Church of Lukumi Babalu Aye v City of Hialeah

8/10/2019 Church of Lukumi Babalu Aye v City of Hialeah

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U.S. Supreme Court

CHURCH OF LUKUMI BABALU AYE v. CITY OF HIALEAH, 508 U.S. 520 (1993)

508 U.S. 520

CHURCH OF LUKUMI BABALU AYE, INC. v. CITY OF HIALEAHCERTIORARI TO THE UNITED STATES COURT OF AEALS FOR

THE ELE!ENTH CIRCUITN". 91#9$8

A%&' N"v*+% $, 1992D- '/ 11, 1993

Petitioner church and its congregants practice the Santeria religion, which employs animal sacrifice as one ofits principal forms of devotion. The animals are killed by cutting their carotid arteries, and are cooked andeaten following all Santeria rituals except healing and death rites. fter the church leased land in respondentcity and announced plans to establish a house of worship and other facilities there, the city council held anemergency public session and passed, among other enactments !esolution "#$%%, which noted city residents&'concern' over religious practices inconsistent with public morals, peace, or safety, and declared the city&s'commitment' to prohibiting such practices( )rdinance "#$*+, which incorporates the lorida animal crueltylaws and broadly punishes '-whoever . . . unnecessarily or cruelly . . . kills any animal,' and has beeninterpreted to reach killings for religious reasons( )rdinance "#$/0, which defines 'sacrifice' as 'tounnecessarily kill . . . an animal in a . . . ritual . . . not for the primary purpose of food consumption,' andprohibits the 'possess-ion, sacrifice, or slaughter' of an animal if it is killed in 'any type of ritual' and there isan intent to use it for food, but exempts 'any licensed -food establishment' if the killing is otherwisepermitted by law( )rdinance "#$#1, which prohibits the sacrifice of animals, and defines 'sacrifice' in thesame manner as )rdinance "#$/0( and )rdinance "#$#0 which defines 'slaughter' as 'the killing of animalsfor food' and prohibits slaughter outside of areas 2oned for slaughterhouses, but includes an exemption for'small numbers of hogs and3or cattle' when exempted by state law. Petitioners filed this suit under *0 U.S.C.14"5, alleging violations of their rights under, inter alia, the ree 6xercise Clause of the irst mendment.

lthough acknowledging that the foregoing ordinances are not religiously neutral, the 7istrict Court ruled for

the city, concluding, among other things, that compelling governmental interests in preventing public healthrisks and cruelty to animals fully 8ustified the absolute prohibition on ritual sacrifice accomplished by theordinances, and that an exception to that prohibition for religious conduct would unduly interfere withfulfillment of the governmental interest, because any more narrow restrictions would -/+" U.S. /0+, /01 beunenforceable as a result of the Santeria religion&s secret nature. The Court of ppeals affirmed.

Held:

The 8udgment is reversed.

45% .0d /"%, 9C 11 1441: reversed.

;UST>67? delivered the opinion of the Court with respect to Parts


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and general applicability are interrelated, and failure to satisfy one reBuirement is a likely indicationthat the other has not been satisfied. Pp. /51$/50.9b: The ordinances& texts and operation demonstrate that they are not neutral, but have as their ob8ectthe suppression of Santeria&s central element, animal sacrifice. That this religious exercise has beentargeted is evidenced by !esolution "#$%%&s statements of 'concern' and 'commitment,' and by theuse of the words 'sacrifice' and 'ritual' in )rdinances "#$*+, "#$/0, and "#$#1. Eoreover, the latterordinances& various prohibitions, definitions, and exemptions demonstrate that they were'gerrymandered' with care to proscribe religious killings of animals by Santeria church members butto exclude almost allother animal killings. They also suppress much more religious conduct than isnecessary to achieve their stated ends. The legitimate governmental interests in protecting the publichealth and preventing cruelty to animals could be addressed by restrictions stopping far short of a flatprohibition of all Santeria sacrificial practice, such as general regulations on the disposal of organicgarbage, on the care of animals regardless of why they are kept, or on methods of slaughter. lthough)rdinance "#$#0 appears to apply to substantial nonreligious conduct and not to be overbroad, itmust also be invalidated because it functions in tandem with the other ordinances to suppressSanteria religious worship. Pp. /55$/*+.9c: 6ach of the ordinances pursues the city&s governmental interests only against conduct motivated

by religious belief, and thereby violates the reBuirement that laws burdening religious practice mustbe of general applicability. )rdinances "#$*+, "#$/0, and "#$#1 are substantially underinclusive withregard to the city&s interest in preventing cruelty -/+" U.S. /0+, /00 to animals, since they are

drafted with care to forbid few animal killings but those occasioned by religious sacrifice, while manytypes of animal deaths or kills for nonreligious reasons are either not prohibited or approved byexpress provision. The city&s assertions that it is 'self$evident' that killing for food is 'important,' thatthe eradication of insects and pests is 'obviously 8ustified,' and that euthanasia of excess animals'makes sense' do not explain why religion alone must bear the burden of the ordinances. Theseordinances are also substantially underinclusive with regard to the city&s public health interests inpreventing the disposal of animal carcasses in open public places and the consumption of uninspectedmeat, since neither interest is pursued by respondent with regard to conduct that is not motivated byreligious conviction. )rdinance "#$#0 is underinclusive on its face, since it does not regulatenonreligious slaughter for food in like manner, and respondent has not explained why the commercialslaughter of 'small numbers' of cattle and hogs does not implicate its professed desire to preventcruelty to animals and preserve the public health. Pp. /*0$/*%.9d: The ordinances cannot withstand the strict scrutiny that is reBuired upon their failure to meet the

Smith standard. They are not narrowly tailored to accomplish the asserted governmental interests. llfour are overbroad or underinclusive in substantial respects because the proffered ob8ectives are notpursued with respect to analogous nonreligious conduct, and those interests could be achieved bynarrower ordinances that burdened religion to a far lesser degree. Eoreover, where, as here,government restricts only conduct protected by the irst mendment and fails to enact feasiblemeasures to restrict other conduct producing substantial harm or alleged harm of the same sort, thegovernmental interests given in 8ustification of the restriction cannot be regarded as compelling. Pp./*%$/*#.

=6>>67?, ;., delivered the opinion of the Court with respect to Parts


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-ootnote J @riefs of amici curiae urging reversal were filed for mericans United for Separation of Churchand State et al. by 6dward EcIlynn Iaffney, ;r., Steven T. Ecarland, @radley P. ;acob, and Eichael G.EcConnell( for the Council on !eligious reedom by Hee @oothby, !obert G. >ixon, Galter 6. Carson, and!olland Truman( and for the !utherford 67? delivered the opinion of the Court, except as to Part


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the carotid arteries in the neck. The sacrificed animal is cooked and eaten, except after healing and deathrituals. See #05 .Supp., at 1*#1$1*#0( 15 6ncyclopedia of !eligion, supra, at %%( E. Ion2ale2$Gippler, TheSanteria 6xperience 1+/ 914"0:.

Santeria adherents faced widespread persecution in Cuba, so the religion and its rituals were practiced insecret. The open practice of Santeria and its rites remains infreBuent. See #05 .Supp., at 1*#+( 15

6ncyclopedia of !eligion, supra, at %#( E. Ion2ale2$Gippler, SanteriaD The !eligion 5$* 914"4:. The religionwas brought to this >ation most often by exiles from the Cuban revolution. The 7istrict Court estimated thatthere are at least /+,+++ practitioners in South lorida today. See #05 .Supp., at 1*#+.

B

Petitioner Church of the Hukumi @abalu ye, ext, the council approved an emergencyordinance, )rdinance "#$*+, which incorporated in full, except as to penalty, lorida&s animal cruelty laws.la.Stat. ch. "0" 914"#:. mong other things, the incorporated state law sub8ected to criminal punishment'-whoever . . . unnecessarily or cruelly . . . kills any animal.' "0".10.

The city council desired to undertake further legislative action, but lorida law prohibited a municipality fromenacting legislation relating to animal cruelty that conflicted with -/+" U.S. /0+, /0# state law. "0".0#9*:.To obtain clarification, ialeah&s city attorney reBuested an opinion from the attorney general of lorida as to

whether "0".10 prohibited 'a religious group from sacrificing an animal in a religious ritual or practice,' andwhether the city could enact ordinances 'making religious animal sacrifice unlawful.' The attorney generalresponded in mid$;uly. e concluded that the 'ritual sacrifice of animals for purposes other than foodconsumption' was not a 'necessary' killing, and so was prohibited by "0".10. la.)p.tty.Ien. "#$/%, nnual!eport of the tty.Ien. 1*%, 1*#, 1*4 914"":. The attorney general appeared to define 'unnecessary' as 'done

without any useful motive, in a spirit of wanton cruelty or for the mere pleasure of destruction without beingin any sense beneficial or useful to the person killing the animal.'


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@alancing the competing governmental and religious interests, the 7istrict Court concluded the compellinggovernmental interests 'fully 8ustify the absolute prohibition on ritual sacrifice' accomplished by theordinances.


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-t a minimum, the protections of the ree 6xercise Clause pertain if the law at issue discriminates againstsome or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.See, e.g., @raunfeld v. @rown, 5%% U.S. /44, %+# 914%1: 9plurality opinion:( owler v. !hode


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commitment to prohibit 'any and all -such acts of any and all religious groups.' >o one suggests, and, on thisrecord, it cannot be maintained, that city officials had in mind a religion other than Santeria.


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particular 8ustification for the killing, this ordinance represents a system of 'individuali2ed governmentalassessment of the reasons for the relevant conduct,' 6mployment 7iv., 7ept. of uman !esources of )regon

v. Smith, *4* U.S., at ""* .s we noted in Smith, in circumstances in which individuali2ed exemptions from ageneral reBuirement are available, the government 'may not refuse to extend that system to cases of Mreligioushardship& without compelling reason.' ibid. Buoting @owen v. !oy,*#% U.S., at #+" 9opinion of @urger, C.;.:.!espondent&s application of the ordinance&s test of necessity devalues religious reasons for killing by 8udgingthem to be of lesser import than nonreligious -/+" U.S. /0+, /5" reasons. Thus, religious practice is beingsingled out for discriminatory treatment. @owen v. !oy, *#% U.S., at #00 , and n. 1# 9ST6A6>S, ;., concurringin part and concurring in result:, id., at #+" 9opinion of @urger, C.;.:( United States v. Hee, *// U.S. 0/0, 0%* ,n. 5 914"0: 9ST6A6>S, ;., concurring in 8udgment:.

Ge also find significant evidence of the ordinances& improper targeting of Santeria sacrifice in the fact thatthey proscribe more religious conduct than is necessary to achieve their stated ends.


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2

ew

?ork City,54# U.S., at %4% 9concurring opinion:. ere, as in eBual protection cases, we may determine the city

council&s ob8ect from both direct and circumstantial evidence. rlington eights v. Eetropolitan ousing7evelopment Corp., *04 U.S. 0/0, 0%% 914##:. !elevant evidence includes, among other things, the historical

background of the decision under challenge, the specific series of events leading to the enactment or officialpolicy in Buestion, and the legislative or administrative history, including contemporaneous statements made

by members of the decisionmaking body.


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Ge turn next to a second reBuirement of the ree 6xercise Clause, the rule that laws burdening religiouspractice must be of general applicability. 6mployment 7iv., 7ept. of uman !esources of )re. v. Smith, *4*U.S., at "#4 $""1. ll laws are selective to some extent, but categories of selection are of paramount concern

when a law has the incidental effect of burdening religious practice. The ree 6xercise Clause 'protect-sreligious observers against uneBual treatment,' obbie v. Unemployment ppeals Comm&n of la.,*"+ U.S.15%, 1*" 914"#: 9ST6A6>S, ;., concurring in 8udgment:, and ineBuality results when a legislature decides that-/+" U.S. /0+, /*5 the governmental interests it seeks to advance are worthy of being pursued only againstconduct with a religious motivation.

The principle that government, in pursuit of legitimate interests, cannot in a -selective manner imposeburdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteedby the ree 6xercise Clause. The principle underlying the general applicability reBuirement has parallels inour irst mendment 8urisprudence. See, e.g., Cohen v. Cowles Eedia Co., /+1 U.S. %% %%4$%#+( 91441:(University of Pennsylvania v. 66)C, *45 U.S. 1"0, 0+1 9144+:( Einneapolis Star K Tribune Co. v. EinnesotaComm&r of !evenue,*%+ U.S. /#/, /"/ 914"5:( Harson v. Aalente,*/% U.S., at 0*/ $0*%( Presbyterian Churchin U.S. v. Eary 6li2abeth @lue ull Eemorial Presbyterian Church, 545 U.S. **+, **4 914%4:.


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The ordinances are underinclusive as well with regard to the health risk posed by consumption of uninspectedmeat. Under the city&s ordinances, hunters may eat their kill and fishermen may eat their catch withoutundergoing governmental inspection. Hikewise, state law reBuires inspection of meat that is sold, but exemptsmeat from animals raised for the use of the owner and 'members of his household and nonpaying guests andemployees.' la.Stat. /"/.""91:9a: 91441:. The asserted interest in inspected meat is not pursued in contextssimilar to that of religious animal sacrifice.

)rdinance "#$#0, which prohibits the slaughter of animals outside of areas 2oned for slaughterhouses, isunderinclusive on its face. The ordinance includes an exemption for 'any person, group, or organi2ation' that'slaughters or processes for sale, small numbers of hogs and3or cattle per week in accordance with anexemption provided by state law.' See la.Stat. "0".0*95: 91441:. !espondent has not explained whycommercial operations that slaughter 'small numbers' of hogs and cattle do not implicate its professed desireto prevent cruelty to animals and preserve the public health. lthough the city has classified Santeria sacrificeas slaughter, sub8ecting it to this ordinance, it does not regulate other killings for food in like manner.

Ge conclude, in sum, that each of ialeah&s ordinances pursues the city&s governmental interests only againstconduct motivated by religious belief. The ordinances 'ha-ve every appearance of a prohibition that society isprepared to impose upon -Santeria worshippers, but not upon itself.' lorida Star v. @.;.., *41 U.S. /0*, /*0914"4: 9SCH


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The ree 6xercise Clause commits government itself to religious tolerance, and upon even slight suspicionthat proposals for state intervention stem from animosity to religion or distrust of its practices, all officialsmust pause to remember their own high duty to the Constitution and to the rights it secures. Those in officemust be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the

burdens of law and regulation are secular. Hegislators may not devise mechanisms, overt or disguised,designed to persecute or oppress a religion or its practices. The laws here in Buestion were enacted contrary tothese constitutional principles, and they are void.

!eversed.

n -/+" U.S. /0+, /05 T6 C


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City of ialeah !esolution >o. "#$4+, adopted ugust 11, 14"#, providesD'G6!6S, the residents and citi2ens of the City of ialeah, lorida, have expressed great concernregarding -/+" U.S. /0+, //+ the possibility of public ritualistic animal sacrifices in the City ofialeah, lorida( and'G6!6S, the City of ialeah, lorida, has received an opinion from the ttorney Ieneral of theState of lorida concluding that public ritualistic animal sacrifices is -sic a violation of the loridaState Statute on Cruelty to nimals( and'G6!6S, the ttorney Ieneral further held that the sacrificial killing of animals other than for theprimary purpose of food consumption is prohibited under state law( and'G6!6S, the City of ialeah, lorida, has enacted an ordinance mirroring state law prohibitingcruelty to animals.'>)G, T6!6)!6, @6 7 CC


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'The provisions of this )rdinance shall be included and incorporated in the Code of the City ofialeah, as an addition or amendment thereto, and the sections of this )rdinance shall berenumbered to conform to the uniform numbering system of the Code.'Section /. Severability Clause.'


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'This )rdinance shall become effective when passed by the City Council of the City of ialeah andsigned by the Eayor of the City of ialeah.' -/+" U.S. /0+, ///

City of ialeah, lorida, )rdinance >o. "#$#0, adopted September 00, 14"#, providesD'G6!6S, the City Council of the City of ialeah, lorida, has determined that the slaughtering ofanimals on the premises other than those properly 2oned as a slaughter house, is contrary to thepublic health, safety and welfare of the citi2ens of ialeah, lorida.'>)G, T6!6)!6, @6 7 CC


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mere restatement of the prohibition itself, not a 8ustification for it.


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This case turns on a principle about which there is no disagreement, that the ree 6xercise Clause barsgovernment action aimed at suppressing religious belief or practice. The Court holds that ialeah&s animalsacrifice laws violate that principle, and < concur in that holding without reservation.

@ecause prohibiting religious exercise is the ob8ect of the laws at hand, this case does not present the moredifficult issue addressed in our last free exercise case, 6mployment 7iv., 7ept. of uman !esources of )re. v.

Smith, *4* U.S. "#0 9144+:, which announced the rule that a 'neutral, generally applicable' law does not runafoul of the ree 6xercise Clause even when it prohibits religious exercise in effect. The Court today refers tothat rule in dicta, and, despite my general agreement with the Court&s opinion, < do not 8oin Part yBuist, *15 U.S. #/%, #40 $#45 914#5:( School 7ist. of bington v. Schempp,5#* U.S.0+5, 000 914%5:( see also Ec7aniel v. Paty, *5/ U.S. %1", %0# $%04 914#": 9plurality opinion: 9invalidating anon$neutral law without using the term:. >or is there anything unusual about the notion that the ree6xercise Clause reBuires general applicability, though the Court, until today, has not used exactly that term instating a reason for invalidation. See owler v. !hode


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neutrality, which, in addition to demanding a secular ob8ect, would generally reBuire government toaccommodate religious differences by exempting religious practices from formally neutral laws. See generallyHaycock, ormal, Substantive, and 7isaggregated >eutrality Toward !eligion, 54 7ePaul H.!ev. 445 9144+:.


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the same type of law. @ecause Smith left those prior cases standing, we are left with a free$exercise8urisprudence in tension with itself, a tension that should be addressed, and that may legitimately beaddressed, by reexamining the Smith rule in the next case that would turn upon its application.

A


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Smith sought to confine the remaining free exercise exemption victories, which involved unemploymentcompensation -/+" U.S. /0+, /%" systems, see ra2ee, supra( obbie v. Unemployment ppeals Comm&n ofla. *"+ U.S. 15% 914"#:( Thomas v. !eview @d. of


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The Smith rule, in my view, may be reexamined consistently with principles of stare decisis. To begin with, theSmith rule was not sub8ect to 'full$dress argument' prior to its announcement. Eapp v. )hio,5%# U.S. %*5,%#% $%## 914%1: 9arlan, ;., dissenting:. The State of )regon, in Smith, contended that its refusal to exemptreligious peyote use survived the strict scrutiny reBuired by 'settled free exercise principles,' inasmuch as theState had 'a compelling interest in regulating' the practice of peyote use and could not 'accommodate thereligious practice without -/+" U.S. /0+, /#0 compromising its interest.' @rief for Petitioners in Smith, ).T.14"4, >o. ""$1015, p. /( see also id. at /$5%( !eply @rief for Petitioners in Smith, pp. %$0+. !espondents 8oinedissue on the outcome of strict scrutiny on the facts before the Court, see @rief for !espondents in Smith, pp.1*$*1, and neither party sBuarely addressed the proposition the Court was to embrace, that the ree 6xerciseClause was irrelevant to the dispute. Sound 8udicial decisionmaking reBuires 'both a vigorous prosecution anda vigorous defense' of the issues in dispute, Christiansburg Iarment Co. v. 66)C, *5* U.S. *10, *14 914#":,and a constitutional rule announced sua sponte is entitled to less deference than one addressed on full

briefing and argument. Cf. Hadner v. United States, 5/" U.S. 1%4, 1#5 914/": 9declining to address 'animportant and complex' issue concerning the scope of collateral attack upon criminal sentences because ithad received 'only meagre argument' from the parties, and the Court thought it 'should have the benefit of afull argument before dealing with the Buestion':.

The Smith rule&s vitality as precedent is limited further by the seeming want of any need of it in resolving theBuestion presented in that case. ;UST>)! reached the same result as the ma8ority by applying, asthe parties had reBuested, 'our established free exercise 8urisprudence,' *4* U.S., at 4+5 ,and the ma8ority

never determined that the case could not be resolved on the narrower ground, going instead straight to thebroader constitutional rule. @ut the Court&s better practice, one supported by the same principles of restraintthat underlie the rule of stare decisis, is not to 'Mformulate a rule of constitutional law broader than isreBuired by the precise facts to which it is to be applied.&' shwander v. TA, 04# U.S. 0"", 5*# 9145%:9@randeis, ;., concurring: 9Buoting Hiverpool, >ew ?ork K Philadelphia S.S. Co. v. Commissioners of6migration,115 U.S. 55, 54 91""/::. Ghile < am not suggesting that the Smith Court lacked the power toannounce its rule, < think a rule of law unnecessary to the outcome of a case, especially one not put -/+" U.S./0+, /#5 into play by the parties, approaches without more the sort of 'dicta . . . which may be followed ifsufficiently persuasive but which are not controlling.' umphrey&s 6xecutor v. United States, 04/ U.S. %+0,%0# 9145/:( see also =astigar v. United States, *+% U.S. **1, */* $*// 914#0:.

< do not, of course, mean to imply that a broad constitutional rule announced without full briefing andargument necessarily lacks precedential weight. )ver time, such a decision may become 'part of the tissue of

the law,' !adovich v. >ational ootball Heague, 5/0 U.S. **/, *// 914/#: 9rankfurter, ;., dissenting:, andmay be sub8ect to reliance in a way that new and unexpected decisions are not. Cf. Planned Parenthood ofSoutheastern Pennsylvania v. Casey, /+/ U.S. "55, "/* $"// 91440:. Smith, however, is not such a case. @y thesame token, by pointing out Smith&s recent vintage, < do not mean to suggest that novelty alone is enough to

8ustify reconsideration. '-Stare decisis,' as ;ustice rankfurter wrote, 'is a principle of policy, and not amechanical formula,' elvering v. allock,5+4 U.S. 1+%, 114 914*+:, and the decision whether to adhere to aprior decision, particularly a constitutional decision, is a complex and difficult one that does not lend itself toresolution by application of simple, categorical rules, but that must account for a variety of often competingconsiderations.

The considerations of full briefing, necessity, and novelty thus do not exhaust the legitimate reasons forreexamining prior decisions, or even for reexamining the Smith rule. )ne important further consideration

warrants mention here, however, because it demands the reexamination < have in mind. Smith presents not

the usual Buestion of whether to follow a constitutional rule, but the Buestion of which constitutional rule tofollow, for Smith refrained from overruling prior free exercise cases that contain a free exercise rulefundamentally at odds with the rule Smith declared. Smith, indeed, announced its rule by relying -/+" U.S./0+, /#* sBuarely upon the precedent of prior cases. See*4* U.S., at "#" 9')ur decisions reveal that the . . .reading' of the ree 6xercise Clause contained in the Smith rule 'is the correct one':. Since that precedent isnonetheless at odds with the Smith rule, as < have discussed above, the result is an intolerable tension in freeexercise law which may be resolved, consistently with principles of stare decisis, in a case in which the tensionis presented and its resolution pivotal.
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Ghile the tension on which < rely exists within the body of our extant case law, a rereading of that case law willnot, of course, mark the limits of any enBuiry directed to reexamining the Smith rule, which should bereviewed in light not only of the precedent on which it was rested, but also of the text of the ree 6xerciseClause and its origins. s for text, Smith did not assert that the plain language of the ree 6xercise Clausecompelled its rule, but only that the rule was 'a permissible reading' of the Clause. ibid. Suffice it to say that arespectable argument may be made that the pre$Smith law comes closer to fulfilling the language of the ree6xercise Clause than the rule Smith announced. '-The ree 6xercise Clause . . ., by its terms, gives specialprotection to the exercise of religion,' Thomas, */+ U.S., at #15 , specifying an activity and then flatlyprotecting it against government prohibition. The Clause draws no distinction between laws whose ob8ect is toprohibit religious exercise and laws with that effect, on its face seemingly applying to both.

>or did Smith consider the original meaning of the ree 6xercise Clause, though overlooking the opportunitywas no uniBue transgression. Save in a handful of passing remarks, the Court has not explored the history ofthe Clause since its early attempts in 1"#4 and 1"4+, see !eynolds v. United States, 4" U.S., at 1%0 $1%%, and7avis v. @eason,155 U.S. 555, 5*0 91"4+:, attempts that recent scholarship makes clear were incomplete. Seegenerally EcConnell, The )rigins and istorical Understanding of ree 6xercise of !eligion, -/+" U.S. /0+,/#/ 1+5 arv.H.!ev. 1*+4 9144+:. % The curious absence of history from our free exercise decisions creates astark contrast with our cases under the 6stablishment Clause, where historical analysis has been soprominent.#

This is not the place to explore the history that a century of free exercise opinions have overlooked, and it isenough to note that, when the opportunity to reexamine Smith presents itself, we may consider recentscholarship raising serious Buestions about the Smith rule&s consonance with the original understanding andpurpose of the ree 6xercise Clause. See EcConnell, The )rigins and istorical Understanding of ree6xercise of !eligion, supra( 7urham, !eligious Hiberty and the Call of Conscience, *0 7ePaul H.!ev. #1, #4$"/91440:( see also )ffice of Hegal Policy, U.S. 7ept. of ;ustice, !eport to the ttorney Ieneral, !eligious Hibertyunder the ree 6xercise Clause 5"$*0 914"%: 9predating Smith:. There appears to be a strong argument -/+"U.S. /0+, /#% from the Clause&s development in the irst Congress, from its origins in the post$!evolutionstate constitutions and pre$!evolution colonial charters, and from the philosophy of rights to which theramers adhered, that the Clause was originally understood to preserve a right to engage in activitiesnecessary to fulfill one&s duty to one&s Iod, unless those activities threatened the rights of others or the seriousneeds of the State.


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may compel disobedience to what one believes religion commands. The case before us is rightly decidedwithout resolving the existing tension, which remains for another day when it may be sBuarely faced.

F""/"

-ootnote 1 law that is not generally applicable according to the Court&s definition 9one that 'selective-lyimpose-s burdens only on conduct motivated by religious belief,' ante, at 01: would, it seems to me, fail

almost any test for neutrality. ccordingly, the cases stating that the ree 6xercise -/+" U.S. /0+, /%1 ClausereBuires neutrality are also fairly read for the proposition that the Clause reBuires general applicability.

-ootnote 0 )ur cases make clear, to look at this from a different perspective, that an exemption forsacramental wine use would not deprive Prohibition of neutrality. !ather, '-such an accommodation -wouldMreflec-t nothing more than the governmental obligation of neutrality in the face of religious differences.&'

Gisconsin v. ?oder, *+% U.S. 0+/, 05/ , n. 00 914#0: 9Buoting Sherbert v. Aerner,5#* U.S. 54", *+4 914%5::(see also Hee v. Geisman,/+/ U.S. /##, %0# 91440: 9S)UT6!, ;., concurring:. The prohibition law in placeearlier this century did, in fact, exempt 'wine for sacramental purposes.' >ational Prohibition ct, Title 11, 5,*1 Stat. 5+".

-ootnote 5 )ne might further distinguish between formal neutrality and facial neutrality. Ghile facialneutrality would permit discovery of a law&s ob8ect or purpose only by analysis of the law&s words, structure,

and operation, formal neutrality would permit enBuiry also into the intentions of those who enacted the law.Compare ante, at /*+$/*0 9opinion of =6>>67?, ;., 8oined by ST6A6>S ;.: with ante, p. //# 9opinion ofSCHFU


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Mreasonableness& test less restrictive than that ordinarily applied to alleged infringements of fundamentalconstitutional rights':( Ioldman v. Geinberger,*#/ U.S. /+5, /+# 914"%: 9')ur review of military regulationschallenged on irst mendment grounds is far more deferential than constitutional review of similar laws orregulations designed for civilian society':( see also ;ohnson v. !obison, *1/ U.S. 5%1, 5"/ $5"% 914#*:( Iillette

v. United States, *+1 U.S. *5#, *%0 914#1:. Ge also did not purport to apply strict scrutiny in several cases inwhich the claimants failed to establish a constitutionally cogni2able burden on religious exercise, and againthe opinions in those cases left no doubt that heightened scrutiny applies to the enforcement of formallyneutral, general laws that do burden free exercise. See ;immy Swaggart Einistries v. @oard of 6Buali2ation ofCal., *45 U.S. 5#", 5"* $5"/ 9144+: 9')ur cases have established that -the free exercise inBuiry asks whethergovernment -/+" U.S. /0+, /#1 has placed a substantial burden on the observation of a central religious

belief or practice and, if so whether a compelling governmental interest 8ustifies the burden': 9internalBuotation marks and citation omitted:( Hyng v. >orthwest FU


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hoped to bar not only prohibitions of religious exercise fueled by the hostility of the ma8ority, but prohibitionsflowing from the indifference or ignorance of the ma8ority as well.

;UST, with whom ;UST>)! 8oins, concurring in the 8udgment.

The Court holds today that the city of ialeah violated the irst and ourteenth mendments when it passed

a set of restrictive ordinances explicitly directed at petitioners& religious practice. Gith this holding, < agree.

Documents

Church of Lukumi Babalu Aye v City of Hialeah