The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_948/91_948.zc2

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SUPREME COURT OF THE UNITED STATES
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No. 91-948
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CHURCH OF THE LUKUMI BABALU AYE, INC. and
ERNESTO PICHARDO, PETITIONERS v.
CITY OF HIALEAH
on writ of certiorari to the united states court
of appeals for the eleventh circuit
[June 11, 1993]

  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 peti-
tioners' 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) 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., Oregon Dept. of Human Resources v. Smith, 494
U. S. 872, 907 (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 prac-
tice.-  Ante, at 9.  I continue to believe that 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 antidis-
crimination 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 Employ-
ment Security Div., 450 U. S. 707, 718 (1981).  See also
Wisconsin v. Yoder, 406 U. S. 205, 215 (1972).  A State
may no more create an underinclusive statute, one 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 will not and must
not stop at religiously motivated activity.  Cf. Zablocki v.
Redhail, 434 U. S. 374, 390 (1978) (invalidating certain
restrictions on marriage as -grossly underinclusive with
respect to [their] purpose-); Supreme Court of New Hamp-
shire v. Piper, 470 U. S. 274, 285, n. 19 (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 overinclu-
sive and underinclusive in relation to the state interests
they purportedly serve.  They are overinclusive, as the
majority correctly explains, because the -legitimate govern-
mental 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 16.  They are
underinclusive as well, because -[d]espite the city's prof-
fered interest in preventing cruelty to animals, the ordi-
nances are drafted with care to forbid few killings but
those occasioned by religious sacrifice.-  Ante, at 22.
Moreover, the -ordinances are also underinclusive with
regard to the city's interest in public health . . . .-  Ante,
at 23.
  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 (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 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 24.  In my view, regulation that
targets religion in this way, ipso facto, fails strict scrutiny.
It is for this reason that a statute that explicitly restricts
religious practices violates the First Amendment.  Other-
wise, however, -[t]he 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 legisla-
ture will enact a law directly burdening religious practice
as such.  See ibid.  Because the 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 pres-
ent, and I therefore decline to reach, the question whether
the Free Exercise Clause would require a religious exemp-
tion from a law that sincerely pursued the goal of protect-
ing animals from cruel treatment.  The number of organi-
zations that have filed amicus briefs on behalf of this
interest, however, demonstrates that it is not a concern
to be treated lightly.