It is true that this Court and others often refer to the “Establishment Clause,” the “Free Exercise Clause,” and the “Free Speech Clause” as separate units. But the three Clauses appear in the same sentence of the same Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” Amdt. 1. A natural reading of that sentence would seem to suggest the Clauses have “complementary” purposes, not warring ones where one Clause is always sure to prevail over the others.
See Everson v. Board of Ed. of Ewing, 330 U.S. 1, 13, 15 (1947).
“A State need not subsidize private education,” we concluded, “[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
Espinoza, 591 U.S., at 487.
Carson, 596 U.S. at 779-780.
To satisfy strict scrutiny, government action “must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.”
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993) (quoting
McDaniel, 435 U.S., at 628 (plurality opinion)). “A law that targets religious conduct for distinctive treatment . . . will survive strict scrutiny only in rare cases.” 508 U.S. at 546.
Carson, 596 U.S. at 780-781.
But the key manner in which the two educational experiences are required to be “equivalent” is that they must both be secular. Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religioU.S.hools. But “the definition of a particular program can always be manipulated to subsume the challenged condition,” and to allow States to “recast a condition on funding” in this manner would be to see “the First Amendment . . . reduced to a simple semantic exercise.”
Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. 570 U.S. 205, 215 (2013) (quoting
Legal Services Corporation v. Velazquez, 531 U.S. 533, 547 (2001)); see also
Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 696 (1970) (Harlan, J., concurring) (“The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.”). Maine’s formulation does not answer the question in this case; it simply restates it.
Carson, 596 U.S. at 784.
The dissents are wrong to say that under our decision today Maine “must” fund religious education. Post, at 7 (Breyer, J., dissenting). Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not “forced upon” it. Post, at 4 (Sotomayor, J., dissenting). The State retains a number of options: it could expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own. As we held in
Espinoza, a “State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” 591 U.S., at 487.
Carson, 596 U.S. at 786.
Fulton, 593 U.S., at 532, 141 S.Ct., at 1876.
A law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S., at 542-546.
Fulton, 593 U.S. at 534, 141 S.Ct. at 1877.
First, government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.
Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14, ___-___ (2020) (per curiam). It is no answer that a State treats some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue.
Id., at ___-___ (KAVANAUGH, J., concurring).
Tandon, 593 U.S. at 62.
Third, the government has the burden to establish that the challenged law satisfies strict scrutiny. To do so in this context, it must do more than assert that certain risk factors “are always present in worship, or always absent from the other secular activities” the government may allow.
South Bay United Pentecostal Church v. Newsom, 592 U.S. ___, ___ (2021) (statement of Gorsuch, J.);
id., at ___ (Barrett, J., concurring).
Tandon, 593 U.S. at 62-63.
... instead of requiring the State to explain why it could not safely permit at-home worshipers to gather in larger numbers while using precautions used in secular activities, the Ninth Circuit erroneously declared that such measures might not “translate readily” to the home.
Tandon, 593 U.S. at 64.
Irreparable harm. There can be no question that the challenged restrictions, if enforced, will cause irreparable harm. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion).
Roman Catholic Diocese, 592 U.S. at 67.
Espinoza, 591 U.S. at 473.
A law does not advance “an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.”
Lukumi, 508 U.S. at 547 (internal quotation marks and alterations omitted).
Espinoza, 591 U.S. at 486.
The Supremacy Clause provides that “the Judges in every State shall be bound” by the Federal Constitution, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. “[T]his Clause creates a rule of decision” directing state courts that they “must not give effect to state laws that conflict with federal law[].”
Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 324 (2015).
Espinoza, 591 U.S. at 489.
The passage of time gives rise to a strong presumption of constitutionality.
American Legion, 588 U.S., at 57.
The AHA’s brief strains to connect the Bladensburg Cross and even the American Legion with anti-Semitism and the Ku Klux Klan, see Brief for Respondents 5-7, but the AHA’s disparaging intimations have no evidentiary support.
American Legion, 588 U.S., at 64.
The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The parties agree that the Establishment Clause of that Amendment does not prevent Missouri from including Trinity Lutheran in the Scrap Tire Program. That does not, however, answer the question under the Free Exercise Clause, because we have recognized that there is “play in the joints” between what the Establishment Clause permits and the Free Exercise Clause compels.
Locke, 540 U.S., at 718 (internal quotation marks omitted).
The Free Exercise Clause “protect[s] religious observers against unequal treatment” and subjects to the strictest scrutiny laws that target the religious for “special disabilities” based on their “religioU.S.atus.”
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533, 542 (1993) Page Proof Pending Publication (internal quotation marks omitted). Applying that basic principle, this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest “of the highest order.”
McDaniel v. Paty, 435 U.S. 618, 628 (1978) (plurality opinion) (quoting
Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)).
Trinity Lutheran, 582 U.S., at 458.
The Court specifically noted, however, that the Government action did not “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.”
Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 449 (1988).
Trinity Lutheran, 582 U.S., at 460.
Trinity Lutheran, 582 U.S., at 460-461 (footnote omitted).
A law, we said, may not discriminate against “some or all religious beliefs.”
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 532 (1993). Nor may a law regulate or outlaw conduct because it is religiously motivated. And, citing
McDaniel and
Smith, we restated the now-familiar refrain: The Free Exercise Clause protects against laws that “ ‘impose[ ] Page Proof Pending Publication special disabilities on the basis of . . . religioU.S.atus.’ ” 508 U.S., at 533 (quoting
Smith, 494 U.S., at 877); see also
Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion) (noting “our decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religioU.S.atus or sincerity” (citing
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995);
Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993);
Widmar v. Vincent, 454 U.S. 263 (1981))).
Trinity Lutheran, 582 U.S., at 461-462.
It is true the Department has not criminalized the way Trinity Lutheran worships or told the Church that it cannot subscribe to a certain view of the Gospel. But, as the Department itself acknowledges, the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.”
Lyng, 485 U.S., at 450. As the Court put it more than 50 years ago, “[i]t is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.”
Sherbert, 374 U.S., at 404; see also
McDaniel, 435 U.S., at 633 (Brennan, J., concurring in judgment) (The “proposition — that the law does not interfere with free exercise because it does not directly prohibit religious activity, but merely conditions eligibility for office on its abandonment — is . . . squarely rejected by precedent”).
Trinity Lutheran, 582 U.S., at 463.
Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement.
Burwell, 573 U.S., at 691-692.
This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.
Burwell, 573 U.S., at 724 (footnote omitted).
RFRA, however, contemplates a “more focused” inquiry: It “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened.”
Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 430–431 (2006) (quoting § 2000bb–1(b)). This requires us to “loo[k] beyond broadly formulated interests” and to “scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants” – in other words, to look to the marginal interest in enforcing the contraceptive mandate in these cases.
Id., at 431.
Burwell, 573 U.S., at 726-727.
HHS highlights certain statements in the opinion in
Lee that it regards as supporting its position in these cases. In particular, HHS notes the statement that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
United States v. Lee, 455 U.S. 252, 261.
Lee was a free-exercise, not a RFRA, case, and the statement to which HHS points, if taken at face value, is squarely inconsistent with the plain meaning of RFRA. Under RFRA, when followers of a particular religion choose to enter into commercial activity, the Government does not have a free hand in imposing obligations that substantially burden their exercise of religion. Rather, the Government can impose such a burden only if the strict RFRA test is met.
Burwell, 573 U.S., at 735 n. 43.
Yet
Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted “by reference to historical practices and understandings.”
County of Allegheny, 492 U.S., at 670 (Kennedy, J., concurring in judgment in part and dissenting in part).
Town of Greece, 572 U.S., at 576.
Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.
County of Allegheny,
supra, at 670 (opinion of Kennedy, J.); see also
School Dist. of Abington Township v. Schempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring) (“[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers”). A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent. See
Van Orden v. Perry, 545 U.S. 677, 702–704 (2005) (Breyer, J., concurring in judgment).
Town of Greece, 572 U.S., at 577.
The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.
Town of Greece, 572 U.S., at 591-592.
The second episode occurred in 1811, when Madison was President. Congress had passed a bill incorporating the Protestant Episcopal Church in the town of Alexandria in what was then the District of Columbia. Madison vetoed the bill, on the ground that it “exceeds the rightful authority to which Governments are limited, by the essential distinction between civil and religious functions, and violates, in particular, the article of the Constitution of the United States, which declares, that ‘Congress shall make no law respecting a religious establishment.’” 22 Annals of Cong. 982-983 (1811). Madison explained:
“The bill enacts into, and establishes by law, sundry rules and proceedings relative purely to the organization and polity of the church incorporated, and comprehending even the election and removal of the Minister of the same; so that no change could be made therein by the particular society, or by the general church of which it is a member, and whose authority it recognises.” Id., at 983 (emphasis added).
Hosanna-Tabor, 565 U.S. at 184-185.
This conclusion is reinforced by the Controlled Substances Act itself. The Act contains a provision authorizing the Attorney General to “waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety.”
21 U.S.C. § 822(d). The fact that the Act itself contemplates that exempting certain people from its requirements would be “consistent with the public health and safety” indicates that congressional findings with respect to Schedule I substances should not carry the determinative weight, for RFRA purposes, that the Government would ascribe to them.
O Centro, 546 U.S., at 432-433.
If such use is permitted in the face of the congressional findings in
§ 812(b)(1) for hundreds of thousands of Native Americans practicing their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs. See
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 547 (1993) (“It is established in oU.S.rict scrutiny jurisprudence that ‘a law cannot be regarded as protecting an interest ‘of the highest order’ . . . when it leaves appreciable damage to that supposedly vital interest unprohibited’ ” (quoting
Florida Star v. B. J. F., 491 U.S. 524, 541-542 (1989) (SCALIA, J., concurring in part and concurring in judgment))).
O Centro, 546 U.S., at 433.
The well-established peyote exception also fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA
O Centro, 546 U.S., at 434.
Here the Government’s argument for uniformity is different; it rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rules of general applicability.”
42 U.S.C. § 2000bb-1(a). Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”
§ 2000bb(a)(5). This determination finds support in our cases; in
Sherbert, for example, we rejected a slippery-slope argument similar to the one offered in this case, dismissing as “no more than a possibility” the State’ speculation “that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work” would drain the unemployment benefits fund. 374 U.S., at 407.
O Centro, 546 U.S., at 435-436.
We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance. See
42 U.S.C. § 2000bb(a)(4).
O Centro, 546 U.S., at 436-437.
The Government repeatedly invokes Congress’ findings and purposes underlying the Controlled Substances Act, but Congress had a reason for enacting RFRA, too. Congress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated “the compelling interest test” as the means for the courts to “strik[e] sensible balances between religious liberty and competing prior governmental interests.”
42 U.S.C. §§ 2000bb(a)(2), (5).
O Centro, 546 U.S., at 439.
This recognition has led us to hold that the Establishment Clause permits a state legislature to open its daily sessions with a prayer by a chaplain paid by the State
Marsh v. Chambers, 463 U.S., at 792. (footnote omitted) Such a practice, we thought, was “deeply embedded in the history and tradition of this country.”
Id., at 786. As we observed there, “it would be incongruous to interpret [the Establishment Clause] as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government.”
Id., at 790-791.
Van Orden, 545 U.S., at 687-688.
The issues are whether a determination of the counties’ purpose is a sound basis for ruling on the Establishment Clause complaints, and whether evaluation of the counties’ claim of secular purpose for the ultimate displays may take their evolution into account. We hold that the counties’ manifest objective may be dispositive of the constitutional enquiry, and that the development of the presentation should be considered when determining its purpose.
McCreary County, 545 U.S., at 850-851.
The touchstone for our analysis is the principle that the “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”
Epperson v. Arkansas, 393 U.S. 97, 104 (1968);
Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15-16 (1947);
Wallace,
supra, at 53. When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides.
Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335 (1987) (“
Lemon's ‘purpose’ requirement aims at preventing [government] from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters”). Manifesting a purpose to favor one faith over another, or adherence to religion generally, clashes with the “understanding, reached . . . after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens . . . .”
Zelman v. Simmons-Harris, 536 U.S. 639, 718 (2002) (BREYER, J., dissenting). By showing a purpose to favor religion, the government “sends the . . . message to . . . nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members . . . .’ ”
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309-310 (2000) (quoting
Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'CONNOR, J., concurring)).
McCreary County, 545 U.S., at 860.
Examination of purpose is a staple of statutory interpretation that makes up the daily fare of every appellate court in the country,
e.g.,
General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 600 (2004) (interpreting statute in light of its “text, structure, purpose, and history”), and governmental purpose is a key element of a good deal of constitutional doctrine,
e.g.,
Washington v. Davis, 426 U.S. 229 (1976) (discriminatory purpose required for Equal Protection violation);
Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 352-353 (1977) (discriminatory purpose relevant to dormant Commerce Clause claim);
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (discriminatory purpose raises level of scrutiny required by free exercise claim). With enquiries into purpose this common, if they were nothing but hunts for mares’ nests deflecting attention from bare judicial will, the whole notion of purpose in law would have dropped into disrepute long ago.
McCreary County, 545 U.S., at 861-862.
Given the variety of interpretative problems, the principle of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause.
McCreary County, 545 U.S., at 875-876.
This is no time to deny the prudence of understanding the Establishment Clause to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual.
McCreary County, 545 U.S., at 881.
The Religion Clauses of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two Clauses, the Establishment Clause and the Free Exercise Clause, are frequently in tension. See
Norwood v. Harrison, 413 U.S. 455, 469 (1973) (citing
Tilton v. Richardson, 403 U.S. 672, 677 (1971)). Yet we have long said that “there is room for play in the joints” between them.
Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 669 (1970). In other words, there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.
Locke, 540 U.S., at 718-719.
We further observed that “[b]y according parents freedom to select a school of their choice, the statute ensures that a government-paid interpreter will be present in a sectarian school only as a result of the private decision of individual parents.“
Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993), at 10. Our focus again was on neutrality and the principle of private choice, not on the number of program beneficiaries attending religioU.S.hools.
Id., at 10-11. See,
e.g.,
Agostini, 521 U.S., at 229 (“
Zobrest did not turn on the fact that James Zobrest had, at the time of litigation, been the only child using a publicly funded sign-language interpreter to attend a parochial school”). Because the program ensured that parents were the ones to select a religioU.S.hool as the best learning environment for their handicapped child, the circuit between government and religion was broken, and the Establishment Clause was not implicated.
Zelman, 536 U.S., at 652.
Second, were there any doubt that the program challenged in
Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973) is far removed from the program challenged here, we expressly reserved judgment with respect to “a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectariannonsectarian, or public-nonpublic nature of the institution benefited.”
Id., at 782-783, n. 38.
Zelman, 536 U.S., at 661.
Of course, not every message delivered under such circumstances is the government’s own. We have held, for example, that an individual’s contribution to a government-created forum was not government speech. See
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995).
Santa Fe, 530 U.S., at 302.
Santa Fe, 530 U.S., at 303.
Because “fundamental rights may not be submitted to vote; they depend on the outcome of no elections,”
West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943), the District’s elections are insufficient safeguards of diverse student speech.
Santa Fe, 530 U.S., at 304-305.
School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherants “that they are outsiders, not full members of the political community, and an accompanying message to adherants that they are insiders, favored members of the political community.”
Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring).
Santa Fe, 530 U.S., at 309-310.
But the Constitution also requires that we keep in mind “the myriad, subtle ways in which Establishment Clause values can be eroded,“
Lynch, 465 U.S., at 694 (O’Connor, J., concurring), and that we guard against other different, yet equally important, constitutional injuries. One is the mere passage by the District of a policy that has the purpose and perception of government establishment of religion.
Santa Fe, 530 U.S., at 314.
Our Establishment Clause cases involving facial challenges, however, have not focused solely on the possible applications of the statute, but rather have considered whether the statute has an unconstitutional purpose.
Santa Fe, 530 U.S., at 314.
. . . the extremely selective access of the policy and other content restrictions confirm that it is not a content-neutral regulation . . .
Santa Fe, 530 U.S., at 315.
We need not wait for the inevitable to confirm and magnify the constitutional injury.
Santa Fe, 530 U.S., at 316.
Government efforts to endorse religion cannot evade constitutional reproach based solely on the remote possibility that those attempts may fail.
Santa Fe, 530 U.S., at 316.
It is difficult to maintain that they are examples of legislation enacted or enforced due to animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country. Congress’ concern was with the incidental burdens imposed, not the object or purpose of the legislation.
City of Boerne, 521 U.S., at 531.
If a state law disproportionately burdened a particular class of religious observers, this circumstance might be evidence of an impermissible legislative motive.
City of Boerne, 521 U.S., at 535.
When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs.
City of Boerne, 521 U.S., at 535.
A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion. We have decided a series of cases addressing the receipt of government benefits where religion or religious views are implicated in some degree. The first case in our modern Establishment Clause jurisprudence was
Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947). There we cautioned that in enforcing the prohibition against laws respecting establishment of religion, we must “be sure that we do not inadvertently prohibit [the government] from extending its general state law benefits to all its citizens without regard to their religious belief.”
Id., at 16. We have held that the guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse. See
Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 704 (1994) (Souter, J.) (“[T]he principle is well grounded in our case law [and] we have frequently relied explicitly on the general availability of any benefit provided religious groups or individuals in turning aside Establishment Clause challenges”);
Witters v. Washington Dept. of Servs. for Blind, 474 U.S. 481, 487-488 (1986);
Mueller v. Allen, 463 U.S. 388, 398-399 (1983);
Widmar,
supra, at 274-275. More than once have we rejected the position that the Establishment Clause even justifies, much less requires, a refusal to extend free speech rights to religioU.S.eakers who participate in broad-reaching government programs neutral in design. See
Lamb’s Chapel, 508 U.S., at 393-394;
Mergens, 496 U.S., at 248, 252;
Widmar,
supra, at 274-275.
Rosenberger, 515 U.S., at. 839
It is a familiar principle of our jurisprudence that federal courts will not pass on the constitutionality of an Act of Congress if a construction of the Act is fairly possible by which the constitutional question can be avoided. See,
e.g.,
United States v. Locke, 471 U.S. 84, 92 (1985), and cases cited therein.
Zobrest, 509 U.S., at. 7
Although the practice of animal sacrifice may seem abhorrent to some, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”
Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714 (1981).
Lukumi, 508 U.S., at 531.
Neutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely indication that the other has not been satisfied.
Lukumi, 508 U.S., at 531.
[I]n
Fowler v. Rhode Island,
supra, we found that a municipal ordinance was applied in an unconstitutional manner when interpreted to prohibit preaching in a public park by a Jehovah's Witness but to permit preaching during the course of a Catholic mass or Protestant church service. See also
Niemotko v. Maryland, 340 U.S. 268, 272-273 (1951). Cf.
Larson v. Valente, 456 U.S. 228 (1982) (state statute that treated some religious denominations more favorably than others violated the Establishment Clause).
Lukumi, 508 U.S., at 533.
To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.
Lukumi, 508 U.S., at 533.
“The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.”
Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 696 (1970) (Harlan, J., concurring).
Lukumi, 508 U.S., at 534.
The definition excludes almost all killings of animals except for religious sacrifice, and the primary purpose requirement narrows the proscribed category even further, in particular by exempting kosher slaughter, see 723 F.Supp., at 1480. We need not discuss whether this differential treatment of two religions is itself an independent constitutional violation. Cf.
Larson v. Valente, 456 U.S., at 244-246.
Lukumi, 508 U.S., at 536.
We turn next to a second requirement of the Free Exercise Clause, the rule that laws burdening religious practice must be of general applicability.
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S., at 879-881. All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice. The Free Exercise Clause “protect[s] religious observers against unequal treatment,”
Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 148 (1987) (Stevens, J., concurring in judgment), and inequality results when a legislature decides that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.
Lukumi, 508 U.S., at 542-543.
A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance “ ‘interests of the highest order’ ” and must be narrowly tailored in pursuit of those interests.
McDaniel v. Paty, 435 U.S., at 628, quoting
Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). The compelling interest standard that we apply once a law fails to meet the Smith requirements is not “water[ed] . . . down” but “really means what it says.”
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S., at 888.
Lukumi, 508 U.S., at 546.
Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. It is established in our strict scrutiny jurisprudence that “a law cannot be regarded as protecting an interest ‘of the highest order’. . . when it leaves appreciable damage to that supposedly vital interest unprohibited.”
Florida Star v. B. J. F.,
supra, at 541-542 (Scalia, J., concurring in part and concurring in judgment) (citation omitted).
Lukumi, 508 U.S., at 546-547.
The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission.
Lee, 505 U.S., at 589.
The Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of the First Amendment, but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions.
Buckley v. Valeo, 424 U.S. 1, 92-93, and n. 127 (1976) (
per curiam).
Lee, 505 U.S., at 591.
Recently, the Supreme Court in
Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 884 (1990) ["
Smith"], elected to abandon the compelling interest test in cases involving a “neutral, generally applicable [criminal] law,” reasoning that the application of such a statute does not implicate First Amendment concerns. Accordingly — without the benefit of any constitutional scrutiny at all — the Court held that Oregon’s across-the-board prohibition against peyote was constitutional.
This Court is convinced that 21 C.F.R. § 1307.31 is “specifically directed to religious practices and therefore not within the ambit of
Smith.”
Salvation Army v. Dept. of Community Affairs of State of New Jersey, 919 F.2d 183, 194, 204 (3d Cir.1990) (Becker, J., concurring). The Drug Enforcement Agency regulation in the present case, unlike the statute in
Smith, is neither neutral nor generally applicable. Indeed, the plain language of the exemption speaks directly to “bona fide religious ceremonies of the Native American Church.” Therefore, this Court will proceed to apply the traditional compelling interest test. See Cf.
Id. 494 U.S. at 884 (“where the [Government] has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardships’ without compelling reason”).
Boyll, 774 F.Supp., at 1341.
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 (1988) (
Smith I).
Smith, 494 U.S., at 875.
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.
Bowen v. Roy,
supra, at 708.
Smith, 494 U.S., at 884.
Although “the myriad, subtle ways in which Establishment Clause values can be eroded,”
Lynch v. Donnelly, 465 U. S., at 694 (O’CONNOR, J., concurring), are not susceptible to a single verbal formulation, this Court has attempted to encapsulate the essential precepts of the Establishment Clause Thus, in
Everson v. Board of Education of Ewing, 330 U. S. 1 (1947), the Court gave this often-repeated summary:
“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.” Id., at 15-16.
Allegheny, 492 U.S., at 591.
Although JUSTICE O'CONNOR joined the majority opinion in
Lynch, she wrote a concurrence that differs in significant respects from the majority opinion. The main difference is that the concurrence provides a sound analytical framework for evaluating governmental use of religious symbols.
First and foremost, the concurrence squarely rejects any notion that this Court will tolerate some government endorsement of religion. Rather, the concurrence recognizes any endorsement of religion as “invalid,” id., at 690, because it “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community,” id., at 688.
Second, the concurrence articulates a method for determining whether the government’s use of an object with religious meaning has the effect of endorsing religion. The effect of the display depends upon the message that the government’s practice communicates: the question is “what viewers may fairly understand to be the purpose of the display.” Id., at 692. That inquiry, of necessity, turns upon the context in which the contested object appears: “[A] typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content.” Ibid. The concurrence thus emphasizes that the constitutionality of the creche in that case depended upon its “particular physical setting,” ibid., and further observes: “Every government practice must be judged in its unique circumstances to determine whether it [endorses] religion,” id., at 694.
Allegheny, 492 U.S., at 595.
Indeed, the very concept of “endorsement” conveys the sense of promoting someone else’s message. Thus, by prohibiting government endorsement of religion, the Establishment Clause prohibits precisely what occurred here: the government’s lending its support to the communication of a religious organization’s religious message.
Allegheny, 492 U.S., at 600-601.
Whatever else the Establishment Clause may mean (and we have held it to mean no official preference even for religion over nonreligion, see,
e.g.,
Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), it certainly means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”
Larson v. Valente, 456 U.S. 228, 244 (1982).
Allegheny, 492 U.S., at 605.
The building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number in
Bowen v. Roy, 476 U.S. 693 (1986). In both cases, the challenged Government action would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs. In neither case, however, would the affected individuals be coerced by the Government’s action into violating their religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.
Lyng, 485 U.S., at 449.
This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional text is “prohibit”: “For 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.”
Sherbert v. Verner, 374 U.S. 398 (1963),
supra, at 412 (Douglas, J., concurring).
Lyng, 485 U.S., at 450-451.
The Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred, and a law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set of constitutional questions. Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land. Cf.
Bowen v. Roy, 476 U.S., at 724-727 (O’CONNOR, J., concurring in part and dissenting in part) (distinguishing between the Government’s use of information in its possession and the Government’s requiring an individual to provide such information).
Lyng, 485 U.S., at 453.
The dissent begins by asserting that the “constitutional guarantee we interpret today . . . is directed against any form of government action that frustrates or inhibits religious practice.” Post, at 459 (emphasis added). The Constitution, however, says no such thing. Rather, it states: “Congress shall make no law . . . prohibiting the free exercise [of religion].” U.S. Const., Amdt. 1 (emphasis added).
Lyng, 485 U.S., at 456.
The dissent’s out-of-context quotations notwithstanding, there is nothing whatsoever in the
Wisconsin v. Yoder, 406 U.S. 205 (1972), opinion to support the proposition that the “impact” on the Amish religion would have been constitutionally problematic if the statute at issue had not been coercive in nature. Cf.
post, at 466.
Lyng, 485 U.S., at 457.
Unless a “showing of ‘centrality,’ ” post, at 474, is nothing but an assertion of centrality, see post, at 475, the dissent thus offers us the prospect of this Court’s holding that some sincerely held religious beliefs and practices are not “central” to certain religions, despite protestations to the contrary from the religious objectors who brought the lawsuit. In other words, the dissent’s approach would require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that we were never intended to play.
Lyng, 485 U.S., at 457-458.
As JUSTICE O’CONNOR stated in
Wallace: “It is not a trivial matter, however, to require that the legislature manifest a secular purpose and omit all sectarian endorsements from its laws. That requirement is precisely tailored to the Establishment Clause’s purpose of assuring that Government not intentionally endorse religion or a religious practice.”
Wallace v. Jaffree, 472 U.S. 38, 75 (concurring in judgment).
Edwards, 482 U.S., at 587.
“[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can extract from the government.”
Sherbert v. Verner, 374 U. S. 398, 412 (1963) (Douglas, J., concurring).
Bowen, 476 U.S., at 700.
“To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good. Religious beliefs can be accommodated, but there is a point at which accommodation would ‘radically restrict the operating latitude of the legislature.’ ” 455 U.S., at 259.
The statutory requirement that applicants provide a Social Security number is wholly neutral in religious terms and uniformly applicable. There is no claim that there is any attempt by Congress to discriminate invidiously or any covert suppression of particular religious beliefs.
Bowen, 476 U.S., at 702-703.
Rather, it is appellees who seek benefits from the Government and who assert that, because of certain religious beliefs, they should be excused from compliance with a condition that is binding on all other persons who seek the same benefits from the Government.
Bowen, 476 U.S., at 703.
However, while we do not believe that no government compulsion is involved, we cannot ignore the reality that denial of such benefits by a uniformly applicable statute neutral on its face is of a wholly different, less intrusive nature than affirmative compulsion or prohibition, by threat of penal sanctions, for conduct that has religious implications.
Bowen, 476 U.S., at 704.
We conclude then that government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs is wholly different from governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons.
Bowen, 476 U.S., at 706.
We reject appellees’ contention that
Sherbert and
Thomas compel affirmance. The statutory conditions at issue in those cases 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. If a state creates such a mechanism, its refusal to extend an exemption to an instance of religious hardship suggests a discriminatory intent. Thus, as was urged in
Thomas, to consider a religiously motivated resignation to be “without good cause” tends to exhibit hostility, not neutrality, towards religion. See Brief for Petitioner 15, and Brief for American Jewish Congress as Amicus Curiae 11, in
Thomas v. Review Board of Indiana Employment Security Div., O. T. 1979, No. 79-952. See also
Sherbert,
supra, at 401-402, n. 4;
United States v. Lee, 455 U. S., at 264, n. 3 (STEVENS, J., concurring in judgment) (
Thomas and
Sherbert may be viewed “as a protection against unequal treatment rather than a grant of favored treatment for the members of the religious sect”). In those cases, therefore, it was appropriate to require the State to demonstrate a compelling reason for denying the requested exemption.
Bowen, 476 U.S., at 708.
As the Court has recognized before, given the diversity of beliefs in our pluralistic society and the necessity of providing governments with sufficient operating latitude, some incidental neutral restraints on the free exercise of religion are inescapable. As a matter of legislative policy, a legislature might decide to make religious accommodations to a general and neutral system . . .
Bowen, 476 U.S., at 712A.