CHURCH OF THE LUKUMI BABALU AYE, INC. AND ERNESTO PICHARDO, PETITIONERS v. CITY
OF HIALEAH
No. 91-948
SUPREME COURT OF THE UNITED STATES
508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993)
November 4, 1992, Argued
June 11, 1993, Decided
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE ELEVENTH CIRCUIT.
DISPOSITION: 936 F. 2d 586, reversed.
SYLLABUS
Petitioner church and its congregants practice the Santeria religion, which employs
animal sacrifice as one of its principal forms of devotion. The animals are killed
by cutting their carotid arteries and are cooked and eaten following all Santeria
rituals except healing and death rites. After the church leased land in respondent
city and announced plans to establish a house of worship and other facilities there,
the city council held an emergency public session and passed, among other enactments,
Resolution 87-66, which noted city residents' "concern" over religious
practices inconsistent with public morals, peace, or safety, and declared the city's
"commitment" to prohibiting such practices; Ordinance 87-40, which incorporates
the Florida animal cruelty laws and broadly punishes "whoever . . . unnecessarily
or cruelly . . . kills any animal," and has been interpreted to reach killings
for religious reasons; Ordinance 87-52, which defines "sacrifice" as "to
unnecessarily kill . . . an animal in a . . . ritual . . . not for the primary purpose
of food consumption," and prohibits the "possession, sacrifice, or slaughter"
of an animal if it is killed in "any type of ritual" and there is an intent
to use it for food, but exempts "any licensed [food] establishment" if
the killing is otherwise permitted by law; Ordinance 87-71, which prohibits the
sacrifice of animals, and defines "sacrifice" in the same manner as Ordinance
87-52; and Ordinance 87-72, which defines "slaughter" as "the killing
of animals for food" and prohibits slaughter outside of areas zoned for slaughterhouses,
but includes an exemption for "small numbers of hogs and/or cattle" when
exempted by state law. Petitioners filed this suit under 42 U.S.C. § 1983, alleging
violations of their rights under, inter alia, the Free Exercise Clause of the First
Amendment. Although acknowledging that the foregoing ordinances are not religiously
neutral, the District Court ruled for the city, concluding, among other things,
that compelling governmental interests in preventing public health risks and cruelty
to animals fully justified the absolute prohibition on ritual sacrifice accomplished
by the ordinances, and that an exception to that prohibition for religious conduct
would unduly interfere with fulfillment of the governmental interest because any
more narrow restrictions would be unenforceable as a result of the Santeria religion's
secret nature. The Court of Appeals affirmed.
Held: The judgment is reversed.
936 F. 2d 586, reversed.
JUSTICE KENNEDY delivered the opinion of the Court with respect to Parts I, II-A-1,
II-A-3, II-B, III, and IV, concluding that the laws in question were enacted contrary
to free exercise principles, and they are void. Pp. 531-540, 542-547.
(a) Under the Free Exercise Clause, a law that burdens religious practice need not
be justified by a compelling governmental interest if it is neutral and of general
applicability.
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S.
872, 108 L. Ed. 2d 876, 110 S. Ct. 1595. However, where such a law is not neutral
or not of general application, it must undergo the most rigorous of scrutiny: It
must be justified by a compelling governmental interest and must be narrowly tailored
to advance that interest. Neutrality and general applicability are interrelated,
and failure to satisfy one requirement is a likely indication that the other has
not been satisfied. Pp. 531-532.
(b) The ordinances' texts and operation demonstrate that they are not neutral, but
have as their object the suppression of Santeria's central element, animal sacrifice.
That this religious exercise has been targeted is evidenced by Resolution 87-66's
statements of "concern" and "commitment," and by the use of
the words "sacrifice" and "ritual" in Ordinances 87-40, 87-52,
and 87-71. Moreover, the latter ordinances' various prohibitions, definitions, and
exemptions demonstrate that they were "gerrymandered" with care to proscribe
religious killings of animals by Santeria church members but to exclude almost all
other animal killings. They also suppress much more religious conduct than is necessary
to achieve their stated ends. The legitimate governmental interests in protecting
the public health and preventing cruelty to animals could be addressed by restrictions
stopping far short of a flat prohibition of all Santeria sacrificial practice, such
as general regulations on the disposal of organic garbage, on the care of animals
regardless of why they are kept, or on methods of slaughter. Although Ordinance
87-72 appears to apply to substantial nonreligious conduct and not to be overbroad,
it must also be invalidated because it functions in tandem with the other ordinances
to suppress Santeria religious worship. Pp. 533-540.
(c) Each of the ordinances pursues the city's governmental interests only against
conduct motivated by religious belief and thereby violates the requirement that
laws burdening religious practice must be of general applicability. Ordinances 87-40,
87-52, and 87-71 are substantially underinclusive with regard to the city's interest
in preventing cruelty to animals, since they are drafted with care to forbid few
animal killings but those occasioned by religious sacrifice, while many types of
animal deaths or kills for nonreligious reasons are either not prohibited or approved
by express provision. The city's assertions that it is "selfevident" that
killing for food is "important," that the eradication of insects and pests
is "obviously justified," and that euthanasia of excess animals "makes
sense" do not explain why religion alone must bear the burden of the ordinances.
These ordinances are also substantially underinclusive with regard to the city's
public health interests in preventing the disposal of animal carcasses in open public
places and the consumption of uninspected meat, since neither interest is pursued
by respondent with regard to conduct that is not motivated by religious conviction.
Ordinance 87-72 is underinclusive on its face, since it does not regulate nonreligious
slaughter for food in like manner, and respondent has not explained why the commercial
slaughter of "small numbers" of cattle and hogs does not implicate its
professed desire to prevent cruelty to animals and preserve the public health. Pp.
542-546.
(d) The ordinances cannot withstand the strict scrutiny that is required upon their
failure to meet the Smith standard. They are not narrowly tailored to accomplish
the asserted governmental interests. All four are overbroad or underinclusive in
substantial respects because the proffered objectives are not pursued with respect
to analogous nonreligious conduct and those interests could be achieved by narrower
ordinances that burdened religion to a far lesser degree. Moreover, where, as here,
government restricts only conduct protected by the First Amendment and fails to
enact feasible measures to restrict other conduct producing substantial harm or
alleged harm of the same sort, the governmental interests given in justification
of the restriction cannot be regarded as compelling. Pp. 546-547.
COUNSEL: Douglas Laycock argued the cause for petitioners. With
him on the briefs were Jeanne Baker, Steven R. Shapiro, and Jorge A. Duarte.
Richard G. Garrett argued the cause for respondent. With him on the brief were Stuart
H. Singer and Steven M. Goldsmith. [Footnote *]
Briefs of amici curiae urging affirmance were filed for the International Society
for Animal Rights et al. by Henry Mark Holzer; for People for the Ethical Treatment
of Animals et al. by Gary L. Francione; and for the Washington Humane Society by
E. Edward Bruce.
Briefs of amici curiae were filed for the United States Catholic Conference by Mark
E. Chopko and John A. Liekweg; for the Humane Society of the United States et al.
by Peter Buscemi, Maureen Beyers, Roger A. Kindler, and Eugene Underwood, Jr.; for
the Institute for Animal Rights Law et al. by Henry Mark Holzer; and for the National
Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps.
JUDGES: JUSTICE KENNEDY delivered the opinion of the Court with
respect to Parts I, II-A-1, II-A-3, II-B, III, and IV, concluding that the laws
in question were enacted contrary to free exercise principles, and they are void.
Pp. 531-540, 542-547. KENNEDY, J., delivered the opinion of the Court with respect
to Parts I, III, and IV, in which REHNQUIST, C. J., and WHITE, STEVENS, SCALIA,
SOUTER, and THOMAS, JJ., joined, the opinion of the Court with respect to Part II-B,
in which REHNQUIST, C. J., and WHITE, STEVENS, SCALIA, and THOMAS, JJ., joined,
the opinion of the Court with respect to Parts II-A-1 and II-A-3, in which REHNQUIST,
C. J., and STEVENS, SCALIA, and THOMAS, JJ., joined, and an opinion with respect
to Part II-A-2, in which STEVENS, J., joined. SCALIA, J., filed an opinion concurring
in part and concurring in the judgment, in which REHNQUIST, C. J., joined, post,
p. 557. SOUTER, J., filed an opinion concurring in part and concurring in the judgment,
post, p. 559. BLACKMUN, J., filed an opinion concurring in the judgment, in which
O'CONNOR, J., joined, post, p. 577.
OPINION BY: KENNEDY
OPINION
[*523] [***484] [**2222] JUSTICE
KENNEDY delivered the opinion of the Court, except as to Part II-A-2. [Footnote
+]
The principle that government may not enact laws that suppress religious belief
or practice is so well understood that few violations are recorded in our opinions.
Cf. McDaniel v. Paty, 435 U.S. 618, 55 L. Ed. 2d 593, 98 S. Ct. 1322 (1978);
Fowler v. Rhode Island, 345 U.S. 67, 97 L. Ed. 828, 73 S. Ct. 526 (1953).
Concerned that this fundamental nonpersecution principle of the First Amendment
was implicated here, however, we granted certiorari. 503 U.S. 935 (1992).
[*524] Our review confirms that the laws in question were enacted
by officials who did not understand, failed to perceive, or chose to ignore the
fact that their official actions violated the Nation's essential commitment to religious
freedom. The challenged laws had an impermissible object; and in all events the
principle of general applicability was violated because the secular ends asserted
in defense of the laws were pursued only with respect to conduct motivated by religious
beliefs. We invalidate the challenged enactments and reverse the judgment of the
Court of Appeals.
I
A
This case involves practices of the Santeria religion, which originated in the 19th
century. When hundreds of thousands of members of the Yoruba people were brought
as slaves from western Africa to Cuba, their traditional African religion absorbed
significant elements of Roman Catholicism. The resulting syncretion, or fusion,
is Santeria, [***485] "the way of the saints." The Cuban
Yoruba express their devotion to spirits, called orishas, through the iconography
of Catholic saints, Catholic symbols are often present at Santeria rites, and Santeria
devotees attend the Catholic sacraments. 723 F. Supp. 1467, 1469-1470 (SD Fla. 1989);
13 Encyclopedia of Religion 66 (M. Eliade ed. 1987); 1 Encyclopedia of the American
Religious Experience 183 (C. Lippy & P. Williams eds. 1988).
The Santeria faith teaches that every individual has a destiny from God, a destiny
fulfilled with the aid and energy of the orishas. The basis of the Santeria religion
is the nurture of a personal relation with the orishas, and one of the principal
forms of devotion is an animal sacrifice. 13 Encyclopedia of Religion, supra, at
66. The sacrifice of animals as part of religious rituals has ancient roots. See
generally 12 id., at 554-556. Animal sacrifice is mentioned throughout the Old Testament,
see 14 Encyclopaedia Judaica 600, 600-605 [*525] (1971), and it
played an important role in the practice of Judaism before destruction of the second
Temple in Jerusalem, see id., at 605-612. In modern Islam, there is an annual sacrifice
commemorating Abraham's sacrifice of a ram in the stead of his son. See C. Glasse,
Concise Encyclopedia of Islam 178 (1989); 7 Encyclopedia of Religion, supra, at
456.
According to Santeria teaching, the orishas are powerful but not immortal. They
depend for survival on the sacrifice. Sacrifices are performed at birth, marriage,
and death rites, for the cure of the sick, for the initiation of new members and
priests, and during an annual celebration. Animals sacrificed in Santeria rituals
include chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles.
The animals are killed by the cutting of the carotid arteries in the neck. The sacrificed
animal is cooked and eaten, except after healing and death rituals. See 723 F. Supp.
at 1471-1472; 13 Encyclopedia of Religion, supra, at 66; M. Gonzalez-Wippler, The
Santeria Experience 105 (1982).
Santeria adherents faced widespread persecution in Cuba, so the religion and its
[**2223] rituals were practiced in secret. The open practice of
Santeria and its rites remains infrequent. See 723 F. Supp. at 1470; 13 Encyclopedia
of Religion, supra, at 67; M. Gonzalez-Wippler, Santeria: The Religion 3-4 (1989).
The religion was brought to this Nation most often by exiles from the Cuban revolution.
The District Court estimated that there are at least 50,000 practitioners in South
Florida today. See 723 F. Supp. at 1470.
B
Petitioner Church of the Lukumi Babalu Aye, Inc. (Church), is a not-for-profit corporation
organized under Florida law in 1973. The Church and its congregants practice the
Santeria religion. The president of the Church is petitioner Ernesto Pichardo, who
is also the Church's priest and holds the religious title of Italero, the second
highest in the Santeria faith. In April 1987, the Church leased land in [*526]
the city of Hialeah, Florida, and announced plans to establish a house of worship
as well as a school, cultural center, and museum. Pichardo indicated that the Church's
goal was to bring the practice of the Santeria faith, including its ritual of animal
sacrifice, [***486] into the open. The Church began the process
of obtaining utility service and receiving the necessary licensing, inspection,
and zoning approvals. Although the Church's efforts at obtaining the necessary licenses
and permits were far from smooth, see 723 F. Supp. at 1477-1478, it appears that
it received all needed approvals by early August 1987.
The prospect of a Santeria church in their midst was distressing to many members
of the Hialeah community, and the announcement of the plans to open a Santeria church
in Hialeah prompted the city council to hold an emergency public session on June
9, 1987. The resolutions and ordinances passed at that and later meetings are set
forth in the Appendix following this opinion.
A summary suffices here, beginning with the enactments passed at the June 9 meeting.
First, the city council adopted Resolution 87-66, which noted the "concern"
expressed by residents of the city "that certain religions may propose to engage
in practices which are inconsistent with public morals, peace or safety," and
declared that "the City reiterates its commitment to a prohibition against
any and all acts of any and all religious groups which are inconsistent with public
morals, peace or safety." Next, the council approved an emergency ordinance,
Ordinance 87-40, which incorporated in full, except as to penalty, Florida's animal
cruelty laws. Fla. Stat. ch. 828 (1987). Among other things, the incorporated state
law subjected to criminal punishment "whoever . . . unnecessarily or cruelly
. . . kills any animal." § 828.12.
The city council desired to undertake further legislative action, but Florida law
prohibited a municipality from enacting legislation relating to animal cruelty that
conflicted with [*527] state law. § 828.27(4). To obtain clarification,
Hialeah's city attorney requested an opinion from the attorney general of Florida
as to whether § 828.12 prohibited "a religious group from sacrificing an animal
in a religious ritual or practice" and whether the city could enact ordinances
"making religious animal sacrifice unlawful." The attorney general responded
in mid-July. He concluded that the "ritual sacrifice of animals for purposes
other than food consumption" was not a "necessary" killing and so
was prohibited by § 828.12. Fla. Op. Atty. Gen. 87-56, Annual Report of the Atty.
Gen. 146, 147, 149 (1988). The attorney general appeared to define "unnecessary"
as "done without any useful motive, in a spirit of wanton cruelty or for the
mere pleasure of destruction without being in any sense beneficial or useful to
the person killing the animal." Id., at 149, n.11. He advised that religious
animal sacrifice was against state law, so that a city ordinance prohibiting it
would not be in conflict. Id., at 151.
The city council responded at first with a hortatory enactment, Resolution 87-90,
that noted its residents' "great concern regarding the possibility of public
ritualistic animal sacrifices" [**2224] and the state-law
prohibition. The resolution declared the city policy "to oppose the ritual
sacrifices of animals" within Hialeah and announced that any person or organization
practicing animal sacrifice "will be prosecuted."
In September 1987, the city council adopted three substantive ordinances addressing
the issue of religious [***487] animal sacrifice. Ordinance 87-52
defined "sacrifice" as "to unnecessarily kill, torment, torture,
or mutilate an animal in a public or private ritual or ceremony not for the primary
purpose of food consumption," and prohibited owning or possessing an animal
"intending to use such animal for food purposes." It restricted application
of this prohibition, however, to any individual or group that "kills, slaughters
or sacrifices animals for any type of ritual, regardless of whether or not the flesh
or blood of the animal is to be consumed." The ordinance [*528]
contained an exemption for slaughtering by "licensed establishment[s]"
of animals "specifically raised for food purposes." Declaring, moreover,
that the city council "has determined that the sacrificing of animals within
the city limits is contrary to the public health, safety, welfare and morals of
the community," the city council adopted Ordinance 87-71. That ordinance defined
"sacrifice" as had Ordinance 87-52, and then provided that "it shall
be unlawful for any person, persons, corporations or associations to sacrifice any
animal within the corporate limits of the City of Hialeah, Florida." The final
Ordinance, 87-72, defined "slaughter" as "the killing of animals
for food" and prohibited slaughter outside of areas zoned for slaughterhouse
use. The ordinance provided an exemption, however, for the slaughter or processing
for sale of "small numbers of hogs and/or cattle per week in accordance with
an exemption provided by state law." All ordinances and resolutions passed
the city council by unanimous vote. Violations of each of the four ordinances were
punishable by fines not exceeding $ 500 or imprisonment not exceeding 60 days, or
both.
Following enactment of these ordinances, the Church and Pichardo filed this action
pursuant to 42 U.S.C. § 1983 in the United States District Court for the Southern
District of Florida. Named as defendants were the city of Hialeah and its mayor
and members of its city council in their individual capacities. Alleging violations
of petitioners' rights under, inter alia, the Free Exercise Clause, the complaint
sought a declaratory judgment and injunctive and monetary relief. The District Court
granted summary judgment to the individual defendants, finding that they had absolute
immunity for their legislative acts and that the ordinances and resolutions adopted
by the council did not constitute an official policy of harassment, as alleged by
petitioners. 688 F. Supp. 1522 (SD Fla. 1988).
After a 9-day bench trial on the remaining claims, the District Court ruled for
the city, finding no violation of petitioners' [*529] rights under
the Free Exercise Clause. 723 F. Supp. 1467 (SD Fla. 1989). (The court rejected
as well petitioners' other claims, which are not at issue here.) Although acknowledging
that "the ordinances are not religiously neutral," id., at 1476, and that
the city's concern about animal sacrifice was "prompted" by the establishment
of the Church in the city, id., at 1479, the District Court concluded that the purpose
of the ordinances was not to exclude the Church from the city but to end the practice
of animal sacrifice, for whatever reason practiced, id., at 1479, 1483. The court
also found that the ordinances did not target religious conduct "on their face,"
though it noted that in any event "specifically regulating [***488]
[religious] conduct" does not violate the First Amendment "when [the conduct]
is deemed inconsistent with public health and welfare." Id., at 1483-1484.
Thus, the court concluded that, at most, the ordinances' effect on petitioners'
religious conduct was "incidental to [their] secular purpose and effect."
Id., at 1484.
The District Court proceeded to determine whether the governmental interests underlying
the ordinances were compelling and, if [**2225] so, to balance
the "governmental and religious interests." The court noted that "this
'balance depends upon the cost to the government of altering its activity to allow
the religious practice to continue unimpeded versus the cost to the religious interest
imposed by the government activity.'" Ibid., quoting Grosz v. City of Miami
Beach, 721 F.2d 729, 734 (CA11 1983), cert. denied, 469 U.S. 827,
83 L. Ed. 2d 52, 105 S. Ct. 108 (1984). The court found four compelling interests.
First, the court found that animal sacrifices present a substantial health risk,
both to participants and the general public. According to the court, animals that
are to be sacrificed are often kept in unsanitary conditions and are uninspected,
and animal remains are found in public places. 723 F. Supp. at 1474-1475, 1485.
Second, the court found emotional injury to children who witness the sacrifice of
animals. 723 F. Supp. at 1475-1476, 1485-1486. Third, the court found compelling
the city's interest [*530] in protecting animals from cruel and
unnecessary killing. The court determined that the method of killing used in Santeria
sacrifice was "unreliable and not humane, and that the animals, before being
sacrificed, are often kept in conditions that produce a great deal of fear and stress
in the animal." Id., at 1472-1473, 1486. Fourth, the District Court found compelling
the city's interest in restricting the slaughter or sacrifice of animals to areas
zoned for slaughterhouse use. Id., at 1486. This legal determination was not accompanied
by factual findings.
Balancing the competing governmental and religious interests, the District Court
concluded the compelling governmental interests "fully justify the absolute
prohibition on ritual sacrifice" accomplished by the ordinances. Id., at 1487.
The court also concluded that an exception to the sacrifice prohibition for religious
conduct would "'unduly interfere with fulfillment of the governmental interest'"
because any more narrow restrictions -- e.g., regulation of disposal of animal carcasses
-- would be unenforceable as a result of the secret nature of the Santeria religion.
Id., at 1486-1487, and nn. 57-59. A religious exemption from the city's ordinances,
concluded the court, would defeat the city's compelling interests in enforcing the
prohibition. Id., at 1487.
The Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph per curiam
opinion. Judgt. order reported at 936 F.2d 586 (1991). Choosing not to rely on the
District Court's recitation of a compelling interest in promoting the welfare of
children, the Court of Appeals stated simply that it concluded the ordinances were
consistent with the Constitution. App. to Pet. for Cert. A2. It declined to address
the effect of
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S.
872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990), decided after the District Court's
opinion, because the District Court "employed an arguably [***489]
stricter standard" than that applied in
Smith. App. to Pet. for Cert. A2, n.1.
[*531] II
The Free Exercise Clause of the First Amendment, which has been applied to the States
through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S.
296, 303, 84 L. Ed. 1213, 60 S. Ct. 900 (1940), provides that "Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise
thereof . . . ." (Emphasis added.) The city does not argue that Santeria is
not a "religion" within the meaning of the First Amendment. Nor could
it. Although the practice of animal sacrifice may seem abhorrent to some, "religious
beliefs need not be acceptable, logical, consistent, or comprehensible to others
in order to merit First Amendment protection." Thomas v. Review Bd. of Indiana
Employment Security Div., 450 U.S. 707, 714, 67 L. Ed. 2d 624, 101 S. Ct.
1425 (1981). Given the historical association between animal sacrifice and religious
worship, see supra, at 524-525, petitioners' assertion that animal sacrifice is
an integral part of their religion "cannot be [**2226] deemed
bizarre or incredible." Frazee v. Illinois Dept. of Employment Security,
489 U.S. 829, 834, n.2, 103 L. Ed. 2d 914, 109 S. Ct. 1514 (1989). Neither the city
nor the courts below, moreover, have questioned the sincerity of petitioners' professed
desire to conduct animal sacrifices for religious reasons. We must consider petitioners'
First Amendment claim.
In addressing the constitutional protection for free exercise of religion, our cases
establish the general proposition that a law that is neutral and of general applicability
need not be justified by a compelling governmental interest even if the law has
the incidental effect of burdening a particular religious practice. Employment Div., Dept. of Human Resources
of Ore. v. Smith, supra. Neutrality and general applicability are interrelated,
and, as becomes apparent in this case, failure to satisfy one requirement is a likely
indication that the other has not been satisfied. A law failing to satisfy these
requirements must be justified by a compelling governmental interest and must be
narrowly tailored to advance [*532] that interest. These ordinances
fail to satisfy the
Smith requirements. We begin by discussing neutrality.
A
In our Establishment Clause cases we have often stated the principle that the First
Amendment forbids an official purpose to disapprove of a particular religion or
of religion in general. See, e.g., Board of Ed. of Westside Community Schools (Dist.
66) v. Mergens, 496 U.S. 226, 248, 110 L. Ed. 2d 191, 110 S. Ct. 2356 (1990)
(plurality opinion); School Dist. of Grand Rapids v. Ball, 473 U.S. 373,
389, 87 L. Ed. 2d 267, 105 S. Ct. 3216 (1985); Wallace v. Jaffree, 472
U.S. 38, 56, 86 L. Ed. 2d 29, 105 S. Ct. 2479 (1985); Epperson v. Arkansas,
393 U.S. 97, 106-107, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968); School Dist. of Abington
v. Schempp, 374 U.S. 203, 225, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963);
Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15-16, 91 L. Ed. 711, 67
S. Ct. 504 (1947). These cases, however, for the most part have addressed governmental
efforts to benefit religion or particular religions, [***490] and
so have dealt with a question different, at least in its formulation and emphasis,
from the issue here. Petitioners allege an attempt to disfavor their religion because
of the religious ceremonies it commands, and the Free Exercise Clause is dispositive
in our analysis.
At a minimum, the protections of the Free Exercise Clause pertain if the law at
issue discriminates against some or all religious beliefs or regulates or prohibits
conduct because it is undertaken for religious reasons. See, e.g., Braunfeld v.
Brown, 366 U.S. 599, 607, 6 L. Ed. 2d 563, 81 S. Ct. 1144 (1961) (plurality
opinion); Fowler v. Rhode Island, 345 U.S. at 69-70. Indeed, it was "historical
instances of religious persecution and intolerance that gave concern to those who
drafted the Free Exercise Clause." Bowen v. Roy, 476 U.S. 693, 703,
90 L. Ed. 2d 735, 106 S. Ct. 2147 (1986) (opinion of Burger, C. J.). See J. Story,
Commentaries on the Constitution of the United States §§ 991-992 (abridged ed. 1833)
(reprint 1987); T. Cooley, Constitutional Limitations 467 (1868) (reprint 1972);
McGowan v. Maryland, 366 U.S. 420, 464, 6 L. Ed. 2d 393, 81 S. Ct. 1101,
and n.2 (1961) (opinion of Frankfurter, J.); Douglas v. Jeannette, 319
U.S. 157, 179, 87 L. Ed. 1324, 63 S. Ct. 877 (1943) (Jackson, J., concurring in
result); [*533] Davis v. Beason, 133 U.S. 333, 342, 33
L. Ed. 637, 10 S. Ct. 299 (1890). These principles, though not often at issue in
our Free Exercise Clause cases, have played a role in some. In McDaniel v. Paty,
435 U.S. 618, 55 L. Ed. 2d 593, 98 S. Ct. 1322 (1978), for example, we invalidated
a state law that disqualified members of the clergy from holding certain public
offices, because it "impose[d] special disabilities on the basis of . . . religious
status,"
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S.
at 877. On the same principle, in [**2227] Fowler v. Rhode Island,
supra, we found that a municipal ordinance was applied in an unconstitutional manner
when interpreted to prohibit preaching in a public park by a Jehovah's Witness but
to permit preaching during the course of a Catholic mass or Protestant church service.
See also Niemotko v. Maryland, 340 U.S. 268, 272-273, 95 L. Ed. 267, 71
S. Ct. 325 (1951). Cf. Larson v. Valente, 456 U.S. 228, 72 L. Ed. 2d 33,
102 S. Ct. 1673 (1982) (state statute that treated some religious denominations
more favorably than others violated the Establishment Clause).
1
Although a law targeting religious beliefs as such is never permissible, McDaniel
v. Paty, supra, at 626 (plurality opinion); Cantwell v. Connecticut,
supra, at 303-304, if the object of a law is to infringe upon or restrict practices
because of their religious motivation, the law is not neutral, see Employment Div., Dept. of Human Resources
of Ore. v. Smith, supra, at 878-879; and it is invalid unless it is justified
by a compelling interest and is narrowly tailored to advance that interest. There
are, of course, many ways of demonstrating that the object or purpose of a law is
the suppression of religion or religious conduct. To determine the object of a law,
we must begin with its text, for the minimum requirement of [***491]
neutrality is that a law not discriminate on its face. A law lacks facial neutrality
if it refers to a religious practice without a secular meaning discernible from
the language or context. Petitioners contend that three of the ordinances fail this
test of facial neutrality because they use the words [*534]
"sacrifice" and "ritual," words with strong religious connotations.
Brief for Petitioners 16-17. We agree that these words are consistent with the claim
of facial discrimination, but the argument is not conclusive. The words "sacrifice"
and "ritual" have a religious origin, but current use admits also of secular
meanings. See Webster's Third New International Dictionary 1961, 1996 (1971). See
also 12 Encyclopedia of Religion, at 556 ("The word sacrifice ultimately became
very much a secular term in common usage"). The ordinances, furthermore, define
"sacrifice" in secular terms, without referring to religious practices.
We reject the contention advanced by the city, see Brief for Respondent 15, that
our inquiry must end with the text of the laws at issue. Facial neutrality is not
determinative. The Free Exercise Clause, like the Establishment Clause, extends
beyond facial discrimination. The Clause "forbids subtle departures from neutrality,"
Gillette v. United States, 401 U.S. 437, 452, 28 L. Ed. 2d 168, 91 S. Ct.
828 (1971), and "covert suppression of particular religious beliefs,"
Bowen v. Roy, supra, at 703 (opinion of Burger, C. J.). Official action
that targets religious conduct for distinctive treatment cannot be shielded by mere
compliance with the requirement of facial neutrality. The Free Exercise Clause protects
against governmental hostility which is masked as well as overt. "The Court
must survey meticulously the circumstances of governmental categories to eliminate,
as it were, religious gerrymanders." Walz v. Tax Comm'n of New York City,
397 U.S. 664, 696, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970) (Harlan, J., concurring).
The record in this case compels the conclusion that suppression of the central element
of the Santeria worship service was the object of the ordinances. First, though
use of the words "sacrifice" and "ritual" does not compel a
finding of improper targeting of the Santeria religion, the choice of these words
is support for our conclusion. There are further respects in which the text of the
city council's enactments discloses the improper attempt to target Santeria.
[*535] Resolution 87-66, adopted June 9, 1987, recited that "residents
and citizens of the City of Hialeah have expressed their concern [**2228]
that certain religions may propose to engage in practices which are inconsistent
with public morals, peace or safety," and "reiterate[d]" the city's
commitment to prohibit "any and all [such] acts of any and all religious groups."
No one suggests, and on this record it cannot be maintained, that city officials
had in mind a religion other than Santeria.
It becomes evident that these ordinances target Santeria sacrifice when the ordinances'
operation is considered. Apart from the text, the effect of a law in its real operation
is strong evidence of its object. To be sure, adverse impact will not always lead
to a finding of impermissible targeting. For example, a social harm may have been
a legitimate concern of government for reasons quite apart from discrimination.
[***492] McGowan v. Maryland, 366 U.S. at 442. See, e.g.,
Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1879); Davis v.
Beason, 133 U.S. 333, 33 L. Ed. 637, 10 S. Ct. 299 (1890). See also Ely,
Legislative and Administrative Motivation in Constitutional Law, 79 Yale L. J. 1205,
1319 (1970). The subject at hand does implicate, of course, multiple concerns unrelated
to religious animosity, for example, the suffering or mistreatment visited upon
the sacrificed animals and health hazards from improper disposal. But the ordinances
when considered together disclose an object remote from these legitimate concerns.
The design of these laws accomplishes instead a "religious gerrymander,"
Walz v. Tax Comm'n of New York City, supra, at 696 (Harlan, J., concurring),
an impermissible attempt to target petitioners and their religious practices.
It is a necessary conclusion that almost the only conduct subject to Ordinances
87-40, 87-52, and 87-71 is the religious exercise of Santeria church members. The
texts show that they were drafted in tandem to achieve this result. We begin with
Ordinance 87-71. It prohibits the sacrifice of animals, but defines sacrifice as
"to unnecessarily kill . . . an animal in a public or private ritual or ceremony
not for the [*536] primary purpose of food consumption." The
definition excludes almost all killings of animals except for religious sacrifice,
and the primary purpose requirement narrows the proscribed category even further,
in particular by exempting kosher slaughter, see 723 F. Supp. at 1480. We need not
discuss whether this differential treatment of two religions is itself an independent
constitutional violation. Cf. Larson v. Valente, 456 U.S. at 244-246. It
suffices to recite this feature of the law as support for our conclusion that Santeria
alone was the exclusive legislative concern. The net result of the gerrymander is
that few if any killings of animals are prohibited other than Santeria sacrifice,
which is proscribed because it occurs during a ritual or ceremony and its primary
purpose is to make an offering to the orishas, not food consumption. Indeed, careful
drafting ensured that, although Santeria sacrifice is prohibited, killings that
are no more necessary or humane in almost all other circumstances are unpunished.
Operating in similar fashion is Ordinance 87-52, which prohibits the "possession,
sacrifice, or slaughter" of an animal with the "intent to use such animal
for food purposes." This prohibition, extending to the keeping of an animal
as well as the killing itself, applies if the animal is killed in "any type
of ritual" and there is an intent to use the animal for food, whether or not
it is in fact consumed for food. The ordinance exempts, however, "any licensed
[food] establishment" with regard to "any animals which are specifically
raised for food purposes," if the activity is permitted by zoning and other
laws. This exception, too, seems intended to cover kosher slaughter. Again, the
burden of the ordinance, in practical terms, falls on Santeria adherents but almost
no others: If the killing is -- unlike most Santeria sacrifices -- unaccompanied
by the intent to use the animal for food, then it is not prohibited by Ordinance
87-52; if the killing is specifically for food but does not [***493]
occur during the [**2229] course of "any type of ritual,"
it again falls outside the prohibition; and if [*537] the killing
is for food and occurs during the course of a ritual, it is still exempted if it
occurs in a properly zoned and licensed establishment and involves animals "specifically
raised for food purposes." A pattern of exemptions parallels the pattern of
narrow prohibitions. Each contributes to the gerrymander.
Ordinance 87-40 incorporates the Florida animal cruelty statute, Fla. Stat. § 828.12
(1987). Its prohibition is broad on its face, punishing "whoever . . . unnecessarily
. . . kills any animal." The city claims that this ordinance is the epitome
of a neutral prohibition. Brief for Respondent 13-14. The problem, however, is the
interpretation given to the ordinance by respondent and the Florida attorney general.
Killings for religious reasons are deemed unnecessary, whereas most other killings
fall outside the prohibition. The city, on what seems to be a per se basis, deems
hunting, slaughter of animals for food, eradication of insects and pests, and euthanasia
as necessary. See id., at 22. There is no indication in the record that respondent
has concluded that hunting or fishing for sport is unnecessary. Indeed, one of the
few reported Florida cases decided under § 828.12 concludes that the use of live
rabbits to train greyhounds is not unnecessary. See Kiper v. State, 310
So. 2d 42 (Fla. App.), cert. denied, 328 So. 2d 845 (Fla. 1975). Further,
because it requires an evaluation of the particular justification for the killing,
this ordinance represents a system of "individualized governmental assessment
of the reasons for the relevant conduct,"
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S.
at 884. As we noted in
Smith, in circumstances in which individualized exemptions from a general
requirement are available, the government "may not refuse to extend that system
to cases of 'religious hardship' without compelling reason." Ibid., quoting Bowen v.
Roy, 476 U.S. at 708 (opinion of Burger, C. J.). Respondent's application
of the ordinance's test of necessity devalues religious reasons for killing by judging
them to be of lesser import than nonreligious [*538] reasons. Thus,
religious practice is being singled out for discriminatory treatment. Id.,
at 722, and n.17 (STEVENS, J., concurring in part and concurring in result); id.,
at 708 (opinion of Burger, C. J.); United States v. Lee, 455 U.S. 252,
264, n.3, 71 L. Ed. 2d 127, 102 S. Ct. 1051 (1982) (STEVENS, J., concurring in judgment).
We also find significant evidence of the ordinances' improper targeting of Santeria
sacrifice in the fact that they proscribe more religious conduct than is necessary
to achieve their stated ends. It is not unreasonable to infer, at least when there
are no persuasive indications to the contrary, that a law which visits "gratuitous
restrictions" on religious conduct, McGowan v. Maryland, 366 U.S.
at 520 (opinion of Frankfurter, J.), seeks not to effectuate the stated governmental
interests, but to suppress the conduct because of its religious motivation.
[***494] The legitimate governmental interests in protecting the
public health and preventing cruelty to animals could be addressed by restrictions
stopping far short of a flat prohibition of all Santeria sacrificial practice. [Footnote
*] If improper disposal, not the sacrifice itself, is the harm to be prevented,
the city could have imposed a general regulation [**2230] on the
disposal of organic garbage. It did not do so. Indeed, counsel for the city conceded
at oral argument that, under the ordinances, Santeria sacrifices would be illegal
even if they occurred in licensed, inspected, and zoned slaughterhouses. Tr. of
Oral Arg. 45. See also id., at 42, 48. Thus, these broad ordinances prohibit Santeria
sacrifice even when it does not threaten the city's [*539] interest
in the public health. The District Court accepted the argument that narrower regulation
would be unenforceable because of the secrecy in the Santeria rituals and the lack
of any central religious authority to require compliance with secular disposal regulations.
See 723 F. Supp. at 1486-1487, and nn. 58-59. It is difficult to understand, however,
how a prohibition of the sacrifices themselves, which occur in private, is enforceable
if a ban on improper disposal, which occurs in public, is not. The neutrality of
a law is suspect if First Amendment freedoms are curtailed to prevent isolated collateral
harms not themselves prohibited by direct regulation. See, e. g., Schneider v. State,
308 U.S. 147, 162, 84 L. Ed. 155, 60 S. Ct. 146 (1939).
Under similar analysis, narrower regulation would achieve the city's interest in
preventing cruelty to animals. With regard to the city's interest in ensuring the
adequate care of animals, regulation of conditions and treatment, regardless of
why an animal is kept, is the logical response to the city's concern, not a prohibition
on possession for the purpose of sacrifice. The same is true for the city's interest
in prohibiting cruel methods of killing. Under federal and Florida law and Ordinance
87-40, which incorporates Florida law in this regard, killing an animal by the "simultaneous
and instantaneous severance of the carotid arteries with a sharp instrument"
-- the method used in kosher slaughter -- is approved as humane. See 7 U.S.C. §
1902(b); Fla. Stat. § 828.23(7)(b) (1991); Ordinance 87-40, § 1. The District Court
found that, though Santeria sacrifice also results in severance of the carotid arteries,
the method used during sacrifice is less reliable and therefore not humane. See
723 F. Supp. at 1472-1473. If the city has a real concern that other methods are
less humane, however, the subject of the regulation should be the method of slaughter
itself, not a religious classification that is said to bear some general relation
to it.
Ordinance 87-72 -- unlike the three other ordinances -- does appear to apply to
substantial nonreligious conduct and [*540] not to be overbroad.
For [***495] our purposes here, however, the four substantive ordinances
may be treated as a group for neutrality purposes. Ordinance 87-72 was passed the
same day as Ordinance 87-71 and was enacted, as were the three others, in direct
response to the opening of the Church. It would be implausible to suggest that the
three other ordinances, but not Ordinance 87-72, had as their object the suppression
of religion. We need not decide whether Ordinance 87-72 could survive constitutional
scrutiny if it existed separately; it must be invalidated because it functions,
with the rest of the enactments in question, to suppress Santeria religious worship.
2
In determining if the object of a law is a neutral one under the Free Exercise Clause,
we can also find guidance in our equal protection cases. As Justice Harlan noted
in the related context of the Establishment Clause, "neutrality in its application
requires an equal protection mode of analysis." Walz v. Tax Comm'n of New York
City, 397 U.S. at 696 (concurring opinion). Here, as in equal protection
cases, we may determine the city council's object from both direct and circumstantial
evidence. Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252, 266, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977). Relevant evidence includes,
among other things, the historical background of the decision under challenge, the
specific series of events leading to the enactment or official policy in question,
and the legislative or administrative history, including contemporaneous [**2231]
statements made by members of the decisionmaking body. Id., at 267-268.
These objective factors bear on the question of discriminatory object. Personnel
Administrator of Mass. v. Feeney, 442 U.S. 256, 279, n.24, 60 L. Ed. 2d
870, 99 S. Ct. 2282 (1979).
That the ordinances were enacted "'because of,' not merely 'in spite of,'"
their suppression of Santeria religious practice, id., at 279, is revealed
by the events preceding their enactment. Although respondent claimed at oral argument
[*541] that it had experienced significant problems resulting from
the sacrifice of animals within the city before the announced opening of the Church,
Tr. of Oral Arg. 27, 46, the city council made no attempt to address the supposed
problem before its meeting in June 1987, just weeks after the Church announced plans
to open. The minutes and taped excerpts of the June 9 session, both of which are
in the record, evidence significant hostility exhibited by residents, members of
the city council, and other city officials toward the Santeria religion and its
practice of animal sacrifice. The public crowd that attended the June 9 meetings
interrupted statements by council members critical of Santeria with cheers and the
brief comments of Pichardo with taunts. When Councilman Martinez, a supporter of
the ordinances, stated that in prerevolution Cuba "people were put in jail
for practicing this religion," the audience applauded. Taped excerpts of Hialeah
City Council Meeting, June 9, 1987.
Other statements by members of the city council were in a similar vein. For example,
Councilman Martinez, after noting his belief that Santeria was outlawed in Cuba,
[***496] questioned: "If we could not practice this [religion]
in our home-land [Cuba], why bring it to this country?" Councilman Cardoso
said that Santeria devotees at the Church "are in violation of everything this
country stands for." Councilman Mejides indicated that he was "totally
against the sacrificing of animals" and distinguished kosher slaughter because
it had a "real purpose." The "Bible says we are allowed to sacrifice
an animal for consumption," he continued, "but for any other purposes,
I don't believe that the Bible allows that." The president of the city council,
Councilman Echevarria, asked: "What can we do to prevent the Church from opening?"
Various Hialeah city officials made comparable comments. The chaplain of the Hialeah
Police Department told the city council that Santeria was a sin, "foolishness,"
"an abomination to the Lord," and the worship of "demons." He
advised [*542] the city council: "We need to be helping people
and sharing with them the truth that is found in Jesus Christ." He concluded:
"I would exhort you . . . not to permit this Church to exist." The city
attorney commented that Resolution 87-66 indicated: "This community will not
tolerate religious practices which are abhorrent to its citizens . . . ." Ibid.
Similar comments were made by the deputy city attorney. This history discloses the
object of the ordinances to target animal sacrifice by Santeria worshippers because
of its religious motivation.
3
In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their
object the suppression of religion. The pattern we have recited discloses animosity
to Santeria adherents and their religious practices; the ordinances by their own
terms target this religious exercise; the texts of the ordinances were gerrymandered
with care to proscribe religious killings of animals but to exclude almost all secular
killings; and the ordinances suppress much more religious conduct than is necessary
in order to achieve the legitimate ends asserted in their defense. These ordinances
are not neutral, and the court below committed clear error in failing to reach this
conclusion.
B
We turn next to a second requirement of the Free Exercise Clause, the rule [**2232]
that laws burdening religious practice must be of general applicability. Employment Div., Dept. of Human Resources
of Ore. v. Smith, 494 U.S. at 879-881. All laws are selective to some
extent, but categories of selection are of paramount concern when a law has the
incidental effect of burdening religious practice. The Free Exercise Clause "protect[s]
religious observers against unequal treatment," Hobbie v. Unemployment Appeals
Comm'n of Fla., 480 U.S. 136, 148, 94 L. Ed. 2d 190, 107 S. Ct. 1046 (1987)
(STEVENS, J., concurring in judgment), and inequality results when a legislature
decides that [*543] the governmental interests it seeks to advance
are worthy of being pursued only against conduct with a religious motivation.
The principle that government, in pursuit of legitimate interests, cannot in a selective
manner impose burdens only on conduct motivated by religious belief is essential
to the [***497] protection of the rights guaranteed by the Free
Exercise Clause. The principle underlying the general applicability requirement
has parallels in our First Amendment jurisprudence. See, e.g., Cohen v. Cowles Media
Co., 501 U.S. 663, 669-670, 115 L. Ed. 2d 586, 111 S. Ct. 2513 (1991);
University of Pennsylvania v. EEOC, 493 U.S. 182, 201, 107 L. Ed. 2d 571,
110 S. Ct. 577 (1990); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U.S. 575, 585, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983); Larson
v. Valente, 456 U.S. at 245-246; Presbyterian Church in U.S. v. Mary Elizabeth
Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449, 21 L.
Ed. 2d 658, 89 S. Ct. 601 (1969). In this case we need not define with precision
the standard used to evaluate whether a prohibition is of general application, for
these ordinances fall well below the minimum standard necessary to protect First
Amendment rights.
Respondent claims that Ordinances 87-40, 87-52, and 87-71 advance two interests:
protecting the public health and preventing cruelty to animals. The ordinances are
underinclusive for those ends. They fail to prohibit nonreligious conduct that endangers
these interests in a similar or greater degree than Santeria sacrifice does. The
underinclusion is substantial, not inconsequential. Despite the city's proffered
interest in preventing cruelty to animals, the ordinances are drafted with care
to forbid few killings but those occasioned by religious sacrifice. Many types of
animal deaths or kills for nonreligious reasons are either not prohibited or approved
by express provision. For example, fishing -- which occurs in Hialeah, see A. Khedouri
& F. Khedouri, South Florida Inside Out 57 (1991) -- is legal. Extermination
of mice and rats within a home is also permitted. Florida law incorporated by Ordinance
87-40 sanctions [*544] euthanasia of "stray, neglected, abandoned,
or unwanted animals," Fla. Stat. § 828.058 (1987); destruction of animals judicially
removed from their owners "for humanitarian reasons" or when the animal
"is of no commercial value," § 828.073(4)(c)(2); the infliction of pain
or suffering "in the interest of medical science," § 828.02; the placing
of poison in one's yard or enclosure, § 828.08; and the use of a live animal "to
pursue or take wildlife or to participate in any hunting," § 828.122(6)(b),
and "to hunt wild hogs," § 828.122(6)(e).
The city concedes that "neither the State of Florida nor the City has enacted
a generally applicable ban on the killing of animals." Brief for Respondent
21. It asserts, however, that animal sacrifice is "different" from the
animal killings that are permitted by law. Ibid. According to the city, it is "self-evident"
that killing animals for food is "important"; the eradication of insects
and pests is "obviously justified"; and the euthanasia of excess animals
"makes sense." Id., at 22. These ipse dixits do not explain why religion
alone must bear the burden of the ordinances, when many of these secular killings
fall within the city's interest in preventing the cruel treatment of animals.
[**2233] The ordinances are also underinclusive with regard to
the city's interest in public health, which is threatened by the disposal of animal
carcasses in open public places and the consumption of uninspected meat, see Brief
for Respondent 32, [***498] citing 723 F. Supp. at 1474-1475, 1485.
Neither interest is pursued by respondent with regard to conduct that is not motivated
by religious conviction. The health risks posed by the improper disposal of animal
carcasses are the same whether Santeria sacrifice or some nonreligious killing preceded
it. The city does not, however, prohibit hunters from bringing their kill to their
houses, nor does it regulate disposal after their activity. Despite substantial
testimony at trial that the same public health hazards result from improper disposal
of garbage by restaurants, see 11 Record 566, [*545] 590-591, restaurants
are outside the scope of the ordinances. Improper disposal is a general problem
that causes substantial health risks, 723 F. Supp. at 1485, but which respondent
addresses only when it results from religious exercise.
The ordinances are underinclusive as well with regard to the health risk posed by
consumption of uninspected meat. Under the city's ordinances, hunters may eat their
kill and fishermen may eat their catch without undergoing governmental inspection.
Likewise, state law requires inspection of meat that is sold but exempts meat from
animals raised for the use of the owner and "members of his household and nonpaying
guests and employees." Fla. Stat. § 585.88(1)(a) (1991). The asserted interest
in inspected meat is not pursued in contexts similar to that of religious animal
sacrifice.
Ordinance 87-72, which prohibits the slaughter of animals outside of areas zoned
for slaughterhouses, is underinclusive on its face. The ordinance includes an exemption
for "any person, group, or organization" that "slaughters or processes
for sale, small numbers of hogs and/or cattle per week in accordance with an exemption
provided by state law." See Fla. Stat. § 828.24(3) (1991). Respondent has not
explained why commercial operations that slaughter "small numbers" of
hogs and cattle do not implicate its professed desire to prevent cruelty to animals
and preserve the public health. Although the city has classified Santeria sacrifice
as slaughter, subjecting it to this ordinance, it does not regulate other killings
for food in like manner.
We conclude, in sum, that each of Hialeah's ordinances pursues the city's governmental
interests only against conduct motivated by religious belief. The ordinances "have
every appearance of a prohibition that society is prepared to impose upon [Santeria
worshippers] but not upon itself." Florida Star v. B. J. F., 491 U.S.
524, 542, 105 L. Ed. 2d 443, 109 S. Ct. 2603 (1989) (SCALIA, J., concurring in part
and concurring in judgment). This [*546] precise evil is what the
requirement of general applicability is designed to prevent.
III
A law burdening religious practice that is not neutral or not of general application
must undergo the most rigorous of scrutiny. To satisfy the commands of the First
Amendment, a law restrictive of religious practice must advance "'interests
of the highest order'" and must be narrowly tailored in pursuit of those interests.
McDaniel v. Paty, 435 U.S. at 628, quoting Wisconsin v. Yoder,
406 U.S. 205, 215, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). The [***499]
compelling interest standard that we apply once a law fails to meet the Smith requirements is
not "water[ed] . . . down" but "really means what it says."
Employment Div.,
Dept. of Human Resources of Ore. v. Smith, 494 U.S. at 888. A law that
targets religious conduct for distinctive treatment or advances legitimate governmental
interests only against conduct with a religious motivation will survive strict scrutiny
only in rare cases. It follows from what we have already said that these ordinances
cannot withstand this scrutiny.
[**2234] First, even were the governmental interests compelling,
the ordinances are not drawn in narrow terms to accomplish those interests. As we
have discussed, see supra, at 538-540, 543-546, all four ordinances are overbroad
or underinclusive in substantial respects. The proffered objectives are not pursued
with respect to analogous nonreligious conduct, and those interests could be achieved
by narrower ordinances that burdened religion to a far lesser degree. The absence
of narrow tailoring suffices to establish the invalidity of the ordinances. See
Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 232, 95 L. Ed.
2d 209, 107 S. Ct. 1722 (1987).
Respondent has not demonstrated, moreover, that, in the context of these ordinances,
its governmental interests are compelling. Where government restricts only conduct
protected by the First Amendment and fails to enact feasible [*547]
measures to restrict other conduct producing substantial harm or alleged harm of
the same sort, the interest given in justification of the restriction is not compelling.
It is established in our strict scrutiny jurisprudence that "a law cannot be
regarded as protecting an interest 'of the highest order' . . . when it leaves appreciable
damage to that supposedly vital interest unprohibited." Florida Star v. B.
J. F., supra, at 541-542 (SCALIA, J., concurring in part and concurring
in judgment) (citation omitted). See Simon & Schuster, Inc. v. Members of N.
Y. State Crime Victims Bd., 502 U.S. 105, 119-120, 116 L. Ed. 2d 476, 112
S. Ct. 501 (1991). Cf. Florida Star v. B. J. F., supra, at 540-541; Smith
v. Daily Mail Publishing Co., 443 U.S. 97, 104-105, 61 L. Ed. 2d 399, 99
S. Ct. 2667 (1979); id., at 110 (REHNQUIST, J., concurring in judgment). As we show
above, see supra, at 543-546, the ordinances are underinclusive to a substantial
extent with respect to each of the interests that respondent has asserted, and it
is only conduct motivated by religious conviction that bears the weight of the governmental
restrictions. There can be no serious claim that those interests justify the ordinances.
IV
The Free Exercise Clause commits government itself to religious tolerance, and upon
even slight suspicion that proposals for state intervention stem from animosity
to religion or distrust of its practices, all officials must pause to remember their
own high duty to the Constitution and to the rights it secures. Those in office
must be resolute in resisting importunate demands and must ensure that the [***500]
sole reasons for imposing the burdens of law and regulation are secular. Legislators
may not devise mechanisms, overt or disguised, designed to persecute or oppress
a religion or its practices. The laws here in question were enacted contrary to
these constitutional principles, and they are void.
Reversed.
[*548] APPENDIX TO OPINION OF THE COURT
City of Hialeah, Florida, Resolution No. 87-66, adopted June 9, 1987, provides:
"WHEREAS, residents and citizens of the City of Hialeah have expressed their
concern that certain religions may propose to engage in practices which are inconsistent
with public morals, peace or safety, and
"WHEREAS, the Florida Constitution, Article I, Declaration of Rights, Section
3, Religious Freedom, specifically states that religious freedom shall not justify
practices inconsistent with public morals, peace or safety.
"NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
HIALEAH, FLORIDA, that:
"1. The City reiterates its commitment to a prohibition against any and all
acts of any and all religious groups which are [**2235] inconsistent
with public morals, peace or safety."
City of Hialeah, Florida, Ordinance No. 87-40, adopted June 9, 1987, provides:
"WHEREAS, the citizens of the City of Hialeah, Florida, have expressed great
concern over the potential for animal sacrifices being conducted in the City of
Hialeah; and
"WHEREAS, Section 828.27, Florida Statutes, provides that 'nothing contained
in this section shall prevent any county or municipality from enacting any ordinance
relating to animal control or cruelty to animals which is identical to the provisions
of this Chapter . . . except as to penalty.'
"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
HIALEAH, FLORIDA, that:
[*549] "Section 1. The Mayor and City Council of the City
of Hialeah, Florida, hereby adopt Florida Statute, Chapter 828 -- 'Cruelty to Animals'
(copy attached hereto and made a part hereof), in its entirety (relating to animal
control or cruelty to animals), except as to penalty.
"Section 2. Repeal of Ordinances in Conflict.
"All ordinances or parts of ordinances in conflict herewith are hereby repealed
to the extent of such conflict."
Section 3. Penalties.
"Any person, firm or corporation convicted of violating the provisions of this
ordinance shall be punished by a fine, not exceeding $ 500.00, or by a jail sentence,
not exceeding sixty (60) days, or both, in the discretion of the Court.
"Section 4. Inclusion in Code.
[***501] "The provisions of this Ordinance shall be included
and incorporated in the Code of the City of Hialeah, as an addition or amendment
thereto, and the sections of this Ordinance shall be re-numbered to conform to the
uniform numbering system of the Code.
"Section 5. Severability Clause.
"If any phrase, clause, sentence, paragraph or section of this Ordinance shall
be declared invalid or unconstitutional by the judge or decree of a court of competent
jurisdiction, such invalidity or unconstitutionality shall not effect any of the
remaining phrases, clauses, sentences, paragraphs or sections of this ordinance.
"Section 6. Effective Date.
"This Ordinance shall become effective when passed by the City Council of the
City of Hialeah and signed by the Mayor of the City of Hialeah."
City of Hialeah Resolution No. 87-90, adopted August 11, 1987, provides:
"WHEREAS, the residents and citizens of the City of Hialeah, Florida, have
expressed great concern regarding [*550] the possibility of public
ritualistic animal sacrifices in the City of Hialeah, Florida; and
"WHEREAS, the City of Hialeah, Florida, has received an opinion from the Attorney
General of the State of Florida, concluding that public ritualistic animal sacrifices
is [sic] a violation of the Florida State Statute on Cruelty to Animals; and
"WHEREAS, the Attorney General further held that the sacrificial killing of
animals other than for the primary purpose of food consumption is prohibited under
state law; and
"WHEREAS, the City of Hialeah, Florida, has enacted an ordinance mirroring
state law prohibiting cruelty to animals.
"NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
HIALEAH, FLORIDA, that:
"Section 1. It is the policy of the Mayor and City Council of the City of Hialeah,
Florida, to oppose the ritual sacrifices of animals within the City of Hialeah,
FLorida [sic]. Any individual or organization [**2236] that seeks
to practice animal sacrifice in violation of state and local law will be prosecuted."
City of Hialeah, Florida, Ordinance No. 87-52, adopted September 8, 1987, provides:
"WHEREAS, the residents and citizens of the City of Hialeah, Florida, have
expressed great concern regarding the possibility of public ritualistic animal sacrifices
within the City of Hialeah, Florida; and
"WHEREAS, the City of Hialeah, Florida, has received an opinion from the Attorney
General of the State of Florida, concluding that public ritualistic animal sacrifice,
other than for the primary purpose of food consumption, is a violation of state
law; and
[*551] "WHEREAS, the City of Hialeah, Florida, has enacted
an ordinance (Ordinance No. 87-40), [***502] mirroring the state
law prohibiting cruelty to animals.
"WHEREAS, the City of Hialeah, Florida, now wishes to specifically prohibit
the possession of animals for slaughter or sacrifice within the City of Hialeah,
Florida.
"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
HIALEAH, FLORIDA, that:
"Section 1. Chapter 6 of the Code of Ordinances of the City of Hialeah, Florida,
is hereby amended by adding thereto two (2) new Sections 6-8 'Definitions' and 6-9
'Prohibition Against Possession Of Animals For Slaughter Or Sacrifice', which is
to read as follows:
"Section 6-8. Definitions
"1. Animal -- any living dumb creature.
"2. Sacrifice -- to unnecessarily kill, torment, torture, or mutilate an animal
in a public or private ritual or ceremony not for the primary purpose of food consumption.
"3. Slaughter -- the killing of animals for food.
"Section 6-9. Prohibition Against Possession of Animals for Slaughter Or Sacrifice.
"1. No person shall own, keep or otherwise possess, sacrifice, or slaughter
any sheep, goat, pig, cow or the young of such species, poultry, rabbit, dog, cat,
or any other animal, intending to use such animal for food purposes.
"2. This section is
applicable to any group or individual that kills, slaughters or sacrifices animals
for any type of ritual, regardless of whether or not the flesh or blood of the animal
is to be consumed.
"3. Nothing in this ordinance is to be interpreted as prohibiting any licensed
establishment from slaughtering for food purposes any animals which are specifically
[*552] raised for food purposes where such activity is properly
zoned and/or permitted under state and local law and under rules promulgated by
the Florida Department of Agriculture.
"Section 2. Repeal of Ordinance in Conflict.
"All ordinances or parts of ordinances in conflict herewith are hereby repealed
to the extent of such conflict."
Section 3. Penalties.
"Any person, firm or corporation convicted of violating the provisions of this
ordinance shall be punished by a fine, not exceeding $ 500.00, or by a jail sentence,
not exceeding sixty (60) days, or both, in the discretion of the Court.
"Section 4. Inclusion in Code.
"The provisions of this Ordinance shall be included and incorporated in the
Code of the City of Hialeah, as an addition or amendment thereto, and the sections
of this Ordinance shall be re-numbered to conform to the uniform numbering system
of the Code.
"Section 5. Severability Clause.
"If any phrase, clause, sentence, paragraph or section of this Ordinance shall
be declared invalid or unconstitutional by the judgement [***503]
or decree of a court of competent jurisdiction, such invalidity or unconstitutionality
[**2237] shall not effect any of the remaining phrases, clauses,
sentences, paragraphs or sections of this ordinance.
"Section 6. Effective Date.
"This Ordinance shall become effective when passed by the City Council of the
City of Hialeah and signed by the Mayor of the City of Hialeah."
City of Hialeah, Florida, Ordinance No. 87-71, adopted September 22, 1987, provides:
"WHEREAS, the City Council of the City of Hialeah, Florida, has determined
that the sacrificing of animals [*553] within the city limits is
contrary to the public health, safety, welfare and morals of the community; and
"WHEREAS, the City Council of the City of Hialeah, Florida, desires to have
qualified societies or corporations organized under the laws of the State of Florida,
to be authorized to investigate and prosecute any violation(s) of the ordinance
herein after set forth, and for the registration of the agents of said societies.
"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
HIALEAH, FLORIDA, that:
"Section 1. For the purpose of this ordinance, the word sacrifice shall mean:
to unnecessarily kill, torment, torture, or mutilate an animal in a public or private
ritual or ceremony not for the primary purpose of food consumption.
"Section 2. For the purpose of this ordinance, the word animal shall mean:
any living dumb creature.
"Section 3. It shall be unlawful for any person, persons, corporations or associations
to sacrifice any animal within the corporate limits of the City of Hialeah, Florida.
"Section 4. All societies or associations for the prevention of cruelty to
animals organized under the laws of the State of Florida, seeking to register with
the City of Hialeah for purposes of investigating and assisting in the prosecution
of violations and provisions [sic] of this Ordinance, shall apply to the City Council
for authorization to so register and shall be registered with the Office of the
Mayor of the City of Hialeah, Florida, following approval by the City Council at
a public hearing in accordance with rules and regulations (i. e., criteria) established
by the City Council by resolution, and shall thereafter, be empowered to assist
in the prosection of any violation of this Ordinance.
[*554] "Section 5. Any society or association for the prevention
of cruelty to animals registered with the Mayor of the City of Hialeah, Florida,
in accordance with the provisions of Section 4 hereinabove, may appoint agents for
the purposes of investigating and assisting in the prosecution of violations and
provisions [sic] of this Ordinance, or any other laws of the City of Hialeah, Florida,
for the purpose of protecting animals and preventing any act prohibited hereunder.
[***504] "Section 6. Repeal of Ordinances in Conflict.
"All ordinances or parts of ordinances in conflict herewith are hereby repealed
to the extent of such conflict.
"Section 7. Penalties.
"Any person, firm or corporation convicted of violating the provisions of this
ordinance shall be punished by a fine, not exceeding $ 500.00, or by a jail sentence,
not exceeding sixty (60) days, or both, in the discretion of the Court.
"Section 8. Inclusion in Code."
The provisions of this Ordinance shall be included and incorporated in the Code
of the City of Hialeah, as an addition or amendment thereto, and the sections of
this Ordinance shall be re-numbered to conform to the uniform numbering system of
the Code.
"Section 9. Severability Clause.
[**2238] "If any phrase, clause, sentence, paragraph or section
of this Ordinance shall be declared invalid or unconstitutional by the judgment
or decree of a court of competent jurisdiction, such invalidity or unconstitutionality
shall not effect any of the remaining phrases, clauses, sentences, paragraphs or
sections of this Ordinance.
"Section 10. Effective Date.
"This Ordinance shall become effective when passed by the City Council of the
City of Hialeah and signed by the Mayor of the City of Hialeah."
[*555] City of Hialeah, Florida, Ordinance No. 87-72, adopted September
22, 1987, provides:
"WHEREAS, the City Council of the City of Hialeah, Florida, has determined
that the slaughtering of animals on the premises other than those properly zoned
as a slaughter house, is contrary to the public health, safety and welfare of the
citizens of Hialeah, Florida.
"NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
HIALEAH, FLORIDA, that:
"Section 1. For the purpose of this Ordinance, the word slaughter shall mean:
the killing of animals for food.
"Section 2. For the purpose of this Ordinance, the word animal shall mean:
any living dumb creature.
"Section 3. It shall be unlawful for any person, persons, corporations or associations
to slaughter any animal on any premises in the City of Hialeah, Florida, except
those properly zoned as a slaughter house, and meeting all the health, safety and
sanitation codes prescribed by the City for the operation of a slaughter house.
"Section 4. All societies or associations for the prevention of cruelty to
animals organized under the laws of the State of Florida, seeking to register with
the City of Hialeah for purposes of investigating and assisting in the prosecution
of violations and provisions [sic] of this Ordinance, shall apply to the City Council
for authorization to so register and shall be registered with the Office of the
Mayor of the City of Hialeah, Florida, following approval by the City Council at
a public hearing in [***505] accordance with rules and regulations
(i. e., criteria) established by the City Council by resolution, and shall thereafter,
be empowered to assist in the prosection of any violations of this Ordinance.
[*556] "Section 5. Any society or association for the prevention
of cruelty to animals registered with the Mayor of the City of Hialeah, Florida,
in accordance with the provisions of Section 4 hereinabove, may appoint agents for
the purposes of investigating and assisting in the prosecution of violations and
provisions [sic] of this Ordinance, or any other laws of the City of Hialeah, Florida,
for the purpose of protecting animals and preventing any act prohibited hereunder.
"Section 6. This Ordinance shall not apply to any person, group, or organization
that slaughters, or processes for sale, small numbers of hogs and/or cattle per
week in accordance with an exemption provided by state law.
"Section 7. Repeal of Ordinances in Conflict.
"All ordinances or parts of ordinances in conflict herewith are hereby repealed
to the extent of such conflict.
"Section 8. Penalties.
"Any person, firm or corporation convicted of violating the provisions of this
ordinance shall be punished by a fine, not exceeding $ 500.00, or by a jail sentence,
not exceeding sixty (60) days, or both, in the discretion of the Court.
"Section 9. Inclusion in Code.
"The provisions of this Ordinance shall be included and incorporated in the
Code of the City of Hialeah, as an addition or amendment thereto, and the sections
of [**2239] this Ordinance shall be re-numbered to conform to the
uniform numbering system of the Code.
"Section 10. Severability Clause.
"If any phrase, clause, sentence, paragraph or section of this Ordinance shall
be declared invalid or unconstitutional by the judgment or decree of a court of
competent jurisdiction, such invalidity or unconstitutionality shall not effect
any of the remaining phrases, clauses, sentences, paragraphs or sections of this
ordinance."
[*557] Section 11. Effective Date.
"This Ordinance shall become effective when passed by the City Council of the
City of Hialeah and signed by the Mayor of the City of Hialeah."
CONCUR BY: SCALIA (In Part); SOUTER (In Part); BLACKMUN
CONCUR
JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, concurring in part and concurring
in the judgment.
The Court analyzes the "neutrality" and the "general applicability"
of the Hialeah ordinances in separate sections (Parts II-A and II-B, respectively),
and allocates various invalidating factors to one or the other of those sections.
If it were necessary to make a clear distinction between the two terms, I would
draw a line somewhat different from the Court's. But I think it is not necessary,
and would frankly [***506] acknowledge that the terms are not only
"interrelated," ante, at 531, but substantially overlap.
The terms "neutrality" and "general applicability" are not to
be found within the First Amendment itself, of course, but are used in Employment Div., Dept. of Human Resources
of Ore. v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595
(1990), and earlier cases to describe those characteristics which cause a law that
prohibits an activity a particular individual wishes to engage in for religious
reasons nonetheless not to constitute a "law . . . prohibiting the free exercise"
of religion within the meaning of the First Amendment. In my view, the defect of
lack of neutrality applies primarily to those laws that by their terms impose disabilities
on the basis of religion (e.g., a law excluding members of a certain sect from public
benefits, cf. McDaniel v. Paty, 435 U.S. 618, 55 L. Ed. 2d 593, 98 S. Ct.
1322 (1978)), see Bowen v. Roy, 476 U.S. 693, 703-704, 90 L. Ed. 2d 735,
106 S. Ct. 2147 (1986) (opinion of Burger, C.J.); whereas the defect of lack of
general applicability applies primarily to those laws which, though neutral in their
terms, through their design, construction, or enforcement target the practices of
a particular religion for discriminatory treatment, see Fowler v. Rhode Island,
345 U.S. 67, 97 L. Ed. 828, 73 S. Ct. 526 (1953). But certainly a law that is not
of general applicability (in the sense [*558] I have described)
can be considered "nonneutral"; and certainly no law that is nonneutral
(in the relevant sense) can be thought to be of general applicability. Because I
agree with most of the invalidating factors set forth in Part II of the Court's
opinion, and because it seems to me a matter of no consequence under which rubric
("neutrality," Part II-A, or "general applicability," Part II-B)
each invalidating factor is discussed, I join the judgment of the Court and all
of its opinion except section 2 of Part II-A.
I do not join that section because it departs from the opinion's general focus on
the object of the laws at issue to consider the subjective motivation of the lawmakers,
i. e., whether the Hialeah City Council actually intended to disfavor the religion
of Santeria. As I have noted elsewhere, it is virtually impossible to determine
the singular "motive" of a collective legislative body, see, e.g., Edwards
v. Aguillard, 482 U.S. 578, 636-639, 96 L. Ed. 2d 510, 107 S. Ct. 2573
(1987) (dissenting opinion), and this Court has a long tradition of refraining from
such inquiries, see, e.g., Fletcher v. Peck, 10 U.S. 87, 130-131, 3 L.
Ed. 162 (1810) (Marshall, C.J.); United States v. O'Brien, 391 U.S. 367,
383-384, 20 L. Ed. 2d 672, [**2240] 88 S. Ct. 1673 (1968).
Perhaps there are contexts in which determination of legislative motive must be
undertaken. See, e.g., United States v. Lovett, 328 U.S. 303, 90 L. Ed.
1252, 66 S. Ct. 1073 (1946). But I do not think that is true of analysis under the
First Amendment (or the Fourteenth, to the extent it incorporates the First). See
Edwards v. Aguillard, supra, at 639 (SCALIA, J., dissenting). The First
Amendment does not refer to the purposes for which legislators enact laws, but to
the effects of the laws enacted: "Congress shall make no law . . . prohibiting
the free exercise [of religion] . . . ." This does not put us in the business
of invalidating [***507] laws by reason of the evil motives of
their authors. Had the Hialeah City Council set out resolutely to suppress the practices
of Santeria, but ineptly adopted ordinances that failed to do so, I do not see how
those laws could be said to "prohibit the free exercise" of [*559]
religion. Nor, in my view, does it matter that a legislature consists entirely of
the purehearted, if the law it enacts in fact singles out a religious practice for
special burdens. Had the ordinances here been passed with no motive on the part
of any councilman except the ardent desire to prevent cruelty to animals (as might
in fact have been the case), they would nonetheless be invalid.
JUSTICE SOUTER, concurring in part and concurring in the judgment.
This case turns on a principle about which there is no disagreement, that the Free
Exercise Clause bars government action aimed at suppressing religious belief or
practice. The Court holds that Hialeah's animal-sacrifice laws violate that principle,
and I concur in that holding without reservation.
Because prohibiting religious exercise is the object of the laws at hand, this case
does not present the more difficult issue addressed in our last free-exercise case,
Employment Div.,
Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 108 L. Ed.
2d 876, 110 S. Ct. 1595 (1990), which announced the rule that a "neutral, generally
applicable" law does not run afoul of the Free Exercise Clause even when it
prohibits religious exercise in effect. The Court today refers to that rule in dicta,
and despite my general agreement with the Court's opinion I do not join Part II,
where the dicta appear, for I have doubts about whether the Smith rule merits adherence.
I write separately to explain why the
Smith rule is not germane to this case and to express my view that,
in a case presenting the issue, the Court should reexamine the rule Smith declared.
I
According to
Smith, if prohibiting the exercise of religion results from enforcing
a "neutral, generally applicable" law, the Free Exercise Clause has not
been offended.
Id., at 878-880. I call this the
Smith rule to distinguish it from the noncontroversial principle,
also expressed in
Smith though [*560] established long before, that
the Free Exercise Clause is offended when prohibiting religious exercise results
from a law that is not neutral or generally applicable. It is this noncontroversial
principle, that the Free Exercise Clause requires neutrality and general applicability,
that is at issue here. But before turning to the relationship of Smith to this case,
it will help to get the terms in order, for the significance of the Smith rule is not only
in its statement that the Free Exercise Clause requires no more than "neutrality"
and "general applicability," but also in its adoption of a particular,
narrow conception of free-exercise neutrality.
That the Free Exercise Clause contains a "requirement for governmental neutrality,"
Wisconsin v. Yoder, 406 U.S. 205, 220, 32 L. Ed. 2d 15, 92 S. Ct. 1526
(1972), is hardly a novel proposition; though the term does not appear in the First
Amendment, our cases have used it as shorthand [***508] to describe,
at least in part, what the Clause commands. [**2241] See, e.g.,
Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U.S. 378,
384, 107 L. Ed. 2d 796, 110 S. Ct. 688 (1990); Thomas v. Review Bd. of Indiana Employment
Security Div., 450 U.S. 707, 717, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981);
Yoder, supra, at 220; Committee for Public Ed. & Religious Liberty
v. Nyquist, 413 U.S. 756, 792-793, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973);
School Dist. of Abington v. Schempp, 374 U.S. 203, 222, 10 L. Ed. 2d 844,
83 S. Ct. 1560 (1963); see also McDaniel v. Paty, 435 U.S. 618, 627-629,
55 L. Ed. 2d 593, 98 S. Ct. 1322 (1978) (plurality opinion) (invalidating a nonneutral
law without using the term). Nor is there anything unusual about the notion that
the Free Exercise Clause requires general applicability, though the Court, until
today, has not used exactly that term in stating a reason for invalidation. See
Fowler v. Rhode Island, 345 U.S. 67, 97 L. Ed. 828, 73 S. Ct. 526 (1953);
cf. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue,
460 U.S. 575, 585, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983); Larson v. Valente,
456 U.S. 228, 245-246, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982). [Footnote 1]
[*561] While general applicability is, for the most part, self-explanatory,
free-exercise neutrality is not self-revealing. Cf. Lee v. Weisman, 505
U.S. 577, 627, 120 L. Ed. 2d 467, 112 S. Ct. 2649 (1992) (SOUTER, J., concurring)
(considering Establishment Clause neutrality). A law that is religion neutral on
its face or in its purpose may lack neutrality in its effect by forbidding something
that religion requires or requiring something that religion forbids. Cf. McConnell
& Posner, An Economic Approach to Issues of Religious Freedom, 56 U. Chi. L.
Rev. 1, 35 (1989) ("[A] regulation is not neutral in an economic sense if,
whatever its normal scope or its intentions, it arbitrarily imposes greater costs
on religious than on comparable nonreligious activities"). A secular law, applicable
to all, that prohibits consumption of alcohol, for example, will affect members
of religions that require the use of wine differently from members of other religions
and nonbelievers, disproportionately burdening the practice of, say, Catholicism
or Judaism. Without an exemption for sacramental wine, Prohibition may fail the
test of religion neutrality. [Footnote 2]
It does not necessarily follow from that observation, of course, that the First
Amendment requires an exemption from Prohibition; that depends on the meaning of
neutrality as the Free Exercise Clause [***509] embraces it. The
point here is the unremarkable one that our common notion of neutrality is broad
enough to cover not merely what might be called formal neutrality, which as a free-exercise
requirement [*562] would only bar laws with an object to discriminate
against religion, but also what might be called substantive neutrality, which, in
addition to demanding a secular object, would generally require government to accommodate
religious differences by exempting religious practices from formally neutral laws.
See generally Laycock, Formal, Substantive, and Disaggregated [**2242]
Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1990). If the Free Exercise Clause
secures only protection against deliberate discrimination, a formal requirement
will exhaust the Clause's neutrality command; if the Free Exercise Clause, rather,
safeguards a right to engage in religious activity free from unnecessary governmental
interference, the Clause requires substantive, as well as formal, neutrality. [Footnote
3]
Though Smith
used the term "neutrality" without a modifier, the rule it announced plainly
assumes that free-exercise neutrality is of the formal sort. Distinguishing between
laws whose "object" is to prohibit religious exercise and those that prohibit
religious exercise as an "incidental effect," Smith placed only the
former within the reaches of the Free Exercise Clause; the latter, laws that satisfy
formal neutrality,
Smith would subject to no free-exercise scrutiny at all, even when
they prohibit religious exercise in application. 494 U.S. at 878. The four Justices
who rejected the
Smith rule, by contrast, read the Free Exercise Clause as embracing
what I have termed substantive neutrality. The enforcement of a law "neutral
on its face," they said, may "nonetheless offend [the Free Exercise Clause's]
requirement [*563] for government neutrality if it unduly burdens
the free exercise of religion."
Id., at 896 (opinion of O'CONNOR, J., joined by Brennan, Marshall,
and BLACKMUN, JJ.) (internal quotation marks and citations omitted). The rule these
Justices saw as flowing from free-exercise neutrality, in contrast to the Smith
rule, "requir[es] the government to justify any substantial burden on religiously
motivated conduct by a compelling state interest and by means narrowly tailored
to achieve that interest."
Id., at 894 (emphasis added).
The proposition for which the
Smith rule stands, then, is that formal neutrality, along with general
applicability, are sufficient conditions for constitutionality under the Free Exercise
Clause. That proposition is not at issue in this case, however, for Hialeah's animal-sacrifice
ordinances are not neutral under any definition, any more than they are generally
applicable. This [***510] case, rather, involves the noncontroversial
principle repeated in
Smith, that formal neutrality and general applicability are necessary
conditions for free-exercise constitutionality. It is only "this fundamental
nonpersecution principle of the First Amendment [that is] implicated here,"
ante, at 523, and it is to that principle that the Court adverts when it holds that
Hialeah's ordinances "fail to satisfy the
Smith requirements," ante, at 532. In applying that principle
the Court does not tread on troublesome ground.
In considering, for example, whether Hialeah's animal-sacrifice laws violate free-exercise
neutrality, the Court rightly observes that "at a minimum, the protections
of the Free Exercise Clause pertain if the law at issue discriminates against some
or all religious beliefs or regulates or prohibits conduct because it is undertaken
for religious reasons," ibid., and correctly finds Hialeah's laws to fail those
standards. The question whether the protections of the Free Exercise Clause also
pertain if the law at issue, though nondiscriminatory in its object, has the effect
nonetheless of placing a burden on religious exercise is not before the Court
[*564] today, and the Court's intimations on the matter are therefore
dicta.
The Court also rightly finds Hialeah's laws to fail the test of general applicability,
and as [**2243] the Court "need not define with precision
the standard used to evaluate whether a prohibition is of general application, for
these ordinances fall well below the minimum standard necessary to protect First
Amendment rights," ante, at 543, it need not discuss the rules that apply to
prohibitions found to be generally applicable. The question whether "there
are areas of conduct protected by the Free Exercise Clause of the First Amendment
and thus beyond the power of the State to control, even under regulations of general
applicability," Yoder, 406 U.S. at 220, is not before the Court in
this case, and, again, suggestions on that score are dicta.
II
In being so readily susceptible to resolution by applying the Free Exercise Clause's
"fundamental nonpersecution principle," ante, at 523, this is far from
a representative free-exercise case. While, as the Court observes, the Hialeah City
Council has provided a rare example of a law actually aimed at suppressing religious
exercise, ante, at 523-524,
Smith was typical of our free-exercise cases, involving as it did a
formally neutral, generally applicable law. The rule
Smith announced, however, was decidedly untypical of the cases involving
the same type of law. Because
Smith left those prior cases standing, we are left with a free-exercise
jurisprudence in tension with itself, a tension that should be addressed, and that
may legitimately be addressed, by reexamining the
Smith rule in the next case that would turn upon its application.
A
In developing standards to judge the enforceability of formally neutral, generally
applicable laws against the mandates of the Free Exercise Clause, the Court has
addressed [*565] the concepts of neutrality [***511]
and general applicability by indicating, in language hard to read as not foreclosing
the Smith
rule, that the Free Exercise Clause embraces more than mere formal neutrality, and
that formal neutrality and general applicability are not sufficient conditions for
free-exercise constitutionality:
"In a variety of ways we have said that '[a] regulation neutral on its face
may, in its application, nonetheless offend the constitutional requirement for governmental
neutrality if it unduly burdens the free exercise of religion.'" Thomas,
450 U.S. at 717 (quoting Yoder, supra, at 220).
"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." 450
U.S. at 717.
Not long before the
Smith decision, indeed, the Court specifically rejected the argument
that "neutral and uniform" requirements for governmental benefits need
satisfy only a reasonableness standard, in part because "such a test has no
basis in precedent." Hobbie v. Unemployment Appeals Comm'n of Fla.,
480 U.S. 136, 141, 94 L. Ed. 2d 190, 107 S. Ct. 1046 (1987) (internal quotation
marks omitted). Rather, we have said, "our cases have established that '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.'" Swaggart Ministries,
493 U.S. at 384-385 (quoting Hernandez v. Commissioner, 490 U.S. 680, 699,
104 L. Ed. 2d 766, 109 S. Ct. 2136 (1989)).
Thus we have applied the same rigorous scrutiny to burdens on religious exercise
resulting from the enforcement of formally neutral, generally applicable laws as
we have applied to burdens caused by laws that single out religious exercise:
[*566] "'only those interests [**2244] of the
highest order and those not otherwise served can overbalance legitimate claims to
the free exercise of religion.'" McDaniel v. Paty, 435 U.S. at 628
(plurality opinion) (quoting Yoder, supra, at 215). Compare McDaniel,
supra, at 628-629 (plurality opinion) (applying that test to a law aimed at religious
conduct) with Yoder, supra, at 215-229 (applying that test to a formally
neutral, general law). Other cases in which the Court has applied heightened scrutiny
to the enforcement of formally neutral, generally applicable laws that burden religious
exercise include Hernandez v. Commissioner, supra, at 699; Frazee v. Illinois
Dept. of Employment Security, 489 U.S. 829, 835, 103 L. Ed. 2d 914, 109
S. Ct. 1514 (1989); Hobbie v. Unemployment Appeals Comm'n, supra, at 141;
Bob Jones Univ. v. United States, 461 U.S. 574, 604, 76 L. Ed. 2d 157,
103 S. Ct. 2017 (1983); United States v. Lee, 455 U.S. 252, 257-258, 71
L. Ed. 2d 127, 102 S. Ct. 1051 (1982); Thomas, supra, at [***512]
718; Sherbert v. Verner, 374 U.S. 398, 403, 10 L. Ed. 2d 965, 83 S. Ct.
1790 (1963); and Cantwell v. Connecticut, 310 U.S. 296, 304-307, 84 L.
Ed. 1213, 60 S. Ct. 900 (1940).
Though Smith
sought to distinguish the free-exercise cases in which the Court mandated exemptions
from secular laws of general application, see 494 U.S. at 881-885, I am not persuaded.
Wisconsin v. Yoder, and Cantwell v. Connecticut, according to
Smith,
were not true free-exercise cases but "hybrid[s]" involving "the
Free Exercise Clause in conjunction with other constitutional protections, such
as freedom of speech and of the press, or the right of parents . . . to direct the
education of their children."
Smith, supra, at 881, 882. Neither opinion, however, leaves any doubt
that "fundamental claims of religious freedom [were] at stake." Yoder,
supra, at 221; see also Cantwell, supra, at 303-307. [Footnote 4] [*567]
And the distinction
Smith draws strikes me as ultimately untenable. If a hybrid claim is
simply one in which another constitutional right is implicated, then the hybrid
[**2245] exception would probably be so vast as to swallow the
Smith
rule, and, indeed, the hybrid exception would cover the situation exemplified by
Smith,
since free speech and associational rights are certainly implicated in the peyote
ritual. But if a hybrid claim is one in which a litigant would actually obtain an
exemption from a formally neutral, generally applicable law under another [***513]
constitutional provision, then there would have been no reason for the Court in
what Smith
calls the hybrid cases to have mentioned the Free Exercise Clause at all.
As for Cantwell,
Smith pointed out that the case explicitly mentions freedom of speech.
See 494 U.S. at 881, n.1 (citing Cantwell v. Connecticut, 310 U.S. at 307).
But the quote to which
Smith refers occurs in a portion of the Cantwell opinion (titled:
"second," and dealing with a breach-of-peace conviction for playing phonograph
records, see 310 U.S. at 307) that discusses an entirely different issue from the
section of Cantwell that
Smith cites as involving a "neutral, generally applicable law"
(titled: "first," and dealing with a licensing system for solicitations,
see Cantwell, supra, at 303-307). See
Smith, supra, at 881.
Smith
sought to confine the remaining free-exercise exemption victories, which involved
unemployment compensation [*568] systems, see Frazee,
supra; Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 94
L. Ed. 2d 190, 107 S. Ct. 1046 (1987); Thomas v. Review Bd. of Indiana Employment
Security Div., 450 U.S. 707, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981);
and Sherbert, supra, as "stand[ing] for the proposition that where
the State has in place a system of individual exemptions, it may not refuse to extend
that system to cases of 'religious hardship' without compelling reason." 494
U.S. at 884. But prior to
Smith the Court had already refused to accept that explanation of the
unemployment compensation cases. See Hobbie, supra, at 142, n.7; Bowen
v. Roy, 476 U.S. 693, 715-716, 90 L. Ed. 2d 735, 106 S. Ct. 2147 (1986)
(opinion of BLACKMUN, J.); id., at 727-732 (opinion of O'CONNOR, J., joined
by Brennan and Marshall, JJ.); id., at 733 (WHITE, J., dissenting). And,
again, the distinction fails to exclude
Smith: "If
Smith is viewed as an unemployment compensation case, the distinction
is obviously spurious. If
Smith is viewed as a hypothetical criminal prosecution for peyote use,
there would be an individual governmental assessment of the defendants' motives
and actions in the form of a criminal trial." McConnell, Free Exercise Revisionism
and the Smith Decision, 57 U. Chi. L. Rev. 1109, 1124 (1990). Smith also distinguished the
unemployment compensation cases on the ground that they did not involve "an
across-the-board criminal prohibition on a particular form of conduct." 494
U.S. at 884. But even Chief Justice Burger's plurality opinion in Bowen v. Roy,
on which Smith
drew for its analysis of the unemployment compensation cases, would have applied
its reasonableness test only to "denial of government benefits" and not
to "governmental action or legislation that criminalizes religiously inspired
activity or inescapably compels conduct that some find objectionable for religious
reasons," Bowen v. Roy, supra, at 706 (opinion of Burger, C. J., joined
by Powell and REHNQUIST, JJ.); to the latter category of governmental action, it
would have applied the test employed in Yoder, which involved an across-the-board
criminal prohibition and which Chief Justice Burger's opinion treated as an ordinary
free-exercise [*569] case. See Bowen v. Roy, 476 U.S.
at 706-707; id., at 705, n.15; Yoder, 406 U.S. at 218; see also
McDaniel v. Paty, 435 U.S. at 628, n.8 (noting cases in which courts considered
claims for exemptions from general criminal prohibitions, cases the Court thought
were "illustrative of the general nature of free-exercise protections and the
delicate balancing required by our decisions in [Sherbert and Yoder,]
when an important state interest is shown").
As for the cases on which
Smith primarily relied as establishing the rule it embraced, Reynolds v.
United States, 98 U.S. 145, 25 L. Ed. 244 (1879), and Minersville School Dist.
v. Gobitis, 310 U.S. 586, 84 L. Ed. 1375, 60 S. Ct. 1010 (1940),
see Smith,
supra, at 879, [***514] their subsequent treatment by the Court
would seem to require rejection of the
Smith rule. Reynolds, which in upholding the polygamy conviction
of a Mormon stressed the evils it saw as associated with polygamy, see 98 U.S. at
166 ("polygamy leads to the patriarchal principle, and . . . fetters the people
in stationary despotism"); 98 U.S. at 165, 168, has been read as consistent
with the principle that religious conduct may be regulated by general or targeting
law only if the conduct "pose[s] some substantial threat to public safety,
peace or order." Sherbert v. Verner, 374 U.S. at 403; [**2246]
see also United States v. Lee, 455 U.S. at 257-258; Bob Jones University,
461 U.S. at 603; Yoder, supra, at 230. And Gobitis, after three
Justices who originally joined the opinion renounced it for disregarding the government's
constitutional obligation "to accommodate itself to the religious views of
minorities," Jones v. Opelika, 316 U.S. 584, 624, 86 L. Ed. 1691,
62 S. Ct. 1231 (1942) (opinion of Black, Douglas, and Murphy, JJ.), was explicitly
overruled in West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642, 87
L. Ed. 1628, 63 S. Ct. 1178 (1943); see also id., at 643-644 (Black and
Douglas, JJ., concurring).
Since holding in 1940 that the Free Exercise Clause applies to the States, see Cantwell
v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900, the Court
repeatedly has stated that the Clause sets strict limits on the government's power
to burden religious exercise, whether it is a law's object to do so or its unanticipated
[*570] effect.
Smith responded to these statements by suggesting that the Court did
not really mean what it said, detecting in at least the most recent opinions a lack
of commitment to the compelling-interest test in the context of formally neutral
laws. Smith,
supra, at 884-885. But even if the Court's commitment were that palid, it would
argue only for moderating the language of the test, not for eliminating constitutional
scrutiny altogether. In any event, I would have trouble concluding that the Court
has not meant what it has said in more than a dozen cases over several decades,
particularly when in the same period it repeatedly applied the compelling-interest
test to require exemptions, even in a case decided the year before Smith. See Frazee v. Illinois
Dept. of Employment Security, 489 U.S. 829, 103 L. Ed. 2d 914, 109
S. Ct. 1514 (1989). [Footnote 5] In sum, it seems to me difficult to [***515]
escape the conclusion [*571] that, whatever Smith's virtues, [**2247]
they do not include a comfortable fit with settled law.
B
The Smith
rule, in my view, may be reexamined consistently with principles of stare decisis.
To begin with, the
Smith rule was not subject to "full-dress argument" prior to its announcement.
Mapp v. Ohio, 367 U.S. 643, 676-677, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961)
(Harlan, J., dissenting). The State of Oregon in
Smith contended that its refusal to exempt religious peyote use survived
the strict scrutiny required by "settled free exercise principles," inasmuch
as the State had "a compelling interest in regulating" the practice of
peyote use and could not "accommodate the religious practice without compromising
[*572] its interest." Brief for Petitioners in Smith, O. T. 1989, No.
88-1213, p. 5; see also id., at 5-36; Reply Brief for Petitioners in Smith, pp. 6-20. Respondents
joined issue on the outcome of strict scrutiny on the facts before the Court, see
Brief for Respondents in
Smith, pp. 14-41, and neither party squarely addressed the proposition the Court
was to embrace, that the Free Exercise Clause was irrelevant to the dispute. Sound
judicial decisionmaking requires "both a vigorous prosecution and a vigorous
defense" of the issues in dispute, Christiansburg Garment Co. v. EEOC,
434 U.S. 412, 419, 54 L. Ed. 2d 648, [***516] 98 S. Ct. 694 (1978),
and a constitutional rule announced sua sponte is entitled to less deference than
one addressed on full briefing and argument. Cf. Ladner v. United States,
358 U.S. 169, 173, 3 L. Ed. 2d 199, 79 S. Ct. 209 (1958) (declining to address "an
important and complex" issue concerning the scope of collateral attack upon
criminal sentences because it had received "only meagre argument" from
the parties, and the Court thought it "should have the benefit of a full argument
before dealing with the question").
The Smith
rule's vitality as precedent is limited further by the seeming want of any need
of it in resolving the question presented in that case. JUSTICE O'CONNOR reached
the same result as the majority by applying, as the parties had requested, "our
established free exercise jurisprudence," 494 U.S. at 903, and the majority
never determined that the case could not be resolved on the narrower ground, going
instead straight to the broader constitutional rule. But the Court's better practice,
one supported by the same principles of restraint that underlie the rule of stare
decisis, is not to "'formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.'" Ashwander v.
TVA, 297 U.S. 288, 347, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis,
J., concurring) (quoting Liverpool, New York & Philadelphia S. S. Co.
v. Commissioners of Emigration, 113 U.S. 33, 39, 28 L. Ed. 899, 5 S. Ct.
352 (1885)). While I am not suggesting that the
Smith Court lacked the power to announce its rule, I think a rule of
law unnecessary to the outcome of a case, especially one not put [*573]
into play by the parties, approaches without more the sort of "dicta . . .
which may be followed if sufficiently persuasive but which are not controlling."
Humphrey's Executor v. United States, 295 U.S. 602, 627, 79 L. Ed. 1611,
55 S. Ct. 869 (1935); see also Kastigar v. United States, [**2248]
406 U.S. 441, 454-455, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972).
I do not, of course, mean to imply that a broad constitutional rule announced without
full briefing and argument necessarily lacks precedential weight. Over time, such
a decision may become "part of the tissue of the law," Radovich v. National
Football League, 352 U.S. 445, 455, 1 L. Ed. 2d 456, 77 S. Ct. 390 (1957)
(Frankfurter, J., dissenting), and may be subject to reliance in a way that new
and unexpected decisions are not. Cf. Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 833, 854-855, 120 L. Ed. 2d 674, 112 S. Ct. 2791 (1992).
Smith,
however, is not such a case. By the same token, by pointing out Smith's recent vintage
I do not mean to suggest that novelty alone is enough to justify reconsideration.
"Stare decisis," as Justice Frankfurter wrote, "is a principle of
policy and not a mechanical formula," Helvering v. Hallock, 309 U.S.
106, 119, 84 L. Ed. 604, 60 S. Ct. 444 (1940), and the decision whether to adhere
to a prior decision, particularly a constitutional decision, is a complex and difficult
one that does not lend itself to resolution by application of simple, categorical
rules, but that must account for a variety of often competing considerations.
The considerations of full briefing, necessity, and novelty thus do not exhaust
the legitimate reasons for reexamining prior decisions, or even [***517]
for reexamining the
Smith rule. One important further consideration warrants mention here,
however, because it demands the reexamination I have in mind. Smith presents not the usual
question of whether to follow a constitutional rule, but the question of which constitutional
rule to follow, for
Smith refrained from overruling prior free-exercise cases that contain
a free-exercise rule fundamentally at odds with the rule Smith declared. Smith, indeed, announced
its rule by relying squarely upon [*574] the precedent of prior
cases. See 494 U.S. at 878 ("Our decisions reveal that the . . . reading"
of the Free Exercise Clause contained in the
Smith rule "is the correct one"). Since that precedent is
nonetheless at odds with the
Smith rule, as I have discussed above, the result is an intolerable
tension in free-exercise law which may be resolved, consistently with principles
of stare decisis, in a case in which the tension is presented and its resolution
pivotal.
While the tension on which I rely exists within the body of our extant case law,
a rereading of that case law will not, of course, mark the limits of any enquiry
directed to reexamining the
Smith rule, which should be reviewed in light not only of the precedent
on which it was rested but also of the text of the Free Exercise Clause and its
origins. As for text,
Smith did not assert that the plain language of the Free Exercise Clause
compelled its rule, but only that the rule was "a permissible reading"
of the Clause.
Ibid. Suffice it to say that a respectable argument may be made that
the pre-Smith
law comes closer to fulfilling the language of the Free Exercise Clause than the
rule Smith
announced. "The Free Exercise Clause . . . , by its terms, gives special protection
to the exercise of religion," Thomas, 450 U.S. at 713, specifying
an activity and then flatly protecting it against government prohibition. The Clause
draws no distinction between laws whose object is to prohibit religious exercise
and laws with that effect, on its face seemingly applying to both.
Nor did Smith
consider the original meaning of the Free Exercise Clause, though overlooking the
opportunity was no unique transgression. Save in a handful of passing remarks, the
Court has not explored the history of the Clause since its early attempts in 1879
and 1890, see Reynolds v. United States, 98 U.S. at 162-166, and Davis
v. Beason, 133 U.S. 333, 342, 33 L. Ed. 637, 10 S. Ct. 299 (1890), attempts
that recent scholarship makes clear were incomplete. See generally McConnell, The
Origins and Historical Understanding of Free Exercise of [**2249]
Religion, [*575] 103 Harv. L. Rev. 1409 (1990). [Footnote 6] The
curious absence of history [***518] from our free-exercise decisions
creates a stark contrast with our cases under the Establishment Clause, where historical
analysis has been so prominent. [Footnote 7]
This is not the place to explore the history that a century of free-exercise opinions
have overlooked, and it is enough to note that, when the opportunity to reexamine
Smith
presents itself, we may consider recent scholarship raising serious questions about
the Smith
rule's consonance with the original understanding and purpose of the Free Exercise
Clause. See McConnell, The Origins and Historical Understanding of Free Exercise
of Religion, supra; Durham, Religious Liberty and the Call of Conscience, 42 DePaul
L. Rev. 71, 79-85 (1992); see also Office of Legal Policy, U.S. Dept. of Justice,
Report to the Attorney General, Religious Liberty under the Free Exercise Clause
38-42 (1986) (predating
Smith). There appears to be a strong argument from the [*576]
Clause's development in the First Congress, from its origins in the post-Revolution
state constitutions and pre-Revolution colonial charters, and from the philosophy
of rights to which the Framers adhered, that the Clause was originally understood
to preserve a right to engage in activities necessary to fulfill one's duty to one's
God, unless those activities threatened the rights of others or the serious needs
of the State. If, as this scholarship suggests, the Free Exercise Clause's original
"purpose [was] to secure religious liberty in the individual by prohibiting
any invasions thereof by civil authority," School Dist. of Abington v. Schempp,
374 U.S. at 223, then there would be powerful reason to interpret the Clause to
accord with its natural reading, as applying to all laws prohibiting religious exercise
in fact, not just those aimed at its prohibition, and to hold the neutrality needed
to implement such a purpose to be the substantive neutrality of our pre-Smith cases,
not the formal neutrality sufficient for constitutionality under Smith. [Footnote
8]
[*577] [***519] [**2250] The
scholarship on the original understanding of the Free Exercise Clause is, to be
sure, not uniform. See, e.g., Hamburger, A Constitutional Right of Religious Exemption:
An Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992); Bradley, Beguiled:
Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L. Rev. 245
(1991). And there are differences of opinion as to the weight appropriately accorded
original meaning. But whether or not one considers the original designs of the Clause
binding, the interpretive significance of those designs surely ranks in the hierarchy
of issues to be explored in resolving the tension inherent in free-exercise law
as it stands today.
III
The extent to which the Free Exercise Clause requires government to refrain from
impeding religious exercise defines nothing less than the respective relationships
in our constitutional democracy of the individual to government and to God. "Neutral,
generally applicable" laws, drafted as they are from the perspective of the
nonadherent, have the unavoidable potential of putting the believer to a choice
between God and government. Our cases now present competing answers to the question
when government, while pursuing secular ends, may compel disobedience to what one
believes religion commands. The case before us is rightly decided without resolving
the existing tension, which remains for another day when it may be squarely faced.
JUSTICE BLACKMUN, with whom JUSTICE O'CONNOR joins, concurring in the judgment.
The Court holds today that the city of Hialeah violated the First and Fourteenth
Amendments when it passed a set of restrictive ordinances explicitly directed at
petitioners' religious practice. With this holding I agree. I write separately to
emphasize that the First Amendment's protection of religion extends beyond those
rare occasions on which the government explicitly targets religion (or a particular
religion) [*578] for disfavored treatment, as is done in this case.
In my view, a statute that burdens the free exercise of religion "may stand
only if the law in general, and the State's refusal to allow a religious exemption
in particular, are justified by a compelling interest that cannot be served by less
restrictive means."
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S.
872, 907, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990) (dissenting opinion). The Court,
however, applies a different test. It applies the test announced in Smith, under which "a
law that is neutral and of general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect of burdening a particular
religious practice." Ante, at 531. I continue to believe that [***520]
Smith
was wrongly decided, because it ignored the value of religious freedom as an affirmative
individual liberty and treated the Free Exercise Clause as no more than an antidiscrimination
principle. See 494 U.S. at 908-909. Thus, while I agree with the result the Court
reaches in this case, I arrive at that result by a different route.
When the State enacts legislation that intentionally or unintentionally places a
burden upon religiously motivated practice, it must justify that burden by "showing
that it is the least restrictive means of achieving some compelling state interest."
Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707,
718, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981). See also Wisconsin v. Yoder,
406 U.S. 205, 215, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972). A State may no more create
an underinclusive statute, one [**2251] that fails truly to promote
its purported compelling interest, than it may create an overinclusive statute,
one that encompasses more protected conduct than necessary to achieve its goal.
In the latter circumstance, the broad scope of the statute is unnecessary to serve
the interest, and the statute fails for that reason. In the former situation, the
fact that allegedly harmful conduct falls outside the statute's scope belies a governmental
assertion that it has genuinely pursued an interest "of the highest order."
Ibid. If the State's goal is important enough to prohibit religiously motivated
activity, it [*579] will not and must not stop at religiously motivated
activity. Cf. Zablocki v. Redhail, 434 U.S. 374, 390, 54 L. Ed. 2d 618,
98 S. Ct. 673 (1978) (invalidating certain restrictions on marriage as "grossly
underinclusive with respect to [their] purpose"); Supreme Court of N. H. v.
Piper, 470 U.S. 274, 285, n.19, 84 L. Ed. 2d 205, 105 S. Ct. 1272 (1985)
(a rule excluding nonresidents from the bar of New Hampshire "is underinclusive
. . . because it permits lawyers who move away from the State to retain their membership
in the bar").
In this case, the ordinances at issue are both overinclusive and underinclusive
in relation to the state interests they purportedly serve. They are overinclusive,
as the majority correctly explains, because the "legitimate governmental interests
in protecting the public health and preventing cruelty to animals could be addressed
by restrictions stopping far short of a flat prohibition of all Santeria sacrificial
practice." Ante, at 538. They are underinclusive as well, because "despite
the city's proffered interest in preventing cruelty to animals, the ordinances are
drafted with care to forbid few killings but those occasioned by religious sacrifice."
Ante, at 543. Moreover, the "ordinances are also underinclusive with regard
to the city's interest in public health . . . ." Ante, at 544.
When a law discriminates against religion as such, as do the ordinances in this
case, it automatically will fail strict scrutiny under Sherbert v. Verner,
374 U.S. 398, 402-403, 407, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963) (holding that
governmental regulation that imposes a burden upon religious practice must be narrowly
tailored to advance a compelling state interest). This is true because a law that
targets religious practice for disfavored treatment [***521] both
burdens the free exercise of religion and, by definition, is not precisely tailored
to a compelling governmental interest.
Thus, unlike the majority, I do not believe that "[a] law burdening religious
practice that is not neutral or not of general application must undergo the most
rigorous of scrutiny." Ante, at 546. In my view, regulation that targets religion
in this way, ipso facto, fails strict scrutiny. It is for this reason [*580]
that a statute that explicitly restricts religious practices violates the First
Amendment. Otherwise, however, "the First Amendment . . . does not distinguish
between laws that are generally applicable and laws that target particular religious
practices."
Smith, 494 U.S. at 894 (opinion concurring in judgment).
It is only in the rare case that a state or local legislature will enact a law directly
burdening religious practice as such. See ibid. Because respondent here does single
out religion in this way, the present case is an easy one to decide.
A harder case would be presented if petitioners were requesting an exemption from
a generally applicable anticruelty law. The result in the case before the Court
today, and the fact that every Member of the Court concurs in that result, does
not necessarily reflect this Court's views of the strength of a State's interest
in prohibiting cruelty to animals. This case does not present, and I therefore decline
to reach, the question whether the Free Exercise Clause would require a religious
exemption from a law that sincerely pursued the goal of protecting animals from
cruel treatment. The number of organizations that have filed amicus briefs [**2252]
on behalf of this interest, [Footnote *] however, demonstrates that it is not a
concern to be treated lightly.