One of the more controversial decisions handed down by the Supreme Court in recent years was its decision in the case of Employment Division, Oregon v. Smith, which raised the basic issue of whether the free exercise clause of the First Amendment guarantees a right to religion-based exemptions, i.e., whether it gives persons and groups a prima facie right to be exempt from having to obey valid laws when they have religious reasons for noncompliance. More specifically, in Smith, two Native Americans claimed that their prosecution for using an illegal drug, peyote, was precluded by the free exercise clause because they had taken the drug as part of a religious ceremony of their church.

To the surprise of many, the Supreme Court rejected both the Native Americans' claim (by a vote of six to three) and the general proposition that the free exercise clause gives persons a right to religion-based exemptions (by five to four). Writing for the Court, Justice Scalia said, "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." Moreover, in order to preclude such a holding in the future, the Court discarded the "strict scrutiny" test, adopted in its 1963 Sherbert v. Verner decision according to which any burden on any religious practice imposed by any law, even one that is religion-neutral and generally applicable, is unconstitutional unless it can be justified by a "compelling" government interest and is the least restrictive means of protecting that interest. The Court said that the free exercise clause requires only that laws be religion-neutral and generally applicable. It added, however, that although courts were not required to, legislatures were free to grant religion-based exemptions from valid, secular laws as a way of alleviating incidental burdens on the exercise of religion. Because of the Smith decision, governments can now regulate and even criminalize practices that some persons or groups consider religious in nature, provided it does so through a law that is constitutional and that is applied to all instances of the practice, secular as well as religious.

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Copyright © 1993 Center for the Study of Law and Religion at Emory University. This article first appeared in Journal of Law and Religion 10, no. 2 (1993): 367-402. doi:10.2307/1051141.

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