they do not concur in
the judgment.

															Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL
join, dissenting.

															This Court over the years painstakingly has developed a
consistent and exacting standard to test the constitutionality of a
state statute that burdens the free exercise of religion. Such a
statute may stand only if the law in general, and the State's
refusal to allow a religious exemption in particular, are justified
by a compelling interest that cannot be served by less restrictive
means. [ Footnote 2/1 ] Page 494 U. S. 908 Until today, I thought this was a settled and inviolate
principle of this Court's First Amendment jurisprudence. The
majority, however, perfunctorily dismisses it as a "constitutional
anomaly." Ante at 494 U. S. 886 . As carefully detailed in Justice
O'CONNOR's concurring opinion, ante, the majority is able
to arrive at this view only by mischaracterizing this Court's
precedents. The Court discards leading free exercise cases such as Cantwell v. Connecticut, 310 U. S. 296 (1940), and Wisconsin v. Yoder, 406 U.
S. 205 (1972), as "hybrid." Ante at 494 U. S. 882 .
The Court views traditional free exercise analysis as somehow
inapplicable to criminal prohibitions (as opposed to conditions on
the receipt of benefits), and to state laws of general
applicability (as opposed, presumably, to laws that expressly
single out religious practices). Ante at 494 U. S.
884 -885. The Court cites cases in which, due to various
exceptional circumstances, we found strict scrutiny inapposite, to
hint that the Court has repudiated that standard altogether. Ante at 494 U. S.
882 -884. In short, it effectuates a wholesale
overturning of settled law concerning the Religion Clauses of our
Constitution. One hopes that the Court is aware of the
consequences, and that its result is not a product of overreaction
to the serious problems the country's drug crisis has
generated.

															This distorted view of our precedents leads the majority to
conclude that strict scrutiny of a state law burdening the free
exercise of religion is a "luxury" that a well-ordered society Page 494 U. S. 909 cannot afford, ante at 494 U. S. 888 ,
and that the repression of minority religions is an "unavoidable
consequence of democratic government." Ante at 494 U. S. 890 .
I do not believe the Founders thought their dearly bought freedom
from religious persecution a "luxury," but an essential element of
liberty -- and they could not have thought religious intolerance
"unavoidable," for they drafted the Religion Clauses precisely in
order to avoid that intolerance.

															For these reasons, I agree with Justice O'CONNOR's analysis of
the applicable free exercise doctrine, and I join parts I and II of
her opinion. [ Footnote 2/2 ] As she
points out,

															"the critical question in this case is whether exempting
respondents from the State's general criminal prohibition 'will
unduly interfere with fulfillment of the governmental
interest.'" Ante at 494 U. S. 905 ,
quoting United States v. Lee, 455 U.
S. 252 , 455 U. S. 259 (1982). I do disagree, however, with her specific answer to that
question. I In weighing respondents' clear interest in the free exercise of
their religion against Oregon's asserted interest in enforcing its
drug laws, it is important to articulate in precise terms the state
interest involved. It is not the State's broad interest Page 494 U. S. 910 in fighting the critical "war on drugs" that must be weighed
against respondents' claim, but the State's narrow interest in
refusing to make an exception for the religious, ceremonial use of
peyote. See Bowen v. Roy, 476 U.
S. 693 , 476 U. S. 728 (1986) (O'CONNOR, J., concurring in part and dissenting in part)
("This Court has consistently asked the Government to demonstrate
that unbending application of its regulation to the religious
objector is essential to accomplish an overriding governmental
interest,'" quoting Lee, 455 U.S. at 455 U. S.
257 -258); Thomas v. Review Bd. of Indiana Employment
Security Div., 450 U. S. 707 , 450 U. S. 719 (1981) ("focus of the inquiry" concerning State's asserted interest
must be "properly narrowed"); Yoder, 406 U.S. at 406 U. S. 221 ("Where fundamental claims of religious freedom are at stake," the
Court will not accept a State's "sweeping claim" that its interest
in compulsory education is compelling; despite the validity of this
interest "in the generality of cases, we must searchingly examine
the interests that the State seeks to promote . . . and the
impediment to those objectives that would flow from recognizing the
claimed Amish exception"). Failure to reduce the competing
interests to the same plane of generality tends to distort the
weighing process in the State's favor. See Clark,
Guidelines for the Free Exercise Clause, 83 Harv.L.Rev. 327,
330-331 (1969) ("The purpose of almost any law can be traced back
to one or another of the fundamental concerns of government: public
health and safety, public peace and order, defense, revenue. To
measure an individual interest directly against one of these
rarified values inevitably makes the individual interest appear the
less significant"); Pound, A Survey of Social Interests, 57
Harv.L.Rev. 1, 2 (1943) ("When it comes to weighing or valuing
claims or demands with respect to other claims or demands, we must
be careful to compare them on the same plane . . . [or else] we may
decide the question in advance in our very way of putting
it"). The State's interest in enforcing its prohibition, in order to
be sufficiently compelling to outweigh a free exercise claim, Page 494 U. S. 911 cannot be merely abstract or symbolic. The State cannot
plausibly assert that unbending application of a criminal
prohibition is essential to fulfill any compelling interest if it
does not, in fact, attempt to enforce that prohibition. In this
case, the State actually has not evinced any concrete interest in
enforcing its drug laws against religious users of peyote. Oregon
has never sought to prosecute respondents, and does not claim that
it has made significant enforcement efforts against other religious
users of peyote. [ Footnote 2/3 ] The
State's asserted interest thus amounts only to the symbolic
preservation of an unenforced prohibition. But a government
interest in "symbolism, even symbolism for so worthy a cause as the
abolition of unlawful drugs," Treasury Employees v. Von
Raab, 489 U. S. 656 , 489 U. S. 687 (1989) (SCALIA, J., dissenting), cannot suffice to abrogate the
constitutional rights of individuals.

															Similarly, this Court's prior decisions have not allowed a
government to rely on mere speculation about potential harms, but
have demanded evidentiary support for a refusal to allow a
religious exception. See Thomas, 450 U.S. at 450 U. S. 719 (rejecting State's reasons for refusing religious exemption, for
lack of "evidence in the record"); Yoder, 406 U.S. at 406 U. S.
224 -229 (rejecting State's argument concerning the
dangers of a religious exemption as speculative, and unsupported by
the record); Sherbert v. Verner, 374 U.
S. 398 , 374 U. S. 407 (1963) ("there is no proof whatever to warrant such fears . . . as
those which the [State] now advance[s]"). In this case, the State's
justification for refusing to recognize an exception to its
criminal laws for religious peyote use is entirely speculative.

															The State proclaims an interest in protecting the health and
safety of its citizens from the dangers of unlawful drugs. It
offers, however, no evidence that the religious use of peyote Page 494 U. S. 912 has ever harmed anyone. [ Footnote
2/4 ] The factual findings of other courts cast doubt on the
State's assumption that religious use of peyote is harmful. See
State v. Whittingham, 19 Ariz.App. 27, 30, 504 P.2d 950, 953
(1973) ("the State failed to prove that the quantities of peyote
used in the sacraments of the Native American Church are
sufficiently harmful to the health and welfare of the participants
so as to permit a legitimate intrusion under the State's police
power"); People v. Woody, 61 Cal. 2d
716 , 722-723, 40 Cal. Rptr. 69, 74, 394 P.2d 813, 818 (1964)
("as the Attorney General . . . admits, the opinion of scientists
and other experts is that peyote . . . works no permanent
deleterious injury to the Indian'"). The fact that peyote is classified as a Schedule I controlled
substance does not, by itself, show that any and all uses of
peyote, in any circumstance, are inherently harmful and dangerous.
The Federal Government, which created the classifications of
unlawful drugs from which Oregon's drug laws are derived,
apparently does not find peyote so dangerous as to preclude an
exemption for religious use. [ Footnote
2/5 ] Moreover, Page 494 U. S. 913 other Schedule I drugs have lawful uses. See Olsen v. Drug
Enforcement Admin., 279 U.S.App.D.C. 1-6, n. 4, 878 F.2d 1458,
1463, n. 4 (medical and research uses of marijuana).

															The carefully circumscribed ritual context in which respondents
used peyote is far removed from the irresponsible and unrestricted
recreational use of unlawful drugs. [ Footnote 2/6 ] The Native American Church's internal
restrictions on, and supervision of, its members' use of peyote
substantially obviate the State's health and safety concerns. See Olsen, 279 U.S.App.D.C. at 10, 878 F.2d at 1467 ("The
Administrator [of DEA] finds that . . . the Native American
Church's use of peyote is isolated to specific ceremonial
occasions," and so "an accommodation can be made for a religious
organization which uses peyote in circumscribed ceremonies"
(quoting DEA Final Order)); id. at 7, 878 F.2d at 1464
("for members of the Native American Church, use of peyote outside
the ritual is sacrilegious"); Woody, 61 Cal. 2d at 721,
394 P.2d at 817 ("to use peyote for nonreligious purposes is
sacrilegious"); R. Julien, A Primer of Drug Action 148 (3d ed.
1981) ("peyote is seldom abused by members of the Native
American Page 494 U. S. 914 Church"); J. Slotkin, The Peyote Way, in Teachings from the
American Faith (D. Tedlock & B. Tedlock, eds., 1975) 96, 104
("the Native American Church . . . refuses to permit the presence
of curiosity seekers at its rites, and vigorously opposes the sale
or use of Peyote for nonsacramental purposes"); R. Bergman, Navajo
Peyote Use: Its Apparent Safety, 128 Am.J. Psychiatry 695 (1971)
(Bergman). [ Footnote 2/7 ]

															Moreover, just as in Yoder, the values and interests of
those seeking a religious exemption in this case are congruent, to
a great degree, with those the State seeks to promote through its
drug laws. See Yoder, 406 U.S. at 224, 406 U. S.
228 -229 (since the Amish accept formal schooling up to
8th grade, and then provide "ideal" vocational education, State's
interest in enforcing its law against the Amish is "less
substantial than . . . for children generally"); id. at 406 U. S. 238 (WHITE, J., concurring opinion). Not only does the Church's
doctrine forbid nonreligious use of peyote; it also generally
advocates self-reliance, familial responsibility, and abstinence
from alcohol. See Brief for Association on American Indian
Affairs, et al., as Amici Curiae 33-34 (the
Church's "ethical code" has four parts: brotherly love, care of
family, self-reliance, and avoidance of alcohol (quoting from the
Church membership card)); Olsen, 279 U.S.App.D.C., at 7,
878 F.2d at 1464 (the Native American Church, "for all purposes
other than the special, stylized ceremony, reinforced the state's
prohibition"); Page 494 U. S. 915 Woody, 61 Cal. 2d at 721-722, n. 3, 394 P.2d at 818, n.
3 ("most anthropological authorities hold Peyotism to be a
positive, rather than negative, force in the lives of its adherents
. . . the church forbids the use of alcohol . . . "). There is
considerable evidence that the spiritual and social support
provided by the Church has been effective in combatting the tragic
effects of alcoholism on the Native American population. Two noted
experts on peyotism, Dr. Omer C. Stewart and Dr. Robert Bergman,
testified by affidavit to this effect on behalf of respondent Smith
before the Employment Appeal Board. Smith Tr., Exh. 7; see
also E. Anderson, Peyote: The Divine Cactus 165-166 (1980)
(research by Dr. Bergman suggests "that the religious use of peyote
seemed to be directed in an ego-strengthening direction with an
emphasis on interpersonal relationships where each individual is
assured of his own significance as well as the support of the
group;" many people have " come through difficult crises with
the help of this religion. . . . It provides real help in seeing
themselves not as people whose place and way in the world is gone,
but as people whose way can be strong enough to change and meet new
challenges'" (quoting Bergman, at 698)); P. Pascarosa and S.
Futterman, Ethnopsychedelic Therapy for Alcoholics: Observations in
the Peyote Ritual of the Native American Church, 8 (No. 3) J. of
Psychedelic Drugs 215 (1976) (religious peyote use has been helpful
in overcoming alcoholism); B. Albaugh and P. Anderson, Peyote in
the Treatment of Alcoholism among American Indians, 131:11
Am.J.Psychiatry 1247, 1249 (1974) ("the philosophy, teachings, and
format of the [Native American Church] can be of great benefit to
the Indian alcoholic"); see generally O. Stewart, Peyote
Religion 75 et seq. (1987) (noting frequent observations,
across many tribes and periods in history, of correlation between
peyotist religion and abstinence from alcohol). Far from promoting
the lawless and irresponsible use of drugs, Native American Church
members' spiritual Page 494 U. S. 916 code exemplifies values that Oregon's drug laws are presumably
intended to foster.

															The State also seeks to support its refusal to make an exception
for religious use of peyote by invoking its interest in abolishing
drug trafficking. There is, however, practically no illegal traffic
in peyote. See Olsen, 279 U.S.App.D.C., at 6, 10, 878 F.2d
at 1463, 1467 (quoting DEA Final Order to the effect that total
amount of peyote seized and analyzed by federal authorities between
1980 and 1987 was 19.4 pounds; in contrast, total amount of
marijuana seized during that period was over 15 million pounds).
Also, the availability of peyote for religious use, even if Oregon
were to allow an exemption from its criminal laws, would still be
strictly controlled by federal regulations, see 21 U.S.C.
§§ 821-823 (registration requirements for distribution of
controlled substances); 21 CFR § 1307.31 (1989) (distribution of
peyote to Native American Church subject to registration
requirements), and by the State of Texas, the only State in which
peyote grows in significant quantities. See Texas Health
& Safety Code, § 481.111 (1990); Texas Admin.Code, Tit. 37, pt.
1, ch. 13, Controlled Substances Regulations, §§ 13.35-1-3.41
(1989); Woody, 61 Cal. 2d at 720, 394 P.2d at 816 (peyote
is "found in the Rio Grande Valley of Texas and northern Mexico").
Peyote simply is not a popular drug; its distribution for use in
religious rituals has nothing to do with the vast and violent
traffic in illegal narcotics that plagues this country.

															Finally, the State argues that granting an exception for
religious peyote use would erode its interest in the uniform, fair,
and certain enforcement of its drug laws. The State fears that, if
it grants an exemption for religious peyote use, a flood of other
claims to religious exemptions will follow. It would then be placed
in a dilemma, it says, between allowing a patchwork of exemptions
that would hinder its law enforcement efforts, and risking a
violation of the Establishment Clause by arbitrarily limiting its
religious exemptions. This Page 494 U. S. 917 argument, however, could be made in almost any free exercise
case. See Lupu, Where Rights Begin: The Problem of Burdens
on the Free Exercise of Religion, 102 Harv.L.Rev. 933, 947 (1989)
("Behind every free exercise claim is a spectral march; grant this
one, a voice whispers to each judge, and you will be confronted
with an endless chain of exemption demands from religious deviants
of every stripe"). This Court, however, consistently has rejected
similar arguments in past free exercise cases, and it should do so
here as well. See Frazee v. Illinois Dept. of Employment
Security, 489 U. S. 829 , 489 U. S. 835 (1989) (rejecting State's speculation concerning cumulative effect
of many similar claims); Thomas, 450 U.S. at 450 U. S. 719 (same); Sherbert, 374 U.S. at 374 U. S.
407 .

															The State's apprehension of a flood of other religious claims is
purely speculative. Almost half the States, and the Federal
Government, have maintained an exemption for religious peyote use
for many years, and apparently have not found themselves
overwhelmed by claims to other religious exemptions. [ Footnote 2/8 ] Allowing an exemption for
religious peyote use Page 494 U. S. 918 would not necessarily oblige the State to grant a similar
exemption to other religious groups. The unusual circumstances that
make the religious use of peyote compatible with the State's
interests in health and safety and in preventing drug trafficking
would not apply to other religious claims. Some religions, for
example, might not restrict drug use to a limited ceremonial
context, as does the Native American Church. See, e.g.,
Olsen, 279 U.S.App.D.C., at 7, 878 F.2d at 1464 ("the
Ethiopian Zion Coptic Church . . . teaches that marijuana is
properly smoked continually all day'"). Some religious claims, see n. 8, supra, involve drugs such as marijuana
and heroin, in which there is significant illegal traffic, with its
attendant greed and violence, so that it would be difficult to
grant a religious exemption without seriously compromising law
enforcement efforts. [ Footnote 2/9 ]
That the State might grant an exemption for religious peyote use,
but deny other religious claims arising in different circumstances,
would not violate the Establishment Clause. Though the State must
treat all religions equally, and not favor one over another, this
obligation is fulfilled by the uniform application of the
"compelling interest" test to all free exercise claims,
not by reaching uniform results as to all claims. A
showing that religious peyote use does not unduly interfere with
the State's interests is "one that probably few other religious
groups or sects could make," Yoder, 406 U.S. at 406 U. S. 236 ;
this does not mean that an exemption limited to peyote use is
tantamount to an establishment of religion. See Hobbie v.
Unemployment Appeals Comm'n of Fla., 480 U.
S. 136 , 480 U. S.
144 -145 (1987) ("the government may (and Page 494 U. S. 919 sometimes must) accommodate religious practices and . . . may do
so without violating the Establishment Clause"); Yoder, 406 U.S. at 406 U. S.
220 -221 ("Court must not ignore the danger that an
exception from a general [law] . . . may run afoul of the
Establishment Clause, but that danger cannot be allowed to prevent
any exception no matter how vital it may be to the protection of
values promoted by the right of free exercise"); id. at 406 U. S. 234 ,
n. 22. III Finally, although I agree with Justice O'CONNOR that courts
should refrain from delving into questions of whether, as a matter
of religious doctrine, a particular practice is "central" to the
religion, ante at 494 U. S. 906 -907, I do not think this means that the
courts must turn a blind eye to the severe impact of a State's
restrictions on the adherents of a minority religion. Cf.
Yoder, 406 U.S. at 406 U. S. 219 (since "education is inseparable from and a part of the basic
tenets of their religion . . . [just as] baptism, the confessional,
or a sabbath may be for others," enforcement of State's compulsory
education law would "gravely endanger if not destroy the free
exercise of respondents' religious beliefs").

															Respondents believe, and their sincerity has never been at
issue, that the peyote plant embodies their deity, and eating it is
an act of worship and communion. Without peyote, they could not
enact the essential ritual of their religion. See Brief
for Association on American Indian Affairs, et al., as Amici Curiae 5-6 ("To the members, peyote is consecrated
with powers to heal body, mind and spirit. It is a teacher; it
teaches the way to spiritual life through living in harmony and
balance with the forces of the Creation. The rituals are an
integral part of the life process. They embody a form of worship in
which the sacrament Peyote is the means for communicating with the
Great Spirit"). See also Stewart, Peyote Religion at
327-330 (description of peyote ritual); Page 494 U. S. 920 T. Hillerman, People of Darkness 153 (1980) (description of
Navajo peyote ritual).

															If Oregon can constitutionally prosecute them for this act of
worship, they, like the Amish, may be "forced to migrate to some
other and more tolerant region." Yoder, 406 U.S. at 406 U. S. 218 .
This potentially devastating impact must be viewed in light of the
federal policy -- reached in reaction to many years of religious
persecution and intolerance -- of protecting the religious freedom
of Native Americans. See American Indian Religious Freedom
Act, 92 Stat. 469, 42 U.S.C. § 1996 ("it shall be the policy of the
United States to protect and preserve for American Indians their
inherent right of freedom to believe, express, and exercise the
traditional religions . . . , including but not limited to access
to sites, use and possession of sacred objects, and the freedom to
worship through ceremonials and traditional rites"). [ Footnote 2/10 ] Congress recognized that
certain substances, such as peyote,

															"have religious significance because they are sacred, they have
power, they heal, they are necessary to the exercise of Page 494 U. S. 921 the rites of the religion, they are necessary to the cultural
integrity of the tribe, and, therefore, religious survival."

															H.R.Rep. No. 95-1308, p. 2 (1978), U.S.Code Cong. &
Admin.News 1978, pp. 1262, 1263.

															The American Indian Religious Freedom Act, in itself, may not
create rights enforceable against government action restricting
religious freedom, but this Court must scrupulously apply its free
exercise analysis to the religious claims of Native Americans,
however unorthodox they may be. Otherwise, both the First Amendment
and the stated policy of Congress will offer to Native Americans
merely an unfulfilled and hollow promise. IV For these reasons, I conclude that Oregon's interest in
enforcing its drug laws against religious use of peyote is not
sufficiently compelling to outweigh respondents' right to the free
exercise of their religion. Since the State could not
constitutionally enforce its criminal prohibition against
respondents, the interests underlying the State's drug laws cannot
justify its denial of unemployment benefits. Absent such
justification, the State's regulatory interest in denying benefits
for religiously motivated "misconduct," see ante at 494 U. S. 874 ,
is indistinguishable from the state interests this Court has
rejected in Frazee, Hobbie, Thomas, and Sherbert .
The State of Oregon cannot, consistently with the Free Exercise
Clause, deny respondents unemployment benefits.

															I dissent.

															[ Footnote 2/1 ] See Hernandez v. Commissioner, 490 U.
S. 680 , 490 U. S. 699 (1989) ("The free exercise inquiry asks whether government has
placed a substantial burden on the observation of a central
religious belief or practice and, if so, whether a compelling
governmental interest justifies the burden"); Hobbie v.
Unemployment Appeals Comm'n of Fla., 480 U.
S. 136 , 480 U. S. 141 (1987) (state laws burdening religions "must be subjected to strict
scrutiny and could be justified only by proof by the State of a
compelling interest"); Bowen v. Roy, 476 U.
S. 693 , 476 U. S. 732 (1986) (O'CONNOR, J., concurring in part and dissenting in part)
("Our precedents have long required the Government to show that a
compelling state interest is served by its refusal to grant a
religious exemption"); United States v. Lee, 455 U.
S. 252 , 455 U. S.
257 -258 (1982) ("The state may justify a limitation on
religious liberty by showing that it is essential to accomplish an
overriding governmental interest"); Thomas v. Review Bd of
Indiana Security Div., 450 U. S. 707 , 450 U. S. 718 (1981) ("The state may justify an inroad on religious liberty by
showing that it is the least restrictive means of achieving some
compelling state interest"); Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 215 (1972) ("only those interests of the highest order and those not
otherwise served can overbalance legitimate claims to the free
exercise of religion"); Sherbert v. Verner, 374 U.
S. 398 , 374 U. S. 406 (1963) (question is "whether some compelling state interest . . .
justifies the substantial infringement of appellant's First
Amendment right").

															[ Footnote 2/2 ]

															I reluctantly agree that, in light of this Court's decision in Employment Division v. Smith, 485 U.
S. 660 (1988), the question on which certiorari was
granted is properly presented in this case. I have grave doubts,
however, as to the wisdom or propriety of deciding the
constitutionality of a criminal prohibition which the State has not
sought to enforce, which the State did not rely on in defending its
denial of unemployment benefits before the state courts, and which
the Oregon courts could, on remand, either invalidate on state
constitutional grounds or conclude that it remains irrelevant to
Oregon's interest in administering its unemployment benefits
program.

															It is surprising, to say the least, that this Court, which so
often prides itself about principles of judicial restraint and
reduction of federal control over matters of state law, would
stretch its jurisdiction to the limit in order to reach, in this
abstract setting, the constitutionality of Oregon's criminal
prohibition of peyote use.

															[ Footnote 2/3 ]

															The only reported case in which the State of Oregon has sought
to prosecute a person for religious peyote use is State v.
Soto, 21 Ore.App. 794, 537 P.2d
142 (1975), cert. denied, 424 U.S. 955 (1976).

															[ Footnote 2/4 ]

															This dearth of evidence is not surprising, since the State never
asserted this health and safety interest before the Oregon courts;
thus, there was no opportunity for factfinding concerning the
alleged dangers of peyote use. What has now become the State's
principal argument for its view that the criminal prohibition is
enforceable against religious use of peyote rests on no evidentiary
foundation at all.

															[ Footnote 2/5 ] See 21 CFR § 1307.31 (1989) ("The listing of peyote as
a controlled substance in Schedule I does not apply to the nondrug
use of peyote in bona fide religious ceremonies of the Native
American Church, and members of the Native American Church so using
peyote are exempt from registration. Any person who manufactures
peyote for or distributes peyote to the Native American Church,
however, is required to obtain registration annually and to comply
with all other requirements of law"); see Olsen v. Drug
Enforcement Admin., 279 U.S.App.D.C. 1, 6-7, 878 F.2d 1458,
1463-1464 (1989) (explaining DEA's rationale for the
exception).

															Moreover, 23 States, including many that have significant Native
American populations, have statutory or judicially crafted
exemptions in their drug laws for religious use of peyote. See
Smith v. Employment Division, 307 Ore. 68, 73, n. 2, 763 P.2d 146 ,
148, n. 2 (1988). Although this does not prove that Oregon must
have such an exception too, it is significant that these States,
and the Federal Government, all find their (presumably compelling)
interests in controlling the use of dangerous drugs compatible with
an exemption for religious use of peyote. Cf. Boos v.
Barry, 485 U. S. 312 , 485 U. S. 329 (1988) (finding that an ordinance restricting picketing near a
foreign embassy was not the least restrictive means of serving the
asserted government interest; existence of an analogous, but more
narrowly drawn, federal statute showed that "a less restrictive
alternative is readily available").

															[ Footnote 2/6 ]

															In this respect, respondents' use of peyote seems closely
analogous to the sacramental use of wine by the Roman Catholic
Church. During Prohibition, the Federal Government exempted such
use of wine from its general ban on possession and use of alcohol. See National Prohibition Act, Title II, § 3, 41 Stat. 308.
However compelling the Government's then general interest in
prohibiting the use of alcohol may have been, it could not
plausibly have asserted an interest sufficiently compelling to
outweigh Catholics' right to take communion.

															[ Footnote 2/7 ]

															The use of peyote is, to some degree, self-limiting. The peyote
plant is extremely bitter, and eating it is an unpleasant
experience, which would tend to discourage casual or recreational
use. See State v. Whittingham, 19 Ariz.App. 27, 30, 504
P.2d 950, 953 (1973) ("peyote can cause vomiting by reason of its
bitter taste"); E. Anderson, Peyote: The Divine Cactus 161 (1980)
("[T]he eating of peyote usually is a difficult ordeal in that
nausea and other unpleasant physical manifestations occur
regularly. Repeated use is likely, therefore, only if one is a
serious researcher or is devoutly involved in taking peyote as part
of a religious ceremony"); Slotkin, The Peyote Way at 98 ("many
find it bitter, inducing indigestion or nausea").

															[ Footnote 2/8 ]

															Over the years, various sects have raised free exercise claims
regarding drug use. In no reported case, except those involving
claims of religious peyote use, has the claimant prevailed. See, e.g., Olsen v. Iowa, 808 F.2d 652 (CA8 1986)
(marijuana use by Ethiopian Zion Coptic Church); United States
v. Rush, 738 F.2d 497 (CA1 1984), cert. denied, 470
U.S. 1004 (1985) (same); United States v. Middleton, 690
F.2d 820 (CA11 1982), cert. denied, 460 U.S. 1051 (1983)
(same); United States v. Hudson, 431 F.2d 468 (CA5 1970), cert. denied, 400 U.S. 1011 (1971) (marijuana and heroin
use by Moslems); Leary v. United States, 383 F.2d 851 (CA5
1967), rev'd on other grounds, 395 U. S.
6 (1969) (marijuana use by Hindu); Commonwealth v.
Nissenbaum, 404 Mass. 575, 536
N.E.2d 592 (1989) (marijuana use by Ethiopian Zion Coptic
Church); State v. Blake, 5 Haw.App. 411, 695
P.2d 336 (1985) (marijuana use in practice of Hindu Tantrism); Whyte v. United States, 471
A.2d 1018 (D.C.App.1984) (marijuana use by Rastafarian); State v. Rocheleau, 142 Vt. 61, 451 A.2d
1144 (1982) (marijuana use by Tantric Buddhist); State v.
Brashear, 92 N.M. 622, 593 P.2d
63 (1979) (marijuana use by nondenominational Christian); State v. Randall, 540 S.W.2d
156 (Mo.App.1976) (marijuana, LSD, and hashish use by Aquarian
Brotherhood Church). See generally Annotation, Free
Exercise of Religion as Defense to Prosecution for Narcotic or
Psychedelic Drug Offense, 35 A.L.R.3d 939 (1971 and Supp.1989).

															[ Footnote 2/9 ]

															Thus, this case is distinguishable from United States v.
Lee, 455 U. S. 252 (1982), in which the Court concluded that there was "no principled
way" to distinguish other exemption claims, and the "tax system
could not function if denominations were allowed to challenge the
tax system because tax payments were spent in a manner that
violates their religious belief." 455 U.S. at 455 U. S.
260 .

															[ Footnote 2/10 ] See Report to Congress on American Indian Religious
Freedom Act of 1978, pp. 1-8 (1979) (history of religious
persecution); Barsh, The Illusion of Religious Freedom for
Indigenous Americans, 65 Ore.L.Rev. 363, 369-374 (1986).

															Indeed, Oregon's attitude toward respondents' religious peyote
use harkens back to the repressive federal policies pursued a
century ago:

															"In the government's view, traditional practices were not only
morally degrading, but unhealthy. 'Indians are fond of gatherings
of every description,' a 1913 public health study complained,
advocating the restriction of dances and 'sings' to stem contagious
diseases. In 1921, the Commissioner of Indian Affairs, Charles
Burke, reminded his staff to punish any Indian engaged in"

															"any dance which involves . . . the reckless giving away of
property . . . frequent or prolonged periods of celebration . . .
in fact, any disorderly or plainly excessive performance that
promotes superstitious cruelty, licentiousness, idleness, danger to
health, and shiftless indifference to family welfare."

															"Two years later, he forbade Indians under the age of 50 from
participating in any dances of any kind, and directed federal
employees 'to educate public opinion' against them." Id. at 370-371 (footnotes omitted).

Summary:
Here is a summary of the case:

In Employment Division v. Smith, the Supreme Court of the United States ruled that the Free Exercise Clause of the First Amendment does not provide an exemption from neutral, generally applicable laws.

Respondents Smith and Black were fired for ingesting peyote, a hallucinogenic drug, for religious purposes. They were denied unemployment benefits by the state of Oregon, as their actions were considered "misconduct" under state law. The Oregon Supreme Court held that the denial of benefits violated the Free Exercise Clause, but the US Supreme Court disagreed.

The Court clarified that while the Free Exercise Clause protects religious beliefs, it does not shield individuals from obeying neutral laws of general applicability. The Court distinguished this case from previous rulings, noting that exemptions from such laws are not required by the First Amendment.

The Court concluded that Oregon's law prohibiting peyote use applied regardless of religious motivation and, therefore, the state could deny unemployment benefits to respondents without violating their free exercise rights. This decision set a precedent for the interplay between religious freedom and compliance with neutral laws.