Supreme Court of the United States
EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON, et al.,
Petitioners
v.
Alfred L. SMITH et al.
No. 88-1213.

Argued Nov. 6, 1989.
Decided April 17, 1990.
Rehearing Denied June 4, 1990.
See 496 U.S. 913, 110 S.Ct. 2605.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, in Parts I and II of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined without concurring in the judgment. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined.

 Dave Frohnmayer, Attorney General of Oregon, argued the cause for petitioners.  With him on the briefs were James E. Mountain, Jr., Deputy Attorney General, Virginia L. Linder, Solicitor General, and Michael D. Reynolds, Assistant Solicitor General.

 Craig J. Dorsay argued the cause and filed briefs for respondents.*

 * Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Steven R. Shapiro and John A. Powell; for the American Jewish Congress by Amy Adelson, Lois C. Waldman, and Marc D. Stern; for the Association on American Indian Affairs et al. by Steven C. Moore and Jack Trope; and for the Council on Religious Freedom by Lee Boothby and Robert W. Nixon.

Justice SCALIA delivered the opinion of the Court.

This case requires us to decide whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use.

I
 Oregon law prohibits the knowing or intentional possession of a "controlled substance" unless the substance has been prescribed by a medical practitioner.  …[T]he drug peyote, a hallucinogen derived from the plant Lophophora williamsii Lemaire [is a controlled substance. Ore.Admin.Rule 855-80-021(3)(s) (1988).

Respondents Alfred Smith and Galen Black (hereinafter respondents) were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native American Church, of which both are members.  When respondents applied to petitioner Employment Division (hereinafter petitioner) for unemployment compensation, they were determined to be ineligible for benefits because they had been discharged for work-related "misconduct."…   

…The Oregon Supreme Court reasoned, however, that the criminality of respondents' peyote use was irrelevant to resolution of their constitutional claim--since the purpose of the "misconduct" provision under which respondents had been disqualified was not to enforce the State's criminal laws but to preserve the financial integrity of the compensation fund, and since that purpose was inadequate to justify the burden that disqualification imposed on respondents' religious practice. Citing our decisions in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Thomas v. Review Bd., Indiana Employment Security Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), the court concluded that respondents were entitled to payment of unemployment benefits.  [We granted certiorari.]

Before this Court in 1987, petitioner continued to maintain that the illegality of respondents' peyote consumption was relevant to their constitutional claim.   We agreed, concluding that "if a State has prohibited through its criminal laws certain kinds of religiously motivated conduct without violating the First Amendment, it certainly follows that it may impose the lesser burden of denying unemployment compensation benefits to persons who engage in that conduct."  Employment Div., Dept. of Human Resources of Oregon v. Smith, 485 U.S. 660, 670, 108 S.Ct. 1444, 1450, 99 L.Ed.2d 753 (1988) (Smith I ).  …[W]e vacated the judgment of the Oregon Supreme Court and remanded for further proceedings.   

On remand, the Oregon Supreme Court held that respondents' religiously inspired use of peyote fell within the prohibition of the Oregon statute, which "makes no exception for the sacramental use" of the drug.  307 Or. 68, 72-73, 763 P.2d 146, 148 (1988).   It then considered whether that prohibition was valid under the Free Exercise Clause, and concluded that it was not.  The court therefore reaffirmed its previous ruling that the State could not deny unemployment benefits to respondents for having engaged in that practice.

We again granted certiorari.

II
Respondents' claim for relief rests on our decisions in Sherbert v. Verner, supra, Thomas v. Review Bd. of Indiana Employment Security Div., supra, and Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987), in which we held that a State could not condition the availability of unemployment insurance on an individual's willingness to forgo conduct required by his religion.  As we observed in Smith I, however, the conduct at issue in those cases was not prohibited by law.   We held that distinction to be critical, for "if Oregon does prohibit the religious use of peyote, and if that prohibition is consistent with the Federal Constitution, there is no federal right to engage in that conduct in Oregon," and "the State is free to withhold unemployment compensation from respondents for engaging in work-related misconduct, despite its religious motivation."  485 U.S., at 672, 108 S.Ct., at 1451.  Now that the Oregon Supreme Court has confirmed that Oregon does prohibit the religious use of peyote, we proceed to consider whether that prohibition is permissible under the Free Exercise Clause.

A
The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940), provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.... " U.S. Const., Amdt. 1 (emphasis added.)   The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires.  Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such."  Sherbert v. Verner, supra, 374 U.S., at 402, 83 S.Ct., at 1793.   The government may not compel affirmation of religious belie, punish the expression of religious doctrines it believes to be false, impose special disabilities on the basis of religious views or religious status, or lend its power to one or the other side in controversies over religious authority or dogma.

But the "exercise of religion" often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.  It would be true, we think (though no case of ours has involved the point), that a State would be "prohibiting the free exercise [of religion]" if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display.  It would doubtless be unconstitutional, for example, to ban the casting of "statues that are to be used for worship purposes," or to prohibit bowing down before a golden calf.

Respondents in the present case, however, seek to carry the meaning of  "prohibiting the free exercise [of religion]" one large step further.  They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. …

…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.  On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. …We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. "Laws," we said, "are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.... Can a man excuse his practices to the contrary because of his religious belief?   To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." 
…

Our most recent decision involving a neutral, generally applicable regulatory law that compelled activity forbidden by an individual's religion was United States v. Lee, 455 U.S., at 258-261, 102 S.Ct., at 1055-1057. There, an Amish employer, on behalf of himself and his employees, sought exemption from collection and payment of Social Security taxes on the ground that the Amish faith prohibited participation in governmental support programs.  We rejected the claim that an exemption was constitutionally required.  There would be no way, we observed, to distinguish the Amish believer's objection to Social Security taxes from the religious objections that others might have to the collection or use of other taxes. …

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut, 310 U.S., at 304-307, 60 S.Ct., at 903-905 (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious);  Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas);  Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944) (same), or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school).  [FN1]   

The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right. …

B
Respondents argue that even though exemption from generally applicable criminal laws need not automatically be extended to religiously motivated actors, at least the claim for a religious exemption must be evaluated under the balancing test set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).  Under the Sherbert test, governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest.  Applying that test we have, on three occasions, invalidated state unemployment compensation rules that conditioned the availability of benefits upon an applicant's willingness to work under conditions forbidden by his religion.  We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation.  Although we have sometimes purported to apply the Sherbert test in contexts other than that, we have always found the test satisfied, see United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982); Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971).   In recent years we have abstained from applying the Sherbert test (outside the unemployment compensation field) at all.  In Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986), we declined to apply Sherbert analysis to a federal statutory scheme that required benefit applicants and recipients to provide their Social Security numbers.  The plaintiffs in that case asserted that it would violate their religious beliefs to obtain and provide a Social Security number for their daughter.  We held the statute's application to the plaintiffs valid regardless of whether it was necessary to effectuate a compelling interest.  In Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988), we declined to apply Sherbert analysis to the Government's logging and road construction activities on lands used for religious purposes by several Native American Tribes, even though it was undisputed that the activities "could have devastating effects on traditional Indian religious practices.”…

Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law.  The Sherbert test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct.  As a plurality of the Court noted in Roy, a distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant's unemployment:  "The statutory conditions [in Sherbert and Thomas ] provided that a person was not eligible for unemployment compensation benefits if, 'without good cause,' he had quit work or refused available work.  The 'good cause' standard created a mechanism for individualized exemptions.”…  As the plurality pointed out in Roy, our decisions in the unemployment cases stand 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.

Whether or not the decisions are that limited, they at least have nothing to do with an across-the-board criminal prohibition on a particular form of conduct.  Although, as noted earlier, we have sometimes used the Sherbert test to analyze free exercise challenges to such laws, we have never applied the test to invalidate one.  We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges.  The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development."  Lyng, supra, 485 U.S., at 451, 108 S.Ct., at 1326. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling"--permitting him, by virtue of his beliefs, "to become a law unto himself," Reynolds v. United States, 98 U.S., at 167--contradicts both constitutional tradition and common sense. [FN2]

The "compelling government interest" requirement seems benign, because it is familiar from other fields.   But using it as the standard that must be met before the government may accord different treatment on the basis of race, or before the government may regulate the content of speech, is not remotely comparable to using it for the purpose asserted here.  What it produces in those other fields--equality of treatment and an unrestricted flow of contending speech--are constitutional norms; what it would produce here--a private right to ignore generally applicable laws--is a constitutional anomaly.  [FN3]

Nor is it possible to limit the impact of respondents' proposal by requiring a "compelling state interest" only when the conduct prohibited is "central" to the individual's religion.  Cf. Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S., at 474-476, 108 S.Ct., at 1338-1339 (BRENNAN, J., dissenting).  It is no more appropriate for judges to determine the "centrality" of religious beliefs before applying a "compelling interest" test in the free exercise field, than it would be for them to determine the "importance" of ideas before applying the "compelling interest" test in the free speech field.  …

If the "compelling interest" test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded.  Moreover, if "compelling interest" really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test.  Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them.  Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," Braunfeld v. Brown, 366 U.S., at 606, 81 S.Ct., at 1147, and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.  The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind--ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws, to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment's protection of religious liberty does not require this. [FN5]

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process.  Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.  It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use.  See, e.g., Ariz.Rev.Stat.Ann. § §  13-3402(B)(1)-(3) (1989);  Colo.Rev.Stat. §  12-22-317(3) (1985); N.M.Stat.Ann. §  30-31-6(D) (Supp.1989).  But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts.  It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

* * *
Because respondents' ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from use of the drug.  The decision of the Oregon Supreme Court is accordingly reversed.

 It is so ordered.

FN1. Both lines of cases have specifically adverted to the non-free-exercise principle involved.  Cantwell, for example, observed that "[t]he fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not abridged."  310 U.S., at 307, 60 S.Ct., at 905.  Murdock said: 
"We do not mean to say that religious groups and the press are free from all financial burdens of government....  We have here something quite different, for example, from a tax on the income of one who engages in religious activities or a tax on property used or employed in connection with those activities.   It is one thing to impose a tax on the income or property of a preacher.   It is quite another thing to exact a tax from him for the privilege of delivering a sermon....  Those who can deprive religious groups of their colporteurs can take from them a part of the vital power of the press which has survived from the Reformation."  319 U.S., at 112, 63 S.Ct., at 874. 
Yoder said that "the Court's holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children.  And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a 'reasonable relation to some purpose within the competency of the State' is required to sustain the validity of the State's requirement under the First Amendment."  406 U.S., at 233, 92 S.Ct., at 1542.

FN2. Justice O'CONNOR seeks to distinguish Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988), and Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986), on the ground that those cases involved the government's conduct of "its own internal affairs," which is different because, as Justice Douglas said in Sherbert, " 'the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.' "   Post, at 1611- 1612 (O'CONNOR, J., concurring in judgment), quoting Sherbert v. Verner, 374 U.S. 398, 412, 83 S.Ct. 1790, 1798, 10 L.Ed.2d 965 (1963) (Douglas, J., concurring).   But since Justice Douglas voted with the majority in Sherbert, that quote obviously envisioned that what "the government cannot do to the individual" includes not just the prohibition of an individual's freedom of action through criminal laws but also the running of its programs (in Sherbert, state unemployment compensation) in such fashion as to harm the individual's religious interests.   Moreover, it is hard to see any reason in principle or practicality why the government should have to tailor its health and safety laws to conform to the diversity of religious belief, but should not have to tailor its management of public lands, Lyng, supra, or its administration of welfare programs, Roy, supra.

FN3. Justice O'CONNOR suggests that "[t]here is nothing talismanic about neutral laws of general applicability," and that all laws burdening religious practices should be subject to compelling-interest scrutiny because "the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a 'constitutional nor[m],' not an 'anomaly.' "   Post, at 1612 (opinion concurring in judgment).   But this comparison with other fields supports, rather than undermines, the conclusion we draw today.   Just as we subject to the most exacting scrutiny laws that make classifications based on race, see Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984), or on the content of speech, see Sable Communications of California v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989), so too we strictly scrutinize governmental classifications based on religion, see McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978); see also Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961).  But we have held that race-neutral laws that have the effect of disproportionately disadvantaging a particular racial group do not thereby become subject to compelling-interest analysis under the Equal Protection Clause, see Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (police employment examination);  and we have held that generally applicable laws unconcerned with regulating speech that have the effect of interfering with speech do not thereby become subject to compelling-interest analysis under the First Amendment, see Citizen Publishing Co. v. United States, 394 U.S. 131, 139, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969) (antitrust laws).   Our conclusion that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest is the only approach compatible with these precedents.

FN5. Justice O'CONNOR contends that the "parade of horribles" in the text only "demonstrates ... that courts have been quite capable of ... strik [ing] sensible balances between religious liberty and competing state interests."   Post, at 1612-1613 (opinion concurring in judgment).  But the cases we cite have struck "sensible balances" only because they have all applied the general laws, despite the claims for religious exemption. In any event, Justice O'CONNOR mistakes the purpose of our parade:  it is not to suggest that courts would necessarily permit harmful exemptions from these laws (though they might), but to suggest that courts would constantly be in the business of determining whether the "severe impact" of various laws on religious practice (to use Justice BLACKMUN's terminology post, at 1621) or the "constitutiona[l] significan[ce]" of the "burden on the specific plaintiffs" (to use Justice O'CONNOR's terminology post, at 1611) suffices to permit us to confer an exemption.   It is a parade of horribles because it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.

Justice O'CONNOR, with whom Justice BRENNAN, Justice  MARSHALL, and Justice BLACKMUN join as to Parts I and II, concurring in the judgment.  [FN*]

 Although I agree with the result the Court reaches in this case, I cannot join its opinion.  In my view, today's holding dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation's fundamental commitment to individual religious liberty.
…

The Court today extracts from our long history of free exercise precedents the single categorical rule that "if prohibiting the exercise of religion ... is ... merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended."  Ante, at 1600 (citations omitted).   Indeed, the Court holds that where the law is a generally applicable criminal prohibition, our usual free exercise jurisprudence does not even apply.  Ante, at 1603.  To reach this sweeping result, however, the Court must not only give a strained reading of the First Amendment but must also disregard our consistent application of free exercise doctrine to cases involving generally applicable regulations that burden religious conduct.
…

The Court today, however, interprets the Clause to permit the government to prohibit, without justification, conduct mandated by an individual's religious beliefs, so long as that prohibition is generally applicable.  Ante, at 1599.   But a law that prohibits certain conduct--conduct that happens to be an act of worship for someone--manifestly does prohibit that person's free exercise of his religion.  A person who is barred from engaging in religiously motivated conduct is barred from freely exercising his religion. Moreover, that person is barred from freely exercising his religion regardless of whether the law prohibits the conduct only when engaged in for religious reasons, only by members of that religion, or by all persons. It is difficult to deny that a law that prohibits religiously motivated conduct, even if the law is generally applicable, does not at least implicate First Amendment concerns.

…If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice.  

…The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests "of the highest order," Yoder, supra, 406 U.S., at 215, 92 S.Ct., at 1533. …

[I]n cases such as Cantwell and Yoder we have in fact interpreted the Free Exercise Clause to forbid application of a generally applicable prohibition to religiously motivated conduct.  See Cantwell, 310 U.S., at 304-307, 60 S.Ct., at 903-905;  Yoder, 406 U.S., at 214-234, 92 S.Ct., at 1532-1542.  Indeed, in Yoder we expressly rejected the interpretation the Court now adopts:

"[O]ur decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause.   It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers.   But 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.... 
"... A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for government neutrality if it unduly burdens the free exercise of religion."  Id., at 219-220, 92 S.Ct., at 1535- 36 (emphasis added; citations omitted).

 The Court endeavors to escape from our decisions in Cantwell and Yoder by labeling them "hybrid" decisions, ante, at 1607, but there is no denying that both cases expressly relied on the Free Exercise Clause, see Cantwell, 310 U.S., at 303-307, 60 S.Ct., at 903-905;  Yoder, supra, 406 U.S., at 219-229, 92 S.Ct., at 1535-1540, and that we have consistently regarded those cases as part of the mainstream of our free exercise jurisprudence.  Moreover, in each of the other cases cited by the Court to support its categorical rule, ante, at 1600-1601, we rejected the particular constitutional claims before us only after carefully weighing the competing interests. …
….

Finally, the Court today suggests that the disfavoring of minority religions is an "unavoidable consequence" under our system of government and that accommodation of such religions must be left to the political process. Ante, at 1606.  In my view, however, the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility.  The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah's Witnesses and the Amish.   Indeed, the words of Justice Jackson in West Virginia State Bd. of Ed. v. Barnette (overruling Minersville School Dist. v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375 (1940)) are apt:
 
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.   One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote;  they depend on the outcome of no elections."  319 U.S., at 638, 63 S.Ct., at 1185.

See also United States v. Ballard, 322 U.S. 78, 87, 64 S.Ct. 882, 886-87, 88 L.Ed. 1148 (1944) ("The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree.  They fashioned a charter of government which envisaged the widest possible toleration of conflicting views"). The compelling interest test reflects the First Amendment's mandate of preserving religious liberty to the fullest extent possible in a pluralistic society.  For the Court to deem this command a "luxury," ante, at 1605, is to denigrate "[t]he very purpose of a Bill of Rights."
…
FN* Although Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join Parts I and II of this opinion, they do not concur in the judgment.

Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.

This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion.  Such a statute 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. [FN1]

This distorted view of our precedents leads the majority to conclude that strict scrutiny of a state law burdening the free exercise of religion is a "luxury" that a well-ordered society cannot afford, ante, at 1605, and that the repression of minority religions is an "unavoidable consequence of democratic government."  Ante, at 1606. I do not believe the Founders thought their dearly bought freedom from religious persecution a "luxury," but an essential element of liberty--and they could not have thought religious intolerance "unavoidable," for they drafted the Religion Clauses precisely in order to avoid that intolerance.
…

In weighing the clear interest of respondents Smith and Black (hereinafter respondents) in the free exercise of their religion against Oregon's asserted interest in enforcing its drug laws, it is important to articulate in precise terms the state interest involved.  It is not the State's broad interest in fighting the critical "war on drugs" that must be weighed against respondents' claim, but the State's narrow interest in refusing to make an exception for the religious, ceremonial use of peyote. …

…The State cannot plausibly assert that unbending application of a criminal prohibition is essential to fulfill any compelling interest, if it does not, in fact, attempt to enforce that prohibition.  In this case, the State actually has not evinced any concrete interest in enforcing its drug laws against religious users of peyote.   Oregon has never sought to prosecute respondents, and does not claim that it has made significant enforcement efforts against other religious users of peyote.  [FN3]  The State's asserted interest thus amounts only to the symbolic preservation of an unenforced prohibition.

…The Federal Government, which created the classifications of unlawful drugs from which Oregon's drug laws are derived, apparently does not find peyote so dangerous as to preclude an exemption for religious use. [FN5]

The carefully circumscribed ritual context in which respondents used peyote is far removed from the irresponsible and unrestricted recreational use of unlawful drugs. [FN6]   

… I dissent.

  FN1. See Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 2149, 104 L.Ed.2d 766 (1989) ("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");  Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 141, 107 S.Ct. 1046, 1049, 94 L.Ed.2d 190 (1987) (state laws burdening religions "must be subjected to strict scrutiny and could be justified only by proof by the State of a compelling interest");  Bowen v. Roy, 476 U.S. 693, 732, 106 S.Ct. 2147, 2169, 90 L.Ed.2d 735 (1986) (O'CONNOR, J., concurring in part and dissenting in part) ("Our precedents have long required the Government to show that a compelling state interest is served by its refusal to grant a religious exemption");  United States v. Lee, 455 U.S. 252, 257-258, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982) ("The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest");  Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981) ("The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest");  Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972) ("[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion");  Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963) (question is "whether some compelling state interest ... justifies the substantial infringement of appellant's First Amendment right").
 
FN3. The only reported case in which the State of Oregon has sought to prosecute a person for religious peyote use is State v. Soto, 21 Ore.App. 794, 537 P.2d 142 (1975), cert. denied, 424 U.S. 955, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976).

FN5. See 21 CFR §  1307.31 (1989) ("The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration.  Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law"); see Olsen v. Drug Enforcement Admin., 279 U.S.App.D.C. 1, 6-7, 878 F.2d 1458, 1463-1464 (1989) (explaining DEA's rationale for the exception). 
Moreover, 23 States, including many that have significant Native American populations, have statutory or judicially crafted exemptions in their drug laws for religious use of peyote.  See 307 Ore. 68, 73, n. 2, 763 P.2d 146, 148, n. 2 (1988) (case below).   Although this does not prove that Oregon must have such an exception too, it is significant that these States, and the Federal Government, all find their (presumably compelling) interests in controlling the use of dangerous drugs compatible with an exemption for religious use of peyote.  Cf. Boos v. Barry, 485 U.S. 312, 329, 108 S.Ct. 1157, 1168, 99 L.Ed.2d 333 (1988) (finding that an ordinance restricting picketing near a foreign embassy was not the least restrictive means of serving the asserted government interest;  existence of an analogous, but more narrowly drawn, federal statute showed that "a less restrictive alternative is readily available").

FN6. In this respect, respondents' use of peyote seems closely analogous to the sacramental use of wine by the Roman Catholic Church. During Prohibition, the Federal Government exempted such use of wine from its general ban on possession and use of alcohol.   See National Prohibition Act, Title II, §  3, 41 Stat. 308.   However compelling the Government's then general interest in prohibiting the use of alcohol may have been, it could not plausibly have asserted an interest sufficiently compelling to outweigh Catholics' right to take communion.