Employment Division V. Smith - Concurring Opinion

Concurring Opinion

Justice O'Connor took issue with the analytical framework the majority had constructed, preferring to apply the traditional compelling interest test to Oregon's ban on peyote. She agreed with the Court's initial premise that the Free Exercise Clause applied to religiously motivated conduct as well as religious beliefs. She pointed out, however, that even a so-called neutral law of general applicability imposes a burden on a person's exercise of religion if that law prevents a person from engaging in religiously motivated conduct or requires a person to engage in conduct forbidden by his or her religion. The First Amendment has to reach both laws that expressly target religion as well as generally applicable laws; otherwise, the law would relegate the constitutional protection of the free exercise of religion to "the barest level of minimum scrutiny that the Equal Protection Clause already provides."

However, First Amendment rights are not absolute. The law tolerates burdens on the free exercise of religion that serve a compelling governmental interest and are narrowly tailored to meet that interest. "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 encroachment upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests of the highest order."

"Thus, the critical question in this case is whether exempting respondents from the State's general criminal prohibition "will unduly interfere with fulfillment of the governmental interest," Justice O'Connor stated. "Although the question is close, I would conclude that uniform application of Oregon's criminal prohibition is 'essential to accomplish,' its overriding interest in preventing the physical harm caused by the use of a Schedule I controlled substance."

First, Justice O'Connor considered the interest of Smith and Black. It was not doubted that the exemption from Oregon's ban on peyote was not a pretext for Smith and Black. It was directly linked to the exercise of their religious beliefs, the sincerity of which the Court does not and should not question. Peyote is a sacrament in the Native American Church; thus, members must "choose between carrying out the ritual embodying their religious beliefs and avoidance of criminal prosecution. That choice is ... more than sufficient to trigger First Amendment scrutiny."

Despite this, "Oregon's criminal prohibition represents that state's judgment that the possession and use of controlled substances, even by only one person, is inherently harmful and dangerous," Justice O'Connor stated. "Because the health effects caused by the use of controlled substances exist regardless of the motivation of the user, the use of such substances, even for religious purposes, violates the very purpose of the laws that prohibit them." Furthermore, society's interest in preventing trafficking in controlled substances was similarly central to effectuating Oregon's ban on peyote. Justice O'Connor likewise suggested that Smith and Black seek redress in the state legislature and not the courts, for the fact that other states allow religious use of peyote does not compel Oregon to follow suit. Indeed, not even Smith and Black disputed that Oregon's interest in outlawing peyote was compelling.