[BilboBagend]

The majority opinion was delivered by Justice Scalia. The First Amendment forbids government from prohibiting the "free exercise" of religion. This means, of course, that government may not regulate beliefs as such, either by compelling certain beliefs or forbidding them. Religious belief frequently entails the performance of physical acts—assembling for worship, consumption of bread and wine, abstaining from certain foods or behaviors. Government could no more ban the performance of these physical acts when engaged in for religious reasons than it could ban the religious beliefs that compel those actions in the first place. "It would doubtless be unconstitutional, for example, to ban the casting of statues that are to be used for worship purposes or to prohibit bowing down before a golden calf."

But Oregon's ban on the possession of peyote is not a law specifically aimed at a physical act engaged in for a religious reason. Rather, it is a law that applies to everyone who might possess peyote, for whatever reason—a "neutral law of general applicability," in the Court's phrasing. The Court characterized Smith's and Black's argument as an attempt to use their religious motivation to use peyote in order to place themselves beyond the reach of Oregon's neutral, generally applicable ban on the possession of peyote. The Court held that the First Amendment's protection of the "free exercise" of religion does not allow a person to use a religious motivation as a reason not to obey such generally applicable laws. "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." Thus, the Court had held that religious beliefs did not excuse people from complying with laws forbidding polygamy, child labor laws, Sunday closing laws, laws requiring citizens to register for Selective Service, and laws requiring the payment of Social Security taxes.

By contrast, the cases in which the Court had allowed a religious motivation to exempt a person from a neutral, generally applicable law involved the assertion of both the right of free exercise along with some other right. Thus, religious publishers are exempt from a law requiring them to obtain a license if that license may be denied to any publisher the government deems nonreligious. The government may not tax religious solicitors. The government may not require the Amish to send their children to school because their religion demands otherwise, and Amish parents, like all parents, have the right to direct the education of their children. Because Smith and Black were not asserting a hybrid right, they could not claim a religious exemption under the First Amendment from Oregon's ban on peyote.

In the alternative, Smith and Black argued that at the very least, the Court should only uphold Oregon's ban on peyote as applied to them if Oregon had a compelling interest in prohibiting their religious use of peyote. The Court had, after all, invalidated three other unemployment compensation restrictions under this standard. But those other restrictions themselves required consideration of individualized circumstances, such as when unemployment compensation was denied to a person who could not, for religious reasons, work on Saturdays. If a state has in place a system of individualized consideration, the constitution did not allow the state to refuse to extend that system to cases of religious hardship without a compelling reason.

But the difference between the other unemployment cases the Court had decided and Smith's and Black's case was that Oregon's ban on peyote applied to everyone equally—in other words, it made no room for individualized consideration of the reasons a person might want to use peyote.

“ 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., Palmore v. Sidoti, or before the government may regulate the content of speech, see, e.g., Sable Communications of California v. FCC, 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.
… The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from compulsory military service to the payment of taxes to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.[3]
”

Rather than interpret the First Amendment to require the exemption that Smith and Black sought, the Court encouraged them to seek redress in the legislature. It observed that Arizona, Colorado, and New Mexico already specifically exempted religious uses from their otherwise generally applicable peyote bans. "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 afforded to religious belief can be expected to be solicitous of that value in its legislation as well." To be sure, requiring claims for religious exemptions to be vetted through the legislative process might put less popular religions at a disadvantage. But the Court held that this situation was preferable to the relative anarchy that would result from "a system in which each conscience is a law unto itself."

http://en.wikipedia.org/wiki/Employment ... n_v._Smith

[BilboBagend]

No case in this generation has fueled battles over religious freedom like the majority's cavalier treatment of religious liberty in Smith. The case began when Alfred Smith and Galen Black were fired from their jobs in a drug rehabilitation program for using peyote, which was part of religious ritual of the Native American Church. They applied for unemployment compensation, but their application was denied on the grounds that they were fired for work related misconduct. Smith and Black appealed the denial of state benefits, and the Oregon Supreme Court decided in their favor, but in 1990 the United States Supreme Court ruled against them. Beyond the specific ruling on peyote use, the decision in Smith significantly narrowed the scope free exercise protection. The decision divided the Court as well. Justice Antonin Scalia wrote the opinion of the Court, speaking for himself and four other Justices. Justice O'Connor wrote a concurring opinion, joining him in the decision, but disagreeing profoundly with his reasoning. Three justices dissented.

According to Justice Scalia, general laws that do not discriminate against any particular religious practice do not violate the constitution. Because Oregon's drug laws were not targeted at the Native American church, but only incidentally penalized the Church's peyote rituals, the constitution was not violated. Moreover, he asserted that the First Amendment does not require that laws burdening religious exercise be justified by a compelling state interest. This removes the thumb from the scales on behalf of religious liberty and allows courts simply to weigh the interests of Smith and Black against the whole state policy of combating illegal drugs. As we have seen, without the extra weight of the compelling state interest test, religious practices like theirs do not fare very well. This throws protection of religious liberty back to the political process, as Justice Scalia recognized, in one of his most quoted and most criticized lines: "Values that are protected against government interferences through enshrinement in the Bill of Rights are not thereby banished from the political process." He readily admits 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 consequences of democratic government must be preferred to a system in which each conscience is a law unto itself . . ."

http://moses.creighton.edu/csrs/news/s98-1.html

[johnforbes]

My father-in-law went to law school at Creighton.