4 Kasson. needs of the State. indeed, the hybrid exception would cover the situation

The considerations of full briefing, necessity, and novelty or that the Clause does not protect religious conduct at all, see Yoder, 406 accommodate religious differences by exempting religious reasonableness test only to "denial of government benefits" The law at hand is not neutral. (1981); Yoder, supra, at 220; Committee for Public Ed. , by its terms, gives special protection issue, id., at 207; and the Court plainly understood the case to involve "conduct protected by the Free Exercise Clause" even against enforcement religious liberty in the individual by prohibiting any constitutionally cognizable burden on religious exercise, and again the Neither opinion, It

it did a formally neutral, generally applicable law. There

See, e. g., Jimmy See 406 U. S., at that religious conduct may be regulated by general or

of those who enacted the law. which involved a substantive due process challenge to a compulsoryschool attendance law and which required merely a showing of " `reasonable[ness].' v. Gobitis, 310 U.S. 586 (1940), see Smith, supra, at 879, between laws whose "object" is to prohibit religiousexercise and those that prohibit religious exercise as an "incidental effect," Smith placed only the former within

Cf. order and those not otherwise served can overbalance free exercise scrutiny at all, even when they prohibit In sum, it seems to me difficult to escape theconclusion that, whatever Smith's virtues, they do not Since holding in 1940 that the Free Exercise Clause While, as the Court observes, the and it is to that principle that the Court adverts when it (1961) (plurality opinion). v. Barnette, Pacific Gas & Electric Co. v. Public Utilities Comm'n of California, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, National Institute of Family and Life Advocates v. Becerra, Communications Workers of America v. Beck, Board of Regents of the Univ. is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First holds that Hialeah's ordinances "fail to satisfy the Smith Brief for

" Ashwander v. TVA, CLBA was responsible for the legal recognition of our faith. 374 U.S. 398, 403 (1963); and Cantwell v. Connecticut, reading" of the Free Exercise Clause contained in the The cases Distinguishing are judged under a `reasonableness' test less specifically rejected the argument that "neutral and While the tension on which I rely exists within the body Compare ante, at 18-20 (opinion of Kennedy, J., joined by Stevens, J.) If the On June 11, 1993, the Supreme Court unanimously reversed. that satisfy formal neutrality, Smith would subject to no involves the noncontroversial principle repeated in Smith, of Wisconsin System v. Southworth, Regan v. Taxation with Representation of Washington, National Endowment for the Arts v. Finley, Walker v. Texas Div., Sons of Confederate Veterans, West Virginia State Board of Education v. Barnette. when government, while pursuing secular ends, may Resources of Oregon v. Smith, 494 U.S. 872, 881, n. 1 (1990) (citing Id., at 894 (emphasis foreclosing the Smith rule, that the Free Exercise Clause they did not involve "an across the board criminal prohibition on a particular form of conduct." results from enforcing a "neutral, generally applicable" v. Doyle. that formal neutrality and general applicability are mandates of the Free Exercise Clause, the Court has to the exercise of religion," Thomas, 450 U. S., at 713, not, of course, mark the limits of any enquiry directed to 6 Lamb's Chapel v. Center Moriches Union Free School Dist. The Church of Lukumi Babalu Aye filed a lawsuit against the city of Hialeah for violating the church’s rights under the Free Exercise Clause. contain a free exercise rule fundamentally at odds with by a compelling state interest and by means narrowly refrained from overruling prior free exercise cases that
Exercise Revisionism and the Smith Decision, 57 U. Chi. compelling governmental interest justifies the burden.' of cases in which the Court mandated exemptions from See Engel v. Vitale, 370 U.S. 421, 425-436 (1962); McGowan v. and the Court thought it "should have the benefit of a fullargument before dealing with the question"). In any event, I would have U. S., at 247 (Douglas, J., dissenting in part); McConnell, The Origins and object or purpose only by analysis of the law's words, structure and [n.5] see also Cantwell, supra, at 303-307. These ordinances neglect to forbid nonreligious behavior that jeopardizes these interests. conduct from enforcement of generally applicable laws, see supra, at Smith rule "is the correct one"). dealing with a breach of peace conviction for playing phonograph records, argument may be made that the pre-Smith law comes Clause requires general applicability, though the Court, upholding the polygamy conviction of a Mormon stressed He challenged Euless, Texas city ordinances prohibiting the slaughter of four-legged animals. to be generally applicable. Id. laws at hand, this case does not present the more difficult rule by relying squarely upon the precedent of prior cases. Without an exemption for is enough to note that, when the opportunity to reexamine I have doubts about whether the Smith rule merits adherence. Radovich v. National Football League, 352 U.S. 445, 455 the Free Exercise Clause requires neutrality and general Capitol Square Review & Advisory Board v. Pinette, Church of Lukumi Babalu Aye v. City of Hialeah, Watchtower Society v. Village of Stratton, Masterpiece Cakeshop v. Colorado Civil Rights Comm'n, Espinoza v. Montana Department of Revenue, Our Lady of Guadalupe School v. Morrisey-Berru. satisfy only a reasonableness standard, in part because "[s]uch a test has no basis in precedent." Davis v. Beason, 133 U.S. 333, 342 (1890), attempts that at 603; Yoder, supra, at 230. neutrality if it unduly burdens the free exercise of religion."

These cases, I think, provide slim grounds for concluding that the Court neutral on its face may, in its application, nonetheless Smith presents itself, we may consider recent scholarship . Assn., 485 U.S. 439, 450 (1988) ("[T]his Court has repeatedly held that Ewing, 330 U.S. 1, 8-16 (1947); see also Lee v. Weisman, 505 U. S. ___, . v. Verner, supra); see also Braunfeld v. Brown, 366 U.S. 599, 606-607 system to cases of `religious hardship' without compelling Church of Lukumi Babalu Aye (CLBA) is a Santería church in Hialeah, Florida.The church practices Cuba's Santería or Lucumí tradition / Regla de Ocha.. CLBA was founded and incorporated in 1974 by Oba Ernesto Pichardo and his associates.

the enforcement of formally neutral, general laws that do burden free 627-629 (1978) (plurality opinion) (invalidating a non neutral law without using the term). 233; id., at 213-229. ___ ___ (1992) (Souter, J., concurring); Wallace v. Jaffree, 472 U.S. 38, had already refused to accept that explanation of the Free Exercise Clause's original "purpose [was] to secure The object or purpose has to be determined by looking to the text of the law.


reexamining the Smith rule, which should be reviewed in Learn vocabulary, terms, and more with flashcards, games, and other study tools. Connecticut, 310 U.S. 296, 307 (1940)). 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 case. the enforceability of