In Employment Division v. Smith (1990) 494 U.S. 872, the United States Supreme Court clarified that strict scrutiny does not apply to all free exercise challenges.
An otherwise valid and constitutional law in an area in which the state is free to regulate, which law 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 practice. (Smith, supra, 494 U.S. at pp. 878-879, 884-885, 888-890.)
Smith explained that the government's ability to enforce generally applicable prohibitions of socially harmful conduct or to carry out public policy "'cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'
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,' --contradicts both constitutional tradition and common sense." (Smith, supra, 494 U.S. at p. 885)
Applying the compelling government interest test in this fashion would produce "a private right to ignore generally applicable laws--which would be a constitutional anomaly." ( Id. at p. 886.)
"Precisely because 'we are a cosmopolitan nation made up of people of almost every conceivable religious preference,' 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. Such a rule . . . would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind . . . . The First Amendment's protection of religious liberty does not require this." (Smith, supra, 494 U.S. at pp. 888-889.)
Smith noted that a society that wishes to protect religious belief can be expected to enact laws to foster religious freedom.
"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." (Smith, supra, 494 U.S. at p. 890.) The Court held that the Constitution's Free Exercise Clause does not relieve an individual of the obligation to comply "with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Id. at 879, 110 S. Ct. at 1600 .
In other words, neutral, generally applicable laws, may be applied to religious practices even when not supported by a compelling governmental interest. Id. at 884-885, 110 S. Ct. at 1603.
In Smith, the claimants sought review of a determination that their religious use of peyote, which had resulted in their dismissal from employment, was misconduct that properly disqualified them from receiving unemployment compensation benefits. Justice Scalia, writing the opinion of the Court, concluded after a survey of its decisions that "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." Id. at 878-879, 110 S. Ct. at 1600.
The Court found that the only instances where 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 the free of speech and of the press. Id. at 881-882, 110 S. Ct. at 1601-1602 .
Finally, the Court declined to apply the Sherbert test to the statute at issue. It reasoned that the test was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct. Id. at 884, 110 S. Ct. at 1603.
But that has no relevance to "an across-the-board criminal prohibition on a particular form of conduct." Id. It acknowledges that the Court has sometimes used the Sherbert test to analyze free exercise challenges to such laws, but that it has never applied the test to invalidate one. Id. at 884-885, 110 S. Ct. at 1603 .
Thus, the Court held that the claimant's ingestion of peyote was prohibited under state law, and because that prohibition was constitutional, the state may, consistent with the Free Exercise Clause, deny the claimants unemployment compensation when their dismissal result from the use of the drug. Id. at 890, 110 S. Ct. at 1606.
Justice O'Connor, with whom three other Justices joined, wrote a concurrence to the opinion. In Justice O'Connor's view, the ultimate reversal of the lower court's ruling was proper; however, she criticized the Court's reading of the First Amendment and the disregard of its own consistent application of the free exercise doctrine to cases involving generally applicable regulations that burden religious conduct. She obtained the same result utilizing and respecting precedent. O'Connor observes that the First Amendment does not distinguish between laws that are generally applicable and laws that target particular religious practices. Id. at 894, 110 S. Ct. at 1608 (O'Connor, J., concurring in part).
Further, to say that a person's right to free exercise has been burdened does not mean that he has an absolute right to engage in the conduct. Id. Under the jurisprudence of the First Amendment, the Court had recognized that the freedom to act, unlike the freedom to believe, cannot be absolute. Id.
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. Id. at 895, 110 S. Ct. at 1609 .